Exhibit 10.2
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
Dated as of June 15, 2001
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Amendment") is entered
into as of June 15, 2001 (the "Effective Date") between Data Critical
Corporation ("Data Critical" or the "Company") and Xxxxx X. Sample ("you" or the
"Executive").
WITNESSETH:
WHEREAS, the Company and the Executive have entered into a certain
employment agreement dated as of March 12, 2001 (the "Original Employment
Agreement") setting forth certain agreements with respect to terms of the
Executive's employment with the Company; and
WHEREAS, in connection with the Company's acquisition of VitalCom, Inc. and
as a result of the related consolidation and move of the Company's operations to
Tustin, California, the parties hereto wish to amend the terms of the Original
Employment Agreement as hereinafter set forth (the Original Employment
Agreement, as amended by this Amendment, being collectively, the "Employment
Agreement");
NOW THEREFORE, in consideration of the mutual premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. Amendments. The Original Employment Agreement is hereby
amended as follows:
1.1 Section 6(a)(ii) of the Original Employment Agreement is amended
by deleting such section in its entirety and replacing the same with the
following:
"The Company's determination that it is terminating Executive without
Cause, which determination may be made by the Company at any time at
the Company's sole discretion, for any or no reason ("Termination
Without Cause"); provided, however, that the Company shall provide
Executive no less than ninety (90) days' advance notice of any
Termination Without Cause. At the end of such notice period, Executive
will take any accrued but unused PTO and vacation and will remain an
employee of the Company until all of Executive's accrued PTO and
vacation time is consumed. At the end of this PTO/vacation period,
Executive's employment by the Company will terminate and the severance
payments described in Section 6(b)(ii)(y) will commence. The Company
and Executive agree that Executive shall be entitled to terminate his
Employment with the Company in the event he no longer reports to the
CEO (or the person performing the duties of the CEO), and such
termination shall for all purposes hereunder be deemed a Termination
Without Cause;".
1.2 Section 6(b)(ii) of the Original Employment Agreement is amended
by deleting clause (1)(y) therein in its entirety and replacing the same
with the following clause:
"(y) severance benefits equal to $187,500, payment of which shall be
made in equal
installments (subject to customary withholding) over a nine (9) month
period following such termination (such period being the "Severance
Period") in accordance with the Company's standard payroll schedule
and".
SECTION 2. Effect on Original Employment Agreement. This Amendment amends
the Original Employment Agreement and all terms of this Amendment shall be
deemed incorporated into and made a part of the Original Employment Agreement.
Except as and to the extent specifically modified by the terms of this
Amendment, all terms of the Original Employment Agreement shall remain in full
force and effect. All references to the Employment Agreement in any other
agreement or document, and all references in the Employment Agreement to "this
Agreement," "hereof," "hereunder," or "hereto" or words of similar import shall
be deemed to be references to the Original Employment Agreement as amended
hereby.
SECTION 3. Miscellaneous Provisions.
3.1 Choice of Law. The validity, interpretation, construction and
performance of this Amendment shall be governed by the laws of the State of
Washington, without giving effect to the principles of conflict of laws.
3.2 Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute one
and the same instrument.
3.3 Advice of Counsel. EACH PARTY TO THIS AMENDMENT ACKNOWLEDGES THAT, IN
EXECUTING THIS AMENDMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE
OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND
PROVISIONS OF THIS AMENDMENT. NEITHER THE ORIGINAL EMPLOYMENT AGREEMENT NOR
THIS AMENDMENT SHALL BE CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR
PREPARATION HEREOF.
3.4 Notice of Termination Without Cause. Executive and the Company
acknowledge and agree that in connection with the Company's acquisition of
VitalCom, Inc. and as a result of the related consolidation and move of the
Company's operations to Tustin, California, the Company provided, and Executive
received, notice of Termination Without Cause on Friday, June 15, 2001 and that
such notice satisfies any and all obligations of the Company to deliver such
notice under Section 6(a)(ii) of the Employment Agreement.
[Signature Page Follows]
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The parties have executed this Amendment on the date first written above.
DATA CRITICAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President, Corporate
Development, Chief Financial Officer
XXXXX X. SAMPLE
Signature: /s/ Xxxxx X. Sample
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