EXHIBIT 10(g)
EMPLOYMENT AGREEMENT
(Xxxxxxx X. Xxxxxxxxxxx)
THIS AGREEMENT, made as of December 14, 2001, is by and among
RESPIRONICS, INC., a Delaware corporation (the "Company"), NOVAMETRIX MEDICAL
SYSTEMS INC., a Delaware corporation ("Novametrix"), and XXXXXXX X. XXXXXXXXXXX
("Employee"). This Employment Agreement will not become effective and will be
null and void in its entirety if the Company's currently contemplated
acquisition of Novametrix does not occur.
W I T N E S S E T H:
WHEREAS, the Company is engaged in the business of the design,
development, manufacture, marketing and sale principally of cardiopulmonary and
other medical equipment and services around the world;
WHEREAS, Employee has been employed by Novametrix and will be
employed by the Company after the Company acquires Novametrix (the "Merger");
WHEREAS, Novametrix and Employee agree that their existing
Employment Agreement, including any amendments thereto, will become null and
void in all respects effective upon the closing of the Merger (the "Closing
Date") so that no "Change in Control" occurs for purposes of said Employment
Agreement, in consideration of, among other things, the Company completing the
Merger and Employee's employment with the Company;
WHEREAS, Novametrix and Employee further agree that, other
than any Success Bonus earned pursuant to the September 20, 2001 letter
agreement between Employee and Novametrix, neither Novametrix nor the Company
will owe Employee any monies as a result of Employee's change in employment from
Novametrix to the Company other than as expressly set forth either herein or in
the offer letter dated December 13, 2001 provided to Employee by the Company
(the "Offer Letter");
WHEREAS, Employee possesses valuable knowledge and skills that
will contribute to the successful operation of the Company's business;
WHEREAS, the Company and Employee have agreed to execute and
deliver this Agreement, which is ancillary to and a condition of the Merger, in
consideration, among other things, of (i) the access Employee will have to
confidential or proprietary information of the Company, (ii) the access Employee
will have to confidential or proprietary information to be acquired hereafter by
the Company, (iii) the willingness of the Company to make valuable benefits
available hereafter to Employee, (iv) the options, consideration and equity
appreciation Employee will receive as a result
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of the Merger, and (v) Employee's receipt of compensation from time to time from
the Company; and
WHEREAS, the Company desires to retain the services of
Employee, and Employee is willing to accept employment with the Company, upon
the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, intending to be legally bound, the Company
agrees to employ Employee, and Employee hereby agrees to be employed by the
Company, upon the following terms and conditions:
ARTICLE I
EMPLOYMENT
1.01. Office. Effective at the Closing Date, Employee will be
employed as President, Cardiopulmonary Monitoring of the Company and in such
other capacities commensurate with such position as the President of the
Hospital Division of the Company may from time to time determine, and in such
capacity or capacities shall use his best energies or abilities in the
performance of his duties hereunder and as prescribed in the By-Laws of the
Company.
1.02. Term. Subject to the terms and provisions of Article II
hereof, Employee shall be employed by the Company for a period of one year (the
"Term"), commencing on the Closing Date. Subject to the terms and provisions of
Article II hereof, the Term shall automatically be extended for an additional
year (i.e., a rolling one-year Term) unless, not less than ninety (90) days
prior to the expiration of the then-current year of the Term, either Employee or
the Company shall advise the other that the Term will not be further extended.
1.03. Base Salary. During his employment hereunder,
compensation shall be paid to Employee by the Company at the rate of $250,000
per annum (the "Base Salary"), payable every other week in equal installments.
The Base Salary to be paid to Employee may be adjusted upward or downward (but
not below the amount specified in the preceding sentence) by the Board of
Directors or the President of the Company at any time (but not less frequently
than annually) based upon Employee's contribution to the success of the Company
and on such other factors as the Board of Directors or the President of the
Company shall deem appropriate.
1.04. Employee Benefits. During his employment hereunder,
Employee shall have the right to participate in and receive benefits under and
in accordance with the then-current provisions of the other incentive, profit
sharing, 401(K), stock option and stock purchase plans, life, health, disability
and accident insurance, hospitalization and other incentive and benefit plans or
programs (except for any such plan in which Employee may not participate
pursuant to the terms of such plan or Employee's geographic location) which are
outlined in the Offer Letter, Employee's participation to be on a basis
commensurate with other employees considering their respective
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responsibilities and compensation. The parties recognize, as outlined in the
Offer Letter, there will be a transition period in converting Employee to
certain Company plans. Employee shall also be entitled to be reimbursed for all
reasonable expenses incurred by him in the performance of his duties hereunder.
Service with Novametrix will constitute service for purposes of Company policies
like vacation.
1.05. Principal Place of Business. The headquarters and
principal place of business of the Company is located in Pittsburgh,
Pennsylvania. For Employee's convenience, Employee's principal place of business
will be in Wallingford, Connecticut, and he will reside within a reasonable
distance thereof.
ARTICLE II
TERMINATION
2.01. Illness, Incapacity. If, during the Term of Employee's
employment hereunder, Employee shall be prevented from effectively performing
his duties hereunder by reason of illness or disability and such failure so to
perform shall have continued for a period of not less than three months, then
the Company may, by written notice to Employee, terminate Employee's employment
hereunder effective at any time after such three month period and after fifteen
(15) business days advance written notice of intent to do so. Upon expiration of
the fifteen (15) days notice, together with payment of any salary accrued and
unpaid under Section 1.03 hereof, Employee's employment and all obligations of
the Company under Articles I and II hereof shall forthwith terminate, provided,
however, that the Employee shall be deemed to have retired from the Company on
the date of termination of his employment and shall be entitled to receive the
retirement benefit provided for in Section 2.07. The obligations of Employee
under Article IV hereof shall continue notwithstanding termination of Employee's
employment pursuant to this Section 2.01.
2.02. Death. If Employee dies during the Term of his
employment hereunder, Employee's employment hereunder shall terminate and all
obligations of the Company hereunder, other than any obligations with respect to
the payment of accrued and unpaid salary under Section 1.03 and any payments
under Section 2.07, shall terminate.
2.03. Company Termination. (a) For Cause. In the event that,
in the reasonable judgment of the President of the Hospital Division, and after
Employee has been given five business days to offer any explanation for his
actions, Employee shall have (a) been guilty of any act of dishonesty material
with respect to the Company, (b) been convicted of a crime involving moral
turpitude, (c) intentionally disregarded the provisions of this Agreement in any
material respect or (d) intentionally disregarded express instructions of the
Board of Directors or the President of the Hospital Division with respect to
material matters of policy, continuing in the case of clause (d) for a period of
not less than five (5) days after notice of such disregard, the Company may
terminate this Agreement effective at such date as it shall specify in a written
notice to Employee after providing Employee ten (10) business days notice of
intent to terminate and an
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opportunity during that ten (10) day period to explain his actions. Any such
termination by the Company shall be deemed to be termination "for cause". Upon
termination, assuming payment of any salary accrued and unpaid under Section
1.03 hereof, Employee's employment and all obligations of the Company under
Articles I and II hereof shall forthwith terminate. The obligations of Employee
under Article IV hereof shall continue notwithstanding termination of Employee's
employment pursuant to this Section 2.03(a).
(b) Without Cause. Notwithstanding the duration of the Term
hereof, Employee's employment hereunder may be terminated at any time by the
Company without cause if the President of the Hospital Division so determines,
after fifteen (15) business days advance notice of intent to do so. Subject to
the payment of any salary accrued and unpaid under Section 1.03, all obligations
of the Company under Articles I and II cease upon termination except as set
forth in Section 2.05. The obligations of Employee under Article IV hereof shall
continue notwithstanding termination of Employee's employment pursuant to this
Section 2.03(b).
2.04. Employee Termination. Employee agrees to give the
Company ninety (90) days prior written notice of the termination of his
employment with the Company. Simultaneously with such notice, Employee shall
inform the Company in writing as to his employment/consulting plans following
the termination of his employment with the Company. In the event Employee has
terminated his employment with the Company because there has been: (a) a
decrease in Employee's salary below $250,000 per year or a material adverse
change in his duties or responsibilities, (b) a change in Employee's principal
place of business to a location not within 30 miles of its present location, (c)
any significant and prolonged increase in the traveling requirements applicable
to the discharge of Employee's responsibilities, or (d) a material breach of
this Agreement by the Company, Employee shall be entitled to the compensation
provided for in Section 2.05 upon such termination; provided that Employee must
provide notice of termination within thirty (30) days of the occurrence of a
change Employee believes to be covered by clause (a), (b), (c) or (d) herein in
order to claim that the termination is because of such change. The Company in
turn has thirty (30) days to correct any such action and, if it does so,
Employee shall not be entitled to terminate his employment under this Section.
Otherwise, all obligations of the Company under Articles I and II cease upon
termination, except for the payment of any salary accrued and unpaid under
Section 1.03. The obligations of Employee under Article IV hereof shall continue
notwithstanding termination of Employee's employment pursuant to this Section
2.04.
2.05. Termination Payments. Notwithstanding the remaining time
in the Term, if the Company terminates Employee's employment without cause
pursuant to Section 2.03(b), or Employee terminates his employment pursuant to
the third sentence of Section 2.04, or the Company gives Employee a notice of
non-extension pursuant to Section 1.02, Employee shall be paid at a rate of
$9,207.69 every other week for thirty-six (36) months from the date of
termination (the "Salary Continuation Period"). In addition to these termination
payments, until the earlier of (i) the end of the Salary Continuation Period and
(ii) the time when Employee obtains employment with such
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coverage, the Company will provide Employee with health and dental insurance
coverage as though Employee remained an employee. Employee will be required to
pay the same portion of the premium for such insurance coverage as if Employee
remained an employee. Employee shall be under no obligation to seek subsequent
employment and upon obtaining subsequent employment shall be under no obligation
to offset any amounts earned from such subsequent employment (whether as an
employee, a consultant or otherwise) against the termination payments. Employee
agrees to inform the Company of his employment/consulting jobs during the period
of time which Employee is receiving money under this Section.
2.06. Intentionally Left Blank.
2.07 Retirement.
(a) The Employee may retire from the Company upon, or at
any time subsequent to, his attaining age 65. In the
event of retirement of the Employee as provided in
this Section 2.07, the Company shall pay the Employee
a Retirement Benefit in an amount (the "Normal
Retirement Benefit") equal to three times the higher
of (a) $250,000 or (b) the Employee's average annual
cash compensation (salary and bonus, excluding any
Success Bonus) during the five (5) most recent
taxable years ending prior to the date of retirement.
The Company's taxable year will be used as the
measuring period for each of the five years even
though Employee may have been employed by Novametrix
for some of the years.
(b) The Employee may also retire from the Company upon,
or at any time subsequent to, his attaining age 62,
and prior to his attaining age 65, upon six (6)
months prior notice to the Company. In the event of
retirement of the Employee as provided in this
Section 2.07(b), the Company shall pay the Employee a
Retirement Benefit in an amount equal to the
Applicable Percentage (as determined below) of the
Normal Retirement Benefit:
If Retirement Occurs Applicable Percentage
Upon or after attaining age 62 90.00%
but before attaining age 63
Upon or after attaining age 63 93.33%
but before attaining age 64
Upon or after attaining age 64 96.66%
but before attaining age 65
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(c) The Retirement Benefit shall be payable in thirty-six
(36) equal monthly installments commencing on the
first day of the month following the month in which
the date of retirement occurs and continuing
thereafter on the first day of each succeeding month
until paid in full. The Employee may elect to have
the Retirement Benefit paid over a longer period than
thirty-six (36) months (but not exceeding one hundred
twenty (120) months), such election to be made by
notice to the Company given not later than the date
of retirement. If the Employee dies following
commencement of payment of the Retirement Benefit but
before payment of all installments of the Retirement
Benefit, the remaining installments shall be paid by
the Company to the Employee's spouse or, if she shall
not be then living or if she dies before payment of
all such installments, to the Employee's estate,
until paid in full.
(d) In the event of the death of the Employee after the
date hereof while employed by the Company and prior
to commencement of payment of the Retirement Benefit,
and notwithstanding the provisions of Section 2.02 of
this Agreement, the Company shall pay a Survivor's
Retirement Benefit to the Employee's spouse or, if
she shall not be then living, to the Employee's
estate. The Survivor's Retirement Benefit shall be in
the same amount as the Retirement Benefit which would
have been payable to the Employee if he had retired
on the date of his death. The Survivor's Retirement
Benefit shall be payable in thirty-six (36) equal
monthly installments commencing on the first day of
the month following the month in which the date of
death of the Employee occurs and continuing
thereafter on the first day of each succeeding month
until paid in full. If the Employee's spouse dies
before payment of all installments of the Survivor's
Retirement Benefit, the remaining installments shall
be paid by the Company to the Employee's spouse's
estate, until paid in full.
(e) The obligation of the Company to pay the Retirement
Benefit to the Employee, his spouse or his or her
estate is an unfunded promise of the Company. Payment
of the Retirement Benefit shall be made from the
general assets of the Company. No person shall have
or acquire any interest in any specific assets of the
Company as a result of this Agreement. The rights of
the Employee, his spouse and his estate under this
Agreement shall be no greater than the rights of an
unsecured general creditor of the Company.
(f) The Employee, his spouse and his estate shall not
have any power or right to transfer, assign,
anticipate, hypothecate or otherwise encumber any
part or all of the Retirement Benefit payable
hereunder. The Retirement Benefit shall not be
subject to seizure
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by any creditor of the Employee, his spouse or his
estate, by a proceeding at law or in equity. The
Retirement Benefit is not transferable by operation
of law in the event of the bankruptcy or insolvency
of the Employee, his spouse or his estate. Any such
attempted assignment or transfer shall be void.
(g) Notwithstanding the fact that the Company may have
delivered a notice of intent to terminate under
Section 2.03, Employee may elect to retire before the
effective date of termination. For purposes of
clarity, if Employee or his wife or estate receives a
benefit under this Section 2.07, he, she or it shall
not receive payments under any other Section of this
Agreement, because retirement would preclude a
termination.
2.08. Benefit Terms. Employee's rights after termination from
employment, if any, with respect to stock options, and his rights under Company
pension and welfare benefit plans and programs, shall be determined in
accordance with the provisions of the applicable plan or program.
ARTICLE III
EMPLOYEE'S ACKNOWLEDGMENTS
Employee recognizes and acknowledges that: (a) in the course
of Employee's employment by the Company it will be necessary for Employee to
acquire information including, without limitation, information concerning the
Company's sales, sales volume, sales methods, sales proposals, customers and
prospective customers, identity of customers and prospective customers, identity
of key purchasing personnel in the employ of customers and prospective
customers, amount or kind of customer's purchases from the Company, the
Company's sources of supply, the Company's computer programs, system
documentation, special hardware, product hardware, related software development,
the Company's manuals, formulae, processes, methods, machines, compositions,
ideas, improvements, inventions or other confidential or proprietary information
belonging to the Company or relating to the Company's affairs (collectively
referred to herein as the "Confidential Information"); (b) for purposes of this
Employment Agreement, confidential information of an affiliate of the Company or
of a person or entity with which the Company explores or conducts business is
considered to be Confidential Information; (c) the Confidential Information is
the property of the Company; (d) the use, misappropriation or disclosure of the
Confidential Information would constitute a breach of trust and could cause
irreparable injury to the Company; and (e) it is essential to the protection of
the Company's good will and to the maintenance of the Company's competitive
position that the Confidential Information be kept secret and that Employee not
disclose the Confidential Information to others or use the Confidential
Information to Employee's own advantage or the advantage of others. For purposes
of this Agreement, Confidential Information shall not include any information
that is in the public domain, so long as such information is not in the public
domain as a result of any
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action or inaction by Employee which would constitute a violation of this
Agreement or the Company's policies with respect to such information.
Employee further recognizes and acknowledges that it is
essential for the proper protection of the business of the Company that Employee
be restrained, but only to the extent hereinafter provided (a) from soliciting
or inducing any employee of the Company to leave the employ of the Company, (b)
from hiring or attempting to hire any employee of the Company, (c) from
soliciting the trade of or trading with the customers and suppliers of the
Company, and (d) from competing against the Company for a reasonable period
following the termination of Employee's employment with the Company.
Employee further recognizes and understands that his duties at
the Company may include the preparation of materials, including written or
graphic materials, and that any such materials conceived or written by him shall
be done as "work made for hire" as defined and used in the Copyright Act of
1976, 17 USC Section 1 et seq. In the event of publication of such materials,
Employee understands that the Company will solely retain and own all rights in
said materials, including right of copyright, and that the Company may, at its
discretion, on a case-by-case basis, grant Employee by-line credit on such
materials as the Company may deem appropriate.
For purposes of interpreting Article III and Article IV
hereof, the acknowledgments, covenants and obligations of Employee with respect
to the Company apply equally with respect to its affiliates.
ARTICLE IV
EMPLOYEE'S COVENANTS AND AGREEMENTS
4.01. Non-Disclosure of Confidential Information. Employee
agrees to hold and safeguard the Confidential Information in trust for the
Company, its successors and assigns and agrees that he shall not, without the
prior written consent of the Company, misappropriate or disclose or make
available to anyone for use outside the Company's organization at any time,
either during his employment with the Company or subsequent to the termination
of his employment with the Company for any reason, including without limitation
termination by the Company for cause or without cause, any of the Confidential
Information, whether or not developed by Employee, except as required in the
performance of Employee's duties to the Company.
4.02. Disclosure of Works and Inventions/Assignment of Patents
and Other Rights. (a) Employee shall disclose promptly to the Company or its
nominee any and all works, inventions, discoveries and improvements authored,
conceived or made by Employee during the period of employment and related to the
business, prospective business or activities of the Company, and hereby assigns
and agrees to assign all his interest therein to the Company or its nominee.
Whenever requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments, and otherwise cooperate with the
Company at no expense to Employee, to
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assist the Company in applying for and obtaining Letters Patent or Copyrights of
the United States or any foreign country or to otherwise protect the Company's
interest therein. Such obligations shall continue beyond the termination of
employment with respect to works, inventions, discoveries and improvements
authored, conceived or made by Employee during the period of employment, and
shall be binding upon Employee's assigns, executors, administrators and other
legal representatives.
(b) Employee agrees that in the event of publication by
Employee of written or graphic materials the Company will retain and own all
rights in said materials, including right of copyright.
4.03. Duties. Employee agrees to be a loyal employee of the
Company. Employee agrees to devote his best efforts full time to the performance
of his duties for the Company, to give proper time and attention to furthering
the Company's business, and to comply with all rules, regulations and
instruments established or issued by the Company. Employee further agrees that
during the term of this Agreement, Employee shall not, directly or indirectly,
engage in any business which would detract from Employee's ability to apply his
best efforts to the performance of his duties hereunder. Employee also agrees
that he shall not usurp any corporate opportunities of the Company. Employee is
not prohibited from serving on the Board of Directors of community, civic or
charitable organizations not involving any conflict of interest or interference
with the performance of his duties for the Company.
4.04. Return of Materials. Upon the termination of Employee's
employment with the Company for any reason, including without limitation
termination by the Company for cause or without cause, Employee shall promptly
deliver to the Company all correspondence, drawings, blueprints, manuals,
letters, notes, notebooks, reports, flow-charts, programs, proposals and any
documents concerning the Company's customers or concerning products or processes
used by the Company and, without limiting the foregoing, will promptly deliver
to the Company any and all other documents or materials containing or
constituting Confidential Information.
4.05. Restrictions on Competition. Employee covenants and
agrees that during the period of Employee's employment hereunder, plus a period
of (i) three (3) years following the termination of Employee's employment or
(ii) such longer period during which Employee is receiving payments pursuant to
Section 2.05 herein, including without limitation retirement, termination by the
Company for cause or without cause, Employee shall not, in the United States of
America or in any other country of the world in which the Company has done
business at any time during the last three years prior to termination of
Employee's employment with the Company, engage, directly or indirectly, whether
as principal or as agent, officer, director, employee, consultant, shareholder,
or otherwise, alone or in association with any other person, corporation or
other entity, in any Competing Business. For purposes of this Agreement, the
term "Competing Business" shall mean and include any person, corporation or
other entity which develops, manufactures, sells, markets or attempts to
develop, manufacture, sell or market any product or services which are the same
as, similar to or compete with the Products and
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services (i) sold by the Company at any time and from time to time during the
last three years prior to the termination of Employee's employment hereunder or
(ii) which are active research and development projects of the Company of which
Employee is aware at the time of termination.
4.06. Non-Solicitation of Customers and Suppliers. Employee
agrees that during his employment with the Company he shall not, directly or
indirectly, solicit the trade of, or trade with, any customer, prospective
customer, supplier, or prospective supplier of the Company for any business
purpose other than for the benefit of the Company, with respect to any products
competitive with those of the Company. Employee further agrees that for two
years following termination of his employment with the Company, including
without limitation termination by the Company for cause or without cause,
Employee shall not, directly or indirectly, solicit the trade of, or trade with,
any customers or suppliers, or prospective customers or suppliers, of the
Company with respect to any products competitive with those of the Company.
4.07. Non-Solicitation of Employees. Employee agrees that,
during his employment with the Company and for two years following termination
of Employee's employment with the Company, including without limitation
termination by the Company for cause or without cause, Employee shall not,
directly or indirectly, solicit or induce, or attempt to solicit or induce, any
employee of the Company to leave the Company for any reason whatsoever, or hire
any employee of the Company.
ARTICLE V
EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
5.01. No Prior Agreements. Employee represents and warrants
that he is not a party to or otherwise subject to or bound by the terms of any
contract, agreement or understanding which in any manner would limit or
otherwise affect his ability perform his obligations hereunder, including
without limitation any contract, agreement or understanding containing terms and
provisions similar in any manner to those contained in Article IV hereof.
Employee further represents and warrants that his employment with the Company
will not require him to disclose or use any confidential information belonging
to prior employers, other than Novametrix and its subsidiaries, or other persons
or entities.
5.02. Employee's Abilities. Employee represents that his
experience and capabilities are such that the provisions of Article IV will not
prevent him from earning his livelihood, and acknowledges that it would cause
the Company serious and irreparable injury and cost if Employee were to use his
ability and knowledge in competition with the Company or to otherwise breach the
obligations contained in Article IV.
5.03. Remedies. In the event of a breach by Employee of the
terms of this Agreement, the Company shall be entitled, if it shall so elect, to
institute legal proceedings to obtain damages for any such breach, or to enforce
the specific
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performance of this Agreement by Employee and to enjoin Employee from any
further violation of this Agreement and to exercise such remedies cumulatively
or in conjunction with all other rights and remedies provided by law. Employee
acknowledges, however, that the remedies at law for any breach by him of the
provisions of this Agreement may be inadequate and that the Company shall be
entitled to injunctive relief against him in the event of any breach.
ARTICLE VI
MISCELLANEOUS
6.01. Authorization to Modify Restrictions. It is the
intention of the parties that the provisions of Article IV hereof shall be
enforceable to the fullest extent permissible under applicable law, but that the
unenforceability (or modification to conform to such law) of any provision or
provisions hereof shall not render unenforceable, or impair, the remainder
thereof. If any provision or provisions hereof shall be deemed invalid or
unenforceable, either in whole or in part, this Agreement shall be deemed
amended to modify, as necessary, the offending provision or provisions and to
alter the bounds thereof in order to render it valid and enforceable or, if
necessary, to delete the offending provision.
6.02. Tolling Period. The non-competition, non-disclosure and
non-solicitation obligations contained in Article IV hereof shall be extended by
the length of time during which Employee shall have been in breach of any of the
provisions of such Article IV.
6.03. Entire Agreement. This Agreement, along with the Offer
Letter, represents the entire agreement of the parties with respect to the
subject matter herein and supercedes any prior or contemporaneous written or
oral representations, understandings, discussions or agreements concerning the
subjects covered herein. This Agreement may be amended only by a writing signed
by both parties.
6.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania
without regard to conflict of law principles.
6.05. Consent to Jurisdiction; Venue. Employee hereby
irrevocably submits to the personal jurisdiction of the United States District
Court for the Western District of Pennsylvania or the Court of Common Pleas of
Allegheny County, Pennsylvania in any action or proceeding arising out of or
relating to this Agreement, and Employee hereby irrevocably agrees that all
claims in respect of any such action or proceeding may be heard and determined
in either such court. Employee hereby irrevocably waives any objection which he
now or hereafter may have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement brought in the United States
District Court for the Western District of Pennsylvania or the Court of Common
Pleas of Allegheny County, Pennsylvania and any objection on the ground that any
such action or proceeding in either of such Courts has been brought in an
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inconvenient forum. Nothing in this Section 6.05 shall affect the right of the
Company to bring any action or proceeding against Employee or his property in
the courts of other jurisdictions where the Employee resides or has his
principal place of business or where such property is located.
6.06. Service of Process. Employee hereby irrevocably consents
to the service of any summons and complaint and any other process which may be
served in any action or proceeding arising out of or related to this Agreement
brought in the United States District Court for the Western District of
Pennsylvania or the Court of Common Pleas of Allegheny County by the mailing by
certified or registered mail of copies of such process to Employee at his
address as set forth on the signature page hereof.
6.07. Agreement Binding. The obligations of Employee under
this Agreement shall continue after the termination of his employment with the
Company for any reason, with or without cause, and shall be binding on, and
inure to the benefit of, his heirs, executors, legal representatives and
assigns. If the Employee should die while any amounts are still payable to him
hereunder, including under Section 2.05, all such amounts shall be paid in
accordance with the terms of this Agreement to the Employee's devisee, legatee,
or designee or, if there be no such designee, to the Employee's estate. This
Agreement also shall be binding upon, and inure to the benefit of, any
successors and assigns of the Company.
6.08. Successor to the Company. The Company will require any
successor or assign (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company, by agreement in form and substance satisfactory to the
Employee, expressly, absolutely and unconditionally to assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment had
taken place. Any failure of the Company to obtain such agreement prior to the
effectiveness of any such succession or assignment shall be a material breach of
this Agreement and shall entitle the Employee to terminate the Employee's
employment and to receive the payments and other benefits set forth in Section
2.05 as if Employee had been terminated without cause . As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor or assign to its business and/or assets as aforesaid.
6.09. Counterparts, Section Headings. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument. The section headings of this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of any of
the provisions hereof.
6.10. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if (a) hand delivered, (b) mailed, registered mail, first class
postage paid, return receipt requested, (c)
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sent via an established overnight delivery service or courier, delivery
acknowledgment requested:
if to the Company:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: General Counsel
if to Employee, at the address set forth on the signature page
hereof or to such other address or to such other person as either party hereto
shall have last designated by notice to the other party.
Employee acknowledges that he has read and understands the
foregoing provisions and that such provisions are reasonable and enforceable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed the day and year first above written.
Witness:
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxxxxxx
----------------------------------- -------------------------------------
XXXXXXX X. XXXXXXXXXXX
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxxxxx 00000
/s/ Xxxxxxx Xxxx /s/ Xxxxxx X. Xxxxxx
----------------------------------- -------------------------------------
NOVAMETRIX MEDICAL SYSTEMS, INC.
Attest
RESPIRONICS, INC.
/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxxxx X. Xxxxxxxx
----------------------------------- ----------------------------------
Secretary
Print Name: Xxxxxx X. Xxxxxxxx
Title: V.P. & C.F.O.
-------------------------------
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