EXHIBIT 10(h)
EMPLOYMENT AGREEMENT
(Xxxxxx X. Xxxxx)
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 XXXXXX X. XXXXX
("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 by the Company to Employee
(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 Vice President of Product and Business Development, 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 $158,000
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 Hospital Division 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 Hospital Division 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 all incentive, profit sharing,
401(K), stock option and stock purchase plans, retirement annuity, life, health,
disability and accident insurance, hospitalization and other incentive and
benefit plans or programs as outlined in the Offer Letter (except for any such
plan in which Employee may not participate pursuant to the terms of such plan or
Employee's geographic location) which the Company may at any
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time or from time to time have in effect for similarly situated employees of the
Company, Employee's participation to be on a basis commensurate with other
employees considering their respective 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, the President of the Hospital Division shall determine
that 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. Upon delivery to
Employee of such 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. 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, 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 (5) business days to offer any explanation for his
action, 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 or d)
intentionally disregarded express instructions of the Board of Directors or the
President of the Hospital Division with respect to 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. Any such
termination by the Company shall be deemed to be termination "for cause". Upon
delivery to Employee of such notice of termination, together with payment of any
salary accrued and unpaid under
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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.
Subject to the payment of any salary accrued and unpaid under Section 1.03, and
except as set forth in Section 2.05, all obligations of the Company under
Articles I and II cease upon termination. 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 $158,000 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 ninety (90) 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 for twelve (12)
months (the "Salary Continuation Period") the Base Salary then in effect. 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 coverage, the Company will provide Employee with health and dental
insurance coverage as though 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
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otherwise) against the termination payments. Employee will be required to pay
the same portion of the premium for such insurance coverage as if Employee
remained an employee. 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. Termination Payments - After Change of Control.
(a) Change of Control shall mean the occurrence of any of
the following events:
(i) Individuals who on December 1, 1999
constitute the Board of Directors ("Board")
of the Company (the "Incumbent Directors")
cease for any reason to constitute at least
a majority of the Board, provided that any
person becoming a director subsequent to
December 1, 1999, whose election or
nomination for election was approved by a
vote of at least two-thirds of the Incumbent
Directors then on the Board (either by a
specific vote or by approval of the proxy
statement of the Company in which such
person is named as a nominee for director,
without written objection by such Incumbent
Directors to such nomination) shall be
deemed to be an Incumbent Director.
(ii) Any "person" (as such term is defined in
Section 3(a)(9) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act")
and as used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act) is or becomes
a "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company
representing a majority of the combined
voting power of the Company's then
outstanding securities eligible to vote for
the election of the Board ("Company Voting
Securities"); provided, however, that the
event described in this paragraph (ii) shall
not be deemed to be a Change of Control by
virtue of any of the following acquisitions:
(A) by the Company or any subsidiary, (B) by
any employee benefit plan sponsored or
maintained by the Company or any subsidiary,
or by any employee stock benefit trust
created by the Company or any subsidiary or
(C) by any underwriter temporarily holding
securities pursuant to an offering of such
securities.
(iii) Consummation of any merger, consolidation,
stock-for-stock exchange or similar
transaction (collectively, "Business
Combination") involving the Company or any
of its subsidiaries that requires the
approval of the Company's
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shareholders (whether for such transaction
or the issuance of securities in the
transaction), in which the holders of
Company Voting Securities immediately prior
to consummation of the Business Combination
own, as a group, immediately after
consummation of the Business Combination,
voting securities of the Company (or, if the
Company does not survive the Business
Combination, voting securities of the
corporation surviving the Business
Combination) having less than 50% of the
total voting power in an election of
directors of the Company (or such other
surviving corporation), excluding securities
received by any holders of Company Voting
Securities in the Business Combination which
represent disproportionate percentage
increases in their shareholdings in
comparison to other holders of Company
Voting Securities.
(iv) Consummation of any sale, lease, exchange or
other transfer (in one transaction or a
series of related transactions, excluding
any Business Combination) of all or
substantially all of the assets of the
Company to a person or entity which is not
controlled by or under common control with
the Company.
(b) If Employee is terminated without cause upon or
within eighteen (18) months after a Change of
Control, or if Employee provides notice (as provided
for in Section 2.04) to the Company upon or within
eighteen (18) months after the occurrence of a Change
of Control that he is terminating employment with the
Company because there has been: (i) a decrease in
Employee's salary below $158,000 per year or a
material adverse change in his duties or
responsibilities (ii) a change in Employee's
principal place of business to a location not within
30 miles of its present location, (iii) any
significant and prolonged increase in the traveling
requirements applicable to the discharge of
Employee's responsibilities, or (iv) a material
breach of this Agreement by the Company. Employee
shall be entitled to the payments and other benefits
provided for in Section 2.05 upon such termination.
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 hereof. The obligations of Employee
under Article IV hereof shall continue
notwithstanding termination of Employee's employment
pursuant to this Section 2.06. For purposes of
clarity, the Merger is not considered to be a Change
of Control.
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2.07. 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 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
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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 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
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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 one (1) year following the termination of Employee's employment, including
without limitation 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 cardiopulmonary monitoring 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 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
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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 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
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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
employment of Employee by the Company and supercedes any prior written or oral
representations, discussions or agreements concerning the subjects covered
herein. This Agreement may be amended only by a writing signed by each of them.
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
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
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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
2.06(b) as if Employee had been terminated without cause upon a Change of
Control. 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) sent via overnight delivery service
or courier, delivery acknowledgment requested, or (d) sent via any other
delivery service with proof of delivery:
if to the Company:
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: General Counsel
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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.
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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/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
/s/ Xxxxxxx Xxxx /s/ Xxxxxxx X. Xxxxxxxxxxx
------------------------------------- ----------------------------------
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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