Exhibit 10.7
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
Dated as of July 2, 2001
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Amendment") is entered
into as of July 2, 2001 (the "Effective Date") between Data Critical Corporation
("Data Critical" or the "Company") and Xxxxxxx X. Xxxxxxx ("you" or the
"Executive").
WITNESSETH:
WHEREAS, the Company and the Executive have entered into a certain letter
agreement dated as of March 1, 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. Section 3 of the Original Employment Agreement by
adding the following new subsection 3(c):
"(c) The Company may not terminate Executive's employment with the
Company without cause unless it provides Executive at least thirty (30)
days' advance written notice of such termination. In addition, in the
event that, at any time during the term of this letter agreement, the
Company terminates your employment at any point in time without cause, then
the Company will pay you $12,500 per month (subject to customary
withholding) for a period of six months after such termination in
accordance with the Company's standard payroll procedures. Executive will
continue to receive health benefits over the six-month severance period.
For purposes of this letter, "cause" shall mean, the commission of an act
of fraud or dishonesty in the course of your employment with the Company;
conviction of a crime constituting a felony or in respect of any act of
fraud, dishonesty or moral turpitude; failure to perform the duties
assigned to you material to the business conduct of the Company under
circumstances in which you knew or should have reasonably known that such
failure would be detrimental to the Company, unless you remedy such failure
not later than 30 days following delivery to you of a written notice from
the Company describing such failure in reasonable detail."
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.
[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
XXXXXXX X. XXXXXXX
Signature: /s/ Xxxxxxx X. Xxxxxxx
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