AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT
10.15
AMENDMENT
TO EMPLOYMENT AGREEMENT
This
Amendment to Employment
Agreement is entered into as of September 28, 2006 between CRITICARE SYSTEMS,
INC., a Delaware corporation (the "Company"), and XXXX X. XXXXX (the
"Employee").
RECITALS
A. The
Employee and the Company are parties to an Employment Agreement dated as of
June
26, 2001, as amended on September 1, 2005 (the "Original Agreement").
Terms
used and not otherwise defined herein shall take the meanings given them in
the
Original Agreement.
B. The
Employee and the Company desire to amend the Original Agreement in the manner
set forth below with respect to the definition of Change in
Control.
AGREEMENTS
In
consideration of the foregoing and the mutual covenants and agreements contained
herein and in the Original Agreement, and intending to be legally bound hereby,
the Employee and the Company hereby agree as follows:
1. Amendment
to the definition of Change in Control.
The
paragraph under Section 3(h) of the Original Agreement that begins with
"The term "Change in Control" shall mean" is hereby amended to read in its
entirety as follows:
The
term
"Change in Control" shall mean:
(a) The
acquisition by any individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership (within the meaning of
Rule 13d 3 promulgated under the Exchange Act) of 50% or more of either (I)
the
then outstanding shares of common stock of the Company (the "Outstanding Company
Common Stock") or (ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the election of
directors (the "Outstanding Company Voting Securities"); provided, however,
that
the following acquisitions shall not constitute a Change in Control: (I) any
acquisition directly from the Company, (ii) any acquisition by the Company,
or
(iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any entity
controlled by the Company; or
(b) Individuals
who, as of the date hereof, constitute the Board of Directors of the Company
(the "Incumbent Board") cease for any reason to constitute at least a majority
of the Board of Directors of the Company; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company's stockholders, was approved by a vote of at least
a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than
the
Board of Directors; or
(c) The
consummation of a reorganization, merger or consolidation (a "Business
Combination"), in each case, unless, following such Business Combination, (i)
all or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock or Outstanding
Company Voting Securities immediately prior to such Business Combination
beneficially own, directly or indirectly, more than a majority of, respectively,
the then outstanding shares of common stock (or equivalent thereof) or the
combined voting power of the then outstanding voting securities entitled to
vote
generally in the election of directors (or equivalent thereof), as the case
may
be, of the entity resulting from such Business Combination (including, without
limitation, an entity which as a result of such transaction owns the Company
through one or more subsidiaries) in substantially the same proportions as
their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock or Outstanding Company Voting Securities, as the case
may
be, (ii) no Person (excluding any employee benefit plan (or related trust)
of
the Company or such entity resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or more of, respectively, the
then outstanding shares of common stock (or equivalent thereof) of the entity
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such entity except to the extent that
such
ownership existed prior to the Business Combination and (iii) at least a
majority of the members of the board of directors (or equivalent thereof) of
the
entity resulting from such Business Combination were members of the Incumbent
Board at the time of the execution of the initial agreement, or of the action
of
the Board, providing for such Business Combination; or
(d) The
consummation of a sale or other disposition of all or substantially all of
the
assets of the Company, other than to an entity, with respect to which following
such sale or other disposition, (i) more than a majority of, respectively,
the
then outstanding shares of common stock (or equivalent thereof) of such entity
or the combined voting power of the then outstanding voting securities of such
entity entitled to vote generally in the election of directors (or equivalent
thereof) is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and outstanding
Company Voting Securities immediately prior to such sale or other disposition
in
substantially the same proportion as their ownership, immediately prior to
such
sale or other disposition, of the Outstanding Company Common Stock or
Outstanding Company Voting Securities, as the case may be, (ii) less than 50%
of, respectively, the then outstanding shares of common stock (or equivalent
thereof) of such entity and the combined voting power of the then outstanding
voting securities of such entity entitled to vote generally in the election
of
directors (or equivalent thereof) is then beneficially owned, directly or
indirectly, by any Person (excluding any employee benefit plan (or related
trust) of the Company or such entity), except to the extent that such Person
owned 50% or more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities prior to the sale or disposition, as the case may be, and
(iii) at least a majority of the members of the board of directors (or
equivalent thereof) of such entity were members of the Incumbent Board at the
time of the execution of the initial agreement, or of the action of the Board,
providing for such sale or other disposition of assets of the Company or were
elected, appointed or nominated by the Board.
2. All
remaining provisions of the Original Agreement remain unchanged and in full
force and effect.
[Remainder
of page intentionally left blank. Signature page to follow.]
IN
WITNESS WHEREOF, the Employee and the Company have caused this Amendment to
be
duly executed as of the date first written above.
CRITICARE
SYSTEMS, INC.
By:
/s/ Xxxx X.
Xxxxxxx
Xxxx
X. Xxxxxxx, Vice President - Finance
EMPLOYEE:
/s/
Xxxx X.
Xxxxx
Xxxx
X.
Xxxxx
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