Contract
EXHIBIT
10.88
XXXX
MEDICAL SYSTEMS, INC.
SEPARATION
AGREEMENT AND MUTUAL RELEASE
This
Separation Agreement and Mutual Release (“Agreement”) is
made by and between XXXX Medical Systems, Inc., a Delaware corporation (the
“Company”), and
Xxxxxx X. Xxxxxxx (“Xx.
Xxxxxxx” or
“Employee”).
WHEREAS, Xx.
Xxxxxxx is employed by the Company pursuant to the terms of an offer letter
dated April 2, 2001, as amended on May 1, 2003, (the “Offer
Letter”); and
WHEREAS, the
Company and Xx. Xxxxxxx have mutually agreed to terminate the existing
employment relationship and to release each other from any claims arising from
or related to the employment relationship.
NOW,
THEREFORE, in
consideration of the mutual promises made herein, the Company and Xx.
Xxxxxxx(collectively referred to as the “Parties”) hereby
agree as follows:
1. Resignation
and Termination of Employment. Xx.
Xxxxxxx and the Company acknowledge and agree that Xx. Xxxxxxx shall resign as
Chief Financial Officer of the Company (and as an officer and/or director of any
other entity which is deemed to be an affiliate of the Company) and shall
terminate his employment with the Company effective on the earlier of October
19, 2005 or such date as determined by the Board of Directors of the Company
(the “Separation
Date”). For
the period from the date of this Agreement through the Separation Date, Xx.
Xxxxxxx will continue to be responsible for the financial operations of the
Company and following the commencement of employment of a new Chief Financial
Officer, will provide transition assistance as requested by the Company. The
Company shall continue to pay to Xx. Xxxxxxx his current base salary and Xx.
Xxxxxxx shall remain eligible to participate in all Company benefit plans and
programs through the Separation Date. In connection with his resignation, Xx.
Xxxxxxx agrees to execute the resignation letter attached as Exhibit
A to this
letter.
2. Separation
Benefits. In
consideration for the release of claims set forth below and other obligations
under this Agreement and in full satisfaction of the Company’s obligations to
Xx. Xxxxxxx under the terms of the Offer Letter and the Change of Control
Agreement between the Company and Xx. Xxxxxxx dated May 26, 2000, as amended on
May 3, 2004, and
provided this
Agreement is signed by Xx. Xxxxxxx and not revoked under Section 7 herein, the
Company agrees to provide the following separation benefits to Xx.
Xxxxxxx:
(a) The
Company agrees to pay to Xx. Xxxxxxx his regular base salary (based on an annual
base salary of $205,000) for a six-month period beginning immediately following
the Separation Date (the “Severance
Period”). The
severance payments will be subject to applicable tax withholding and will be
made on the Company's regular payroll dates during the Severance Period.
Notwithstanding the above, Xx. Xxxxxxx and the Company agree that the Severance
Period will be shortened such that it will end on the date on which Xx. Xxxxxxx
commences Full-Time Employment, as such term is defined in the Offer Letter. Xx.
Xxxxxxx agrees that he will actively seek Full-Time Employment following the
Separation Date;
(b) The
Company shall make a retention bonus payment to Xx. Xxxxxxx in the amount of
$30,000 (reduced by applicable tax withholding) on the later of the Effective
Date of this Agreement and the Separation Date, provided however that if Xx.
Xxxxxxx voluntarily resigns his employment prior to the Separation Date without
the consent of the Company, he shall not be entitled to receive this bonus
payment;
(c) If Xx.
Xxxxxxx accurately and timely elects to continue his health insurance benefits
under COBRA, as described in Section 3(a) below, the Company agrees to reimburse
Xx. Xxxxxxx for the applicable COBRA premiums for himself and his dependents
during the Severance Period; and
(d) The
Company shall accelerate the vesting of the stock options granted to Xx. Xxxxxxx
as further described in Section 4(a) below such that, as of the Separation Date,
he shall be fully vested in all of his outstanding Company stock
options.
3. Employee
Benefits.
(a) Xx.
Xxxxxxx shall continue to receive the Company’s health insurance benefits
(medical and dental) at Company expense until the last day of the month in which
the Separation Date occurs, which date shall be the “qualifying event” date
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
(“COBRA”). If
Xx. Xxxxxxx timely and accurately elects to continue his health insurance
benefits under COBRA following such date, the Company shall reimburse Xx.
Xxxxxxx for the applicable COBRA premiums for Xx. Xxxxxxx and his dependents, if
any, for the lesser of six (6) months or until he becomes eligible for
comparable group medical insurance benefits from another employer or is
otherwise ineligible for COBRA continuation coverage. Following such date, Xx.
Xxxxxxx shall have the right to continue the COBRA coverage at his own expense.
Xx. Xxxxxxx acknowledges and agrees that nothing in this Section 3(a) shall
restrict the ability of the Company from changing some or all of the terms of
such medical insurance benefits, provided that all similarly situated
participants are treated the same.
(b) Except as
otherwise provided above, Xx. Xxxxxxx shall not be entitled to participate in
any of the Company’s benefit plans or programs offered to employees of the
Company after the Separation Date.
4. Stock
Options. As of
the Separation Date, all options held by Xx. Xxxxxxx to acquire shares of the
Company's common stock shall vest and be exercisable in full. Xx. Xxxxxxx'x
right to exercise the vested options shall be governed by the terms of the stock
option agreements issued by the Company to Xx. Xxxxxxx, provided however that
notwithstanding the terms of such agreements, the vested option shares shall
remain exercisable by Xx. Xxxxxxx until the later of the expiration date set
forth in the applicable option agreement and December 31, 2005.
Except as
set forth in this Agreement and the stock option agreements, Xx. Xxxxxxx
acknowledges that as of the Separation Date, Xx. Xxxxxxx shall have no right,
title or interest in or to any shares of the Company’s capital stock, under any
other agreement (oral or written) or plan with the Company.
5. No
Other Payments Due. Xx.
Xxxxxxx and the Company agree that the Company shall pay to Xx. Xxxxxxx on or
before the Separation Date, his accrued salary, accrued vacation and other sums
as are due to Xx. Xxxxxxx through such date. By executing this Agreement, Xx.
Xxxxxxx hereby acknowledges receipt of all such payments as received and
acknowledges that, in light of the payment by the Company of all wages due to
Xx. Xxxxxxx, California Labor Code Section 206.5 is not applicable to the
Parties hereto. That section provides in pertinent part as follows:
No
employer shall require the execution of any release of any claim or right on
account of wages due, or to become due, or made as an advance on wages to be
earned, unless payment of such wages has been made.
6. Release
of Claims. In
consideration for the obligations of both parties set forth in this Agreement,
Xx. Xxxxxxx and the Company, on behalf of themselves, and their respective
heirs, executors, subsidiaries, officers, directors, employees, investors,
stockholders, administrators and assigns, hereby fully and forever release each
other and their respective heirs, executors, subsidiaries, officers, directors,
employees, investors, stockholders, administrators, predecessor and successor
corporations and assigns, of and from any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that any of them may possess arising from any
omissions, acts or facts that have occurred up until and including the date of
this Agreement including, without limitation:
(a) any and
all claims relating to or arising from Xx. Xxxxxxx’x employment relationship
with the Company and the termination of that relationship;
(b) any and
all claims relating to, or arising from, Xx. Xxxxxxx’x right to purchase, or
actual purchase of shares of stock of the Company;
(c) any and
all claims for wrongful discharge of employment; breach of con-tract, both
express and implied; breach of a covenant of good faith and fair dealing, both
express and implied; negligent or intentional infliction of emotional distress;
negligent or intentional misrepresentation; negligent or intentional
interference with contract or prospective economic advantage; negligence; and
defamation;
(d) any and
all claims for violation of any federal, state or municipal statute, including,
but not limited to, Title VII of the Civil Rights Act of 1964, the Civil
Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, and the California Fair Employment and
Housing Act, and any family and medical leave acts;
(e) any and
all claims arising out of any other laws and regulations relating to employment
or employment discrimination; and
(f) any and
all claims for attorneys’ fees and costs.
Excepted
from the above release are Xx. Xxxxxxx'x rights of indemnity under applicable
law, the Indemnification Agreement described in Section 14 below, and/or the
bylaws or certificate of incorporation of the Company or its subsidiaries as a
former officer of the Company and its subsidiaries. The Company and Xx. Xxxxxxx
agree that the release set forth in this Section 6 shall be and remain in effect
in all respects as a complete general release as to the matters released. This
release does not extend to any obligations incurred or specified under this
Agreement.
7. Acknowledgment
of Waiver of Claims under ADEA. Xx.
Xxxxxxx acknowledges that he is waiving and releasing any rights he may have
under the Age Discrimination in Employment Act of 1967 (“ADEA”) and
that this waiver and release is knowing and voluntary. Xx. Xxxxxxx and the
Company agree that this waiver and release does not apply to any rights or
claims that may arise under ADEA after the Effective Date of this Agreement. Xx.
Xxxxxxx acknowledges that the consideration given for this waiver and release
Agreement is in addition to anything of value to which Xx. Xxxxxxx was already
entitled. Xx. Xxxxxxx further acknowledges that he has been advised by this
writing that (a) he should consult with an attorney prior to
executing this Agreement; (b) he has at least twenty-one (21) days within which
to consider this Agreement; (c) he has seven (7) days following his execution of
this Agreement to revoke the Agreement (the “Revocation
Period”). This
Agreement shall not be effective until the Revocation Period has
expired.
8. Civil
Code Section 1542. The
Parties represent that they are not aware of any claim by either of them other
than the claims that are released by this Agreement. Xx. Xxxxxxx and the Company
acknowledge that they are familiar with the provisions of California Civil Code
Section 1542, which provides as follows:
A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
Xx.
Xxxxxxx and the Company, being aware of said Code section, agree to expressly
waive any rights they may have thereunder, as well as under any other statute or
common law principles of similar effect.
9. Employee
Covenants.
(a) General. Xx.
Xxxxxxx agrees that for all periods described in this Agreement, he shall
continue to conduct himself in a professional manner that is supportive of the
business of the Company.
(b) Nondisclosure. Xx.
Xxxxxxx represents and warrants that he has not breached his obligations to the
Company under the terms of the Confidential Information and Invention Assignment
Agreement entered into between Xx. Xxxxxxx and the Company on April 2, 2001 (the
“Confidentiality
Agreement”), a
copy of which is attached hereto as Exhibit B. Xx.
Xxxxxxx understands and agrees that his obligations to the Company under the
Confidentiality Agreement survive the termination of his relationship with the
Company under this Agreement.
(c) SEC
Reporting/Xxxxxxx Xxxxxxx Compliance. Xx.
Xxxxxxx agrees that he will cooperate with the Company in providing information
with respect to all reports required to be filed by the Company with the
Securities Exchange Commission as they relate to required information with
respect to Xx. Xxxxxxx. Further, Xx. Xxxxxxx agrees that he will remain in
compliance with the terms of the Company’s xxxxxxx xxxxxxx program with respect
to purchases and sales of the Company’s stock.
10. Non-Disparagement. Each
Party agrees to refrain from any disparagement, defamation, slander of the
other, or tortious interference with the contracts and relationships of the
other.
11. Breach
of the Agreement. In the
event that the Company determines that Xx. Xxxxxxx has breached this Agreement,
or the Confidentiality Agreement, the Company shall provide notice to Xx.
Xxxxxxx of such breach. In the event that Xx. Xxxxxxx fails to cure such breach
within 30 days of receiving notice of the breach from the Company, in addition
to any other remedies the Company may have under this Agreement or otherwise,
the Company's obligations to provide benefits to Xx. Xxxxxxx, as described in
this Agreement, including without limitation those benefits provided in Sections
2, 3 and 4 shall immediately terminate. In addition, Xx. Xxxxxxx acknowledges
that upon his breach of this Agreement or the Confidentiality Agreement, the
Company would sustain irreparable harm from such breach, and, therefore, Xx.
Xxxxxxx agrees that notwithstanding the notice provisions set forth above, in
addition to any other remedies which the Company may have under this Agreement
or otherwise, the Company shall be entitled to obtain equitable relief,
including specific performance and injunctions, restraining him from committing
or continuing any such violation of the Agreement or the Confidentiality
Agreement.
12. Authority. The
Company represents and warrants that the undersigned has the authority to act on
behalf of the Company and to bind the Company and all who may claim through it
to the terms and conditions of this Agreement. Xx. Xxxxxxx represents and
warrants that he has the capacity to act on his own behalf and on behalf of all
who might claim through his to bind them to the terms and conditions of this
Agreement. Each Party warrants and represents that there are no liens or claims
of lien or assignments in law or equity or otherwise of or against any of the
claims or causes of action released herein.
13. No
Representations. Neither
Party has relied upon any representations or statements made by the other Party
hereto which are not specifically set forth in this Agreement.
14. Indemnification. The
Indemnification Agreement entered into by Xx. Xxxxxxx and the Company, a copy of
which is attached hereto as Exhibit
C, shall
remain in effect following the Separation Date in accordance with the terms of
such agreement.
15. Severability. In the
event that any provision hereof becomes or is declared by a court or other
tribunal of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said
provision.
16. Arbitration. The
Parties shall attempt to settle all disputes arising in connection with this
Agreement through good faith consultation. In the event no agreement can be
reached on such dispute within 15 days after notification in writing by either
Party to the other concerning such dispute, the dispute shall be settled by
binding arbitration to be conducted in Alameda County before the American
Arbitration Association under its California Employment Dispute Resolution
Rules, or by a judge to be mutually agreed upon. The arbitrator will apply
California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. The arbitration
decision shall be final, conclusive and binding on both Parties and any
arbitration award or decision may be entered in any court having jurisdiction.
The Company shall pay the costs of the arbitration proceeding, provided however
that each Party shall, unless otherwise determined by the arbitrator, bear its
or his own attorneys’ fees and expenses. The Parties agree that the prevailing
party in any arbitration shall be entitled to injunctive relief in any court of
competent jurisdiction to enforce the arbitration award. This Section 16 shall
not apply to the Confidentiality Agreement. The
parties hereby waive any rights they may have to trial by jury in regard to
arbitrable claims.
17. Entire
Agreement. This
Agreement, with the exhibits attached hereto, represents the entire agreement
and understanding between the Company and Xx. Xxxxxxx concerning Xx. Xxxxxxx’x
separation from the Company, and supersede and replace any and all prior
agreements and understandings concerning Xx. Xxxxxxx’x relationship with the
Company and his compensation by the Company.
18. No
Oral Modification. This
Agreement may only be amended in writing signed by Xx. Xxxxxxx and the
Company.
19. Governing
Law. This
Agreement shall be governed by the laws of the State of California, without
regard to its conflicts of law provisions.
20. Effective
Date. This
Agreement is effective upon the expiration of the Revocation Period described in
Section 7 and such date is referred to herein as the “Effective
Date.”
21. Counterparts. This
Agreement may be executed in counterparts, and each coun-terpart shall have the
same force and effect as an original and shall constitute an effective, binding
agreement on the part of each of the undersigned.
22. Assignment. This
Agreement may not be assigned by Xx. Xxxxxxx or the Company without the prior
written consent of the other party. Notwithstanding the foregoing, this
Agreement may be assigned by the Company to a corporation controlling,
controlled by or under common control with the Company without the consent of
Xx. Xxxxxxx.
23. Continuing
Representations. Xx.
Xxxxxxx expressly acknowledges and agrees that, if requested to do so by the
Company, he shall sign a Continuing Representations Certificate, in the form
provided by the Company, on the Separation Date, reaffirming each of the
waivers, releases, warranties and representations contained in this Agreement as
of such date and that Xx. Xxxxxxx’x rights continue to be as defined by the
terms of this Agreement as of such date.
24. Voluntary
Execution of Agreement. This
Agreement is executed voluntarily and without any duress or undue influence on
the part or behalf of the Parties hereto, with the full intent of releasing all
claims. The Parties acknowledge that:
(a) they have
read this Agreement;
(b) they have
been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice or that they have voluntarily
declined to seek such counsel;
(c) they
understand the terms and consequences of this Agreement and of the releases it
contains; and
(d) they are
fully aware of the legal and binding effect of this Agreement.
IN
WITNESS WHEREOF, the Parties have executed this Separation Agreement and Mutual
Release on the respective dates set forth below.
XXXX
MEDICAL SYSTEMS, INC.
Dated as
of May 19, 2005
By:
/s/ Xxxxxx XxXxxx
Title:
President and CEO
XXXXXX X.
XXXXXXX, an individual
Dated as
of May 19,
2005
/s/ Xxxxxx Xxxxxxx
EXHIBIT
A
___________________________,
200__
XXXX
Medical Systems, Inc.
00000
Xxxxxxx Xxxxxxx
Xxxxxxx,
XX 00000
Horizon
Medical Products, Inc.
Xxx
Xxxxxxx Xxx
Xxxxxxxxxx,
XX 00000
RE:
Resignation
To the
Board of Directors of XXXX Medical Systems, Inc. and Horizon Medical Products,
Inc.:
I hereby
resign as Chief Financial Officer and Vice President, Finance and Administration
of XXXX Medical Systems, Inc. ("XXXX"), Chief
Financial Officer of Horizon Medical Products, Inc. ("Horizon"), and
as an officer or director of any subsidiary of XXXX or Horizon, effective as of
___________________________, 200__.
Sincerely,
Xxxxxx
Xxxxxxx
EXHIBIT
B
CONFIDENTIAL
INFORMATION AND
INVENTION
ASSIGNMENT AGREEMENT
As a
condition of my becoming employed (or my employment being continued) by or
retained as a consultant (or my consulting relationship being continued) by
«Name», a
Delaware corporation (“XXXX”) or any of
its current or future subsidiaries, affiliates, successors or assigns
(collectively, the “Company”), and
in consideration of my employment or consulting relationship with the Company
and my receipt of the compensation now and hereafter paid to me by the Company,
I agree to the following:
1. Employment
or Consulting Relationship. I
understand and acknowledge that this Agreement does not alter, amend or expand
upon any rights I may have to continue in the employ of, or in a consulting
relationship with, or the duration of my employment or consulting relationship
with, the Company under any existing agreements between the Company and me or
under applicable law. Any employment or consulting relationship between the
Company and me, whether commenced prior to or upon the date of this Agreement,
shall be referred to herein as the “Relationship.”
2. At-Will
Relationship. I
understand and acknowledge that my Relationship with the Company is and shall
continue to be at-will, as defined under applicable law, meaning that either I
or the Company may terminate the Relationship at any time for any reason or no
reason, without further obligation or liability.
3. Confidential
Information.
(a) Company
Information. I agree
at all times during the term of my Relationship with the Company and thereafter,
to hold in strictest confidence, and not to use, except for the benefit of the
Company to the extent necessary to perform my obligations to the Company under
the Relationship, or to disclose to any person, firm, corporation or other
entity without written authorization of the Board of Directors of the Company,
any Confidential Information of the Company which I obtain or create. I further
agree not to make copies of such Confidential Information except as authorized
by the Company. I understand that “Confidential
Information” means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
suppliers, customer lists and customers (including, but not limited to,
customers of the Company on whom I called or with whom I became acquainted
during the Relationship), prices and costs, markets, software, developments,
inventions, laboratory notebooks, processes, formulas, technology, designs,
drawings, engineering, hardware configuration information, marketing, licenses,
finances, budgets or other business information disclosed to me by the Company
either directly or indirectly in writing, orally or by drawings or observation
of parts or equipment or created by me during the period of the Relationship,
whether or not during working hours. I understand that Confidential Information
includes, but is not limited to, information pertaining to any aspect of the
Company’s business which is either information not known by actual or potential
competitors of the Company or other third parties not under confidentiality
obligations to the Company, or is otherwise proprietary information of the
Company or its customers or suppliers, whether of a technical nature or
otherwise. I further understand that Confidential Information does not include
any of the foregoing items which has become publicly and widely known and made
generally available through no wrongful act of mine or of others who were under
confidentiality obligations as to the item or items involved.
(b) Prior
Obligations. I
represent that my performance of all terms of this Agreement as an employee or
consultant of the Company has not breached and will not breach any agreement to
keep in confidence proprietary information, knowledge or data acquired by me
prior or subsequent to the commencement of my Relationship with the Company, and
I will not disclose to the Company or use any inventions, confidential or
non-public proprietary information or material belonging to any previous client,
employer or any other party. I will not induce the Company to use any
inventions, confidential or non-public proprietary information, or material
belonging to any previous client, employer or any other party.
(c) Third
Party Information. I
recognize that the Company has received and in the future will receive
confidential or proprietary information from third parties subject to a duty on
the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. I agree to hold all such confidential
or proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
my work for the Company consistent with the Company’s agreement with such third
party.
4. Inventions.
(a) Inventions
Retained and Licensed. I have
attached hereto, as Exhibit
A, a list
describing with particularity all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to the
commencement of the Relationship (collectively referred to as “Prior
Inventions”), which
belong solely to me or belong to me jointly with another, which relate in any
way to any of the Company’s proposed businesses, products or research and
development, and which are not assigned to the Company hereunder; or, if no such
list is attached, I represent that there are no such Prior Inventions. If, in
the course of my Relationship with the Company, I incorporate into a Company
product, process or machine a Prior Invention owned by me or in which I have an
interest, the Company is hereby granted and shall have a non-exclusive,
royalty-free, irrevocable, perpetual, worldwide license (with the right to
sublicense) to make, have made, copy, modify, make derivative works of, use,
sell and otherwise distribute such Prior Invention as part of or in connection
with such product, process or machine.
(b) Assignment
of Inventions. I agree
that I will promptly make full written disclosure to the Company, will
hold in trust for the sole right and benefit of the Company, and
hereby assign to the Company, or its
designee, all my right, title and interest throughout the world in and to any
and all inventions, original works of authorship, developments, concepts,
know-how, improvements or trade secrets, whether or not patentable or
registrable under copyright or similar laws, which I may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of my Relationship with the Company
(collectively referred to as “Inventions”),
except as provided in Section 4(e) below. I further acknowledge that all
Inventions which are made by me (solely or jointly with others) within the scope
of and during the period of my Relationship with the Company are “works
made for hire” (to the
greatest extent permitted by applicable law) and are compensated by my salary
(if I am an employee) or by such amounts paid to me under any applicable
consulting agreement or consulting arrangements (if I am a consultant), unless
regulated otherwise by the mandatory law of the state of
California.
(c) Provision
of Records. I
agree to provide to the Company upon its reasonable request any and all notes,
records or other written or recorded information that I have created and are in
my possession or under my control regarding possible Inventions made by me
(solely or jointly with others) during the term of my Relationship with the
Company.
(d) Patent
and Copyright Rights. I
agree to assist the Company, or its
designee, at the Company's expense, in every proper way to secure the
Company’s
rights in
the Inventions and any copyrights, patents, trademarks, mask work rights, moral
rights, or other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordations, and all other
instruments which the Company shall
deem necessary in order to apply for, obtain, maintain and transfer such rights,
or if not transferable, waive such rights, and in order to assign and convey to
the Company, and any
successors, assigns and nominees the sole and exclusive rights, title and
interest in and to such Inventions, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. I further agree
that my obligation to execute or cause to be executed, when it is in my power to
do so, any such instrument or papers shall continue after the termination of
this Agreement until the expiration of the last such intellectual property right
to expire in any country of the world. If the Company is unable
because of my mental or physical incapacity or unavailability or for any other
reason to secure my signature to apply for or to pursue any application for any
United States or foreign patents, copyright, mask works or other registrations
covering Inventions or original works of authorship assigned to the
Company, then I
hereby irrevocably designate and appoint the Company and its
duly authorized officers and agents as my agent and attorney in fact, to act for
and in my behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the application for, prosecution,
issuance, maintenance or transfer of letters patent, copyright or other
registrations thereon with the same legal force and effect as if originally
executed by me. I hereby waive and irrevocably quitclaim to the Company
any and
all claims, of any nature whatsoever, which I now or hereafter have for
infringement of any and all proprietary rights assigned to the
Company.
(e) Exception
to Assignments. I
understand that the provisions of this Agreement requiring assignment of
Inventions to the Company do not
apply to any invention which qualifies fully under the provisions of California
Labor Code Section 2870 (attached hereto as Exhibit B). I will
advise the Company promptly in writing of any inventions that I believe meet
such provisions and are not otherwise disclosed on Exhibit A.
5. Returning
Company Documents.
I agree that, at the time of termination of my Relationship with the Company or
upon the Company's request, I will deliver to the Company all originals and
copies of all documents, other written information and information recorded in
any tangible form in my possession that contain any Confidential Information. If
I am an employee of the Company, in the event of the termination of the
Relationship, I agree to sign and deliver the “Termination
Certification”
attached hereto as Exhibit C;
6. Solicitation
of Employees, Consultants and Other Parties. I agree
that during the term of my Relationship with the Company, and for a period of
twenty-four (24) months immediately following the termination of my Relationship
with the Company for any reason, whether with or without cause, I shall not
either directly or indirectly solicit, induce, recruit or encourage any of the
Company’s employees or consultants to terminate their relationship with the
Company, or attempt to solicit, induce, recruit, encourage or take away
employees or consultants of the Company, either for myself or for any other
person or entity. Further, during my Relationship with the Company and at any
time following termination of my Relationship with the Company for any reason,
with or without cause, I shall not use any Confidential Information of the
Company to attempt to negatively influence any of the Company’s clients or
customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company.
7. Representations
and Covenants.
(a) Facilitation
of Agreement.
I agree
to execute promptly any proper oath or verify any proper document required to
carry out the terms of this Agreement upon the Company’s written request to do
so.
(b) Conflicts.
I
represent that my performance of all the terms of this Agreement does not and
will not breach any agreement I have entered into, or will enter into with any
third party, including without limitation any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to
commencement of my Relationship with the Company. I agree not to enter into any
written or oral agreement that conflicts with the provisions of this
Agreement.
(c) Voluntary
Execution.
I certify
and acknowledge that I have carefully read all of the provisions of this
Agreement and that I understand and will fully and faithfully comply with such
provisions.
8. General
Provisions.
(a) Governing
Law. The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of California, without giving effect to the
principles of conflict of laws.
(b) Entire
Agreement. This
Agreement sets forth the entire agreement and understanding between the Company
and me relating to the subject matter herein and merges all prior discussions
between us. No modification or amendment to this Agreement, nor any waiver of
any rights under this Agreement, will be effective unless in writing signed by
both parties. Any subsequent change or changes in my duties, obligations, rights
or compensation will not affect the validity or scope of this
Agreement.
(c) Severability. If one
or more of the provisions in this Agreement are deemed void by law, then the
remaining provisions will continue in full force and effect.
(d) Successors
and Assigns. This
Agreement will be binding upon my heirs, executors, administrators and other
legal representatives, and my successors and assigns, and will be for the
benefit of the Company, its successors, and its assigns.
(e) Survival. The
provisions of this Agreement shall survive the termination of the Relationship
and the assignment of this Agreement by the Company to any successor in interest
or other assignee.
(f) ADVICE
OF COUNSEL. I
ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY TO
SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD ALL
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
[Signature
Page Follows]
The
parties have executed this Agreement on the respective dates set forth
below:
| COMPANY: | EMPLOYEE: |
| XXXX MEDICAL SYSTEMS, INC. | XXXXXX X. XXXXXXX, an Individual: |
| /s/ Xxxxx Xxxxxxx | /s/ Xxxxxx X. Xxxxxxx |
|
Signature |
Signature |
| By: Xxxxx Xxxxxxx | By: Xxxxxx X. Xxxxxxx |
| Title: President and CEO | |
|
Date: April 2, 2001
|
Date: April 2, 2001
|
| Address: 000 Xxxxxxxxx Xxxx. | Address: 00000 Xxxxxxx Xxxx |
|
Xxxxxxxx
Xxxx, XX 00000 |
Xxxxxxx,
XX 00000 |
EXHIBIT A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED
UNDER SECTION 5
|
Title |
Date |
Identifying
Number
or
Brief Description | ||
| x | No inventions or improvements |
___
Additional Sheets Attached
Signature
of Employee/Consultant: /s/ Xxxxxx Xxxxxxx
Print
Name of Employee/Consultant: Xxxxxx X. Xxxxxxx
Date:
April 2, 2001
EXHIBIT B
Section
2870 of the California Labor Code is as follows:
(a) Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer’s equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate at the
time of conception or reduction to practice of the invention to the employer’s
business, or actual or demonstrably anticipated research or development of the
employer; or
(2) Result from
any work performed by the employee for the employer.
(b) To the
extent a provision in an employment agreement purports to require an employee to
assign an invention otherwise excluded from being required to be assigned under
subdivision (a), the provision is against the public policy of this state and is
unenforceable.
EXHIBIT C
TERMINATION
CERTIFICATION
This is
to certify that I do not have in my possession, nor have I failed to return, any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, laboratory notebooks, flow
charts, materials, equipment, other documents or property, or copies or
reproductions of any aforementioned items belonging to «Name», its
subsidiaries, affiliates, successors or assigns (together the “Company”).
I further
certify that I have complied with all the terms of the Company’s Confidential
Information and Invention Assignment Agreement signed by me, including the
reporting of any inventions and original works of authorship (as defined
therein), conceived or made by me (solely or jointly with others) covered by
that agreement.
I further
agree that, in compliance with the Confidential Information and Invention
Assignment Agreement, I will preserve as confidential all trade secrets,
confidential knowledge, data or other proprietary information relating to
products, processes, know-how, designs, formulas, developmental or experimental
work, computer programs, data bases, other original works of authorship,
customer lists, business plans, financial information or other subject matter
pertaining to any business of the Company or any of its employees, clients,
consultants or licensees.
I further
agree that for twenty-four (24) months from the date of this Certificate, I
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company’s employees or consultants to terminate their relationship
with the Company, or attempt to solicit, induce, recruit, encourage or take away
employees or consultants of the Company, either for myself or for any other
person or entity. Further, I shall not at any time use any Confidential
Information of the Company to negatively influence any of the Company’s clients
or customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company.
Date:_____________________________
(Employee’s
Signature)
(Type/Print
Employee’s Name)
EXHIBIT
C
INDEMNIFICATION
AGREEMENT
This
Indemnification Agreement (the “Agreement”) is
made as of April 16, 2001 by and
between XXXX Medical Systems, Inc., a Delaware corporation (the “Company”),
and Xxxxxx Xxxxxxx (the
“Indemnitee”).
RECITALS
The
Company and Indemnitee recognize the increasing difficulty in obtaining
liability insurance for directors, officers and key employees, the significant
increases in the cost of such insurance and the general reductions in the
coverage of such insurance. The Company and Indemnitee further recognize the
substantial increase in corporate litigation in general, subjecting directors,
officers and key employees to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely limited.
Indemnitee does not regard the current protection available as adequate under
the present circumstances, and Indemnitee and agents of the Company may not be
willing to continue to serve as agents of the Company without additional
protection. The Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, and to indemnify its directors,
officers and key employees so as to provide them with the maximum protection
permitted by law.
AGREEMENT
In
consideration of the mutual promises made in this Agreement, and for other good
and valuable consideration, receipt of which is hereby acknowledged, the Company
and Indemnitee hereby agree as follows:
1. Indemnification.
(a) Third
Party Proceedings. The
Company shall indemnify Indemnitee if Indemnitee is or was a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that Indemnitee is or was a director, officer, employee or agent of the Company,
or any subsidiary of the Company, by reason of any action or inaction on the
part of Indemnitee while an officer or director or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Company, which approval shall not be unreasonably withheld)
actually and reasonably incurred by Indemnitee in connection with such action,
suit or proceeding if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful. The termination
of any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that Indemnitee did not act in good faith and in a manner which
Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company, or, with respect to any criminal action or proceeding, that
Indemnitee had reasonable cause to believe that Indemnitee’s conduct was
unlawful.
(b) Proceedings
By or in the Right of the Company. The
Company shall indemnify Indemnitee if Indemnitee was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
proceeding by or in the right of the Company or any subsidiary of the Company to
procure a judgment in its favor by reason of the fact that Indemnitee is or was
a director, officer, employee or agent of the Company, or any subsidiary of the
Company, by reason of any action or inaction on the part of Indemnitee while an
officer or director or by reason of the fact that Indemnitee is or was serving
at the request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement (if such settlement is approved in
advance by the Company, which approval shall not be unreasonably withheld), in
each case to the extent actually and reasonably incurred by Indemnitee in
connection with the defense or settlement of such action or suit if Indemnitee
acted in good faith and in a manner Indemnitee reasonably believed to be in or
not opposed to the best interests of the Company and its stockholders, except
that no indemnification shall be made in respect of any claim, issue or matter
as to which Indemnitee shall have been finally adjudicated by court order or
judgment to be liable to the Company in the performance of Indemnitee’s duty to
the Company and its stockholders unless and only to the extent that the court in
which such action or proceeding is or was pending shall determine upon
application that, in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
(c) Mandatory
Payment of Expenses. To the
extent that Indemnitee has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Section 1(a) or
Section 1(b) or the defense of any claim, issue or matter therein,
Indemnitee shall be indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by Indemnitee in connection
therewith.
2. No
Employment Rights. Nothing
contained in this Agreement is intended to create in Indemnitee any right to
continued employment.
3. Expenses;
Indemnification Procedure.
(a) Advancement
of Expenses. The
Company shall advance all expenses incurred by Indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action,
suit or proceeding referred to in Section l(a) or Section 1(b) hereof
(including amounts actually paid in settlement of any such action, suit or
proceeding). Indemni-tee hereby undertakes to repay such amounts advanced only
if, and to the extent that, it shall ultimately be determined that Indemnitee is
not entitled to be indemnified by the Company as authorized hereby.
(b) Notice/Cooperation
by Indemnitee.
Indemnitee shall, as a condition precedent to his or her right to be indemnified
under this Agreement, give the Company notice in writing as soon as practicable
of any claim made against Indemnitee for which indemnification will or could be
sought under this Agreement. Notice to the Company shall be directed to the
Chief Executive Officer of the Company and shall be given in accordance with the
provisions of Section 12(d) below. In addition, Indemnitee shall give the
Company such information and cooperation as it may reasonably require and as
shall be within Indemnitee’s power.
(c) Procedure. Any
indemnification and advances provided for in Section 1 and this
Section 3 shall be made no later than twenty (20) days after receipt of the
written request of Indemnitee. If a claim under this Agreement, under any
statute, or under any provision of the Company’s Certificate of Incorporation or
Bylaws providing for indemnification, is not paid in full by the Company within
twenty (20) days after a written request for payment thereof has first been
received by the Company, Indemnitee may, but need not, at any time thereafter
bring an action against the Company to recover the unpaid amount of the claim
and, subject to Section 11 of this Agreement, Indemnitee shall also be
entitled to be paid for the expenses (including attorneys’ fees) of bringing
such action. It shall be a defense to any such action (other than an action
brought to enforce a claim for expenses incurred in connection with any action,
suit or proceeding in advance of its final disposition) that Indemnitee has not
met the standards of conduct which make it permissible under applicable law for
the Company to indemnify Indemnitee for the amount claimed, but the burden of
proving such defense shall be on the Company and Indemnitee shall be entitled to
receive interim payments of expenses pursuant to Section 3(a) unless and
until such defense may be finally adjudicated by court order or judgment from
which no further right of appeal exists. It is the parties’ intention that if
the Company contests Indemnitee’s right to indemnification, the question of
Indemnitee’s right to indemnification shall be for the court to decide, and
neither the failure of the Company (including its Board of Directors, any
committee or subgroup of the Board of Directors, independent legal counsel, or
its stockholders) to have made a determination that indemnification of
Indemnitee is proper in the circumstances because Indemnitee has met the
applicable standard of conduct required by applicable law, nor an actual
determination by the Company (including its Board of Directors, any committee or
subgroup of the Board of Directors, independent legal counsel, or its
stockholders) that Indemnitee has not met such applicable standard of conduct,
shall create a presumption that Indemnitee has or has not met the applicable
standard of conduct.
(d) Notice
to Insurers. If, at
the time of the receipt of a notice of a claim pursuant to Section 3(b)
hereof, the Company has director and officer liability insurance in effect, the
Company shall give prompt notice of the commencement of such proceeding to the
insurers in accordance with the procedures set forth in the respective policies.
The Company shall thereafter take all necessary or desirable action to cause
such insurers to pay, on behalf of the Indemnitee, all amounts payable as a
result of such proceeding in accordance with the terms of such
policies.
(e) Selection
of Counsel. In the
event the Company shall be obligated under Section 3(a) hereof to pay the
expenses of any proceeding against Indemnitee, the Company, if appropriate,
shall be entitled to assume the defense of such proceeding, with counsel
approved by Indemnitee, upon the delivery to Indemnitee of written notice of its
election so to do. After delivery of such notice, approval of such counsel by
Indemnitee and the retention of such counsel by the Company, the Company will
not be liable to Indemnitee under this Agreement for any fees of counsel
subsequently incurred by Indemnitee with respect to the same proceeding,
pro-vided that (i) Indemnitee shall have the right to employ counsel in any
such proceeding at Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) Indemnitee shall have reasonably concluded that there may be a
conflict of interest between the Company and Indemnitee in the conduct of any
such defense or (C) the Company shall not, in fact, have employed counsel
to assume the defense of such proceeding, then the fees and expenses of
Indemnitee’s counsel shall be at the expense of the Company.
4. Additional
Indemnification Rights; Nonexclusivity.
(a) Scope.
Notwithstanding any other provision of this Agreement, the Company hereby agrees
to indemnify the Indemnitee to the fullest extent permitted by law,
notwithstanding that such indemnification is not specifically authorized by the
other provisions of this Agreement, the Company’s Certificate of Incorporation,
the Company’s Bylaws or by statute. In the event of any change, after the date
of this Agreement, in any applicable law, statute, or rule which expands the
right of a Delaware corporation to indemnify a member of its board of directors
or an officer, such changes shall be deemed to be within the purview of
Indemnitee’s rights and the Company’s obligations under this Agreement. In the
event of any change in any applicable law, statute or rule which narrows the
right of a Delaware corporation to indemnify a member of its board of directors
or an officer, such changes, to the extent not otherwise required by such law,
statute or rule to be applied to this Agreement shall have no effect on this
Agreement or the parties’ rights and obligations hereunder.
(b) Nonexclusivity. The
indemnification provided by this Agreement shall not be deemed exclusive of any
rights to which Indemnitee may be entitled under the Company’s Certificate of
Incorporation, its Bylaws, any agreement, any vote of stockholders or
disinterested members of the Company’s Board of Directors, the General
Corporation Law of the State of Delaware, or otherwise, both as to action in
Indemnitee’s official capacity and as to action in another capacity while
holding such office. The indemnification provided under this Agreement shall
continue as to Indemnitee for any action taken or not taken while serving in an
indemnified capacity even though he or she may have ceased to serve in any such
capacity at the time of any action, suit or other covered
proceeding.
5. Partial
Indemnification. If
Indemnitee is entitled under any provision of this Agreement to indemnification
by the Company for some or a portion of the expenses, judgments, fines or
penalties actually or reasonably incurred in the investigation, defense, appeal
or settlement of any civil or criminal action, suit or proceeding, but not,
however, for the total amount thereof, the Company shall nevertheless indemnify
Indemnitee for the portion of such expenses, judgments, fines or penalties to
which Indemnitee is entitled.
6. Mutual
Acknowledgment. Both the
Company and Indemnitee acknowledge that in certain instances, Federal law or
public policy may override applicable state law and prohibit the Company from
indemnifying its directors and officers under this Agreement or otherwise. For
example, the Company and Indemnitee acknowledge that the Securities and Exchange
Commission (the “SEC”) has
taken the position that indemnification is not permissible for liabilities
arising under certain federal securities laws, and federal legislation prohibits
indemnification for certain ERISA violations. Indemnitee understands and
acknowledges that the Company has undertaken or may be required in the future to
undertake with the SEC to submit the question of indemnification to a court in
certain circumstances for a determination of the Company’s right under public
policy to indemnify Indemnitee.
7. Officer
and Director Liability Insurance. The
Company shall, from time to time, make the good faith determination whether or
not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with reputable insurance companies providing the officers
and directors of the Company with coverage for losses from wrongful acts, or to
ensure the Company’s performance of its indemnification obligations under this
Agreement. Among other considerations, the Company will weigh the costs of
obtaining such insurance coverage against the protection afforded by such
coverage. In all policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s directors, if Indemnitee is a director; or of the
Company’s officers, if Indemnitee is not a director of the Company but is an
officer; or of the Company’s key employees, if Indemnitee is not an officer or
director but is a key employee. Notwithstanding the foregoing, the Company shall
have no obligation to obtain or maintain such insurance if the Company
determines in good faith that such insurance is not reasonably available, if the
premium costs for such insurance are disproportionate to the amount of coverage
provided, if the coverage provided by such insurance is limited by exclusions so
as to provide an insufficient benefit, or if Indemnitee is covered by similar
insurance maintained by a parent or subsidiary of the Company.
8. Severability. Nothing
in this Agreement is intended to require or shall be construed as requiring the
Company to do or fail to do any act in violation of applicable law. The
Company’s inability, pursuant to court order, to perform its obligations under
this Agreement shall not constitute a breach of this Agreement. The provisions
of this Agreement shall be severable as provided in this Section 8. If this
Agreement or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the Company shall nevertheless indemnify
Indemnitee to the full extent permitted by any applicable portion of this
Agreement that shall not have been invalidated, and the balance of this
Agreement not so invalidated shall be enforceable in accordance with its
terms.
9. Exceptions. Any
other provision herein to the contrary notwithstanding, the Company shall not be
obligated pursuant to the terms of this Agreement:
(a) Claims
Initiated by Indemnitee. To
indemnify or advance expenses to Indemnitee with respect to proceedings or
claims initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to proceedings brought to establish or enforce a right to
indemnification under this Agreement or any other statute or law or otherwise as
required under Section 145 of the Delaware General Corporation Law, but
such indemnification or advancement of expenses may be provided by the Company
in specific cases if the Board of Directors finds it to be
appropriate;
(b) Lack
of Good Faith. To
indemnify Indemnitee for any expenses incurred by Indemnitee with respect to any
proceeding instituted by Indemnitee to enforce or interpret this Agreement, if a
court of competent jurisdiction determines that each of the material assertions
made by Indemnitee in such proceeding was not made in good faith or was
frivolous;
(c) Insured
Claims. To
indemnify Indemnitee for expenses or liabilities of any type whatsoever
(including, but not limited to, judgments, fines, ERISA excise taxes or
penalties, and amounts paid in settlement) to the extent such expenses or
liabilities have been paid directly to Indemnitee by an insurance carrier under
a policy of officers’ and directors’ liability insurance maintained by the
Company; or
(d) Claims
under Section 16(b). To
indemnify Indemnitee for expenses or the payment of profits arising from the
purchase and sale by Indemnitee of securities in violation of Section 16(b)
of the Securities Exchange Act of 1934, as amended, or any similar successor
statute.
10. Construction
of Certain Phrases.
(a) For
purposes of this Agreement, references to the “Company” shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
if Indemnitee is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, Indemnitee shall stand in
the same position under the provisions of this Agreement with respect to the
resulting or surviving corporation as Indemnitee would have with respect to such
constituent corporation if its separate existence had continued.
(b) For
purposes of this Agreement, references to “other
enterprises” shall
include employee benefit plans; references to “fines” shall
include any excise taxes assessed on Indemnitee with respect to an employee
benefit plan; and references to “serving
at the request of the Company” shall
include any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan, its participants, or
beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan, Indemnitee shall be deemed to have acted in a
manner “not
opposed to the best interests of the Company” as
referred to in this Agreement.
11. Attorneys’
Fees. In the
event that any action is instituted by Indemnitee under this Agreement to
enforce or inter-pret any of the terms hereof, Indemnitee shall be entitled to
be paid all court costs and expenses, including reasonable attorneys’ fees,
incurred by Indemnitee with respect to such action, unless as a part of such
action, the court of competent jurisdiction determines that each of the material
assertions made by Indemnitee as a basis for such action were not made in good
faith or were frivolous. In the event of an action instituted by or in the name
of the Company under this Agreement or to enforce or interpret any of the terms
of this Agreement, Indemnitee shall be entitled to be paid all court costs and
expenses, including attorneys’ fees, incurred by Indemnitee in defense of such
action (including with respect to Indemnitee’s counterclaims and cross-claims
made in such action), unless as a part of such action the court determines that
each of Indemnitee’s material defenses to such action were made in bad faith or
were frivolous.
12. Miscellaneous.
(a) Governing
Law. This
Agreement and all acts and transactions pursuant hereto and the rights and
obligations of the parties hereto shall be governed, construed and interpreted
in accordance with the laws of the State of Delaware, without giving effect to
principles of conflict of law.
(b) Entire
Agreement; Enforcement of Rights. This
Agreement sets forth the entire agreement and understanding of the parties
relating to the subject matter herein and merges all prior discussions between
them. No modification of or amendment to this Agreement, nor any waiver of any
rights under this Agreement, shall be effective unless in writing signed by the
parties to this Agreement. The failure by either party to enforce any rights
under this Agreement shall not be construed as a waiver of any rights of such
party.
(c) Construction. This
Agreement is the result of negotiations between and has been reviewed by each of
the parties hereto and their respective counsel, if any; accordingly, this
Agreement shall be deemed to be the product of all of the parties hereto, and no
ambiguity shall be construed in favor of or against any one of the parties
hereto.
(d) Notices. Any
notice, demand or request required or permitted to be given under this Agreement
shall be in writing and shall be deemed sufficient when delivered personally or
sent by telegram or fax, or forty-eight (48) hours after being deposited in the
U.S. mail, as certified or registered mail, with postage prepaid, and addressed
to the party to be notified at such party’s address as set forth below or as
subsequently modified by written notice.
(e) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
(f) Successors
and Assigns. This
Agreement shall be binding upon the Company and its successors and assigns, and
inure to the benefit of Indemnitee and Indemnitee’s heirs, legal representatives
and assigns.
(g) Subrogation. In the
event of payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall
execute all documents required and shall do all acts that may be necessary to
secure such rights and to enable the Company to effectively bring suit to
enforce such rights.
[Signature
Page Follows]
The
parties hereto have executed this Agreement as of the day and year set forth on
the first page of this Agreement.
XXXX
Medical Systems, Inc.
By:
/s/ Xxxxx Xxxxxxx
Title:
President and CEO
Address:
000 Xxxxxxxxx Xxxx.
Xxxxxxxx
Xxxx, XX 00000
AGREED TO
AND ACCEPTED:
NAME
/s/
Xxxxxx Xxxxxxx
(Signature)
Address:
00000
Xxxxxxx Xxxx
Xxxxxxx,
XX 00000
