EXHIBIT 10.2
CARDIAC SCIENCE, INC.
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is dated as of
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_____________ by and between _______________ ("Employee") and CARDIAC SCIENCE
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INC., a Delaware corporation (the "Company").
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1. Term of Agreement. This Agreement shall commence on the date hereof and
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shall be effective through December 31, ____ (the "Original Term"). This
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Agreement shall automatically renew for successive 12-month periods (each an
"Additional Term"). The Original Term and each Additional Term shall each be
referred to as a "Term." Employee's employment may be terminated by either party
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pursuant to the provisions of Section 7 herein either during the original or any
Additional Term.
2. Duties.
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(a) Position. Employee shall be employed as __________________ and as such
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will have responsibility for the duties typically associated with such
positions and will report to _____________________________________ .
(b) Obligations to the Company. Employee agrees to the best of his ability
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and experience that he will perform all of the duties and obligations reasonably
required of and from Employee pursuant to the express and implicit terms hereof.
During the term of Employee's employment relationship with the Company, Employee
further agrees that he will devote his business time and attention to the
business of the Company.
3. At-Will Employment. The Company and Employee acknowledge that Employee's
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employment is and shall continue to be at-will, as defined under applicable law,
and that Employee's employment with the Company may be terminated by either
party at any time for any or no reason. If Employee's employment terminates for
any reason, Employee shall not be entitled to any payments, benefits, damages,
awards or compensation other than as provided in this Agreement. The rights and
duties created by this Section 3 may not be modified in any way except by a
written agreement executed by the Company.
4. Compensation. For the duties and services to be performed by Employee
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hereunder, the Company shall pay Employee, and Employee agrees to accept the
salary, stock options, bonuses and other benefits described below in this
Section 4.
(a) Salary. Renewal of Employment Agreement to include a base salary
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of __________________. Employee's monthly salary will be payable pursuant to the
Company's normal payroll practices. In the event this Agreement is extended
beyond the Original Term, the base salary shall be reviewed at the time of such
extension by the Board of Directors, its Compensation Committee or the Chief
Executive Officer of the Company, and any increase will be effective as of the
date determined appropriate by the Board, its Compensation Committee or the
Chief Executive Officer.
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(b) Bonuses. Employee will be eligible to receive an incentive bonus
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opportunity (hereinafter referred to as the target bonus) of _________________,
as agreed and mutually established between _______________ and ________________:
In the event of Employee's Involuntary Termination (as defined below),
death or disability (as defined below) or a Change of Control (as defined below)
during the term of this Agreement, the Company shall pay to Employee or
Employee's estate a pro rata portion of Employee's target bonus for such year
based on the portion of the year Employee worked for the Company.
(c) Additional Benefits. Employee will be eligible to participate in
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the Company's employee benefit plans of general application, including without
limitation, those plans covering medical, disability and life insurance in
accordance with the rules established for individual participation in any such
plan and under applicable law. Employee will receive ___ paid vacation which
shall be taken at such times as are consistent with the needs of the Company.
Accrual of paid vacation is subject to a cap of __________ and when and for as
long as accrual is at the cap, no additional vacation is accrued. Employee will
be eligible for sick leave in accordance with the policies in effect during the
term of this Agreement and will receive such other benefits as the Company
generally provides to its other employees of comparable position and experience.
(d) Stock Options and Other Incentive Programs. Employee shall be
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eligible to participate in any stock option or other incentive programs
available to officers or employees of the Company.
(e) Reimbursement of Business Expenses. Employee shall be authorized
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to incur on behalf and for the benefit of, and shall be reimbursed by, the
Company for reasonable expenses, provided that such expenses are substantiated
in accordance with Company policies.
5. Confidential Information
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5.1 Employee acknowledges that, because of his employment hereunder,
he will be in a confidential relationship with the Company and will have access
to confidential information and trade secrets of the Company. Employee
acknowledges and agrees that the following constitutes confidential and/or trade
secret information belonging exclusively to Company (collectively "Confidential
Information"):
(a) all information related to customers including, without
limitation, customer lists, the identities of existing, past or prospective
customers, prices charged or proposed to be charged to customers, customer
contacts, special customer requirements and all related information;
(b) marketing plans, materials and techniques; and
(c) all know-how, devices, compilations of information,
copyrightable material and technology and technical information, relating to the
business of the Company.
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5.2 Employee agrees that except in the limited performance of his
duties under this Agreement, Employee shall not use for his own benefit or
disclose to any third-party Confidential Information acquired by reason of his
employment under this Agreement or his former status as officer of the Company.
5.3 This Section 5 shall survive termination of this Agreement.
6. Company Property.
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6.1 Any patents, inventions, discoveries, applications or
processes, software and computer programs devised, planned, applied, created,
discovered or invented by Employee in the course of his employment under this
Agreement and which pertain to any aspect of the business of the Company, or its
subsidiaries, affiliates or customers, shall be the sole and absolute property
of the Company, and Employee shall make prompt report thereof to the Company and
promptly execute any and all documents reasonably requested to assure the
Company the full and complete ownership thereof.
6.2 All records, files, lists, drawings, documents, equipment
and similar items relating to the Company's business which Employee shall
prepare or receive from the Company shall remain the Company's sole and
exclusive property. Upon termination of this Agreement, Employee shall return
promptly to the Company all property of the Company in his possession and
Employee represents that he will not copy, or cause to be copied, printed,
summarized or compiled, any software, documents or other materials originating
with and/or belonging to the Company. Employee further represents that he will
not retain in his possession any such software, documents or other materials in
machine or human readable forms.
6.3 This Section 6 shall survive termination of this Agreement.
7. Termination of Employment and Severance Benefits.
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(a) Termination of Employment. Employee's employment under
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this Agreement may terminate during the Original Term (or any subsequent Term)
upon the occurrence of any of the following events:
(i) The effective date of a written notice sent to
the Company from Employee stating that Employee is electing to terminate his
employment with the Company voluntarily ("Voluntary Termination");
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(ii) The Company's determination to terminate
Employee without Cause, which determination may be made by the Company at any
time at the Company's sole discretion, for any reason or no reason ("Termination
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Without Cause"); or Employee's "Constructive Termination" (as defined below);
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collectively referred to as "Involuntary Termination".
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(iii) The Company's reasonable, good faith determination that it
is terminating Employee for Cause (as defined below) ("Termination for Cause");
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or
(iv) Following Employee's death or Disability; or
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(v) A Change of Control (as defined below) and Termination of
Employee's employment within _____ thereafter, whether by the Company with or
without cause, or by the Employee voluntarily.
(b) Severance Benefits. Employee shall be entitled to receive
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severance benefits upon termination of employment only as set forth in this
Section 7(b):
(i) Voluntary Termination. If Employee's employment
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terminates by Voluntary Termination, then Employee shall not be entitled to
receive payment of any severance benefits. Employee will receive payment for all
salary and unpaid vacation accrued as of the date of Employee's termination of
employment and Employee's benefits will be continued under the Company's then
existing benefit plans and policies in accordance with such plans and policies
in effect on the date of termination and in accordance with applicable law.
(ii) Involuntary Termination. If Employee's employment
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terminates due to Termination Without Cause or Constructive Termination
(collectively, "Involuntary Termination"):
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(1) Employee will be entitled to receive payment of
severance benefits equal to Employee's regular monthly salary for an
additional ____ following the date of such Involuntary Termination (the
"Severance Period"), such payment to be made ratably over the Severance
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Period according to the Company's standard payroll schedule;
(2) Employee shall receive the pro rata portion of
Employee's target bonus for the then current Term, based on the portion of
the current Term that Employee has worked and/or based on the portion (if
any) of the target bonus achieved for the then current Term;
(3) Health insurance benefits with the same coverage
provided to Employee prior to the termination (e.g. medical, dental,
optical, mental health) and in all other respects significantly comparable
to those in place immediately prior to the termination will be provided at
the Company's cost over the Severance Period; and
(4) Any unvested stock options or shares of restricted
stock held by Employee as of the date of Employee's termination of
employment shall continue to vest through the end of the Severance Period
according to the vesting schedule set forth in any agreement between
Employee and the Company governing the issuance to Employee of such
securities.
(iii) Termination for Cause. If Employee's employment is
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terminated for Cause, then Employee shall not be entitled to receive payment of
any severance benefits. Employee will receive payment for all salary and unpaid
vacation accrued as of the date of Employee's termination of employment and
Employee's benefits will be discontinued effective on the date of termination,
except that Employee's medical insurance will terminate on the last day of the
month of termination of employment.
(iv) Termination by Reason of Death or Disability. In the
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event that Employee's employment with the Company terminates as a result of
Employee's death or Disability
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(as defined below), Employee or Employee's estate or representative will receive
all salary and unpaid vacation accrued as of the date of Employee's death or
Disability and any other benefits payable under the Company's then existing
benefit plans and policies in accordance with such plans and policies in effect
on the date of death or Disability and in accordance with applicable law. In
addition, Employee's estate or representative shall also receive the pro rata
portion of Employee's target bonus for the current Term, based on the portion of
the current Term that Employee has worked.
(v) Change of Control. Notwithstanding the preceding clauses of this
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Section 7(b), upon a Change of Control and termination of Employee's employment
______ thereafter, whether by the Company, with or without cause, or by the
Employee voluntarily, Employee will be entitled to receive payment of severance
benefits equal to Employee's regular monthly salary for a period of ____
following said Change of Control. (the "Change of Control Severance Period").
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Such payment shall be made ratably over the Change of Control Severance Period
according to the Company's standard payroll schedule. On the date of such Change
of Control, Employee shall also receive the pro rata portion of Employee's
target bonus for the current Term, based on the portion of the current Term that
Employee has worked. Health insurance benefits (e.g. medical, dental, optical,
mental health) with the same or comparable coverage in place immediately prior
to the Change of Control to the extent commercially available, will be provided
at the Company's cost over the Change of Control Severance Period. Any unvested
stock options or shares of restricted stock held by Employee on the date of
Employee's termination of employment shall become 100% vested and shall be
immediately exercisable.
(vi) Noncompete. If Employee shall at any time during a Severance
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Period or a Change of Control Severance Period, act as an owner (other than a
shareholder in a publicly traded company) or employee of a business that
directly competes with the business conducted by the Company as conducted on the
date of Employee's termination of employment, then, effective upon Employee's
commencement of such activities as a competing owner or employee, Employee shall
not receive any severance payment or other benefits under Sections 7(b)(ii) or
(v) beyond what he would have received had he been Terminated for Cause. The
term directly competes, as set forth in this Section shall be limited to
companies that derive at least 50% of their revenue from the sales of external
defibrillators and accessories.
8. Definitions. For purposes of this Agreement,
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(a) "Cause" for Employee's termination will exist at any time after
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the happening of one or more of the following events:
(i) Employee's willful misconduct or gross negligence in
performance of his duties hereunder, including Employee's refusal to comply in
any material respect with the legal directives of the Company's Board of
Directors so long as such directives are not inconsistent with the Employee's
position and duties, and such refusal to comply, if of a nature capable of being
remedied, is not remedied within fifteen (15) working days after written notice
from the Company, which written notice shall state that failure to remedy such
conduct may result in Termination for Cause;
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(ii) Dishonest or fraudulent conduct related and materially adverse to
the activities of the Company, a deliberate attempt to do a material injury to
the Company, or conduct that materially discredits the Company or is materially
detrimental to the reputation of the Company, including conviction of a felony;
or
(iii) Employee's knowing and intentional material breach (which can not
be cured) of any element of the Company's Confidential Information and Invention
Assignment Agreement, including without limitation, Employee's theft or other
misappropriation of the Company's proprietary information.
(b) "Constructive Termination" shall be deemed to occur if (i)(A) there is
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a significant reduction in Employee's duties, positions or responsibilities
causing such position to be of reduced stature or responsibility or, (B) a
reduction in Employee's base compensation or benefits, or (C) Employee's refusal
to relocate to a facility or location more than 30 miles from the Company's
current location; and (ii) within the 60-day period immediately following such
material change or reduction Employee elects to terminate his employment
voluntarily.
(c) "Disability" shall mean that Employee has been unable to perform his
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duties hereunder as the result of his incapacity due to physical or mental
illness, and such inability, which continues for at least 60 consecutive
calendar days or 90 calendar days during any consecutive twelve-month period, if
shorter, after its commencement, is determined to be total and permanent by an
independent and impartial physician selected by the Company and its insurers and
acceptable to Employee or to Employee's legal representative (with such
agreement on acceptability not to be unreasonably withheld).
(d) "Change of Control" shall mean the occurrence of any of the following
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events: (i) an acquisition of the Company by another entity by means of any
transaction or series of related transactions (including, without limitation,
any reorganization, merger or consolidation but excluding any merger effected
exclusively for the purpose of changing the domicile of the Company), or (ii) a
sale of all or substantially all of the assets of the Company (collectively, a
"Merger"), so long as in either case (x) the Company's stockholders of record
immediately prior to such Merger will, immediately after such Merger, hold less
than 50% of the voting power of the surviving or acquiring entity, or (y) the
Company's stockholders of record immediately prior to such Merger will,
immediately after such Merger, hold less than 60% of the voting power of the
surviving or acquiring entity and a majority of the members of the Board of
Directors of the surviving or acquiring entity immediately after such Merger
were not members of the Board of Directors of the Company immediately prior to
such Merger.
Notwithstanding the above, in the event that (i) Employee's employment is
terminated by the Company or a successor to the Company other than for Cause (as
defined below), or (ii) Employee's job duties, responsibilities and requirements
are materially reduced or changed such that they are inconsistent with
Employee's prior duties, responsibilities and requirements, in either case in
connection with, or as a result of, a Change of Control, 100% of the option that
has not yet become exercisable shall become exercisable on the effective date of
such termination, reduction or change.
9. Successors. Any successor to the Company (whether direct or indirect and
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whether by purchase, lease, merger, consolidation, liquidation or otherwise) to
all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agrees
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expressly to perform the obligations under this Agreement in the same manner and
to the same extent as the Company would be required to perform such obligations
in the absence of a succession, and in the event this provision is not otherwise
enforceable as to any such successor, the Company shall obtain the agreement of
that successor to assume this Agreement. The terms of this Agreement and all of
Employee's rights hereunder shall inure to the benefit of, and be enforceable
by, Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
10. Miscellaneous Provisions.
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(a) No Duty to Mitigate. Employee shall not be required to mitigate
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the amount of any payment contemplated by this Agreement (whether by seeking new
employment or in any other manner), nor, except as otherwise provided in this
Agreement, shall any such payment be reduced by any earnings that Employee may
receive from any other source.
(b) Amendments and Waivers. Any term of this Agreement may be amended
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or waived only with the written consent of the parties.
(c) Sole Agreement. This Agreement, including any Exhibits hereto,
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constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof,
including the Employment Agreement, dated __________ , between the Company and
Employee.
(d) Notices. Any notice required or permitted by this Agreement shall
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be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(e) Choice of Law. The validity, interpretation, construction and
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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.
(f) Severability. If one or more provisions of this Agreement are held
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to be unenforceable under applicable law, the parties agree to renegotiate such
provision in good faith. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(g) Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original, but all of which together will constitute one
and the same instrument.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
CARDIAC SCIENCE INC.
By:
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Title:
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Address: 00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Name
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Date
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