Exhibit 10.38
AMENDMENT NO. 1 TO
EMPLOYMENT AGREEMENT
Dated as of November 11, 1999
THIS AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this "Agreement") is entered
into this 6th day of March, 2001 (the "Effective Date") between Data Critical
Corporation ("Data Critical" or the "Company") and Xxxxxx X. May ("you" or the
"Executive").
WITNESSETH:
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WHEREAS, the Company and the Executive have entered into a certain letter
agreement dated as of November 11, 1999 (the "Original Employment Agreement")
setting forth certain agreements with respect to terms of the Executive's
employment with the Company; and
WHEREAS, the parties hereto wish to amend the terms of the Original
Employment Agreement as hereinafter set forth (the Original Employment
Agreement, as amended by this Amendment, being collectively, the "Employment
Agreement");
NOW THEREFORE, in consideration of the mutual premises set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
SECTION 1. The Original Employment Agreement is hereby amended as set
forth in this Section 1:
1.1 References in the Original Employment Agreement to the dollar
amounts of "$10,416.67" and "$125.000" in respect of Executive's monthly and
annual salary shall be deleted and the amounts "$13,541.67" and "$162,500" shall
be substituted therefor, respectively;
1.2 The following bulletpoint paragraph shall be added to the second
paragraph of the Original Employment Agreement as an additional component of
Executive's compensation:
". You may be entitled to a one-time performance based bonus on the
terms and conditions set forth on Exhibit A hereto.";
1.3 The sixth paragraph of the Original Employment Agreement (setting
forth the severance provisions and for cause termination provisions) is hereby
deleted in its entirety and the following shall be inserted in its place:
"The term of this Agreement shall be extended and shall continue for a
term of one (1) year from the date hereof, subject to earlier
termination as set forth below (the "Original Term"). The Company and
you acknowledge that your employment is and shall continue to be at-
will, as defined under applicable law, and that your employment with
the Company may be terminated by either party at any time for any or
no reason, subject to the terms of this letter agreement. If your
employment terminates fox any reason, you shall not be entitled to any
payments, benefits, damages, award or compensation other than as
provided in this letter agreement or as otherwise required by law.
Any payments, benefits, damages, awards, or
other compensation provided for hereunder upon any termination hereof
shall be inclusive of (and not additive to) any such amounts required
pursuant to any applicable law. The rights and duties created by this
agreement may not be modified in any way except by a written agreement
executed by the Company and the you. The terms of this paragraph shall
survive the termination of this Agreement and/or the termination of
your employment with the Company.
In the event that the Company terminates you at any point in time
without Cause (as defined below) at any time during the Original Tern
of this Agreement, Data Critical will continue to pay your monthly
salary $13,541.67 per month (subject to customary withholding) for a
period of six months after such termination in accordance with its
standard payroll procedures. For purposes of this agreement, "Cause"
shall mean, the commission of an act of fraud or dishonesty in the
course of your employment with Data Critical; conviction or plea of
nolo contendre of or to a crime constituting a felony or in respect of
any act of fraud, dishonesty or moral turpitude; failure to perform
the duties assigned to you material to the business conduct of Data
Critical under circumstances in which you knew or should have
reasonably known that such failure would be detrimental to Data
Critical, unless you remedy such failure not later than 30 days
following delivery to you of a written notice from Data Critical
describing such failure in reasonable detail. You may also be
entitled to payment of severance in the amount, at the times and upon
the conditions set forth on Exhibit A attached hereto.
You hereby agrees that you shall not, during the term of your
employment and for a period of 90 days after termination of your
employment with the Company and/or any of its affiliates for any
reason, do any of the following without die prior written consent of
the Board of Directors of the Company (for purposes of this paragraph,
the term "Company" shall mean the Company and each of its
subsidiaries):
(i) Compete. Carry on any business or activity (whether
directly or indirectly, as a partner, stockholder, principal,
agent, director, affiliate, employee, advisor or consultant) for
any company or other enterprise carrying on or proposing to carry
on any business or having any product line related to the
business of the Company, including, without limitation, in-
hospital wireless products or systems; enterprise monitoring or
telemetry products; handheld communications products for doctors,
nurses and other health care professionals; remote monitoring of,
or transmission of, ECGs or other patient medical information;
any pacemaker, arrhythmia follow-up or patient charting software
or hardware products or technology for cardiologists or cardiac
surgeons; wireless physician charting products; or any other
current or currently planned (at the time of your termination)
products or businesses by the Company, or that are otherwise
competitive with the business conducted by or planned to be
conducted by the Company, nor
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engage in any other activities that conflict with your
obligations to the Company (any such company or enterprise, being
a "Competitor").
(ii) Solicit Business. Solicit or influence or attempt to
influence any client, customer or other person either directly or
indirectly, to direct his or its purchase of the Company's
products and/or services to any Competitor.
(iii) No-Hire. Solicit or influence or attempt to influence,
directly or indirectly, any person employed by the Company or any
of its affiliates to terminate or otherwise cease his employment
with the Company or hire any such person within 6 months after
such person's leaving the Company's employ.
(iv) Equitable Remedies Survival. You acknowledge and agree
that your breach of this Agreement will cause irreparable injury
to the Company for which money damages and other remedies at law
would be inadequate, and as such that the Company and/or its
affiliates shall be entitled to equitable remedies, including,
without limitation, specific performance and/or temporary or
permanent injunctive relief. The provisions of clauses (i)-(v) of
this paragraph shall survive the termination of this Agreement
and/or the termination of your employment with the Company.
(v) Scope. You acknowledge and agree that the Company has
relied and is relying on the covenants contained herein in their
decision to enter into this Agreement and that in light of such
reliance the covenants contained herein are fair and reasonable.
Any dispute or claim arising out of or in connection with this
agreement will be finally settled by binding arbitration in Seattle,
Washington in accordance with the rules of the American Arbitration
Association by one arbitrator appointed in accordance with said rules.
Judgment on the award tendered by the arbitrator may be entered in any
court having jurisdiction thereof. Notwithstanding the foregoing, the
parties may apply to any court of competent jurisdiction for
preliminary or interim equitable relief, or to compel arbitration in
accordance with this paragraph, without breach of this arbitration
provision. The provisions of this paragraph shall survive the
termination of this Agreement and/or the termination of your
employment with the Company.
1.5. The Original Employment Agreement is hereby further amended to add
Exhibit A attached hereto as Exhibit A thereto.
SECTION 2. Effect on Original Employment Agreement. This Amendment
amends the Original Employment Agreement and all terms of this Amendment shall
be deemed incorporated into and made a part of the Employment Agreement. Except
as and to the extent specifically modified by the terms of this Amendment, all
terms of the Original Employment Agreement shall remain in full force and
effect. All references to the Employment Agreement in any other agreement or
document, and all references in the Employment Agreement to "this Agreement,"
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"hereof," "hereunder," or "hereto" or words of similar import shall be deemed to
be references to the Original Employment Agreement as amended hereby.
SECTION 3. Miscellaneous Provisions.
3.1 Choice of Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Washington, without giving effect to the principles of conflict of laws.
3.2 Severability. If one or more provisions of the Employment Agreement
are held 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 the Employment Agreement, (ii) the
balance of the Employment Agreement shall be interpreted as if such provision
were so excluded and (iii) the balance of the Employment Agreement shall be
enforceable in accordance with its terms.
3.3 Counterparts. This Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together will constitute one
and the same instrument.
3.4 Advice of Counsel. EACH PARTY TO THE EMPLOYMENT AGREEMENT AND THIS
AMENDMENT ACKNOWLEDGES THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE
OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND
UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF SUCH AGREEMENTS. NEITHER THE
EMPLOYMENT AGREEMENT NOR THIS AMENDMENT SHALL BE CONSTRUED AGAINST ANY PARTY BY
REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
DATA CRITICAL CORPORATION:
By: /s/ Xxxxxxx X. Xxxxxx
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Title: EVP, CFO
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00000 Xxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
XXXXXX X. MAY:
Signature: /s/ Xxxxxx X. May 3/16/01
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00000 XX 00xx Xxxxx
Xxxxxxx, XX 00000
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EXHIBIT A
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Terms of Performance Based Bonus:
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You will be entitled to payment of a one tune cash bonus in the amount of
$50,000 (subject to customary withholding) in the event (and solely in the
event) that and upon (i) the Company consummates the proposed acquisition as
contemplated by Project Viper currently underway and (ii) following such
acquisition, completion under your oversight of the migration and integration of
all in-hospital product manufacturing operations of the Company and the Target
to a single location as designated by the Board of Directors of the Company.
Terms of Severance:
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You shall also be entitled to payment of severance in the amount and on the
terms set forth in Section 4 of the Agreement if, as a requirement of your
continued employment with the Company, the Company has required you to
permanently relocate to Tustin, California and, rather than relocate, you elect
to voluntarily terminate your employment with the Company.
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