RETENTION AGREEMENT
Exhibit
10.3
This
RETENTION AGREEMENT is entered into as of this 30th day of September, 2008, by
and between ICU MEDICAL, INC., a Delaware corporation (the “Company”) and
Xxxxx X. Xxxx, a key employee of the Company (the “Employee”).
RECITALS
WHEREAS, the Company recognizes that,
as is the case with many publicly-held corporations, the possibility of a change
in control of the Company exists and that the uncertainties raised by such a
possibility may result in the distraction or even the premature departure of the
Employee to the detriment of the Company and its stockholders, and
WHEREAS, the Board of Directors of the
Company (the “Board”) has determined that appropriate steps should be taken to
reinforce and encourage the continued employment and dedication of the Employee
without distraction from the possibility of a change in control of the Company
and related events and circumstances.
NOW, THEREFORE, as an inducement for
and in consideration of the Employee remaining in its employ, the Company agrees
that the Employee shall receive the severance benefits set forth in this
Agreement in the event the Employee’s employment with the Company is terminated
under the circumstances described below subsequent to a Change in Control (as
defined in Section 1.1).
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I.
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Key
Definitions.
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As used
herein, the following terms shall have the following respective
meanings:
A. “Change in Control”
means
1. the
acquisition by an individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”)) (a “Person”) of beneficial ownership of any capital stock of
the Company if, after such acquisition, such Person beneficially owns (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) 50% or more of
either (i) the then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock”) or (ii) the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in
the election of directors (the “Outstanding Company Voting Securities”);
provided, however, that for purposes of this subsection 1.1(a), the following
acquisitions shall not constitute a Change in Control: (i) any acquisition from
the Company, (ii) any acquisition by the Company, (iii) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the Company
or any corporation controlled by the Company, or (iv) any acquisition by any
corporation pursuant to a transaction which complies with all of clauses (i),
(ii) and (iii) of subsection (c) of this Section 1.1; or
2. individuals
who, as of the date hereof, constitute the members of the Board (the “Incumbent
Directors”) ceasing for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the Incumbent
Directors then in office shall be deemed to be an Incumbent Director (except
that this proviso shall not apply to any individual whose initial election as a
director occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board); or
3. the
consummation of a reorganization, merger or consolidation involving the Company
or a sale or other disposition of all or substantially all of the assets of the
Company (a “Business Combination”), unless, immediately following such Business
Combination, each of the following three conditions is satisfied: (i) all or
substantially all of the individuals and entities who were the beneficial owners
of the Outstanding Company Common Stock and Outstanding Company Voting
Securities immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the then-outstanding shares of common
stock and the combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, respectively, of the
resulting or acquiring corporation in such Business Combination (which shall
include, without limitation, a corporation which as a result of such transaction
owns the Company or substantially all of the Company’s assets either directly or
through one or more subsidiaries)(such resulting or acquiring corporation is
referred to as the “Acquiring Corporation”) in substantially the same
proportions, relative to one another, as their ownership, immediately prior to
such Business Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, respectively, (ii) no Person (excluding
the Acquiring Corporation or any employee benefit plan (or related trust)
maintained or sponsored by the Company or the Acquiring Corporation)
beneficially owns, directly or indirectly, 50% or more of the then-outstanding
shares of common stock of the Acquiring Corporation, or of the combined voting
power of the then-outstanding voting securities of such corporation (except to
the extent that such ownership existed prior to the Business Combination) and
(iii) a majority of the members of the board of directors of the Acquiring
Corporation were Incumbent Directors at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
4. approval
of the stockholders of the Company of a complete liquidation or dissolution of
the Company.
B. “Change in Control
Date” means the first date during the Term (as defined in Section 2) on
which a Change in Control occurs. Anything in this Agreement to the
contrary notwithstanding, if a Change in Control occurs and if the Employee’s
employment with the Company is terminated prior to the Change in Control Date or
if any event which constitutes Good Reason (as defined in Section 1.4) occurs
prior to the Change in Control Date, and if it is reasonably demonstrated by the
Employee that such termination of employment or event which constitutes Good
Reason (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (ii) otherwise arose
in connection with or in anticipation of a Change in Control, then for all
purposes of this Agreement the “Change in Control Date” shall mean the date
immediately prior to the date of such termination of employment or event which
constitutes Good Reason.
C. “Cause”
means:
1. the
Employee’s intentional, willful and continuous failure to substantially perform
his or her reasonable assigned duties (other than any such failure resulting
from incapacity due to physical or mental illness or any failure after the
Employee gives notice of termination for Good Reason), which failure is
materially and demonstrably injurious to the Company, and which failure is not
cured within 30 days after a written demand for substantial performance is
received by the Employee from the Board which specifically identifies the manner
in which the Board believes the Employee has not substantially performed the
Employee’s duties; or
2. the
Employee’s intentional and willful engagement in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company or is
intended to result in substantial personal enrichment; or
3. the
Employee’s conviction for a felony or the Employee’s plea of nolo contendere in connection
with a felony indictment.
For
purposes of this Section 1.3, no act or failure to act by the Employee shall be
considered “willful” unless it is done, or omitted to be done, in bad faith and
without reasonable belief that the Employee’s action or omission was in the best
interests of the Company.
D. “Good Reason” means
the occurrence, without the Employee’s written consent, or any of the events or
circumstances set forth in clauses (a) through (f)
below. Notwithstanding the occurrence of any such event or
circumstance, such occurrence shall not be deemed to constitute Good Reason if,
prior to the Date of Termination specified in the Notice of Termination (each as
defined in Section 3.2(a)) given by the Employee in respect thereof, such event
or circumstance has been fully corrected and the Employee has been reasonably
compensated for any losses or damages resulting therefrom; provided that such
right of correction by the Company shall only apply to the first Notice of
Termination for Good Reason given by the Employee:
1. any
significant diminution in the Employee’s duties, responsibilities or authority
in effect immediately prior to the earliest to occur of (i) the Change in
Control Date, (ii) the date of the execution by the Company of the initial
written agreement or instrument providing for the Change in Control or (iii) the
date of the adoption by the Board of a resolution providing for the Change in
Control (with the earliest to occur of such dates referred to as the
“Measurement Date”);
2. a
reduction in the Employee’s annual base salary as in effect on the Measurement
Date or as the same may be increased from time to time;
3. the
failure by the Company to (i) continue in effect any material compensation or
benefit plan or program (a “Benefit Plan”) in which the Employee participates or
which is applicable to the Employee immediately prior to the Measurement Date,
unless an equitable arrangement (embodied in an ongoing substitute or
alternative plan or reasonable cash compensation in lieu thereof) has been made
with respect to such plan or program, (ii) continue the Employee’s participation
in a Benefit Plan (or in such substitute or alternative plan or make reasonable
cash compensation in lieu thereof) on a basis not materially less favorable,
both in terms of the amount of benefits provided and the level of the Employee’s
participation relative to other participants, than the basis existing
immediately prior to the Measurement Date or (iii) award cash bonuses to the
Employee in amounts and in a manner substantially consistent with past practice
in light of the Company’s financial performance;
4. a change
by the Company in the location at which the Employee performs the Employee’s
principal duties for the Company to a new location that is either (i) outside a
radius of 35 miles from the Employee’s principal residence immediately prior to
the Measurement Date; (ii) more than 30 miles from the location at which the
Employee performs his or her principal duties for the Company immediately prior
to the Measurement Date, and which results in an increase in the Employee’s
daily commuting distance; or (iii) a requirement by the Company that the
Employee travel on Company business to a substantially greater extent than
required immediately prior to the Measurement Date;
5. the
failure of the Company to obtain the agreement, in a form reasonably
satisfactory to the Employee, from any successor to the Company to assume and
agree to perform this Agreement, as required by Section 6; or
6. any
failure of the Company to pay or provide to the Employee any portion of the
Employee’s compensation or benefits due under any Benefit Plan within seven days
of the date such compensation or benefits are due, or any material breach by the
Company of any employment agreement with the Employee.
The
Employee’s right to terminate his or her employment for Good Reason shall not be
affected by his or her incapacity due to physical or mental
illness.
E. “Disability” means
the Employee’s absence from the full-time performance of the Employee’s duties
with the Company for 180 consecutive calendar days as a result of incapacity due
to mental or physical illness which is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the Employee
or the Employee’s legal representative.
F. “Effective Date”
means the date as of which this Agreement is entered into.
II. Term of
Agreement. This Agreement, and all rights and obligations of
the parties hereunder, shall take effect upon the Effective Date and shall
expire upon the first to occur of (a) the expiration of the Term (as defined
below) if a Change in Control has not occurred during the Term, (b) the date 12
full calendar months after the Change in Control Date, if the Employee is still
employed by the Company as of such later date, or (c) the fulfillment by the
Company of all of its obligations under Sections 4 and 6 if the Employee’s
employment with the Company terminates within 12 full calendar months following
the Change in Control Date, provided that Section 5 shall remain in effect from
the Effective Date until 24 full calendar months after the Date of Termination
of the Employee. “Term” shall mean the period commencing as of the
Effective Date and continuing in effect through September 30, 2009; provided,
however, that commencing on September 30, 2009 and each September 30 thereafter,
the Term shall be automatically extended for one additional year unless, not
later than 90 days prior to the scheduled expiration of the Term (or any
extension thereof), the Company shall have given the Employee written notice
that the Term will not be extended.
III. Employment Status;
Termination Following Change in Control.
A. Not an Employment
Contract. The Employee acknowledges that this Agreement does
not constitute a contract of employment or impose on the Company any obligation
to retain the Employee as an employee and that this Agreement does not prevent
the Employee from terminating employment at any time. If the
Employee’s employment with the Company terminates for any reason and
subsequently a Change in Control shall occur, the Employee shall not be entitled
to any benefits hereunder, except as otherwise provided pursuant to Section
1.2.
B. Termination of
Employment.
1. If the
Change in Control Date occurs during the Term, any termination of the Employee’s
employment by the Company or by the Employee within 12 full calendar months
following the Change in Control Date (other than due to the death of the
Employee) shall be communicated by a written notice to the other party hereto
(the “Notice of Termination”), given in accordance with Section
7. Any Notice of Termination shall: (i) indicate the specific
termination provision (if any) of this Agreement relied upon by the party giving
such notice; (ii) to the extent applicable, set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination for the
Employee’s employment under the provision so indicated and (iii) specify the
Date of Termination (as defined below). The date on which an
employment termination becomes effective (the “Date of Termination”) shall be
(A) the close of business on the date specified in the Notice of Termination
(which date may not be less than 14 days or more than 45 days after the date of
delivery of such Notice of Termination), in the case of a termination other than
due to the Employee’s death, or (B) the date of the Employee’s death in the case
of a termination due to the Employee’s death, as the case may be.
2. The
failure by the Employee or the Company to set forth in the Notice of Termination
any fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of the Employee or the Company, respectively, from
asserting any such fact or circumstance in enforcing the Employee’s or the
Company’s right hereunder.
3. Any
Notice of Termination for Cause given by the Company must be given within 90
days of the occurrence of the event(s) or circumstance(s) which constitute(s)
Cause. Prior to any Notice of Termination for Cause being given (and
prior to any termination for Cause being effective), the Employee shall be
entitled to a hearing before the Board at which he or she may, at his or her
election, be represented by counsel and at which he or she shall have a
reasonable opportunity to be heard. Such hearing shall be held on not
less than 15 days prior written notice to the Employee stating the Board’s
intention to terminate the Employee for Cause and stating in detail the
particular events event(s) or circumstance(s) which the Board believes
constitutes Cause for termination.
4. Any
Notice of Termination for Good Reason given by the Employee must be given within
six months of the occurrence of the events or circumstances which constitutes
Good Reason.
IV. Benefits to
Employee.
A. Compensation. If
the Change in Control Date occurs during the Term and the Employee’s employment
with the Company terminates within 12 full calendar months following the Change
in Control Date, the Employee shall be entitled to the following
benefits:
1. Termination Without Cause or
for Good Reason. If the Employee’s employment with the Company
is terminated by the Company (other than for Cause, Disability or death) or by
the Employee for Good Reason within 12 full calendar months following the Change
in Control Date, then the Employee shall be entitled to the following
benefits:
a. the
Company shall pay to the Employee either in a lump sum in cash within 30 days
after the Date of Termination, or, if the Employee so elects in writing within
15 days after the Date of Termination, in 24 bi-monthly installments, without
interest, beginning on the date of the first normal employee payroll of the
Company which occurs more than 30 days after the Date of Termination, the
aggregate of the following amounts:
i. the sum
of (A) the Employee’s annual base salary for the current year through the Date
of Termination and (B) the product of (x) the Employee’s total on target
semi-annual and annual bonuses for the current fiscal year (including any merit
bonuses and any bonuses under the Company’s 2008 Performance-Based Incentive
Plan) (the “Target Bonus”) and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of Termination, and
the denominator of which is 365 less (C) the amount of any compensation
previously paid for the current year, whether in quarterly bonus payments, or
otherwise, (the sum of the amounts described in clauses (A) and (B), less the
amount previously paid in (C), shall be referred to as the “Accrued
Obligations”); and
ii. the sum
of (A) the Employee’s annual base salary as of the date immediately before the
Date of Termination; and (B) the Employee’s Target Bonus for the current fiscal
year.
b. for 12
full calendar months after the Date of Termination, or such longer period as may
be provided by the terms of the appropriate plan, program, practice or policy,
the Company shall continue to provide benefits to the Employee (other than any
benefits under the executive bonus plan, the Company 401(k) Savings Plan, the
2005 Long Term Retention Plan or the 2008 Performance-Based Incentive Plan) and
the Employee’s family at least equal to those which would have been provided to
them if the Employee’s employment had not been terminated, in accordance with
the applicable Benefit Plans in effect on the Measurement Date or, if more
favorable to the Employee and his or her family, in effect generally at any time
thereafter with respect to other peer employees of the Company; provided, however,
that if the Employee becomes reemployed with another employer and is eligible to
receive comparable life, medical, dental, health, and accident or disability
insurance benefits under another employer-provided plan, on terms at least as
favorable to the Employee and his or her family, then the benefits described in
this clause (ii) shall be reduced to the extent such other benefits are
available to the Employee and his or her family;
c. to the
extent not previously paid or provided, the Company shall timely pay or provide
to the Employee any other amounts or benefits required to be paid or provided or
which the Employee is eligible to receive following the Employee’s termination
of employment under any plan, program, policy, practice, contract or agreement
of the Company (such other amounts and benefits shall be referred to as the
“Other Benefits”);
d. The
Company shall pay the commercially reasonable fees of one executive outplacement
firm’s services provided to the Employee, such firm to be chosen by the
Employee, not to exceed $10,000.
e. Any
outstanding stock options granted to the Employee pursuant to the Company’s
Amended and Restated 1993 Stock Incentive Plan or the Company’s 2003 Stock
Option Plan, and any outstanding stock options granted to the Employee after the
Effective Date and prior to a Change in Control, shall immediately vest upon the
Date of Termination.
f. Notwithstanding
any provision of this Agreement, (A) awards (“LTRP Awards”) that have been
granted to the Employee under the Company’s 2005 Long Term Retention Plan (the
“LTRP”) that have not been paid in accordance with the terms of the LTRP shall
not be considered Accrued Obligations, Target Bonus or benefits to be provided
in accordance with Benefit Plans for purposes of determining amounts to be paid
under this Section 4.1(a) or Section 4.1(b) and (B) LTRP Awards are Other
Benefits that will be paid or not paid, as the case may be, in accordance with
the terms of the LTRP.
2. Resignation without Good
Reason; Termination for Cause; Termination for Death or
Disability. If the Employee voluntarily terminates his or her
employment with the Company within 12 full calendar months following the Change
in Control Date, excluding a termination for Good Reason, or the Employee’s
employment with the Company is terminated by the Company for Cause, or by reason
of the Employee’s death or Disability within 12 full calendar months following
the Change in Control Date, then the Company shall (i) pay the Employee (or
his or her estate, if applicable), in a lump sum in cash within 15 days after
the Date of Termination, the Accrued Obligations and (ii) timely pay or
provide to the Employee the Other Benefits earned before the Date of
Termination.
B. Mitigation. The
Employee shall not be required to mitigate the amount of any payment or benefits
provided for in this Section 4 by seeking other employment or
otherwise. Further, except as provided in Section 4.1(a)(ii), the
amount of any payment or benefits provided for in this Section 4 shall not be
reduced by any compensation earned by the Employee as a result of employment by
another employer, by retirement benefits, by disability or death benefits, by
offset against any amount claimed to be owed by the Employee to the Company or
otherwise.
C. Limitation on
Payments. In the event that any of the severance benefits
provided for in Section 4.1 of this Agreement (i) constitute “parachute
payments” within the meaning of Section 280G of the Internal Revenue Code of
1986, as amended (the “Code”), and (ii) but for this Section 4.3, would be
subject to the excise tax imposed by Section 4999 of the Code, then the
Employee’s severance benefits under Section 4.1 will be either:
(A)
delivered in full, or
(B)
delivered as to such lesser extent which would result in no portion of such
severance benefits being subject to excise tax under Section 4999 of the
Code,
whichever
of the foregoing amounts, taking into account the applicable federal, state and
local income taxes and the excise tax imposed by Section 4999 of the Code,
results in the receipt by the Employee on an after-tax basis of the greatest
amount of severance benefits, notwithstanding that all or some portion of such
severance benefits may be taxable under Section 4999 of the
Code. Unless the Company and the Employee otherwise agree in writing,
any determination required under this Section 4.3 will be made in writing by the
Company’s independent public accountants immediately prior to the Change in
Control Date (the “Accountants”), whose determination will be conclusive and
binding upon the Employee and the Company for all purposes. For
purposes of making the calculations required by this Section 4.3, the
Accountants may make reasonable assumptions and approximations concerning
applicable taxes and may rely on reasonable, good faith interpretations
concerning the application of Sections 280G and 4999 of the Code. The
Company and the Employee will furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Section 4.3. The Company will bear all fees
and costs payable to the Accountants in connection with any calculations
contemplated by this Section 4.3.
V. Disputes.
A. Settlement of Disputes;
Arbitration. All claims by the Employee for benefits under
this Agreement shall be directed to and determined by the Board and shall be in
writing. Any denial by the Board of a claim for benefits under this
Agreement shall be delivered to the Employee in writing and shall set forth the
specific reasons for the denial and the specific provisions of this Agreement
relied upon. The Board shall afford a reasonable opportunity to the
Employee for a review of the decision denying a claim. Any further
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration in Orange County, California, in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitrator’s award in any
court having jurisdiction.
B. Expenses. The
prevailing party shall be entitled to recover all costs and expenses, including
reasonable attorneys’ fees, expert witness fees, court costs and all other costs
and expenses incurred in any action or proceeding arising out of this Agreement
or as to any matters related to but not covered by this
Agreement. For purposes of this Section 5.2, the term “prevailing
party” includes a party who agrees to dismiss an action or proceeding upon the
other’s payment of the sums allegedly due or for performance of the covenants,
undertakings or agreements allegedly breached, or who obtains substantially the
relief it sought.
VI. Successors; Binding
Agreement.
A. Successors. The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation or otherwise) to all or substantially all of the business
or assets of the Company expressly to assume and agree to perform this Agreement
to the same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain an
assumption of this Agreement at or prior to the effectiveness of any succession
shall be a breach of this Agreement and shall constitute Good Reason if the
Employee elects to terminate employment (and such termination shall be deemed to
have occurred after a Change in Control), except that for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination. As used in this
Agreement, “Company” shall mean the Company as defined above and any successor
to its business or assets as aforesaid that assumes and agrees to perform this
Agreement, by operation of law or otherwise.
B. Binding
Agreement. This Agreement shall inure to the benefit of and be
enforceable by the Employee’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If the Employee should die while any amount would still be
payable to the Employee or his or her family hereunder if the Employee had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the executors, personal
representatives or administrators of the Employee’s estate.
VII. Notice. All
notices, instructions and other communications given hereunder or in connection
herewith shall be in writing. Any such notice, instruction or
communication shall be sent either (i) by registered or certified mail,
return receipt requested, postage prepaid, or (ii) prepaid via a reputable
nationwide overnight courier service, in each case addressed to the Company at
000 Xxxxx Xxxxxxxx, Xxx Xxxxxxxx, XX 00000, and to the Employee at the home
address most recently provided by the Employee to the Company (or to such other
address as either the Company or the Employee may have furnished to the other in
writing in accordance herewith). Any such notice, instruction or
communication shall be deemed to have been delivered, whether or not actually
received, five business days after it is sent by registered or certified mail,
return receipt requested, postage prepaid, or one business day after it is sent
via a reputable nationwide overnight courier service. Either party
may give any notice, instruction or other communication hereunder using any
other means, but no such notice, instruction or other communication shall be
deemed to have been duly delivered unless and until it is actually is received
by the party for whom it is intended.
VIII. Miscellaneous.
A. Employment by
Subsidiary. For purposes of this Agreement, the Employee’s
employment with the Company shall not be deemed to have terminated solely as a
result of the Employee continuing to be employed by a wholly-owned subsidiary of
the Company.
B. Severability. If
any provision of this Agreement is declared invalid or unenforceable, such
provision shall be deemed automatically adjusted to conform to the requirements
for validity or enforceability as declared at such time while maintaining the
original intent of the provision to the greatest extent possible and, as so
adjusted, shall be deemed a provision of this Agreement as though originally
included herein. If the provision invalidated or deemed unenforceable
is of such a nature that it cannot be so adjusted, the provision shall be
deleted from this Agreement as though it had never been included
therein. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
C. Injunctive
Relief. The Company and the Employee agree that any breach of
this Agreement by the Company or the Employee is likely to cause the Employee or
the Company substantial and irrevocable damage and therefore, in the event of
any such breach, in addition to such other remedies which may be available, the
Employee or the Company shall have the right to seek specific performance and
injunctive relief.
D. Governing
Law. The validity, interpretation, construction,
enforceability and performance of this Agreement shall be governed by the
internal law of the State of California.
E. Waivers. No
waiver by the Employee at any time of any breach of, or compliance with, any
provision of this Agreement to be performed by the Company shall be deemed a
waiver of that or any other provision at any subsequent time.
F. Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original but both of which together will constitute one and the same
instrument.
G. Tax
Withholding. Any payments provided for hereunder shall be paid
net or any applicable tax withholding required under federal, state or local
law.
H. Entire
Agreement. Except as provided in the Employee’s stock option
agreements and employment agreement, this Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto; and any prior agreement
of the parties hereto in respect of the subject matter contained herein is
hereby terminated and cancelled. Nothing contained in this Agreement
shall limit the Employee’s or the Company’s rights, obligations an benefits
under the Employee’s stock option agreement.
I. Amendments. The
Employee and the Company may, by mutual agreement, amend or modify this
Agreement, provided, however that any such amendment or modification shall only
be effected by a written instrument executed by both the Company and the
Employee.
[SIGNATURE
PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as a sealed instrument as of the day and year first
set forth above.
COMPANY:
ICU
MEDICAL, INC.
By:/s/Xxxxxx X. Xxxxx,
M.D.
Title:President and
CEO
EMPLOYEE:
Xxxxx X.
Xxxx
XXXXX X.
XXXX
