Employment Agreement - Cardiac Science Inc. and Prabodh Mathur
CARDIAC SCIENCE, INC.
EMPLOYMENT AGREEMENT
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This EMPLOYMENT AGREEMENT (the "Agreement") is dated as of January 28,
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2002, by and between PRABODH MATHUR ("Employee") and CARDIAC SCIENCE INC., a
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Delaware corporation (the "Company").
1. Term of Agreement. This Agreement shall commence on the date
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executed and shall be a term of twelve (12) months (the "Original Term"). This
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Agreement shall continue after the end of Original Term and shall automatically
renew for successive 12-month periods under the same terms and conditions of
this Agreement, with Compensation in Section 4, which may be revised based upon
mutual agreement. The Original Term and any 12-month period commencing
immediately after the end of any Term shall each be referred to as a "Term."
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2. Duties.
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(a) Position. Employee shall be employed as Chief Product
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Development Officer and as such will have responsibility for the duties
typically associated with such positions and will report to the Company's Chief
Executive Officer and Board of Directors.
(b) Obligations to the Company. Employee agrees to the best of
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his ability 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
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Employee's 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 after the Original Term for any or no
reason. If Employee's employment terminates for any reason, Employee shall not
be entitled to any payments, benefits, damages, award 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
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Employee 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. Employee shall receive a yearly base salary of
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$166,000 ($13,833.33 per month). 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.
(b) Bonuses. Employee will be eligible to receive a target
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bonus opportunity of $46,000. Of the bonus, $30,000 to be paid out upon the
successful market release of the CRM device. The balance of $16,000 to be paid
out at a rate of $4,000 each upon completion of top 4 Product Development
initiatives (see 4(b) addendum attached - page 9).
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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
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in 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 three (3) weeks paid
vacation and 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
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be eligible to participate in any stock optionor other incentive programs
available to officers or employees of the Company.
(e) Reimbursement of Business Expenses. Employee shall be
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authorized to incur on behalf and for the benefit of, and shall be reimbursed
by, the Company for reasonable business 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 aconfidential 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,
cppyrightable material and technology and technical information,relating to the
business of the Company.
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
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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 Notwithstanding anything in this Agreement to the
contrary, Employee and Company acknowledge that Employee has conceived of a
device tentatively called the "SafeHeart."
Some of the key features of this Device are:
a) The Device will have a communication link to medical
professionals at a central monitoring station.
b) This link will be provided by communications
technology such as conventional phone line,
cellular phone, wireless connection, Internet
connection, etc.
c) The Device will have monitoring features, such as
monitoring ECG.
d) The Device will have at least one therapeutic
modality for cardiac assistance, such as
defibrillation, external pacing, etc.
It is understood that the final Device to be designed and developed
will deviate from the Device currently contemplated by Employee because of input
from various sources during the design process. It is possible that Company may
embark on the development of such a Device in the future.
It is agreed that Employee and Company will negotiate in good faith to
execute an agreement ("SafeHeart Agreement") that will compensate Employee in
the event Company pursues the development of a device with the aforementioned
features. This SafeHeart Agreement, to be finalized later, shall provide for
royalty payments to Employee from the sale of devices, accessories and services
related to the Device, with minimum annual payments, in an amount to be
determined in the SafeHeart Agreement.
It is understood that currently Employee has not filed patents covering
this concept. If patent (s) is (are) filed covering this concept, the patent (s)
will be assigned to Employee, until such time as the SafeHeart Agreement is
finalized.
6.4 This Section 6 shall survive termination of this Agreement.
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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 shall terminate immediately upon a Change of Control (as defined
below) and may be terminated 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 that it is terminating
Employee without Cause, which determination maybe made by the Company at any
time at the Company's sole discretion, for any reason or no reason
("Termination Without Cause");
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(iii) A change in Employee's status such that a
Constructive Termination (as defined below) has occurred;
(iv) The Company's reasonable, good faith determination
that it is terminating Employee for Cause (as defined below)
("Termination for Cause"); or
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(v) Following Employee's death or Disability.
(b) Severance Benefits. Employee shall be entitled to
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receive 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"), Employee will be entitled to receive
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payment of severance benefits equal to Employee's regular monthly salary for an
additional 12 months following the date of such Involuntary Termination (the
"Severance Period"). Such payment shall be made ratably over the Severance
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Period according to the Company's standard payroll schedule. On the date of such
Involuntary Termination, Employee shall also receive the pro rata portion of
Employee's target bonus for such then current Term, based on the portion of the
current Term that Employee has worked. 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. 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 continued under the Company's then existing benefit
plans and policies in accordance with such plans
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and policies in effect on the date of termination and in accordance with
applicable law.
(iv) Termination by Reason of Death or Disability.
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In the event that Employee's employment with the Company terminates as a result
of Employee's death or Disability (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
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clauses of this Section 7(b), upon a Change of Control, Employee will be
entitled to receive payment of severance benefits equal to Employee's regular
monthly salary for a period of twelve (12) months following said Change of
Control. (the "Change of Control Severance Period"). Such payment shall be made
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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 with the same coverage provided to Employee prior to the
Change of Control (e.g. medical, dental, optical, mental health) and in all
other respects significantly comparable to those in place immediately prior to
the Change of Control 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
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Severance 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
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time after 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 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;
(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
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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
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(i)(A) there is 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
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perform his 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
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the following 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
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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
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and 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 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. 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.
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10. Miscellaneous Provisions.
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(a) No Duty to Mitigate. Employee shall not be required to
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mitigate 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
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amended or waived only with the written consent of the parties.
(c) Sole Agreement. This Agreement, including any Exhibits
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hereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(d) Notices. Any notice required or permitted by this Agreement
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shall 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
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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.
(f) Severability. If one or more provisions of this Agreement
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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 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
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counterparts, each of 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: President & CEO
Address: 16931 Millikan Avenue
Irvine, CA 92606
Fax: (949) 587-0357
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Prabodh Mathur
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4. Bonus (addendum)
(b) Top 4 Product Development Initiatives" referred to in 4(b)
Bonuses section are:
1) Q2 - Nihon Kohden AED II (pseudo monophasic).......$4,000
2) Q3 - Powerheart CRM II (STAR & Pacing upgrades)....$4,000
3) Q3 - Powerheart AED (HV upgrade)...................$4,000
4) Q4 - Design complete: "Improved Powerheart AED"...$4,000
CARDIAC SCIENCE INC.
16931 Millikan Avenue
Irvine, CA 92606
Phone: 949-587-0357
Fax: 949-951-7315
By:
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President & CEO Date
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Prabodh Mathur Date
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