CROSS MEDICAL PRODUCTS, INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made this 15th day of August, 1997, ("Agreement")
between Cross Medical Products, Inc., a Delaware corporation ("Cross"), and
Paul A. Miller ("Executive").
Recitals
A. Cross is the owner, directly or indirectly, of all of the issued
capital stock of Cross Medical Products, Inc., an Ohio corporation
("Subsidiary").
B. Cross and its Subsidiary (collectively, the "Company") design,
license, manufacture, market and sell devices and instruments used in spinal
surgery.
C. The Executive is currently employed as an executive of Cross or its
Subsidiary.
D. The Company considers the continued services of the Executive to be in
the best interest of the Company and desires to assure the continued services
of the Executive on behalf of the Company on an objective and impartial basis
and without distraction or conflict of interest in the event of an attempt to
obtain control of the Company.
E. The Executive is willing to remain in the employ of the Company upon
the understanding that the Company will provide income security in the event
of a change in control of the Company.
F. The Company and the Executive desire to enter into an employment
relationship upon the terms and conditions contained herein.
NOW, THEREFORE, the parties agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the
Executive accepts such employment upon the terms and conditions hereinafter
set forth.
2. DUTIES. The Executive shall be employed:
(a) to serve as Vice President and Chief Financial Officer of Cross and of
the Subsidiary, and to serve in other capacities for each of Cross and the
Subsidiary, if so elected, subject to the authority and direction of the Board
of Directors of Cross or the Subsidiary, as the case may be; and
(b) to perform such other duties and responsibilities similar to those
performed by the Executive prior hereto and exercise such other authority,
perform such other or additional duties and responsibilities and have such
other or different title (or have no title) as the Board of Directors of Cross
or the Subsidiary may, from time to time, prescribe.
So long as he is employed under this Agreement, the Executive agrees
to devote his full time and efforts exclusively on behalf of the Company and
to competently, diligently, and effectively discharge his duties hereunder.
The Executive shall not be prohibited from engaging in such personal,
charitable, or other nonemployment activities as do not interfere with his
full time employment hereunder and which do not violate the other provisions
of this Agreement. The Executive further agrees to comply fully with all
reasonable policies of the Company as are from time to time in effect.
3. COMPENSATION. As his entire compensation for all services rendered to
the Company pursuant to this Agreement, in whatever capacity rendered, the
Company shall pay to the Executive during the term hereof a minimum base
salary at the rate of $106,500.00 per year ("Basic Salary"), payable monthly
or in other more frequent installments, as determined by the Company. The
Basic Salary may be increased, but not decreased, from time to time, by the
Board of Directors of Cross or the Subsidiary.
In addition, the Executive will be entitled to receive incentive
compensation pursuant to the terms of plans adopted by the Board of Directors
of Cross or the Subsidiary from time to time.
4. BUSINESS EXPENSES. The Company shall promptly pay directly, or
reimburse the Executive for, all business expenses to the extent such expenses
are paid or incurred by the Executive during the term of employment in
accordance with Company policy in effect from time to time and to the extent
such expenses are reasonable and necessary to the conduct by the Executive of
the Company's business and properly substantiated.
5. FRINGE BENEFITS. During the term of this Agreement and the
Executive's employment hereunder, the Company shall provide to the Executive
such insurance, vacation, sick leave and other like benefits as are provided
from time to time to its other employees holding equivalent executive positions
with the Company in accordance with the policy of the Company as may be
established from time to time; provided, however, that the Company shall
maintain at least the level of benefits presently provided to the Executive.
6. TERM; TERMINATION. The Executive is employed by the Company "at will."
The Executive's employment may be terminated at any time as provided below.
For purposes of this Section 6, "Termination Date" shall mean the date on
which any notice period required under this Section 6 expires or, if no notice
period is specified in this Section 6, the effective date of the termination
referenced in the notice.
(a) Termination by the Executive. The Executive may terminate his
employment upon giving at least 30 days' advance written notice to the Company
and the Company will pay the Executive the earned but unpaid portion of the
Executive's Basic Salary through the Termination Date. If the Executive gives
notice of termination hereunder, the Company shall have the right to relieve
the Executive, in whole or in part, of his duties under this Agreement and to
advance the Termination Date from the date set by the Executive's notice to a
date not less than 14 days from the receipt of the Executive's notice of
termination.
(b) Termination by Company Without Cause. The Company may terminate the
Executive's employment without cause upon giving 30 days' advance written
notice to the Executive. If the Executive's employment is terminated without
cause under this Section 6(b), the Company will pay the Executive the earned
but unpaid portion of the Executive's Basic Salary and any earned but unpaid
portion of any bonus through the Termination Date, will continue to pay the
Executive his Basic Salary and to provide the fringe benefits at the level in
place at the Termination Date for 12 months following the Termination Date
("Severance Period"), and will provide outplacement services at a cost to the
Company not to exceed the Executive's Basic Salary for one month; provided,
however, that the Company may terminate payment of the Basic Salary, may
terminate fringe benefits, and may terminate outplacement services during the
Severance Period if the Executive accepts other employment or is in breach of
obligations under Sections 7 or 8 of this Agreement.
(c) Termination by Company For Good Cause. The Company may terminate the
Executive's employment upon a determination by the Company that "Good Cause"
exists for the Executive's termination and the Company serves written notice
of such termination upon the Executive. As used in this Agreement, the term
"Good Cause" shall refer only to any one or more of the following actions by
the Executive:
(i) commission of an act of dishonesty, including, but not limited to,
misappropriation of funds or any property of the Company;
(ii) engagement in activities or conduct clearly injurious to the reputation
of the Company;
(iii) refusal to perform his assigned duties and responsibilities;
(iv) gross insubordination;
(v) the clear violation of any of the material terms and conditions of this
Agreement or any written agreement or agreements the Executive may from time
to time have with the Company (following 30-days' written notice from the
Company specifying the violation and the Executive's failure to cure such
violation within such 30-day period); or
(vi) commission of a misdemeanor involving an act of moral turpitude or a
felony.
In the event of a termination under this Section 6(c), the Company will pay
the Executive the earned but unpaid portion of the Executive's Basic Salary
and the earned but unpaid portion of any bonus through the Termination Date.
(d) Termination upon Death or Permanent Disability. The Executive's
employment shall terminate upon the death or permanent disability of the
Executive. For purposes hereof, "permanent disability," shall mean the
inability of the Executive, as determined by the Board of Directors of the
Company, by reason of physical or mental illness to perform the duties required
of him under this Agreement for more than 180 days in any one year period.
Successive periods of disability, illness or incapacity will be considered
separate periods unless the later period of disability, illness or incapacity
is due to the same or related cause and commences less than six months from
the ending of the previous period of disability. Upon a determination by the
Board of Directors of Cross or the Subsidiary that the Executive's employment
shall be terminated under this Section 6(d), the Board of Directors shall give
the Executive 30 days' prior written notice of the termination. If a
determination of the Board of Directors under this Section 6(d) is disputed
by the Executive, the parties agree to abide by the decision of a panel of
three physicians. The Company will select a physician, the Executive will
select a physician and the physicians selected by the Company and the
Executive will select a third physician. The Executive agrees to make himself
available for and submit to examinations by such physicians as may be directed
by the Company. Failure to submit to any examination shall constitute a breach
of a material part of this Agreement. In the event of a termination under
this Section 6(d), the Company will pay Executive or his duly appointed and
qualified executor or other personal representative the earned but unpaid
portion of the Executive's Basic Salary and the earned but unpaid portion of
any bonus through the Termination Date.
(e) Termination Following Change of Control. If a "Change in Control", as
defined in Section 6(e)(v), shall have occurred and within one year following
such Change in Control the Company terminates the employment of the Executive
for other than Good Cause, as defined in Section 6(c), or the Executive
terminates his employment for Good Reason, as that term is defined in Section
6(e)(vii), then the Executive shall be entitled to the benefits described
below:
(i) The Executive shall be entitled to the unpaid portion of his Basic Salary
plus credit for any vacation accrued but not taken and the amount of any
earned but unpaid portion of any bonus, incentive compensation or any other
benefit to which he is entitled under this Agreement through the date of the
termination as a result of a Change in Control, plus 2 times the Executive's
"Current Annual Compensation" as defined in this Section 6(e)(i) ("Salary
Termination Benefit"). For this purpose "Current Annual Compensation" shall
mean the total of Executive's Basic Salary in effect at the Termination Date,
plus any performance bonuses received by Executive in the prior twelve months,
and shall not include the value of any stock options granted or exercised,
contributions to 401(k) or other qualified plans, medical, dental, or other
insurance benefits, or other fringe benefits. The Salary Termination Benefit
shall be paid to the Executive in 24 equal consecutive monthly payments
commencing on the first day of the month after termination of employment
following a Change in Control.
(ii) All outstanding stock options issued to the Executive shall become 100%
vested and thereafter exercisable in accordance with such governing stock
option agreements and plans.
(iii) The Company shall maintain for the Executive's benefit until the
earlier of (y) 24 months after termination of employment following a Change in
Control, or (z) the Executive's commencement of full-time employment with a
new employer, all life insurance, medical, health and accident, and disability
plans or programs in which the Executive shall have been entitled to
participate prior to termination of employment following a Change in Control,
provided the Executive's continued participation is permitted under the
general terms of such plans and programs after the Change in Control ("Fringe
Termination Benefits"; collectively the Salary Termination Benefit and the
Fringe Termination Benefit are referred to as the "Termination Benefits").
In the event the Executive's participation in any such plan or program is not
permitted, the Company will provide directly the benefits to which the
Executive would be entitled under such plans and programs.
(iv) The Termination Benefits shall be payable to the Executive as severance
pay in consideration of his past service and of his continued services from
the date hereof. Executive shall have no duty to mitigate his damages by
seeking other employment, and the Company shall not be entitled to set off
against amounts payable hereunder any compensation which the Executive may
receive from future employment.
(v) A "Change in Control" shall be deemed to have occurred if and when, after
the date hereof, (i) Cross, or in one or more transactions 50% or more of its
assets, is acquired by or combined with a person, partnership, corporation,
trust or other entity ("Person") and less than a majority of the outstanding
voting shares of the Person surviving such transaction (or the ultimate parent
of the surviving Person) after such acquisition or combination is owned,
immediately after the acquisition or combination, by the owners of the voting
shares of Cross outstanding immediately prior to such acquisition or
combination; or (ii) the Subsidiary, or in one or more transactions 50% or
more of its assets, is acquired by or combined with a Person and less than a
majority of the outstanding voting shares of the Person surviving such
transaction (or the ultimate parent of the surviving Person) after such
acquisition or combination is owned, immediately after the acquisition or
combination, directly or indirectly by the owners of the voting shares of
Cross outstanding immediately prior to such acquisition or combination; or
(iii) during any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period constitute the
Board of Directors of Cross cease for any reason to constitute at least
two-thirds thereof, unless the election of each director who was not a
director at the beginning of such period has been approved in advance by
directors of Cross representing at least two-thirds of the directors then in
office who were directors at the beginning of the period.
(vi) If the payments and benefits provided under this Agreement to the
Executive, either alone or with other payments and benefits, would constitute
"excess parachute payments" as defined in Section 280G of the Internal Revenue
Code of 1986, as amended ("Code"), then the payments and other benefits under
this Agreement shall be reduced to the extent necessary so that no portion
thereof shall be subject to the excise tax imposed by Section 4999 of the Code.
Either the Company or the Executive may request a determination as to whether
the payments or benefits would constitute an excess parachute payment and, if
requested, such determination shall be made by independent tax counsel selected
by the Company and approved by the Executive. At the Executive's election and
to the extent not otherwise paid, the Executive may determine the amount of
cash and/or elements of non-cash fringe benefits to reduce so that such
payments and benefits will not constitute excess parachute payments.
(vii) As used in this Agreement, the term "Good Reason" means, without the
Executive's written consent,
(a) a change in status, position or responsibilities which, in the Executive's
reasonable judgment, does not represent a promotion from existing status,
position or responsibilities as in effect immediately prior to the Change in
Control; the assignment of any duties or responsibilities which, in the
Executive's reasonable judgment, are inconsistent with such status, position
or responsibilities; or any removal from or failure to reappoint or reelect
the Executive to any of such positions, except in connection with the
termination of employment for total and permanent disability, death or Good
Cause or by the Executive other than for Good Reason;
(b) a reduction by the Company in the Executive's base salary as in effect on
the date hereof or as the same may be increased from time to time during the
term of this Agreement or the Company's failure to increase (within twelve
months of the Executive's last increase in base salary) the Executive's base
salary after a Change in Control in an amount which at least equals, on a
percentage basis, the average percentage increase in base salary for all
executive and senior officers of the Company effected in the preceding twelve
months;
(c) the relocation of the Company's principal executive offices to a location
outside the Columbus metropolitan area or the relocation of the Executive by
the Company to any place other than the location at which the Executive
performed duties prior to a Change in Control, except for required travel on
the Company's business to an extent substantially consistent with business
travel obligations at the time of a Change in Control;
(d) the failure of the Company to continue in effect any incentive, bonus or
other compensation plan in which the Executive participates, including but not
limited to the Company's stock option plans, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan), evidenced by the
Executive's written consent, has been made with respect to such plan in
connection with the Change in Control, or the failure by the Company to
continue the Executive's participation therein, or any action by the Company
which would directly or indirectly materially reduce participation therein;
(e) the failure by the Company to continue to provide the Executive with
benefits substantially similar to those enjoyed or entitled under any of the
Company's pension, profit sharing, life insurance, medical, dental, health and
accident, or disability plans at the time of a Change in Control, the taking
of any action by the Company which would directly or indirectly materially
reduce any of such benefits or deprive the Executive of any material fringe
benefit enjoyed or entitled to at the time of the Change in Control, or the
failure by the Company to provide the number of paid vacation and sick leave
days to which the Executive is entitled on the basis of years of service with
the Company in accordance with the Company's normal vacation policy in effect
on the date hereof;
(f) the failure of the Company to obtain a satisfactory agreement from any
successor or assign of the Company to assume and agree to perform this
Agreement; or
(g) any request by the Company that the Executive participate in an unlawful
act or take any action constituting a breach of the Executive's professional
standard of conduct. Notwithstanding anything in this Section to the contrary,
the Executive's right to terminate the employment pursuant to this Section
shall not be affected by incapacity due to physical or mental illness.
(viii) Upon any termination or expiration of this Agreement or any cessation
of the Executive's employment hereunder, the Company shall have no further
obligations under this Agreement and no further payments shall be payable by
the Company to the Executive, except as provided in Sections 6(a), 6(b), 6(d)
and 6(e) above and except as required under any benefit plans or arrangements
maintained by the Company and applicable to the Executive at the time of such
termination, expiration or cessation of the Executive's employment, including,
without limitation thereto, salary, incentive compensation, sick leave, and
vacation pay.
(ix) Enforcement of Agreement. The Company is aware that upon the occurrence
of a Change in Control, the Board of Directors or a shareholder of the Company
may then cause or attempt to cause the Company to refuse to comply with its
obligations under this Agreement, or may cause or attempt to cause the Company
to institute, or may institute litigation seeking to have this Agreement
declared unenforceable, or may institute litigation seeking to have this
Agreement declared unenforceable, or may take or attempt to take other action
to deny the Executive the benefits intended under this Agreement. In these
circumstances, the purpose of this Agreement could be frustrated. It is the
intent of the Company that the Executive not be required to incur the expenses
associated with the enforcement of any rights under this Agreement by
litigation or other legal action, nor be bound to negotiate any settlement of
any rights hereunder, because the cost and expense of such legal action or
settlement would substantially detract from the benefits intended to be
extended to the Executive hereunder. Accordingly, if following a Change in
Control it should appear to the Executive that the Company has failed to
comply with any of its obligations under this Agreement or in the event that
the Company or any other person takes any action to declare this Agreement
void or enforceable, or institutes any litigation or other legal action
designed to deny, diminish or to recovery from the Executive the benefits
entitled to be provided to the Executive hereunder, and that the Executive has
complied with all obligations under this Agreement, the Company irrevocably
authorizes the Executive from time to time to retain counsel of the
Executive's choice, at the expense of the Company as provided in this Section,
to represent the Executive in connection with the initiation or defense of any
litigation or other legal action, whether such action is by or against the
Company or any Director, officer, shareholder, or other person affiliated with
the Company, in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the Company
irrevocably consents to the Executive entering into an attorney-client
relationship with such counsel, and in that connection the Company and the
Executive agree that a confidential relationship shall exist between the
executive and such counsel. The reasonable fees and expenses of counsel
selected from time to time by the Executive as hereinabove provided shall be
paid or reimbursed to the Executive by the Company on a regular, periodic
basis upon presentation by the Executive of a statement or statements prepared
by such counsel in accordance with its customary practices, up to a maximum
aggregate amount of $200,000. Any legal expenses incurred by the Company by
reason of any dispute between the parties as to enforceability of or the terms
contained in this Agreement, notwithstanding the outcome of any such dispute,
shall be the sole responsibility of the Company, and the Company shall not
take any action to seek reimbursement from the Executive for such expenses.
7. NON-COMPETITION.
(a) The Executive agrees that he will not:
(i) during the term or any extension of this Agreement while the Executive
is so employed by the Company, engage or participate, directly or indirectly,
either as principal, agent, employee, employer, consultant, stockholder
(except as the holder of not more than two percent of the stock of any
publicly traded corporation), or in any other individual or representative
capacity whatsoever, in the operation, management or ownership of any business,
firm, corporation, association, or other entity engaged in the design, license,
manufacture, marketing, or sale of devices and instruments used in spinal
surgery or in any other business engaged in by the Company;
(ii) for a period of 12 months after termination of employment with the
Company, whether such termination is voluntary or involuntary or with Good
Cause or without cause, engage or participate, directly or indirectly, either
as principal, agent, employee, employer, consultant, stockholder (except as
the holder of not more than two percent of the stock of any publicly traded
corporation), or in any other individual or representative capacity whatsoever,
in the operation, management or ownership of any business, firm, corporation,
association, or other entity engaged in the design, license, manufacture,
marketing, or sale of devices and instruments used in spinal surgery or in
any other business engaged in by the Company or which was under development by
the Company at the time of the Executive's termination of employment with the
Company; or
(iii) for a period of 12 months after termination of employment with the
Company, whether such termination is voluntary or involuntary or with Good
Cause or without cause, directly or indirectly, for himself or in conjunction
with or on behalf of any other individual or entity, solicit, divert, take
away or endeavor to take away from the Company any customer, account or
employee of the Company who was a customer, account or employee of the Company
at any time during the 12 months prior to the date of the Executive's
termination of employment with the Company.
(b) In the event of a violation of this Section 7, the non-competition
time periods provided in Section 7(a) shall be tolled during the time of such
violation.
8. CONFIDENTIAL INFORMATION; ASSIGNMENT OF INVENTIONS.
(a) As used herein, the term "Confidential Information" includes, but is
not limited to, all information and materials belonging to, used by, or in the
possession of the Company (i) which have been disclosed or made known to, or
has come into the possession of the Executive as a consequence of or through
the Executive's relationship with the Company prior to or after the date
hereof, (ii) which are related to the Company's customers, potential
customers, suppliers, distributors, sales representatives or agents, business
strategies or policies, financial or sales results, sales and management
techniques, marketing plans, research or development, reports, records,
software, systems, source or object code, software documentation or
instruction or user manuals, and (iii) which have not generally been made
available to the public (not including customers) by the Company pursuant to
a specific authorization in the ordinary course of business by the Company of
the release of such information to the public or otherwise published and
released by the Company to the general public. Notwithstanding the foregoing,
the Executive may release Confidential Information if (1) required by law, (2)
necessary to establish a lawful claim or defense against the Company, (3)
necessary to establish a lawful claim or defense against a person or entity
other than the Company, but only with the permission, which shall not be
unreasonably withheld, of the Company, or (4) necessary to respond to process
or appropriate governmental inquiry, but then in each case only with prior
notice to the Company.
(b) The Executive agrees:
(i) that the Executive will promptly disclose and grant and does hereby
grant to the Company his entire right, title and interest in and to all
customer lists, discoveries, developments, designs, improvements, inventions,
formulae, software, documentation, processes, techniques, know-how, patents,
trade secrets and trademarks, copyrights and all other data conceived,
developed or acquired by him during the period of his employment with the
Company, both prior to and after the execution of this Agreement, whether or
not patentable or registrable under patent, copyright or similar statutes,
made or conceived or reduced to practice or learned by the Executive, either
alone or jointly with others, that result from or are conceived during the
performance of tasks assigned to the Executive by the Company, are related to
the business conducted by the Company, or result from use of property,
equipment, or premises owned, leased or contracted for by the Company
("Inventions"). The Executive agrees to execute and deliver, from time to
time, such documents as may be necessary or convenient to effectuate the
transfer of such Confidential Information to the Company and shall cooperate
with and assist the Company in every proper way (at the expense of the Company)
in obtaining and from time to time enforcing patents, copyrights, trade
secrets, other proprietary rights and protections relating to Inventions in
any and all countries;
(ii) that the Executive will during the term of this Agreement and thereafter
safeguard all Confidential Information and, except as specifically permitted
in Section 8(b)(iii) and Section 8(b)(iv), the Executive will never disclose
or use for any purpose or benefit (other than for the purpose or benefit of
the Company) any Confidential Information;
(iii) that, except in connection with the ordinary course of the Company's
business, the Executive will not, either during the term of this Agreement or
thereafter, directly or indirectly, disclose, disseminate or otherwise make
known or provide any Confidential Information, whether in original form or in
duplicated or copied form or extracts therefrom, and whether orally or in
writing, to any individual, partnership, company or other entity, unless the
Company has given its prior written consent thereto;
(iv) that, except in connection with the ordinary course of the Company's
business, the Executive will not, either during the term of this Agreement or
thereafter, remove any Confidential Information from the premises of the
Company either in original form or in duplicated or copied form or extracts
therefrom; and that upon any termination of Executive's employment by the
Company, Executive will immediately surrender to the Company, without request,
all Confidential Information, whether in original or duplicated or copied form
or extracts therefrom.
9. NO CONFLICTS. The Executive represents that the performance by the
Executive of all the terms of this Agreement does not and will not breach any
agreement as to which the Executive or the Company is or was a party and which
requires Executive to keep any information in confidence or in trust. The
Executive has not entered into, and will not enter into, any agreement either
written or oral in conflict herewith.
10. REASONABLENESS OF RESTRICTIONS. The Executive acknowledges that the
restrictions contained in this Agreement are reasonable, but should any
provisions of this Agreement be determined to be invalid, illegal or otherwise
unenforceable to its full extent, or if any such restriction is found by a
court of competent jurisdiction to be unreasonable under applicable law, then
the restriction shall be enforced to the maximum extent permitted by law, and
the parties hereto hereby consent and agree that such scope of protection,
time or geographic area (or any one of them, as the case may be) shall be
modified accordingly in any proceeding brought to enforce such restriction.
The Executive acknowledges that the validity, legality and enforceability of
the other provisions shall not be affected thereby. The Executive hereby
acknowledges and confirms that the business of the Company extends throughout
the world and that, without limitation of any remedies for breach of such
covenant, the Company shall be entitled to temporary and permanent injunctive
relief.
11. REMEDIES; VENUE; PROCESS.
(a) The Executive hereby acknowledges and agrees that the Confidential
Information disclosed to the Executive prior to and during the term of this
Agreement is of a special, unique and extraordinary character, and that any
breach of this Agreement will cause the Company irreparable injury and damage,
and consequently the Company shall be entitled, in addition to all other
remedies available to it, to injunctive and equitable relief to prevent or
cease a breach of Sections 7 or 8 of this Agreement without further proof of
harm and entitlement; that the terms of this Agreement, if enforced by the
Company, will not unduly impair the Executive's ability to earn a living or
pursue his vocation; and further, that the Company may withhold compensation
and benefits if the Executive fails to comply with this Agreement, without
restricting the Company from other legal and equitable remedies. The parties
agree that the prevailing party shall be entitled to all costs and expenses
(including reasonable legal fees and expenses) which it incurs in successfully
enforcing this Agreement and in prosecuting or defending any litigation
(including appellate proceedings) arising out of this Agreement.
(b) The parties agree that jurisdiction and venue in any action brought
pursuant to this Agreement to enforce its terms or otherwise with respect to
the relationships between the parties shall properly lie in either the United
States District Court for the Southern District of Ohio, Eastern Division,
Columbus, Ohio, or the Court of Common Pleas of Franklin County, Ohio. Such
jurisdiction and venue is exclusive, except that the Company may bring suit
in any jurisdiction and venue where jurisdiction and venue would otherwise be
proper if Executive has breached Sections 7 or 8 of this Agreement. The
parties further agree that the mailing by certified or registered mail, return
receipt requested, of any process required by any such court shall constitute
valid and lawful service of process against them, without the necessity for
service by any other means provided by statute or rule of court.
12. WITHHOLDING. The Company may withhold from any payments to be made
hereunder such amounts as it may be required to withhold under applicable
federal, state or other law, and transmit such withheld amounts to the
appropriate taxing authority.
13. ASSIGNMENT. This Agreement is personal to the Executive and the
Executive may not assign or delegate any of his rights or obligations
hereunder. Subject to the foregoing, this Agreement shall be binding upon
and inure to the benefit of the respective parties hereto, their heirs,
executors, administrators, successors and assigns.
14. WAIVER. The waiver by either party hereto of any breach or violation
of any provision of this Agreement by the other party shall not operate as or
be construed to be a waiver of any subsequent breach by such waiving party.
15. NOTICES. Any and all notices required or permitted to be given under
this Agreement will be sufficient and deemed effective three (3) days
following deposit in the United States mail if furnished in writing and sent
by certified mail to the Executive at:
Paul A. Miller
6597 Masefield Street
Worthington, OH 43085
and to the Company at:
Cross Medical Products, Inc.
5160-A Blazer Memorial Parkway
Dublin, OH 43017-1339
Attention: Joseph A. Mussey, President
with a copy to:
Curtis A. Loveland, Esq.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
16. GOVERNING LAW. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Ohio applicable to contracts
made and to be wholly performed within such state.
17. AMENDMENT. This Agreement may be amended in any and every respect by
agreement in writing executed by both parties hereto.
18. SECTION HEADINGS. Section headings contained in this Agreement are
for convenience only and shall not be considered in construing any provision
hereof.
19. ENTIRE AGREEMENT. This Agreement terminates, cancels and supersedes
all previous employment agreements or other agreements relating to the
employment of the Executive with the Company, written or oral, entered into
between the parties hereto, and this Agreement contains the entire
understanding of the parties hereto with respect to the subject matter of this
Agreement. This Agreement was fully reviewed and negotiated on behalf of each
party and shall not be construed against the interest of either party as the
drafter of this Agreement. THE EXECUTIVE ACKNOWLEDGES THAT, BEFORE PLACING
HIS SIGNATURE HEREUNDER, HE HAS READ ALL OF THE PROVISIONS OF THIS EMPLOYMENT
AGREEMENT AND HAS THIS DAY RECEIVED A COPY HEREOF.
20. SEVERABILITY. The invalidity or unenforceability of any one or more
provisions of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement or parts thereof.
21. SURVIVAL. Sections 6 through 13 of this Agreement and this Section 21
shall survive any termination or expiration of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
EXECUTIVE: CROSS MEDICAL PRODUCTS, INC.
/S/ Paul A. Miller By: /S/ Joseph A. Mussey
Paul A. Miller Joseph A. Mussey, President