SEVERANCE AGREEMENT
This Agreement, dated as of December 1, 1994, is entered into between
Nellcor Incorporated, a corporation organized under the laws of the State of
Delaware ("Nellcor"), and ____________________ (the "Employee").
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change in Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change in Control can result in
significant distractions to its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of the
Employee in the event of a threat or occurrence of a Change in Control and to
ensure the Employee's continued dedication and efforts in such event without
undue concern for the Employee's personal, financial and employment security;
and
WHEREAS, in order to induce the Employee to remain in the employ of the
Company, particularly in the event of a threat or the occurrence of a Change in
Control, the Company desires to enter into this Agreement with the Employee to
provide the Employee with certain benefits in the event that the Employee's
employment is terminated as a result of, or in connection with, a Change in
Control.
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, it is agreed as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of December 1,
1994 and shall continue in effect until December 1, 1996; PROVIDED, HOWEVER,
that commencing on December 1, 1996 and on each December 1 thereafter, the term
of this Agreement shall automatically be extended for one (1) year unless the
Company or the Employee shall have given written notice to the other at least
ninety (90) days prior thereto that the term of this Agreement shall not be so
extended; and PROVIDED, FURTHER, HOWEVER, that notwithstanding any such notice
by the Company not to extend, the term of this Agreement shall not expire prior
to the expiration of twenty-four (24) months after the occurrence of a Change in
Control.
2. DEFINITIONS.
2.1. ACCRUED COMPENSATION. For purposes of this Agreement, "Accrued
Compensation" shall mean an amount which shall include all amounts earned or
accrued through the "Termination Date" (as hereinafter defined) but not paid as
of the Termination Date, including (i) base salary, (ii) reimbursement for
reasonable and necessary expenses incurred by the Employee on behalf of the
Company during the period ending on the Termination Date, (iii)
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vacation pay and (iv) bonuses and incentive compensation (other than the "Pro
Rata Bonus" (as hereinafter defined)).
2.2. BASE AMOUNT. For purposes of this Agreement, "Base Amount" shall
mean the greater of the Employee's annual base salary (a) at the rate in effect
on the Termination Date or (b) at the highest rate in effect at any time during
the ninety (90) day period prior to the Change in Control, and shall include all
amounts of base salary that are deferred under the employee benefit plans of the
Company or any other agreement or arrangement.
2.3. BONUS AMOUNT. For purposes of this Agreement, "Bonus Amount"
shall mean the greatest of: (a) 100% of the annual bonus payable to the
Employee under the Company's cash bonus incentive plan for the fiscal year in
which the Termination Date occurs; (b) the annual bonus paid or payable to the
Employee under the Company's cash bonus incentive plan for the full fiscal year
ended prior to the fiscal year during which the Termination Date occurred; (c)
the annual bonus paid or payable to the Employee under the Company's cash bonus
incentive plan for the full fiscal year ended prior to the fiscal year during
which a Change in Control occurred; (d) the average of the annual bonuses paid
or payable to the Employee under the Company's cash bonus incentive plan during
the three full fiscal years ended prior to the fiscal year during which the
Termination Date occurred; or (e) the average of the annual bonuses paid or
payable to the Employee under the Company's cash bonus incentive plan during the
three full fiscal years ended prior to the fiscal year during which the Change
in Control occurred.
2.4. CAUSE. For purposes of this Agreement, a termination of
employment is for "Cause" if the basis of the termination is fraud,
misappropriation, embezzlement or willful engagement by the Employee in
misconduct which is demonstrably and materially injurious to the Company and its
subsidiaries taken as a whole (no act, or failure to act, on the part of the
Employee shall be considered "willful" unless done, or omitted to be done, by
the Employee not in good faith and without a reasonable belief that the action
or omission was in the best interests of the Company and its subsidiaries);
PROVIDED, HOWEVER, that the Employee shall not be deemed to have been terminated
for Cause unless and until there shall have been delivered to the Employee a
Notice of Termination (as hereinafter defined) and copy of a resolution duly
adopted by the affirmative vote of not less than three-quarters of those members
of the Company's Board of Directors who are not then employees of the Company at
a meeting of the Board called and held for the purpose (after reasonable notice
to the Employee and an opportunity for the Employee, together with the
Employee's counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, the Employee was guilty of the conduct set forth in
the first sentence of this Section 2.4 and specifying the particulars thereof in
detail.
2.5. CHANGE IN CONTROL. For purposes of this Agreement, a "Change in
Control" shall mean any of the following events:
(a) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any "Person" (as
the term is used for
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purposes of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) immediately after which such Person has "Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
twenty five percent (25%) or more of the combined voting power of the Company's
then outstanding Voting Securities; PROVIDED, HOWEVER, that in determining
whether a Change in Control has occurred, Voting Securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall not constitute an
acquisition which would cause a Change in Control. A "Non-Control Acquisition"
shall mean an acquisition by (1) an employee benefit plan (or a trust forming a
part thereof) maintained by (A) the Company or (B) any corporation or other
Person of which a majority of its voting power or its equity securities or
equity interest is owned directly or indirectly by the Company (a "Subsidiary"),
(2) the Company or any Subsidiary, or (3) any Person in connection with a "Non-
Control Transaction (as hereinafter defined);
(b) The individuals who are members of the Board as of the date this
Agreement is approved by the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; PROVIDED, HOWEVER, that if the
appointment, election or nomination for election by the Company's stockholders,
of any new director is approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be
considered a member of the Incumbent Board; PROVIDED, FURTHER, HOWEVER, that no
individual shall be considered a member of the Incumbent Board if such
individual initially assumed office as a result of either an actual or
threatened "Election Contest" (as described in Rule 14a-11 promulgated under the
1934 Act) or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board (a "Proxy Contest") including by
reason of any agreement intended to avoid or settle any Election Contest or
Proxy Contest; or
(c) Approval by stockholders of the Company of:
(1) A merger, consolidation or reorganization involving the Company,
unless such merger, consolidation or reorganization satisfies the conditions set
forth in (A) or (B) below:
(A) (i) the stockholders of the Company immediately before such
merger, consolidation or reorganization, own immediately following such merger,
consolidation or reorganization, directly or indirectly, at least fifty-one
percent (51%) of the combined voting power of the outstanding voting securities
of the corporation resulting from such merger or consolidation or reorganization
(the "Surviving Corporation") in substantially the same proportion as their
ownership of the Voting Securities immediately before such merger, consolidation
or reorganization;
(ii) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for such merger,
consolidation or reorganization constitute at least a majority of the members of
the board of directors of the Surviving Corporation; and
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(iii) no Person (other than the Company, any Subsidiary,
any employee benefit plan (or any trust forming a part thereof) maintained by
the Company, the Surviving Corporation or any Subsidiary, or any Person who,
immediately prior to such merger, consolidation or reorganization, had
Beneficial Ownership of twenty five percent (25%) or more of the then
outstanding voting Securities) has Beneficial Ownership of twenty five percent
(25%) or more of the combined voting power of the Surviving Corporation's then
outstanding voting securities; or
(B) the entering into of any such transaction shall have been
approved by the Incumbent Board prior to or on the date that is 270 calendar
days from the effective date of this Agreement and shall have been intended by
the Incumbent Board to be accounted for using the "pooling of interests" method
of accounting, such intent to be evidenced in the resolutions of the Incumbent
Board approving the transaction;
A transaction described in subsections (A) and (B) above shall herein
be referred to as a "Non-Control Transaction";
(2) A complete liquidation or dissolution of the Company; or
(3) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person (other than a
transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur
solely because any Person (the "Subject Person") acquired Beneficial Ownership
of more than the permitted amount of the outstanding Voting Securities as a
result of the acquisition of Voting Securities by the Company which, by reducing
the number of Voting Securities outstanding, increases the proportional number
of shares Beneficially Owned by the Subject Person, PROVIDED, HOWEVER, that, if
a Change in Control would occur (but for the operation of this sentence) as a
result of the acquisition of Voting Securities by the Company, and after such
share acquisition by the Company the Subject Person becomes the Beneficial Owner
of any additional voting Securities which increases the percentage of the then
outstanding Voting Securities Beneficially Owned by the Subject Person, then a
Change in Control shall occur.
2.6. COMPANY. For purposes of this Agreement, the "Company" shall
mean Nellcor Incorporated and its Subsidiaries and shall include Nellcor's
"Successors and Assigns" (as hereinafter defined).
2.7. DISABILITY. For purposes of this Agreement, "Disability" shall
mean a physical or mental infirmity which impairs the Employee's ability to
substantially perform the Employee's duties with the Company for a period of one
hundred eighty (180) consecutive days and the Employee has not returned to full
time employment prior to the Termination Date as stated in the "Notice of
Termination".
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2.8. GOOD REASON.
(a) For purposes of this Agreement, "Good Reason" shall mean the
occurrence after a Change in Control of any of the events or conditions
described in subsections (1) through (8) hereof:
(1) a change in the Employee's status, title, position or
responsibilities (including reporting responsibilities) which, in the Employee's
reasonable judgment, represents an adverse change from the Employee's status,
title, position or responsibilities as in effect at any time within ninety (90)
days preceding the date of a Change in Control or at any time thereafter; the
assignment to the Employee of any duties or responsibilities which, in the
Employee's reasonable judgment, are inconsistent with the Employee's status,
title, position or responsibilities as in effect at any time within ninety (90)
days preceding the date of a Change in Control or at any time thereafter; or any
removal of the Employee from or failure to reappoint or reelect the Employee to
any of such offices or positions, except in connection with the termination of
the Employee's employment for Disability, Cause, as a result of the Employee's
death or by the Employee other than for Good Reason;
(2) A reduction in the Employee's base salary or any failure to pay
the Employee any compensation or benefits to which the Employee is entitled
within five (5) days of the date due;
(3) the Company's requiring the Employee to be based at any place
outside a 60-mile radius from Pleasanton, California, except for reasonably
required travel on the Company's business which is not materially greater than
such travel requirements prior to the Change in Control;
(4) the failure by the Company to (A) continue in effect (without
reduction in benefit level and/or reward opportunities) any material
compensation or employee benefit plan in which the Employee was participating at
any time within ninety (90) days preceding the date of a Change in Control or at
any time thereafter, including, but not limited to, the plans listed on Appendix
A, unless such plan is replaced with a plan that provides substantially
equivalent compensation or benefits to the Employee, or (B) provide the Employee
with compensation and benefits, in the aggregate, at least equal (in terms of
benefit levels and/or reward opportunities) to those provided for under each
other employee benefit plan, program and practice in which the Employee was
participating at any time within ninety (90) days preceding the date of a Change
in Control or at any time thereafter;
(5) the insolvency or the filing (by any party, including the
Company) of a petition for bankruptcy of the Company, which petition is not
dismissed within sixty (60) days;
(6) any material breach by the Company of any provision of this
Agreement;
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(7) any purported termination of the Employee's employment for Cause
by the Company which does not comply with the terms of Section 2.4; or
(8) the failure of the Company to obtain an agreement, satisfactory
to the Employee, from any Successors and Assigns to assume and agree to perform
this Agreement, as contemplated in Section 6 hereof.
(b) The Employee's right to terminate the Employee's employment
pursuant to this Section 2.8 shall not be affected by the Employee's incapacity
due to physical or mental illness.
2.9. NOTICE OF TERMINATION. For purposes of this Agreement, following
a Change in Control, "Notice of Termination" shall mean a written notice of
termination of the Employee's employment from the Company, which notice
indicates the specific termination provision in this Agreement relied upon and
which sets forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employee's employment under the provision
so indicated.
2.10. PRO RATA BONUS. For purposes of this Agreement, "Pro Rata
Bonus" shall mean an amount equal to the Bonus Amount multiplied by a fraction
the numerator of which is the number of days in the fiscal year through the
Termination Date and the denominator of which is 365.
2.11. SUCCESSORS AND ASSIGNS. For purposes of this Agreement,
"Successors and Assigns" shall mean a corporation or other entity acquiring all
or substantially all of the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
2.12. TERMINATION DATE. For purposes of this Agreement,
"Termination Date" shall mean in, the case of the Employee's death, the
Employee's date of death, in the case of Good Reason, the last day of the
Employee's employment and, in all other cases, the date specified in the Notice
of Termination; PROVIDED, HOWEVER, that if the Employee's employment is
terminated by the Company for Cause or due to Disability, the date specified in
the Notice of Termination shall be at least 30 days from the date the Notice of
Termination is given to the Employee, provided that, in the case of Disability,
the Employee shall not have returned to the full-time performance of the
Employee's duties during such period of at least 30 days.
3. TERMINATION OF EMPLOYMENT.
3.1. If, during the term of this Agreement, the Employee's employment
with the Company shall be terminated within twenty-four (24) months following a
Change in Control, the Employee shall be entitled to the following compensation
and benefits:
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(a) If the Employee's employment with the Company shall be terminated
(1) by the Company for Cause or Disability, (2) by reason of the Employee's
death or (3) by the Employee other than for Good Reason, the Company shall pay
to the Employee the Accrued Compensation and, if such termination is other than
by the Company for Cause, the Company shall also pay the Employee a Pro Rata
Bonus.
(b) If the Employee's employment with the Company shall be terminated
for any reason other than as specified in Section 3.1(a), the Employee shall be
entitled to the following:
(i) the Company shall pay the Employee all Accrued Compensation
and a Pro Rata Bonus;
(ii) the Company shall pay the Employee as severance pay and in
lieu of any further compensation for periods subsequent to the
Termination Date, in a single payment, an amount in cash equal
to the sum of (A) the Base Amount and (B) the Bonus Amount;
(iii) for a number of months equal to twelve (12) (the
"Continuation Period"), the Company shall, at its expense,
continue on behalf of the Employee and the Employee's dependents
and beneficiaries the life insurance, disability, medical, dental
and hospitalization benefits provided (A) to the Employee at any
time during the 90-day period prior to the Change in Control or
at any time thereafter or (B) to other similarly situated
employees who continue in the employ of the Company during the
Continuation Period. The coverage and benefits (including
deductibles and costs) provided in this Section 3.1(b)(iii)
during the Continuation Period shall be no less favorable to the
Employee and the Employee's dependents and beneficiaries, than
the most favorable of such coverages and benefits during any of
the periods referred to in clauses (A) and (B) above. The
Company's obligation hereunder with respect to the foregoing
benefits shall be limited to the extent that the Employee obtains
any such benefits pursuant to a subsequent employer's benefit
plans, in which case the Company may reduce the coverage of any
benefits it is required to provide the Employee hereunder as long
as the aggregate coverages and benefits of the combined benefit
plans are no less favorable to the Employee than the coverages
and benefits required to be provided hereunder. This subsection
(iii) shall not be interpreted so as to limit any benefits to
which the Employee or the Employee's dependents or beneficiaries
may be entitled under any of the Company's employee benefit
plans, programs or practices following the Employee's termination
of employment, including without limitation, retiree medical and
life insurance benefits;
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(iv) the restrictions on any outstanding equity incentive awards,
including stock options and restricted stock, granted to the
Employee under the Company's 1991 Equity Incentive Plan (or any
predecessor plans thereto), the Company's 1994 Equity Incentive
Plan or under any other incentive plan or arrangement shall lapse
and such incentive award shall become 100% vested and, in the
case of stock options, immediately exercisable;
(v) for the duration of the Continuation Period, the Company
shall, at its expense, provide the Employee with outplacement and
career counseling services of the Employee's choice, PROVIDED,
HOWEVER, that the Company's obligation to pay for such services
shall in no event exceed an aggregate amount equal to 25% of the
Base Amount.
(c) The amounts provided for in Sections 3.1(a) and 3.1(b)(i) and
(ii) shall be paid in a single lump sum cash payment within forty five (45) days
after the Employee's Termination Date (or earlier, if required by applicable
law).
(d) The Employee shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Employee in any subsequent employment except as
provided in Section 3.1(b)(iii).
3.2. (a) The severance pay and benefits provided for in this Section
3 shall be in lieu of any other severance or termination pay to which the
Employee may be entitled under any Company severance or termination plan,
program, practice or arrangement.
(b) The Employee's entitlement to any other compensation or benefits
shall be determined in accordance with the Company's employee benefit plans
(including, the plans listed on Appendix A) and other applicable programs,
policies and practices then in effect,
4. NOTICE OF TERMINATION. Following a Change in Control, any purported
termination of the Employee's employment shall be communicated by Notice of
Termination to the Employee. For purposes of this Agreement, no such purported
termination shall be effective without such Notice of Termination.
5. EXCISE TAX LIMITATION.
(a) Notwithstanding anything contained in this Agreement, in the
event that any payment or benefit (within the meaning of Section 280G(b)(2) of
the Internal Revenue Code of 1986, as amended (the "Code")), to the Employee or
for the Employee's benefit paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, the Employee's employment with the Company or a Change in
Control (a
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"Payment" or "Payments") would be subject to the excise tax imposed by Section
4999 of the Code ("the Excise Tax), the Payments shall be reduced (but not
below zero) if and to the extent necessary so that no Payment to be made or
benefit to be provided to the Employee shall be subject to the Excise Tax (such
reduced Payments being hereinafter referred to as the "Limited Payment Amount").
Unless the Employee shall have given prior written notice specifying a different
order to the Company to effectuate the Limited Payment Amount, the Company shall
reduce or eliminate the Payments by first reducing or eliminating cash payments
and then by reducing those payments or benefits which are not payable in cash,
in each case in reverse order beginning with payments or benefits which are to
be paid the farthest in time from the Determination (as hereinafter defined).
Any notice given by the Employee pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing the Employee's rights and entitlements to any benefits or
compensation.
(b) An initial determination as to whether the Payments shall be
reduced to the Limited Payment Amount and the amount of such Limited Payment
Amount shall be made, at the Company's expense, by the accounting firm that is
the Company's independent accounting firm as of the date of the Change in
Control (the "Accounting Firm"). The Accounting Firm shall provide its
determination (the "Determination,), together with detailed supporting
calculations and documentation, to the Company and the Employee within twenty
(20) days of the Termination Date if applicable, or such other time as requested
by the Company or by the Employee (provided the Employee reasonably believes
that any of the Payments may be subject to the Excise Tax), and if the
Accounting Firm determines that there is substantial authority (within the
meaning of Section 6662 of the Code) that no Excise Tax is payable by the
Employee with respect to a Payment or Payments, it shall furnish the Employee
with an opinion reasonably acceptable to the Employee that no Excise Tax will be
imposed with respect to any such Payment or Payments. Within ten (10) days of
the delivery of the Determination to the Employee, the Employee shall have the
right to dispute the Determination (the "Dispute"). If there is no Dispute, the
Determination shall be binding, final and conclusive upon the Company and the
Employee subject to the application of Section 5(c) below.
(c) As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments to be made to, or
provided for the benefit of, the Employee either will be greater (an "Excess
Payment") or less (an "Underpayment") than the amounts provided for by the
limitations contained in Section 5(a). If it is established pursuant to a final
determination of a court or an Internal Revenue Service (the "IRS") proceeding
which has been finally and conclusively resolved that an Excess Payment has been
made, such Excess Payment shall be deemed for all purposes to be a loan to the
Employee made on the date the Employee received the Excess Payment and the
Employee shall repay the Excess Payment to the Company on demand (but not less
than ten (10) days after written notice is received by the Employee) together
with interest on the Excess Payment at the "Applicable Federal Rate" (as defined
in Section 1274(d) of the Code) from the date of the Employee's receipt of such
Excess Payment until the date of such repayment. In the event that it is
determined by (i) the Accounting Firm, the Company (which shall include the
position taken by the Company, or together with its
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consolidated group, on its federal income tax return) or the IRS, (ii) pursuant
to a determination by a court, or (iii) upon the resolution to the Employee's
satisfaction of the Dispute that an Underpayment has occurred, the Company shall
pay an amount equal to the Underpayment to the Employee within ten (10) days of
such determination or resolution, together with interest on such amount at the
Applicable Federal Rate from the date such amount would have been paid to the
Employee until the date of payment.
6. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall be binding upon and shall inure to the
benefit of the Company, its Successors and Assigns and the Company shall require
any Successors and Assigns to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that the Company would be
required to perform it if no such succession or assignment had taken place.
(b) Neither this Agreement nor any right or interest hereunder shall
be assignable or transferable by the Employee or the Employee's beneficiaries or
legal representatives, except by will or by the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Employee's legal personal representative.
7. FEES AND EXPENSES. The Company shall pay all legal fees and related
expenses (including the costs of experts, evidence and counsel) incurred by the
Employee as they become due as a result of (a) the Employee's termination of
employment (including all such fees and expenses, if any, incurred in contesting
or disputing any such termination of employment), (b) the Employee seeking to
obtain or enforce any right or benefit provided by this Agreement (including,
but not limited to, any such fees and expenses incurred in connection with the
Dispute whether as a result of any applicable government taxing authority
proceeding, audit or otherwise) or by any other plan or arrangement maintained
by the Company under which the Employee is or may be entitled to receive
benefits, and (c) the Employee's hearing before the Board as contemplated in
Section 2.4 of this Agreement; PROVIDED, HOWEVER, that the circumstances set
forth in clauses (a) and (b) occurred on or after a Change in Control.
8. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed to the respective addresses last given by each party
to the other, provided that all notices to the Company shall be directed to the
attention of the Board with a copy to the Secretary of the Company. All notices
and communications shall be denied to have been received on the date of delivery
thereof or on the third business day after the mailing thereof, except that
notice of change of address shall be effective only upon receipt.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Employee's continuing or future participation in any benefit, bonus,
incentive or other plan or
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program provided by the Company (except for any severance or termination
policies, plans, programs or practices) and for which the Employee may qualify,
nor shall anything herein limit or reduce such rights as the Employee may have
under any other agreements with the Company (except for any severance or
termination agreement). Amounts which are vested benefits or which the Employee
is otherwise entitled to receive under any plan or program of the Company shall
be payable in accordance with such plan or program, except as explicitly
modified by this Agreement.
10. SETTLEMENT OF CLAIMS. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against an Employee or others.
11. MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged, unless such waiver, modification or discharge is agreed to in
writing and signed by the Employee and the Company. No waiver by either party
hereto at any time of any breach by the other party hereto, or compliance with,
any condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreement or representation,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not expressly set forth in this
Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of California without giving
effect to the conflict of laws principles thereof. Any action brought by any
party to this Agreement shall be brought and maintained in a court of competent
jurisdiction in Alameda County in the State of California.
13. SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto and supersedes all prior agreements, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Employee has executed this Agreement as of
the day and year first above written.
NELLCOR INCORPORATED EMPLOYEE
By:
Its:
ATTEST:
By:
Its:
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