EXHIBIT 10.60
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), dated as of November 9,
2005, is between Cardiac Science Corporation. a Delaware corporation ("Cardiac
Science"), and Raymond W. Cohen ("Cohen");
W I T N E S S E T H:
WHEREAS, Cohen has served as Chairman of the Board and Chief Executive
Officer of Cardiac Science, Inc., a Delaware corporation ("Old CSI") and is a
party to a Second Amended and Restated Employment Agreement, dated as of August
20, 2004, with Old CSI (the "CSI Employment Agreement");
WHEREAS, pursuant to an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of February 28, 2005, by and among, Cardiac Science,
Quinton Cardiology Systems, Inc. ("Quinton"), Old CSI, and Heart Acquisition
Corporation ("CSI Merger Sub"), on September 1, 2005 Quinton was merged with and
into Cardiac Science and Cardiac Science continued as the surviving corporation,
and CSI Merger Submerged with and into Old CSI and Old CSI will continue as the
surviving corporation and a wholly-owned subsidiary of Cardiac Science (the
"Merger").
WHEREAS, as a result of the Merger, Cohen was terminated as Chairman of
the Board and Chief Executive Officer of Old CSI.
WHEREAS, Cardiac Science desires to retain the services of Cohen upon the
terms and conditions set forth herein; and
WHEREAS, Cohen is willing to provide services to Cardiac Science upon the
terms and conditions set forth herein.
A G R E E M E N T S:
NOW, THEREFORE, for and in consideration of the foregoing premises and for
other good and valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, Cardiac Science and Cohen hereby agree to enter into an
employment relationship in accordance with the terms and conditions set forth
below.
1. EMPLOYMENT
Effective as of September 1, 2005 (the "Effective Time") and until no
earlier than the date of the first annual meeting of stockholders of Cardiac
Science following the Effective Time (the "Termination Date"), Cardiac Science
will engage Cohen and Cohen will accept such engagement by Cardiac Science as
its Chairman of the Board ("Chairman"). Cohen will perform the duties of
Chairman and such other duties as may be assigned from time to time by the Board
of Directors of Cardiac Science or as may be required by Cardiac Science's
By-Laws, which relate to the business of Cardiac Science and are reasonably
consistent with Cohen's position.
2. ATTENTION AND EFFORT
Cohen will devote his attention and efforts to Cardiac Science's business
and will serve its interests in good faith to the best of his ability during the
term of this Agreement.
3. COMPENSATION AND BENEFITS
Cardiac Science agrees to pay or cause to be paid to Cohen, and Cohen
agrees to accept in exchange for the services rendered hereunder by him, the
following compensation:
3.1 ANNUAL SALARY
(a) During the period from the Effective Time through December 31, 2005,
Cohen's compensation shall consist of a salary of $29,125 per month (pro rated
for any partial month), before all customary payroll deductions.
(b) From January 1, 2006, until the earlier of (i) the date Cohen's
engagement as Chairman of the Board has been terminated pursuant to Section 4.1
or 4.2 hereof and (ii) the Termination Date, Cohen's compensation shall consist
of an annual salary of one hundred fifty thousand dollars ($150,000), before all
customary payroll deductions. The annual salary shall be reviewed, and shall be
subject to change, by the Board of Directors of Cardiac Science (or the
Compensation Committee thereof) at least annually while Cohen is employed
hereunder.
3.2 BENEFITS
Cohen will be entitled to participate, subject to and in accordance with
applicable eligibility requirements, in such benefit programs, if any, as shall
be
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provided to Cohen from time to time by action of Cardiac Science's Board of
Directors (or the Compensation Committee thereof).
4. TERMINATION
The engagement of Cohen pursuant to this Agreement may be terminated as
follows:
4.1. AUTOMATIC TERMINATION ON DEATH OR TOTAL DISABILITY
This Agreement and Cohen's engagement hereunder shall terminate
automatically upon the death or total disability of Cohen. The term "total
disability" as used herein shall mean Cohen's inability to perform the duties
set forth in Section 1 hereof for a period or periods aggregating ninety (90)
calendar days (or such other period as may be required by law) in any
twelve-month period as a result of physical or mental illness, loss of legal
capacity or any other cause beyond Cohen's control, unless Cohen is granted a
leave of absence by the Board of Directors of Cardiac Science (or the
Compensation Committee thereof). Cohen and Cardiac Science hereby acknowledge
that Cohen's ability to perform the duties specified in paragraph 1 hereof is of
the essence of this Agreement. Termination hereunder shall be deemed to be
effective (a) at the end of the calendar month in which Cohen's death occurs or
(b) immediately upon a determination by the Board of Directors of Cardiac
Science (or the Compensation Committee thereof) of Cohen's total disability, as
defined herein. In the case of termination under this Section 4.1, Cohen shall
not be entitled to receive any payments or benefits under this Agreement other
than any unpaid annual salary which has accrued as of the date Cohen's
engagement terminates.
4.2. TERMINATION DURING TERM
Either Cardiac Science or Cohen may terminate this agreement at any time
for any reason, with or without notice. Except as provided in Section 4.3 below,
upon such termination, Cohen shall not be entitled to receive any payments or
benefits under this Agreement other than any unpaid annual salary which has
accrued as of the date Cohen's engagement terminates.
Cohen acknowledges and understands that his engagement with the Company is
at-will and can be terminated by either party for no reason or for any reason at
any time not otherwise specifically prohibited by law or provided for in this
Agreement. Nothing in this Agreement is intended to alther Cohen's at will
employment status or obligate the Company to continue to engage Cohen for any
specific period of time, or in any specific role or geographic location. In the
event Cohen's engagement is
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terminated, pursuant to this Section 4.2, Cohen agrees to resign as a director
and officer of Cardiac Science (and, if applicable, any subsidiary of Cardiac
Science).
4.3. TERMINATION PAYMENTS
4.3.1. TERMINATION BY CARDIAC SCIENCE
If during the period commencing on the Effective Time and ending on the
Termination Date (the "Term") Cardiac Science terminates Cohen's employment
without cause (as defined below), then Cohen shall be entitled to receive the
following termination payments and benefits:
(1) continuation of annual salary as provided in Section 3.1(a)
and/or (b), as applicable, through the end of the Term;
(2) continuation of benefits afforded Cohen pursuant to Section 3.2
through the end of the Term; and
(3) any unpaid annual salary which has accrued as of the date
Cohen's engagement terminates.
The severance payments and benefits described in this paragraph are
expressly contingent upon Cohen's signing upon termination a full release in a
form acceptable to Cardiac Science, and are further contingent upon Cohen's full
compliance with the terms of the Confidentiality Agreement (as defined in
paragraph 5 below) with Cardiac Science.
4.3.2. TERMINATION BY CARDIAC SCIENCE FOR CAUSE
If, during the Term (or thereafter) Cohen is terminated by Cardiac Science
for Cause, Cohen shall not be entitled to receive any payments or benefits
hereunder other than any unpaid annual salary which has accrued as of the date
Cohen's engagement terminates.
4.3.3. TERMINATION BY COHEN
If, during the Term (or thereafter) Cohen voluntarily terminates his
employment, Cohen shall not be entitled to receive any payments or benefits
hereunder other than any unpaid annual salary which has accrued as of the date
Cohen's engagement terminates.
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4.3.4. CAUSE
Wherever reference is made in this Agreement to termination being with or
without Cause, "Cause" shall be limited to the occurrence of one or more of the
following events:
(a) willful misconduct, insubordination, or dishonesty in the
performance of Cohen's duties or other knowing and material violation of
Cardiac Science's policies and procedures in effect from time to time
which results in a material adverse effect on Cardiac Science or the
Successor Cardiac Science;
(b) the continued failure of Cohen to satisfactorily perform his
duties after receipt of written notice that identifies the areas in which
Cohen's performance is deficient;
(c) willful actions (or intentional failures to act) in bad faith by
Cohen with respect to Cardiac Science that materially impair Cardiac
Science's business, goodwill or reputation;
(d) conviction of Cohen of a felony involving an act of dishonesty,
moral turpitude, deceit or fraud, or the commission of acts that could
reasonably be expected to result in such a conviction; or
(e) any material violation by Cohen of Cohen's Confidentiality
Agreement.
5. CONFIDENTIALITY AGREEMENT
Cohen is subject to, and this Employment Agreement is conditioned on
agreement to, the terms of the Non-Disclosure Agreement (the "Confidentiality
Agreement") entered into by Cohen (with either Old CSI, Cardiac Science, or
both) and the terms of the Confidentiality Agreement shall survive the
termination of Cohen's engagement hereunder.
6. ASSIGNMENT
This Agreement is personal to Cohen and shall not be assignable by Cohen.
Cardiac Science may assign its rights hereunder to (a) any other corporation
resulting from any merger, consolidation or other reorganization to which
Cardiac Science is a party or (b) any other corporation, partnership,
association or other person to which Cardiac Science may transfer all or
substantially all of the assets and business of
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Cardiac Science existing at such time. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
7. ARBITRATION
Any controversies or claims arising out of or relating to this Agreement
shall be fully and finally settled by arbitration in accordance with the
Employment Arbitration Rules of the American Arbitration Association then in
effect (the "AAA Rules"), conducted by one arbitrator either mutually agreed
upon by Cardiac Science and Cohen or chosen in accordance with the AAA Rules,
except that the parties thereto shall have any right to discovery as would be
permitted by the Federal Rules of Civil Procedure for a period of 90 days
following the commencement of such arbitration and the arbitrator thereof shall
resolve any dispute which arises in connection with such discovery. The
prevailing party shall be entitled to costs, expenses and reasonable attorneys'
fees, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. It is further agreed by the parties that
the venue for any arbitration proceedings shall be within the state of
Washington.
8. AMENDMENTS IN WRITING
No amendment, modification, waiver, termination or discharge of any
provision of this Agreement, nor consent to any departure therefrom by either
party hereto, shall in any event be effective unless the same shall be in
writing, specifically identifying this Agreement and the provision intended to
be amended, modified, waived, terminated or discharged and signed by Cardiac
Science and Cohen, and each such amendment, modification, waiver, termination or
discharge shall be effective only in the specific instance and for the specific
purpose for which given. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of dealing or
performance or any other matter not set forth in an agreement in writing and
signed by Cardiac Science and Cohen.
9. APPLICABLE LAW
This Agreement shall in all respects, including all matters of
construction, validity and performance, be governed by, and construed and
enforced in accordance with, the laws of the State of Washington, without regard
to any rules governing conflicts of laws.
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10. ENTIRE AGREEMENT
This Agreement, on and as of the date hereof, constitutes the entire
agreement between Cardiac Science and Cohen with respect to the subject matter
hereof and all prior or contemporaneous oral or written communications,
understandings or agreements between Cardiac Science, Old CSI and Cohen with
respect to such subject matter, including the CSI Employment Agreement, are
hereby superseded (except that Cohen remains eligible for all severance benefits
specified in the CSI Employment Agreement in connection with his termination as
Chairman and Chief Executive Officer of Old CSI as a result of the Merger).
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IN WITNESS WHEREOF, the parties have executed and entered into this
Agreement on the date set forth above.
/s/ Raymond W. Cohen
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Raymond W. Cohen
CARDIAC SCIENCE CORPORATION
/s/ Michael K. Matysik
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By: Michael K. Matysik
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Its: Senior Vice President and
Chief Financial Officer
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