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EXHIBIT 10.59
[CARDIAC SCIENCE LETTERHEAD]
EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the "Agreement") is dated as of August 30,
2004
by and between Peter L. Foster ("Employee")
and CARDIAC SCIENCE INC., a Delaware
corporation (the "Company").
1. TERM OF
AGREEMENT. This Agreement shall commence on the date hereof and
shall be effective through December 31,
2005 (the "Original Term"). This
Agreement shall automatically renew for
successive 12-month periods (each an
"Additional Term"). The Original Term and
each Additional Term shall each be
referred to as a "Term." Employee's
employment may be terminated by either party
pursuant to the provisions of Section 7
herein either during the original or any
Additional Term.
2.
DUTIES.
(a) POSITION. Employee shall be employed as Senior Vice
President,
Global Sales and as such will have
responsibility for the duties typically
associated with such positions and will
report to the Company's Chairman and
CEO, Raymond W. Cohen.
(b) OBLIGATIONS TO THE COMPANY. Employee agrees to the best of
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
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 for
any or no reason. If Employee's
employment terminates for any reason,
Employee shall not be entitled to any
payments, benefits, damages, awards 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
Employee
hereunder, the Company shall pay Employee,
and Employee agrees to accept the
salary, stock options, and a combination of
commissions and/or bonuses and other
benefits described below in this Section
4.
(a) SALARY. There shall be an annual base salary of $200,000.
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.
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(b) COMMISSIONS.
Employee will be eligible to receive commissions of
.001 percent (one tenth of one percent) on
all worldwide sales to be paid
monthly. Employee may also be eligible for
an incentive bonus opportunity
(hereinafter referred to as the target
bonus) of $20,000 based on the attainment
of mutually established parameters between
Peter L. Foster and the Chairman &
CEO of Cardiac Science, Inc.
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, provided that
the mutually established performance
objectives are met.
(c) ADDITIONAL BENEFITS. Employee will be eligible to
participate
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 weeks paid
vacation which shall be taken at such times
as are consistent with the needs of
the Company. Accrual of paid vacation is
subject to a cap of six (6) weeks and
when and for as long as accrual is at the
cap, no additional vacation is
accrued. Employee 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
be
eligible to participate in any stock option
or other incentive programs
available to officers or employees of the
Company.
(e) REIMBURSEMENT OF BUSINESS EXPENSES. Employee shall be
authorized
to incur on behalf and for the benefit of,
and shall be reimbursed by, the
Company for reasonable expenses, provided
that such expenses are substantiated
in accordance with Company policies.
5.
CONFIDENTIAL INFORMATION
5.1 Employee acknowledges that, because of his employment
hereunder,
he will be in a confidential 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,
copyrightable 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.
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5.3 This Section 5 shall survive termination of this Agreement.
6.
COMPANY
PROPERTY.
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 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 This Section 6 shall survive termination of this Agreement.
7.
TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
(a) TERMINATION OF EMPLOYMENT. Employee's employment under this
Agreement may terminate 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");
(ii) The Company's determination to terminate Employee without
Cause, which determination may be made by
the Company at any time at the
Company's sole discretion, for any reason
or no reason ("Termination Without
Cause"); or Employee's "Constructive
Termination" (as defined below);
collectively referred to as "Involuntary
Termination".
(iii) The Company's reasonable, good faith determination that
it is terminating Employee for Cause (as
defined below) ("Termination
