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AMENDMENT TO EMPLOYMENT AGREEMENT
Amendment dated as of November 24, 1997 to Employment
Agreement (the "Employment Agreement") dated as of June 1, 1988 between
NOVAMETRIX MEDICAL SYSTEMS INC., a Delaware corporation (the "Company"), and
XXXXXXX X. XXXXXXXXXXX (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee has been employed by the Company since
1978, has been President of the Company since 1986 and has been Chairman,
President and Chief Executive Officer of the Company since 1991; and
WHEREAS, in view of his long service to the Company and in
consideration of his continued service to the Company, the Company desires to
provide the Employee with a retirement benefit on the terms hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises, the Company
and the Employee hereby agree as follows:
A. Section 6 of the Employment Agreement is hereby
amended by adding a new Section 6.8 at the end thereof which
shall read as follows:
"6.8 Retirement. (a) The Employee may retire from the Company
upon, or at any time subsequent to, his attaining age 65. In the event
of retirement of the Employee as provided in this Section 6.8(a),
whether during the term of this Agreement or at any time subsequent to
the expiration or termination of this Agreement, the Company shall pay
the Employee a Retirement Benefit in an amount (the "Normal Retirement
Benefit") equal to three times the Employee's average annual cash
compensation (salary and bonus) during the five (5) most recent taxable
years of the Company ending prior to the date of retirement.
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(b) The Employee may also retire from the Company upon, or at
any time subsequent to, his attaining age 62, and prior to his
attaining age 65, upon six (6) months' prior notice to the Company. In
the event of retirement of the Employee as provided in this Section
6.8(b), whether during the term of this Agreement or at any time
subsequent to the expiration or termination of this Agreement, the
Company shall pay the Employee a Retirement Benefit in an amount equal
to the Applicable Percentage (as determined below) of three times the
Employee's average annual cash compensation (salary and bonus) during
the five (5) most recent taxable years of the Company ending prior to
the date of retirement:
Applicable
If Retirement Occurs Percentage
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Upon or after attaining age 62 90.00%
but before attaining age 63
Upon or after attaining age 63 93.33%
but before attaining age 64
Upon or after attaining age 64 96.66%
but before attaining age 65
(c) The Retirement Benefit shall be payable in thirty-six (36)
equal monthly installments commencing on the first day of the month
following the month in which the date of retirement occurs and
continuing thereafter on the first day of each succeeding month until
paid in full. The Employee may elect to have the Retirement Benefit
paid over a longer period than thirty-six (36) months (but not
exceeding one hundred twenty (120) months), such election to be made by
notice to the Company given not later than the date of retirement. If
the Employee dies following commencement of payment of the Retirement
Benefit but before payment of all installments of the Retirement
Benefit, the remaining installments shall be paid by the Company to the
Employee's spouse or, if she shall not be then living or if she dies
before payment of all such installments, to the Employee's estate,
until paid in full.
(d) In the event of the death of the Employee after the date
hereof while employed by the Company and prior to commencement of
payment of the Retirement Benefit, whether during the term of this
Agreement or at any time subsequent to the expiration or termination of
this Agreement, and
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notwithstanding the provisions of Section 6.1 of this Agreement, the
Company shall pay a Survivor's Retirement Benefit to the Employee's
spouse or, if she shall not be then living, to the Employee's estate.
The Survivor's Retirement Benefit shall be in the same amount as the
Retirement Benefit which would have been payable to the Employee if he
had retired on the date of his death, except that if the Employee dies
prior to attaining age 62 the Survivor's Retirement Benefit shall be an
amount determined as if the Employee had attained age 62 on the date of
his death. The Survivor's Retirement Benefit shall be payable in
thirty-six (36) equal monthly installments commencing on the first day
of the month following the month in which the date of death of the
Employee occurs and continuing thereafter on the first day of each
succeeding month until paid in full. If the Employee's spouse dies
before payment of all installments of the Survivor's Retirement
Benefit, the remaining installments shall be paid by the Company to the
Employee's spouse's estate, until paid in full.
(e) The obligation of the Company to pay the Retirement
Benefit to the Employee, his spouse or his estate is an unfunded
promise of the Company. Payment of the Retirement Benefit shall be made
from the general assets of the Company. No person shall have or acquire
any interest in any specific assets of the Company as a result of this
Agreement. The rights of the Employee, his spouse and his estate under
this Agreement shall be no greater than the rights of an unsecured
general creditor of the Company.
(f) The Employee, his spouse and his estate shall not have any
power or right to transfer, assign, anticipate, hypothecate or
otherwise encumber any part or all of the Retirement Benefit payable
hereunder. The Retirement Benefit shall not be subject to seizure by
any creditor of the Employee, his spouse or his estate, by a proceeding
at law or in equity. The Retirement Benefit is not transferable by
operation of law in the event of the bankruptcy or insolvency of the
Employee, his spouse or his estate. Any such attempted assignment or
transfer shall be void."
B. Section 19 of the Employment Agreement is hereby amended by
adding the following clause after the words "termination of this Agreement" and
before the words "shall survive":
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" . . . and under Section 6.8 of this Agreement in the event
of retirement or death of the Employee subsequent to the
expiration or termination of this Agreement, . . ."
C. The Employment Agreement as hereby amended
continues in full force and effect.
D. This Amendment may be executed in counterparts.
* * *
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IN WITNESS WHEREOF, the Company and the Employee have executed
this Amendment.
NOVAMETRIX MEDICAL SYSTEMS INC.
By /s/ Xxxxxx X. Xxxxxxx
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Executive Vice President and
Chief Operating Officer
/s/ Xxxxxxx X. Xxxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxxx
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