exv10w1



 





Exhibit 10.1




MEDWAVE, INC.

2007 RETENTION PROGRAM




Introduction




     This Program Description sets forth the terms of the Medwave, Inc. 2007 Retention Program
(this “Program”). The purpose of this Program is to provide a special incentive for selected
employees to remain part of the Medwave team during this period of transition. This Program
provides participating employees the assurance that they will be entitled to receive a payment
equal to their Retention Bonus if they remain employed with the Company until a Change of
Control/Liquidation Event or are otherwise involuntarily terminated for any reason other than for
Cause on or prior to December 31, 2007. Capitalized terms that are not defined have the meanings
ascribed to them below in the “Defined Terms” section.



Eligibility




     To be eligible for a Retention Bonus, an employee must:




	 	•	 	receive a Participation Notice;
	 
	 	•	 	remain employed by the Company until any Change of Control/Liquidation Event
or until his or her earlier involuntarily termination by the Company for any
reason other than for Cause; and
	 
	 	•	 	keep the amount of his or her Retention Bonus completely confidential.





     To receive his or her Retention Bonus, a Participant must sign and deliver, and thereafter not
revoke, a General Release in favor of the Company. A “General Release” is a written agreement
proposed by the Company that includes, among other terms, an effective release of legal claims. To
agree to a General Release, a Participant must sign and return the General Release in a timely
manner. A Participant may revoke his or her General Release during the fifteen (15) days after
delivery. If the Participant exercises that right, the Participant will not be considered to have
agreed to the General Release and will, therefore, be ineligible to receive his or her Retention
Bonus. One sample form of a General Release is attached to this Program for illustrative purposes.
The Company reserves the right to require a Participant to sign a different form of General
Release as a condition of eligibility for any payment under this Program.



Payment Timing and Amount




     The Retention Bonus amount will be set forth in each Participant’s Participation Notice.
Retention Bonus payments are subject to tax-related deductions and withholdings. The Company shall
pay any Retention Bonus to which a Participant is entitled within two weeks after the expiration of
the fifteen (15) days period during which his or her General Release may be revoked, provided that
the Participant continues to comply with the confidentiality obligations under this Program.



 









 





Modifications




     The Company reserves the right to modify or replace this Program. Any modification or
replacement of this Program shall not reduce amounts that an employee would have been entitled to
receive if this Program had remained in effect. However, payments made under any replacement for
this Program shall be treated as payments made pursuant to this Program.



Program Administration




     The Company has the exclusive right to interpret and administer this Program. Any reasonable
decisions by the Company in interpreting and administering this Program shall be conclusive and
binding on employees and the Company.



Program Termination




     This Program will terminate, and no Participant will be entitled to a Retention Bonus under
this Program, if a Change of Control/Liquidation Event has not occurred on or prior to December 31,
2007.



Defined Terms




     In addition to the terms defined elsewhere in this Program, the following terms are used in
the manner defined below. Further, terms that are defined in this Program have the same meanings
when used in the Participation Notice.



     “Cause” means any reason for termination of employment other than the elimination of a
position. Cause includes, without limitation, the Company’s dissatisfaction with an employee’s job
performance or the Company’s determination that an employee has engaged in misconduct. The
Company’s determination of the reason for termination of any Participant’s employment shall be
conclusive and binding upon such Participant.



     “Change of Control/Liquidation Event” shall mean, regardless of form thereof, consummation of
(i) the dissolution, liquidation or winding-up of the Company, (ii) the sale of all or
substantially all of the assets of the Company to an unrelated person or entity, (iii) a merger,
reorganization or consolidation in which the outstanding shares of the Company’s capital stock are
converted into or exchanged for securities of the successor entity and the holders of the Company’s
outstanding voting power immediately prior to such transaction do not own a majority of the
outstanding voting power of the successor entity immediately upon completion of such transaction,
(iv) the sale of all or a majority of the outstanding capital stock of the Company to an unrelated
person or entity or (v) any other transaction in which the owners of the Company’s outstanding
voting power immediately prior to such transaction do not own at least a majority of the
outstanding voting power of the successor entity immediately upon completion of the transaction;
provided, however, that the consummation of a public or private financing transaction in which
shares of the Company’s capital stock are sold so that the Company may continue its ongoing
operations shall in no event be deemed a Change of Control/Liquidation Event.



     “Medwave” or the “Company” means Medwave, Inc., a Delaware corporation.



     “Participant” means an employee who receives a Participation Notice.



     “Participation Notice” means a letter signed by the Company’s Chief Executive Officer offering
the employee the opportunity to participate in this Program



     “Retention Bonus” refers to the payment to be made to an eligible employee under this Program.



Effective Date: April 17, 2007




 









 





GENERAL RELEASE




Offer of Retention Bonus



Subject to my eligibility for a “Retention Bonus” pursuant to the Medwave, Inc. 2007 Retention
Program (the “Plan”), including my agreement to a release of legal claims, Medwave, Inc.
(“Medwave”) has offered to pay me a lump sum Retention Bonus pursuant to the Plan of $___
less tax-related deductions and withholdings (the “Bonus”). This General Release is the release of
legal claims referred to in the Plan. I understand that the Bonus will be paid no later than two
weeks after this General Release becomes effective.




Release and Related Terms



I accept Medwave’s “Offer of Retention Bonus” as set forth above and therefore agree to and
acknowledge the following:



1. I acknowledge that Medwave has paid me all salary, wages and unused vacation pay accrued to me
based on my employment to and including the date of termination of my employment (the “Termination
Date”).



2. I release and discharge Medwave, its successors and assigns, its affiliates, all other entities
related to Medwave, and the current and former directors, officers, employees, and agents of each
of them (any and all of which are referred to below as the “Company”) of and from all debts,
actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, and any and
all claims, demands, and liabilities whatsoever of every name and nature, known or unknown (all
referred to below as “claims”) that I have, claim to have, ever had, or ever claimed to have had
against the Company. The claims that I release include, without implication of limitation, all
claims relating to my employment with Medwave or the termination of my employment with Medwave; all
claims of alleged wrongful or bad faith termination of employment; all claims of any form of
alleged unlawful employment discrimination, including all claims based upon the Age Discrimination
Employment Act, 29 U.S.C. § 621 et seq., Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., or the Minnesota Human Rights Act, Minn. Stat. Ch. 363A;
all claims of breach of either express or implied contract; all claims that the Company engaged in
any tortious conduct; all claims for salary, wages, vacation pay, separation pay, expense
reimbursement, or any other form of compensation; all claims for attorney’s fees; and all claims
for reinstatement of employment with Medwave. Except to the extent specifically provided above, I
am not releasing my rights, if any, to vested benefits as a terminated employee under the terms of
any employee benefit plan (as defined by the Employee Retirement Income Security Act) maintained by
Medwave, including without limitation Medwave’s SARSEP plan, nor am I releasing my rights under
this Agreement.



3. I acknowledge that I have been advised to consult with an attorney before signing this General
Release. I further understand that I may consider this General Release for up to twenty-one (21)
days before deciding whether to sign it. If I signed this General Release before the expiration of
that twenty-one (21) day period, I acknowledge that such decision was entirely voluntary. I
understand that if I do not sign and




 









 




return
this General Release to the President of Medwave by the end of that twenty-one (21) day period, the Offer of Retention Bonus described
above will expire. I understand that for the period of fifteen (15) days after I execute this
General Release (the “Rescission Period”), I have the right to revoke it by a written notice to be
hand delivered or mailed within the Rescission Period to the President of Medwave at the following
address: 4382 Round Lake Road West, Arden Hills, MN 55112. If mailed, such written notice of
rescission must be (a) postmarked within the Rescission Period, (b) properly addressed to the
attention of the President of Medwave at the address specified in the preceding sentence, and (c)
sent by certified mail, return receipt requested. If delivered by hand, the written notice of
rescission must be delivered to the above address, to the attention of President of Medwave, within
the Rescission Period. This General Release shall not become effective until the day after the
Rescission Period expires. Accordingly, I understand that the Bonus shall not be paid until at
least sixteen (16) days after the date it is executed by me, and that Medwave is not obligated to
pay the Bonus until two weeks after this General Release becomes effective. I further represent
and agree that I have carefully read and fully understand all of the provisions of this General
Release and that I am voluntarily agreeing to those provisions. I acknowledge that I have not been
induced to sign this General Release by any representations of Medwave other than the “Offer of
Retention Bonus” as stated above.



4. I acknowledge that nothing in this General Release affects my obligations under any existing
confidentiality agreement, non-competition agreement or non-solicitation agreement with Medwave or
any loan or other payment obligations, if any, that I have to Medwave.



I HAVE READ THIS GENERAL RELEASE THOROUGHLY, UNDERSTAND ITS TERMS AND HAVE SIGNED IT KNOWINGLY AND
VOLUNTARILY. I UNDERSTAND THAT THIS GENERAL RELEASE IS A LEGAL DOCUMENT.




	 	 	 
	 

	 	 
	[Employee Name]

	 	Date
	 
	 	 
	Signed before me this ___ day of __________, 200  .
	 
	 	 
	 

	 	 
	 

	 	Notary Public