EXHIBIT 10(p)
SEVERANCE, NONCOMPETITION AND NONDISCLOSURE AGREEMENT
AGREEMENT, dated as of January 18, 2000, between Response USA, Inc., a
Delaware corporation, with its principal address at 3 Executive Campus, 2nd
Floor South, Cherry Hill, N.J. 08002 (the "Company") and Xxxxxx Xxxxxxx, an
individual with an address at 0000 Xxxx Xxxx, Xxxxxxxxxx Xxxxxx, Xx. 00000
(the "Executive").
W I T N E S S E T H:
WHEREAS, the Executive has, prior to the date hereof, been an executive
of the Company pursuant to an Employment Agreement dated as of October 1,
1998, between the Executive and the Company (the "Employment Agreement"); and
WHEREAS, the Company has determined to terminate the Executive's
employment without cause pursuant to the Employment Agreement; and
WHEREAS, the Executive is entitled to receive severance pursuant to the
Employment Agreement, and the Executive agrees to be bound by certain
agreements and covenants set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants hereinafter set forth, the parties hereto hereby agree as
follows:
1. TERMINATION OF EMPLOYMENT; SEVERANCE PAYMENT.
(a) Effective February 28, 2000 (the "Termination Date"), the
Company shall terminate the Executive's employment pursuant to Section 7.2 of
the Employment Agreement without Cause (as such term is defined in the
Employment Agreement). The Executive hereby waives any notice requirement for
termination without Cause pursuant to the Employment Agreement. Effective
January 18, 2000, the Executive shall resign as an officer and director of
the Company and any subsidiary of the Company, but shall remain as an
employee of the Company until the Termination Date. From the date hereof
until the Termination Date, Executive shall continue to be entitled to
receive all salary and benefits which he is currently receiving as an
Executive of the Company pursuant to the Employment Agreement. Effective on
the Termination Date, Executive's employment with the Company shall be
terminated and following the Termination Date Executive shall no longer be
employed by the Company or any
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subsidiary of the Company and shall not be entitled to any benefits as an
Executive of the Company, other than as required by law. On the Termination
Date, the Company shall pay Executive, in one lump sum payment, as severance
the amounts set forth on Exhibit A hereto pursuant to Section 4.3 of the
Employment Agreement (the "Severance Payment").
2. NON-COMPETITION
(a) In consideration for the payments that the Executive has
received as an Executive of the Company for the past several years and in
consideration of the Severance Payment, Executive agrees that neither
Executive nor his affiliates shall, for a period of three (3) years following
the Termination Date (the "Non-Compete Period") Participate In (as defined
below) any business which competes directly or indirectly with the business
of the Company as conducted on the date hereof in the United States.
Notwithstanding the foregoing, Executive is permitted to own a 1% or less
interest in any publicly-held corporation that competes with the Company. For
purposes of this Agreement "affiliates" shall include the spouse, children,
parents, grandparents and other lineal descendants of the Executive.
(b) Without limiting the scope of the foregoing paragraph, without
the prior written consent of the Company, neither the Executive nor his
affiliates shall, for a period of three (3) years following the Termination
Date, directly or indirectly, (i) solicit for employment, or assist any other
person, firm, corporation or other entity in soliciting for employment or
employing, any person who currently is an employee of the Company, (ii)
solicit the business of, or assist any other person, firm, corporation or
other entity in soliciting the business of, any customer or supplier of the
Company for providing PERS goods or services, (iii) accept or cause to
authorize, directly or indirectly, to be accepted for or on behalf of
Executive or any other person, firm or corporation, business from any
customer of the Company, or (iv) use the trade names, trademarks or trade
dress of any of the products of the Company or any substantially similar
trade names, trademarks or trade dress likely to cause, or having the effect
of causing confusion in the minds of manufacturers, customers, suppliers or
retail outlets or the public generally.
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(c) As used in this Agreement, the term "Participate In" shall mean
to participate, directly or indirectly, in any capacity whatsoever, whether
compensated or not, for its own benefit or for, with or through any other
person, firm, corporation or other entity, in the ownership, management,
operation or control of, or to be connected as an officer, director,
associate, Executive, owner, partner, proprietor, consultant, principal,
agent, shareholder, investor, creditor, co-venturer, independent contractor
or otherwise with, or acquiesce in the use of his name in connection with the
business of, any other person, firm, corporation or other entity.
3. NONDISCLOSURE, NONDISPARAGEMENT AND COOPERATION.
(a) Executive acknowledges that, as an Executive of the Company he
has had access to, and has become aware of, certain proprietary information
relating to the Company. As used in this Agreement, the term "Confidential
Information" shall mean all information relating to the business, operations,
management, customers, suppliers, Executives, finances, plans, forecasts,
strategies, condition and prospects of the Company, except for such
information that is:
(i) at the time of disclosure, publicly known through no
wrongful act of Executive;
(ii) independently developed by the Executive without using
Confidential Information;
(iii) furnished to a third party by the Company without
similar restrictions on the third party;
(iv) approved for disclosure by the Company's written
authorization;
(v) is disclosed as required by judicial action; or
(vi) in the public domain or which is generally known
otherwise than as a result of the breach of an obligation of confidentiality
to the Company.
The Executive and his affiliates shall keep confidential and not
disclose or otherwise reveal to any person, firm, corporation or other
entity, or otherwise use or permit others to use or disclose, any
Confidential Information which Executive may at any time possess.
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(b) In the event that the Executive is required by applicable law
or legal process to disclose any Confidential Information concerning the
Company, the Executive agrees to provide the Company with immediate notice of
such requirement in order to enable the Company to seek an appropriate
protective order or other remedy. If, in the absence of a protective order,
the Executive is compelled to disclose Confidential Information, the
Executive may disclose such Confidential Information but shall use its best
efforts to ensure that such information will be accorded confidential
treatment.
(c) Except in connection with any legal process, Executive agrees
that he shall not, and shall cause others not to, following the date hereof,
in public or in private, make any statements, whether in writing, orally or
otherwise, of a disparaging nature regarding the Company or its personnel or
business.
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4. EQUITABLE REMEDY.
The Executive acknowledges and agrees that in the event the Executive or
his affiliates shall breach or threaten to breach any of the terms of this
Agreement, the Company shall be entitled, in addition to any other right and
remedy available to it, to an injunction restraining such breach or a
threatened breach and to have the provisions of this Agreement specifically
enforced by a court having jurisdiction, it being acknowledged and agreed by
the Executive that any such breach or threatened breach will cause immediate
irreparable damage to the Company and that money damages in an action at law
will not provide an adequate remedy. No bond or other security shall be
required in connection with the issuance of an injunction, and the Executive
hereby consents to the issuance of such injunction. Such right and remedy
shall be in addition to, and not in lieu of, any other rights and remedies
available to the Company at law or in equity. Executive and the Company agree
that the provisions of this Section 4 are necessary and reasonable to protect
the Company in the conduct of its business and that the covenants set forth
in this Agreement are reasonable and valid in temporal scope and in all
respects. The invalidity or unenforceability of any part of such covenant or
any other provision hereof shall not affect the remainder of such covenant or
such other provision, which shall be given full effect, without regard to the
invalid portions, and the invalidity or unenforceability of any provision of
this Agreement in any jurisdiction shall not affect the validity, legality or
enforceability of this Agreement, or any provision hereof, in any other
jurisdiction, it being intended that all rights and obligations of the
parties hereunder shall be enforceable to the fullest extent permitted by law.
5. INVALID PROVISION.
If any restriction contained in this Agreement shall be deemed to be
invalid, illegal or unenforceable by reason of the extent, duration or
geographical scope thereof, or otherwise, then the court making such
determination shall have the right to reduce such extent, duration, or other
provisions hereof, and in its reduced form such restriction shall then be
enforceable in the manner contemplated hereby.
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6. MODIFICATION.
This Agreement sets forth the entire understanding of the parties with
respect to the subject matter hereof, supersedes all existing agreements
between them concerning such subject matter, and may be modified only by a
written instrument duly executed by each party.
7. NOTICES.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested, or delivered against receipt to the party to whom it is to
be given at the address of such party set forth in the Employment Agreement
(or to such other address as the party shall have furnished in writing in
accordance with the provisions of this Section 7).
8. WAIVER.
Any waiver by either party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term
of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement. Any waiver must be in
writing.
9. COUNTERPARTS; GOVERNING LAW.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in
accordance with the laws of the State of New Jersey, without giving effect to
conflicts of laws.
10. JURISDICTION AND VENUE.
Each of the parties irrevocably and unconditionally: (a) agrees that any
suit, action or legal proceeding arising out of or relating to this Agreement
must only be brought in the courts of record of the State of New Jersey in
New Jersey or the District Court of the United States, New Jersey; (b)
consents to the jurisdiction of each such court in any suit, action or
proceeding; (c) waives any objection which he, she or it may have to the
laying of venue of any
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such suit, action or proceeding in any of such courts; and (d) agrees that
service of any court paper may be effected on such party by mail, as provided
in this Agreement, or in such other manner as may be provided under
applicable laws or court rules in the State of New Jersey.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
RESPONSE USA, INC.
By: ______________________
XXXXXX XXXXXXX
___________________________
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