SEPARATION AGREEMENT
SEPARATION
AGREEMENT, dated as of September 25, 2006, by and between DuraVest, Inc.
(the
"Company") and Xx. Xxxx Gurel (the "Executive") (sometimes collectively referred
to hereinafter as the "Parties").
WHEREAS,
the Parties have agreed that it would be in their mutual best interests for
the
Executive to resign from employment with the Company and, in connection
therewith, the Company and the Executive have determined to settle all of
their
respective rights and obligations in respect of the Amended and Restated
Employment Agreement between the Executive and the Company, dated as of November
25, 2005 (the "Employment Agreement") and other matters pertaining to the
Executive's services with the Company and any of its subsidiaries and
affiliates.
NOW,
THEREFORE, in consideration of their mutual promises, the Company and Executive
agree as follows:
1. Resignation.
Effective as of September 25, 2006 (the "Resignation Date"), the Executive
hereby resigns from employment with the Company and hereby simultaneously
resigns (i) as an employee and as President and Chief Executive Officer,
(ii)
from employment with the Company's subsidiaries and/or affiliates, including
without limitation Estracure, Inc. ("Estracure"), Cardio Management Systems,
Inc. ("Cardio"), and Bio-Magnetic Therapy Systems, Inc. ("BMTS") and its
respective subsidiaries, and (iii) from each and every officer or executive
position held with the Company and from each directorship or officer or
executive position held with the Company's subsidiaries and/or affiliates.
For
purposes of this Agreement, all references to the Company's subsidiaries
shall
refer to Estracure, Cardio, and BMTS and its subsidiaries, whether or not
expressly named, and to all other subsidiaries of the Company.
2. Compensation.
Upon the Resignation Date, the Executive shall be paid $10,000 in full
settlement of any claim for unpaid base salary, including accrued but unused
vacation pay, payable for services through the Resignation Date that has
not
previously been paid. The Executive shall also be paid a lump sum amount
of
$97,500 on October 2, 2006, and an additional lump sum of $97,500 on April
2,
2007. All such payments shall be subject to all applicable federal, state
and
local taxes and other withholding obligations, and shall be paid net of any
taxes and withholdings. Notwithstanding any arrangements or understandings
that
may have been in place prior to the date of this Agreement, neither the Company
nor any of its subsidiaries shall be liable to the Executive for any other
compensation or benefits except as expressly stated in this Agreement, even
if
such other forms of compensation or benefits are made available to employees
generally.
3. Rights
in Respect of Equity Plans.
The Company agrees that all Stock Options held by Executive that have vested
as
of the Resignation Date shall be noncancellable under any circumstances.
The
Executive's rights and entitlements in respect of such vested Stock Options
shall continue unabated as set forth in the Employment Agreement and the
preceding Employment Agreement dated as of September 1, 2005 (collectively,
the
"Employment Agreements"), and shall not be affected by the Executive's
resignation from the Company, notwithstanding any term in the Employment
Agreements to the contrary.
4. Employee
Benefits.
The Company shall continue to provide to Executive, without interruption,
his
existing health, disability and medical insurance (including family coverage),
for the one-year period following the Resignation Date, to a maximum expense
to
the Company of $5,000. At such time as the expense of such benefits reaches
$5,000, all such benefits may be terminated upon 30 days' notice to Executive.
From and after the Resignation Date, the Executive will not accrue or be
eligible to accrue any additional vacation or sick time.
5. Expenses.
The Executive shall be paid $5,000 not later than October 15, 2006 in full
settlement of any claim for unpaid expenses previously incurred by the Executive
prior to the Resignation Date including but not limited to any moving expenses.
The Company shall ensure that the Executive and professional moving personnel
have reasonable access to the Executive's former office to pack, remove,
transport and unpack Executive's personal property.
6. Confidential
Information/Company Secrets.
Except as may be compelled by judicial or administrative subpoena, Executive
shall not, and shall not authorize anyone else to, use, communicate, publish,
disclose or divulge any Confidential Information, as that term is defined
and
used in Section 4 of the Employment Agreement, that had been made known to
the
Executive or learned or acquired by the Executive while in the employ of,
or
while providing services to, the Company, without the written consent of
the
Company, which consent may be withheld in the Company's sole discretion,
or
unless such information has become public other than by reason of the
Executive's breach of this covenant. In addition, Executive agrees that he
will
immediately return to the Company all documents, reports, files, memoranda
and
records, credit cards, door and file keys, computer access codes, software,
Company Information and other physical or personal property which Executive
received, prepared, or helped prepare in connection with his association
with
the Company and any subsidiary and which he has in his possession or control.
The term Company Information as used in this Agreement means (a) confidential
information including without limitation information received from Company
or
subsidiary employees, directors, or its agents under confidential conditions
and
(b) other technical, business, or financial information, received because
of his
position and/or employment.
7. Nondisparagement.
The Executive shall not make any statements, directly or indirectly, that
would
or could reasonably be expected to damage the business or reputation of the
Company or any of its subsidiaries or affiliates or any of their respective
officers, directors, shareholders, partners, principals, employees or agents.
The Company shall not, and shall use reasonable best efforts to cause its
subsidiaries and its affiliates not to, make any statements, directly or
indirectly, that would or could reasonably be expected to damage the Executive's
reputation. The Company shall also instruct, and shall use reasonable best
efforts to cause, its officers and directors, and the officers and directors
of
its subsidiaries and affiliates, to refrain from making any statements, directly
or indirectly, that would or could reasonably be expected to damage the
Executive's reputation. The Parties hereto agree that the Executive's departure
from the Company shall be communicated to third parties (including employees
of
the Company and its subsidiaries and affiliates not participating in negotiation
of this Separation Agreement) in a manner consistent with the form of the
press
release issued by the Company, attached hereto as Exhibit A. Nothing in this
Section 7 shall be interpreted, however, to preclude either party (or, in
the
case of the Company, its subsidiaries, officers and directors) from making
any
truthful statements about the other to the extent required by applicable
law, in
connection with any litigation (regardless of whether between the parties)
or in
the course of any regulatory or administrative inquiry, review or
investigation.
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8. Release
of Non-Compete/Non-Solicitation.
The Company agrees to release the Executive from any and all obligations
with
respect to the terms of the Non-Compete/Non-Solicitation provisions set forth
in
Sections 5 (i) and 5 (ii) of the Employment Agreement, and to hold harmless
the
Executive against any claim, loss, or cause of action purported to arise
from
violation of any of the terms set forth in those Sections 5 (i) and 5 (ii).
9. Executive
Release.
The Executive hereby releases the Company and its predecessors, subsidiaries,
affiliates, employees, agents, officers, directors, shareholders, successors
and
assigns from any and all actions, causes of action, suits, debts, dues, sums
of
money, accounts, reckonings, extents, executions, claims, and demands
whatsoever, in law, admiralty or equity, which the Executive and his relatives,
heirs, executors, administrators, successors and assigns ever had, now have
or
hereafter can, shall or may have, by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of this Separation
Agreement, other than any claim for breach of this Separation Agreement
(including, without limitation, any claim for indemnification or other similar
right granted to Executive pursuant to this Agreement), or a claim under
any of
the Company's applicable employee benefit or option plans. Executive further
agrees never to institute, directly or indirectly, or participate as a party
in
any action or proceeding of any kind against the Company or its subsidiaries,
successors, assigns, agents, employees, officers and directors relating to
or
arising out of the employment relationship or the Employment Agreement. To
the
extent that any claims, complaints, charges or lawsuits against the Company,
its
subsidiaries, and its or their employees, officers, directors or agents have
been filed by Executive, Executive will immediately dismiss such action with
prejudice at Executive's expense. Notwithstanding the foregoing, nothing
herein
shall be deemed to prohibit either Party from instituting any proceeding
to
enforce its rights under this Agreement.
10. Company
Release.
The Company hereby releases the Executive and his relatives, heirs, executors,
administrators, successors and assigns from any and all actions, causes of
action, suits, debts, dues, sums of money, accounts, reckonings, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity,
which
the Company and its predecessors, subsidiaries, affiliates, employees, agents,
officers, directors, shareholders, successors and assigns ever had, now have
or
hereafter can, shall or may have, by reason of any matter, cause or thing
whatsoever from the beginning of the world to the day of this Separation
Agreement, other than (i) any claim for breach of this Separation Agreement;
or
(ii) any claim for material and intentional fraudulent conduct by Executive
revealed by the ongoing audit by the Company's auditors, Xxxxxxxx Kallik,
provided that the auditors certify in writing to the Company that, in their
independent judgment, such material and intentional fraudulent conduct has
been
committed by Executive, and further provided that prior to issuance of the
certification by the auditors Executive shall have the opportunity to meet
with,
and present materials to, the auditors to respond to whatever issues are
raised.
The Company and its subsidiaries further agree never to institute, directly
or
indirectly, or participate as a party in any action or proceeding of any
kind
against the Executive or his relatives, heirs, executors, administrators,
successors and assigns relating to or arising out of the employment relationship
or the Employment Agreement. To the extent that the Company or any of its
subsidiaries has filed any claims, complaints, charges or lawsuits against
the
Executive, the Company or the subsidiary will immediately dismiss such action
with prejudice at the Company's expense. Notwithstanding the foregoing, nothing
herein shall be deemed to prohibit either Party from instituting any proceeding
to enforce its rights under this Agreement.
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11. Indemnification.
The Company agrees to indemnify and hold harmless the Executive from and
against
any and all investigations, claims, losses, lawsuits or causes of action,
whether instituted by the Company or the Company's majority shareholders,
the
Company's subsidiaries (including without limitation Estracure, Cardio and
BMTS)
or affiliates, any regulatory or other committee or agency, or by any other
party or entity (including, without limitation, Hunter Fund Limited,
notwithstanding any term to the contrary in the Company's primary or excess
Director and Officer Insurance Policies, or in any other document purporting
to
exclude Hunter Fund Limited from indemnification provided by this Section
11),
arising from or out of the Executive's performance of services as an officer,
director or employee of the Company or of any subsidiary or affiliate of
the
Company, or arising from or out of the resignation process, provided, however,
that if the ongoing audit by the Company's auditors, Xxxxxxxx Kallik, reveals
material and intentional fraudulent conduct by Executive, and the auditors
certify in writing to the Company that, in their independent judgment, such
material and intentional fraudulent conduct has been committed by Executive,
then the Company shall have no further obligation to indemnify Executive,
provided further that prior to issuance of the certification by the auditors
Executive shall have the opportunity to meet with, and present materials
to, the
auditors to respond to whatever issues are raised. The Company further agrees
to
extend to the Executive all rights and coverage under any director and officer
liability insurance to the same extent such rights and coverage are generally
available to officers, directors and employees of the Company.
12. Mail
and Email Forwarding.
All mail, e-mail, and other communications (collectively, "Communications")
addressed or directed to Executive may be opened and/or reviewed by a designated
representative of the Company, including, without limitation, those items
addressed as private, confidential or expressions of similar import, except
for
those items that could not in any way be associated with the Company or its
subsidiaries, a client or the business of the Company or a subsidiary. For
a
period of six months following the Resignation Date (the "Forwarding Period"),
the Company will ensure that, promptly following its review or within 7 days
of
receipt of such communications, whichever is earlier, all such Communications
addressed or directed to Executive and not relating to the business of the
Company, are forwarded to Executive, as follows: all such written Communications
shall be forwarded to Executive in care of Xxxxx Xxxxx & Kramarsky LLP, the
address of which is provided below in Section 13 of this Agreement; all e-mail
shall be forwarded to xxxxx@xxxx.xxxxxxx.xxx.
The
Executive will immediately delete, and will treat as confidential (as that
term
is defined and used in Section 7 herein and in Section 4 of the Employment
Agreement), any Company email that he receives. Upon conclusion of the
Forwarding Period, the Company and its subsidiaries shall have no further
duty
to forward such Communications, and may retain or dispose of them as the
Company
determines in its sole and absolute discretion.
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13. Notices.
Any notices or payments provided by this Separation Agreement, or any other
communications related to this Agreement, shall be made or given as
follows: all notices shall be in writing, and shall be deemed to have been
duly
given when delivered personally to the party to receive the same, when delivered
by reputable overnight courier (such as FedEx), addressed to the party to
receive the same at his or its address set forth below, or such other address
as
the Parties to this Agreement may specify by written notice given in the
manner
provided for in this Section 14. All such notices, payments and other
communications shall be deemed to have been given upon actual receipt or
upon
refusal to accept delivery.
If
to the
Executive:
Xxxxxx
E.L. Xxxxx, Esq.
Xxxxx
Xxxxx & Kramarsky LLP
000
X.
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
Email:
xxxxxx@xxxxxx.xxx
If
to the
Company:
Duravest,
Inc.
000
X.
Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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14. Entire
Agreement.
This Separation Agreement constitutes the entire agreement between these
parties
and is a complete and exclusive statement of the terms of the Parties'
agreement. This Agreement may not be amended or modified except in a writing
executed by the party against which such amendment or modification is sought
to
be enforced.
15. Dispute
Resolution and Governing Law.
Any and all disputes arising from, or relating to, this Separation Agreement
shall be resolved by JAMS arbitration. Such arbitration shall be conducted
at
JAMS's Chicago, Illinois offices and the arbitrator(s) shall have no power
to
amend or modify the terms of the Separation Agreement. This Agreement shall
be
governed by the laws of the State of Florida without regard to its principles
of
conflicts of law.
IN
WITNESS WHEREOF, the Parties have executed this Separation Agreement as of
the
date first above written.
| EXECUTIVE | |||
| /s/ Xx. Xxxx Gurel | |||
| Xxxx Gurel, MD MPhil | |||
| DURAVEST, INC. | |||
|
By:
|
/s/
Xxxx Xxxxx
|
||
|
Xxxx
Xxxxx
|
|||
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