NONCOMPETITION AND CONFIDENTIALITY AGREEMENT
THIS NONCOMPETITION AND CONFIDENTIALITY AGREEMENT is dated as of
February 9, 2000 by and between Ultra Open MRI Holding Corp., a Florida
corporation (the "COMPANY"), and Xxxx XxXxxxxxx, a Florida resident
("MCCOSKRIE");
W I T N E S S E T H T H A T:
WHEREAS, The Company and McCoskrie, among others, have entered into an
agreement for the acquisition of Ultra Open MRI Holding Corp. by Miracor
Diagnostics, Inc. (the "Agreement");
WHEREAS, The Company desires that McCoskrie shall keep certain
information confidential and shall not compete with Ultra Open MRI Holding Corp.
or with Miracor Diagnostics, Inc. following the consummation of the Agreement on
the terms and conditions set forth herein; and
WHEREAS, The Company has agreed to pay certain amounts, as more fully
set forth in PARAGRAPH 2 hereof, to McCoskrie in order to secure such agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth in this Agreement, the parties hereto agree as follows:
1. CONFIDENTIALITY AND NONCOMPETITION. McCoskrie agrees expressly, as
an inducement to the performance by the Company of its obligations under the
Agreement and in consideration of the payment to be made to McCoskrie pursuant
to PARAGRAPH 2 hereof, that McCoskrie shall not use, permit the use of,
disclose, or permit the disclosure to any competitor or other third party of any
Confidential Information (as herein defined). McCoskrie acknowledges that the
continued success of the Company is largely dependent upon maintaining the
confidentiality of such information and preventing its disclosure to competitors
and other third parties. "CONFIDENTIAL INFORMATION" includes, but shall not be
limited to, information pertaining to research and development of new product
designs, sales and marketing information of the Company and Miracor Diagnostics,
Inc., trade secrets, software programs, and customer data and shall include any
information of a similar nature hereafter identified to this Agreement as
confidential or proprietary. "CUSTOMER DATA" means any information pertaining to
a customer, distributor, supplier, or other person or entity contacted to
utilize the Company's or Miracor Diagnostics, Inc.'s services or purchase or
license its products, including, but not limited to, preferences, pricing
information, service needs, software, and similar insider knowledge of such
parties' requirements obtained by the Company and/or Miracor Diagnostics, Inc.
at any time or obtained by McCoskrie. McCoskrie agrees that for the term of this
Agreement, McCoskrie will not disclose to any unauthorized person or use for its
own account, anywhere within the geographical territory in which the Company is
marketing its services or products, any of such Confidential Information without
the prior written consent of The Company, unless and to the extent the
aforementioned matters become known to or available for use by the public
otherwise than as a result of McCoskrie's acts or omissions to act. McCoskrie
further agrees that upon termination of this Agreement it will not withhold or
retain any records, papers, letters, or other data and information with respect
to the Company's or Miracor Diagnostics, Inc.'s business without the prior
written consent of the Company's or Miracor Diagnostics, Inc.'s Board of
Directors, as may be applicable.
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As long as this Agreement is in effect, McCoskrie agrees that, except
with the prior written consent of the Company's or Miracor Diagnostics, Inc.'s
Board of Directors, as may be applicable, he will not directly or indirectly
solicit, divert, attempt to take away or interfere with any customer, client, or
distributor of the Company or Miracor Diagnostics, Inc., as may be applicable,
nor own, manage, operate, control, be employed by, participate in, or otherwise
engage in, or permit his name to be used by or in connection with any business
engaged in the development, sale, licensing, or leasing of medical resonant
imaging devices that engages in such activity within a fifty mile radius of the
geographical territory in which the Company or Miracor Diagnostics, Inc., as may
be applicable, is marketing its services or products at the time of this
Agreement or thereafter during the term of this Agreement. McCoskrie further
covenants that he will not employ, in any capacity, any employee of the Company
or Miracor Diagnostics, Inc., as may be applicable. until twelve (12) months
after the termination of this Agreement.
2. TERM; COMPENSATION. The term of this Agreement shall be four (4)
years. McCoskrie shall receive as compensation for this Agreement cash in the
amount of 0.32 times the twelve month trailing EBITDA (EBITDA, is comprised of
revenues less all operating expenses, net of depreciation, amortization, taxes
and interest)of MRI Services, LC and Ultra Diagnostics, LLC, measured as of
December 31, 1999, based upon generally accepted accounting practices, bearing
interest at eight (8) percent per annum. This amount shall be paid in
installments as follows:
$62,500 of this amount plus accrued interest on the entire amount due
shall be paid on August 9, 2000;
$62,500 of the amount plus accrued interest on the entire remaining
amount due shall be paid on November 9, 2000; and
the remaining amount plus accrued interest on the said entire remaining
amount due shall be paid on November 9, 2001; and
3. INJUNCTIVE RELIEF. McCoskrie agrees that in the event of a breach of
this Agreement by either of them, the remedy at law for damages would be
inadequate and The Company may obtain injunctive relief.
4. MISCELLANEOUS.
4.01. SOLE AGREEMENT. This Agreement and the documents
delivered pursuant to or in connection with this Agreement constitute
the sole and only agreement of the parties hereto with respect to
non-competition and supersede any prior understanding or written or
oral agreements between the parties. No amendment, modification, or
alteration of the terms hereof shall be binding unless it is in
writing, dated subsequent to the date hereof and duly executed by the
parties hereto. There is an Employment Agreement of even date which
contains additional terms relating to confidentiality. In the event of
a conflict between the two agreements, the Employment Agreement will
take precedence.
4.02. SUCCESSORS. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and
their respective heirs, executors, administrators, legal
representatives, successors, and assigns.
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4.03. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of
which shall constitute one and the same instrument.
4.04. EXTENSIONS AND WAIVERS. Each party to this Agreement
may, by written notice to the other, (i) extend the time for the
performance of any of the obligations or other acts of the other party
and (ii) waive performance of any of the obligations of the other
party. No such written waiver by the parties hereto of any default or
breach of any term or condition of this Agreement shall be deemed to be
a waiver of any other breach of this Agreement or any other term or
condition contained herein.
4.05. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of Florida.
4.06 NOTICES. Any notice required or permitted to be given
hereunder shall be in writing and shall be delivered personally or sent
by certified mail, postage prepaid, as set forth below:
(a) TO MCCOSKRIE:
------------
Xxxx XxXxxxxxx
0000 Xxxxx Xxxxxxx Xxx.
Xxxxx, XX 00000
with a copy to:
Xxxxx X. Verona, Esq.
000 X. Xxxxxxxx Xxx.
Xxxxx, XX 00000
(b) TO THE COMPANY:
--------------
M. Xxx Xxxxxxxx
Miracor Diagnostics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxx Xxxxxx & Associates, P.C.
Penthouse Suite
0000 Xxxx Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
and/or to such other person(s) and address(es) as either party shall
have specified in writing to the other.
4.07. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision hereof and
this Agreement shall be construed as if such invalid, illegal, or
unenforceable provision had never been contained herein.
4.08. CAPTIONS. The captions in this Agreement are solely for
convenient reference and shall not be deemed to affect the meaning or
interpretation of any article, section, or paragraph hereof.
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4.09. GENDER AND NUMBER. All personal pronouns used in this
Agreement shall include the other gender whether used in the masculine
or feminine or neuter gender, and the singular shall include the plural
whenever and as often as may be appropriate.
4.10. FURTHER ASSURANCES. The parties hereto agree that they
shall deliver all further documents and do all further acts necessary
and desirable to consummate the transactions contemplated by this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
[The Company]
ULTRA OPEN MRI HOLDING CORP.
By: ///SIGNED///
----------------------------------------
Authorized Officer
///SIGNED///
----------------------------------------
J0HN McCOSKRIE
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