Exhibit 4.3.2
CAPRIUS, INC.
0 XXXXXXXXX XXXXX
XXXX XXX, XXX XXXXXX 00000
As of June 28, 1999
Xxxxxxx Xxxx
000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxxx:
This letter sets forth our agreement (the "Agreement") regarding the termination
of your employment with Caprius, Inc. (the "Company") in connection with the
merger (the "Merger") of Caprius Merger Sub, Inc. with and into Opus Diagnostics
Inc. ("Opus") under the employment agreement dated as of February 19, 1998,
between you and the Company (the "Employment Agreement"). This Agreement
supersedes any previous agreement or arrangement between us in all respects,
except as otherwise provided herein.
1. Your employment with the Company shall be terminated effective as of
the close of business on June 28, 1999 (the "Termination Date"). You
shall remain a Director of the Company and serve at this position in
accordance with the Certificate of Incorporation and Bylaws of the
Company.
2. On the Termination Date, (i) the Company shall pay you an amount of
$43,000 in cash plus all amounts and benefits that have accrued or
were earned but remain unpaid through the Termination Date, including
salary ($9,995.10), unreimbursed expenses ($2,100) and accrued and
unused vacation ($39,340), and (ii) the Company shall deliver to you a
stock certificate issued to you representing 100,000 shares of its
Common Stock registered under the Securities Act of 1933, as amended.
If the Company does not have a sufficient number of registered shares
available for delivery to you pursuant to the preceding sentence, the
Company agrees to use its best efforts to file promptly a form S-8
with the Securities and Exchange Commission to register a number of
shares sufficient to enable the Company to satisfy its obligation
pursuant to this Section 2.
3. The Company shall make all premium payments for a period of twelve
(12) months following the Termination Date (the "Severance Term") on
your behalf for health care benefits for which you are eligible
(including dependent coverage) in accordance with the federal
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended
("COBRA"), provided you make a timely election to continue such
benefits through COBRA. You shall continue to receive during the
Severance Term, at the Company's cost, any welfare benefits provided
to you as of the Termination Date (other than COBRA). The Company
shall not be required to provide you with the welfare benefits
described in this Section in the event you accept employment with any
corporation or other entity (other than the Company) and such
corporation or other entity provides you with health care coverage or
other benefits on terms that are substantially similar to the benefits
provided by the Company.
4. The payments and benefits to be provided to you as set forth in
sections 2 and 3 above shall be in lieu of (i) any and all payments to
which you may have been entitled in connection with the Merger or your
termination as an employee of the Company under the Employment
Agreement, or otherwise, and (ii) any and all other benefits otherwise
provided under any severance pay policy, plan or program maintained
from time to time by the Company for its employees. You shall not be
required to seek other employment or to attempt in any way to reduce
amounts payable to you pursuant to this Agreement. Except as otherwise
provided in Section 3 above, no amount payable hereunder shall be
reduced by any compensation earned by or other benefits provided to
you as a result of employment by another employer or otherwise.
5. During the period from the Termination Date until June 28, 2000 (the
"Consulting Period"), you shall provide consulting and advisory
services with respect to all aspects of the Company's business
including, without limitation, the completion by the Company of a
Business Transaction, and such other consulting and advisory services
as may be mutually agreed upon by you and the Company. Until the
expiration of the Consulting Period, you shall make yourself available
whenever reasonably necessary to perform the services hereunder for
the Company. In performing these services, you shall act as an
independent contractor, and not an employee of the Company.
6. You shall be entitled to keep and to use in your performance of
services hereunder at the Company's expense during the Consulting
Period, the Company credit card and the mobile phone which you have
been using to date. Until the expiration of the Consulting Period, the
Company shall pay you a monthly allowance of $700 for miscellaneous
expenses incurred by you in your performance of services hereunder. In
addition, the Company shall reimburse you for any itemized business
expenses incurred by you in your performance of services hereunder,
including the costs of travel at the Company's request, upon proper
submission of all related receipts relating to such expenses.
7. Upon the earlier to occur of (i) the consummation of a Business
Transaction (as defined below), or (ii) December 28, 1999, the Company
shall pay you an amount of $247,500 in cash. For purposes of this
Agreement, the term "Business Transaction" shall mean any of the
following: (1) the acquisition by any individual, entity or group of
beneficial ownership of 500 or more of either (a) the then outstanding
shares of common stock of the Company or (b) the combined voting power
of the then outstanding voting securities of the Company entitled to
vote generally in the election of directors; (2) Xxxxxxxx Xxxxx and
Xxxxxx Xxxxx cease for any reason to be members of the Board of
Directors of the Company; (3) the consummation of a recapitalization
or exchange of equity for debt or debt for equity for an amount in
excess of $1,000,000, restructuring, reorganization, merger or
consolidation of the Company or the Strax Center, or any sale or other
disposition of the Strax Center or all or substantially all of the
Company's assets, or (4) the liquidation or dissolution of the
Company.
8. Sections 6.1, 6.2, 6.3(i) and (ii) and 6.4 of the Employment Agreement
shall continue in full force and effect and are hereby incorporated by
reference to this Agreement.
9. You shall use your best judgment in the performance of your duties
hereunder. You shall not be liable for any acts or omissions or any
error of judgment or for any loss suffered by the Company in
connection with this Agreement except loss resulting from your willful
misfeasance, bad faith or gross negligence or by reason of reckless
disregard of your obligations and duties under this Agreement. The
Company shall indemnify you against any and all losses, claims,
damages, liabilities or expenses (including counsel fees and expenses)
arising from your past employment with the Company, any consulting
services you may provide to the Company hereunder, or by reason of the
fact that you were or are an officer or Director of the Company,
except those resulting from your willful misfeasance, gross
negligence, bad faith or reckless disregard in the performance of your
obligations and duties. You shall be entitled to advances from the
Company for payment of reasonable expenses incurred by you in
connection with the matter as to which you are seeking indemnification
in advance of the final disposition of such matter upon receipt by the
Company of your written undertaking to repay any such advance if it
should ultimately be determined that the standard of conduct has not
been met. Your right of indemnification hereunder shall continue after
the expiration of the Consulting Period and shall inure to the benefit
of your heirs and personal representatives.
10. In consideration of the payments contemplated hereunder and other
consideration provided to you pursuant to this Agreement, you, for
yourself and your heirs, executors, administrators, and their
respective successors and assigns, hereby release and forever
discharge the Company, and any of its subsidiaries, affiliates,
officers, directors, employees, agents, successors and assigns, and
all plan administrators and trustees of employee benefit plans
maintained by any of them (collectively "Company Entities"), from all
rights, claims or demands you may have based on your employment with
any Company Entity or the termination of that employment including,
without limitation, any claim for wrongful discharge ("Claims"). The
Company hereby agrees to release you and your heirs, executors,
administrators, and their respective successors and assigns, from all
rights, claims or demands the Company may have based on your
employment with any Company Entity or the termination of that
employment. The foregoing mutual release covers both known and unknown
claims. Each party hereby agrees never individually or with any person
to file, commence or aid in any fashion the filing of, any charges,
lawsuits or complaints with any governmental agency, or against the
other party, with respect to any of the matters covered by this
Section 10. Anything herein to the contrary notwithstanding, the
provisions of this Section 10 shall not apply to limit the rights of
either party to enforce the terms of this Agreement against the other
party.
11. You agree that the payments and deliveries provided in Sections 2 and
3 hereunder are a full and fair payment for the release of any Claims
you may have. Except as provided in this Agreement, you also agree
that the Company does not owe you anything in addition to what you
will be receiving.
12. Each party hereto expressly acknowledges that this Agreement does not
constitute an admission by such party of any violation of any law,
regulation, ordinance, or administrative procedure, or any other
federal, state, or local law, common law, regulation or ordinance,
liability for which is expressly denied.
13. This Agreement is personal to you and shall not be assignable by you
without the written consent of the Company. This Agreement shall inure
to the benefit of and be binding upon the Company and its successors
or assigns.
14. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without reference to principles of
conflict of laws.
15. This Agreement may not be amended or modified otherwise than by a
written agreement executed by the parties hereto or their respective
successors or legal representatives.
16. The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision
of this Agreement.
17. The failure of the Company at any time to enforce performance by you
of any provisions of this Agreement shall in no way affect the
Company's rights thereafter to enforce the same, nor shall the waiver
by the Company of any breach of any provision hereof be held to be a
waiver of any other breach of the same or any other provision.
18. The Company may withhold from any amounts payable under this Agreement
such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
If the foregoing terms meet with your approval, please acknowledge you
acceptance as indicated below.
Sincerely,
CAPRIUS, INC.
By: Xxxx Xxxxxx
------------------------------------
President
AGREED: /s/ Xxxxxxx Xxxx June 28, 1999
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Xxxxxxx Xxxx Date
