Exhibit 10.30
RESTATED
EMPLOYMENT AGREEMENT
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RESTATED AGREEMENT, dated this 29th day of June, 1997, by and between
NEUROMEDICAL SYSTEMS, INC., a Delaware corporation with principal executive
offices at Two Executive Boulevard, Suffern, New York 10901-4114 ("NSI"), and
XXXX X. XXXXXXXXX, ("Xxxxxxxxx").
W I T N E S S E T H :
WHEREAS, Rutenberg has been employed by NSI as its President,
Chief Executive Officer and Chairman of the Board pursuant to an employment
agreement dated as of November 19, 1993, as amended October 25, 1995 (the
"Original Employment Agreement"); and
WHEREAS, by mutual agreement between NSI and Rutenberg, Rutenberg
has resigned from his positions as President and Chief Executive Officer
effective as of June 27, 1997 (the "Restatement Date"); and
WHEREAS, the parties desire to restate the Original Employment
Agreement to set forth the nature of their relationship and the compensation and
benefits to be provided to Rutenberg from the Restatement Date until the
expiration of the Restated Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound,
agree as follows:
1. EMPLOYMENT.
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NSI agrees to employ Rutenberg, and Rutenberg agrees to be
employed by NSI, upon the terms and subject to the conditions of this Restated
Agreement.
2. TERM.
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The employment of Rutenberg by NSI as provided in Section 1 will
be for the period from the Restatement Date until November 19, 1998 (the
"Term"). The Company and Rutenberg may mutually agree to extend the term. As
used herein, the word "Term" shall include any such extension. The Term shall
expire upon the termination of Rutenberg's employment as provided herein.
3. DUTIES; BEST EFFORTS; INDEMNIFICATION.
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(a) Effective as of the Restatement Date, Rutenberg hereby
confirms his resignation from his positions as President and Chief Executive
Officer of the Company and hereby resigns, effective as of the Restatement Date,
as an employee, officer or director of each of its affiliates, except as
provided herein. From and after the Restatement Date and until NSI appoints a
new Chief Executive Officer and a new Chairman (which may be the same person),
Rutenberg shall serve as Chairman of the Board of Directors of NSI (the "Board")
and, upon such appointment of a new Chief Executive Officer and Chairman,
Rutenberg shall serve as Vice-Chairman of the Board. In each case, Rutenberg
shall serve as a non-executive employee and shall perform, under the supervision
and control of the Board or the Chief Executive Officer of NSI, only such
assignments as may reasonably and specifically be assigned to him by the Board
or the Chief Executive Officer of NSI from time to time. In addition, until such
time as the Board determines otherwise, Rutenberg shall serve as the Chairman of
the Board of Directors of Neuromedical Systems Israel, Ltd. ("NSIL").
(b) Rutenberg will remain as a member of the Board following the
Restatement Date and, provided Rutenberg's employment has not terminated for any
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reason as of the date of the 1998 annual meeting of stockholders (the "1998
Meeting"), NSI agrees to renominate Rutenberg for election at the 1998 Meeting
for a three (3) year term. If Rutenberg voluntarily terminates his employment
prior to the expiration of the Term, he shall resign as a director of the
Company.
(c) Rutenberg shall devote such portion of his business time,
attention and energies as may be necessary to perform his duties hereunder and
shall use his best efforts to advance the best interests of NSI and shall not
during the Term be actively engaged in any other business activity, which would
materially interfere with the performance of his duties hereunder, whether or
not such business activity is pursued for gain, profit or other pecuniary
advantage.
(d) Subject to the provisions of NSI's Certificate of
Incorporation and Bylaws, each as amended from time to time, NSI shall indemnify
Rutenberg to the fullest extent permitted by the General Corporation Law of the
State of Delaware, as amended from time to time, for all amounts (including,
without limitation, judgments, fines, settlement payments, expenses and
attorney's fees) incurred or paid by Rutenberg in connection with any action,
suit, investigation or proceeding arising out of or relating to the performance
by Rutenberg of services for, or the acting by Rutenberg as a director, officer
or employee of, NSI, or any other person or enterprise at NSI's request;
provided, however, that NSI shall not be required to indemnify Rutenberg against
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any liability resulting from conduct which is willful, intentional or grossly
negligent. NSI shall use its best efforts to obtain and maintain in full force
and effect during the Term directors' and officers' liability insurance policies
providing full and adequate protection to Rutenberg for his capacities, provided
that the Board shall have no obligation to purchase such insurance if, in its
opinion, coverage is available only on unreasonable terms.
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4. PLACE OF PERFORMANCE.
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In connection with his employment by NSI, during the Term,
Rutenberg shall be provided, at NSI's expense (which expense shall be approved
in advance by the Board) (a) at Rutenberg's election, with an office at NSI's
New Jersey facility or an office not located in any NSI facility or in the same
building as an NSI facility (an "Offsite Office"), provided that, if Rutenberg
elects to have an office at NSI's New Jersey facility, the Board may, at any
time in its discretion, require Rutenberg to have an Offsite Office, (b) with an
office at NSIL's facility in Israel and (c) the services of one (1) full-time
assistant. Rutenberg shall vacate NSI's principal executive offices within two
(2) weeks of the Restatement Date.
5. COMPENSATION AND BENEFITS.
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(a) Base Salary. NSI shall pay to Rutenberg for his employment
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during the Term a base salary (the "Base Salary") at a rate of $200,000 per
annum, payable in accordance with NSI's ordinary payroll practices as in effect
from time to time.
(b) Bonus. In addition to and separate from the Base Salary,
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Rutenberg shall be eligible for an annual bonus in an amount to be determined in
the sole discretion of the Board and subject to performance objectives
established by the Board.
(c) Out-of-Pocket Expenses. NSI shall promptly pay to Rutenberg
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the reasonable expenses (not in excess of $75,000 in any twelve (12) month
period) incurred by him in the performance of his duties hereunder, including,
without limitation, those incurred in connection with business related travel or
entertainment, or, if such expenses are paid directly by Rutenberg, shall
promptly reimburse him for such payment, provided that in either case Rutenberg
properly accounts therefor in accordance with NSI's policy.
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(d) Participation in Benefit Plans. During the Term, Rutenberg
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shall be entitled to participate in or receive benefits under any pension plan,
profit sharing plan, health and accident plan or any other employee benefit plan
or arrangement made available in the future by NSI to its executives and key
management employees, subject to the terms and conditions applicable to
employees generally.
(e) Vacation. Rutenberg shall be entitled to such paid vacation
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days in each calendar year as determined by NSI from time to time, but not less
than four (4) weeks in any calendar year, prorated in any calendar year during
which Rutenberg is employed hereunder for less than an entire year in accordance
with the number of days in such year during which he is so employed. Rutenberg
shall also be entitled to all paid holidays given by NSI to its executives and
key management employees. Such vacation and holiday allowance shall otherwise be
subject to the policies and practices of NSI.
(f) Automobile. During the Term, NSI shall provide Rutenberg with
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the use of an automobile suitable and typical for a person occupying his
position and similar to the automobile currently leased for Rutenberg by NSI and
shall pay the costs of insurance, repairs and maintenance thereon.
(g) Loan. Within ten (10) days after the Restatement Date, NSI
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shall loan to Rutenberg, on a non-recourse basis, upon the execution of
appropriate documentation, an amount equal to $600,000 repayable by Rutenberg on
or before the earlier of November 30, 1999 or the date which is ten (10) days
after his termination of employment for any reason. Such loan shall be secured
by a pledge by Rutenberg of 100,000 shares of NSI common stock owned by
Rutenberg and shall bear interest at the Citibank prime rate as in effect from
time to time, which shall accrue and be payable upon the repayment of the
principal of the loan.
(h) NSI shall reimburse Rutenberg for properly documented
expenses (not in excess of $50,000) to relocate his family to Israel at any time
prior to November
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1, 1998; provided, however, that, if Rutenberg voluntarily terminates his
employment with NSI, his entitlement to reimbursement under this Section 5(h)
shall cease on the date of such termination.
6. TERMINATION.
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Rutenberg's employment hereunder shall be terminated upon
Rutenberg's death and may be terminated as follows:
(a) By NSI for "Cause." A termination for Cause is a termination
evidenced by a resolution adopted by a vote of the majority of the members of
the Board finding that Rutenberg has (i) willfully failed to comply with any of
the material terms of this Restated Agreement, (ii) willfully and continually
failed to perform his duties hereunder, (iii) willfully engaged in misconduct
materially injurious to NSI, or (iv) been convicted of a felony or a crime of
moral turpitude; provided, however, that Rutenberg shall receive thirty (30)
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days' advance written notice that the Board intends to meet to consider
Rutenberg's termination for Cause and Rutenberg shall be given a reasonable
opportunity to be heard by the Board on the issue prior to the Board's vote on
the matter.
(b) By either party upon thirty (30) days' advance written notice
to the other.
7. COMPENSATION UPON TERMINATION.
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(a) In the event of the termination of Rutenberg's employment as
a result of Rutenberg's death, NSI shall, within thirty (30) days after the date
of his death, pay to Rutenberg's estate (i) his Base Salary through the date of
his death and (ii) a lump sum of $598,000.
(b) In the event that Rutenberg terminates his employment prior
to November 19, 1998, or NSI terminates Rutenberg's employment for Cause, NSI
shall pay to Rutenberg his Base Salary through the date of his termination and
NSI shall,
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within ten (10) days after the termination of his employment, pay Rutenberg a
lump sum of $598,000.
(c) In the event that Rutenberg's employment is terminated by NSI
other than for Cause, NSI shall, within ten (10) days after his termination of
employment, pay to Rutenberg, in a lump sum, the sum of (i) the amount of his
Base Salary which he would have received through November 19, 1998 and (ii)
$598,000.
(d) Within ten (10) days after the expiration of the Term
(including any extension thereof), if Rutenberg's employment has not previously
terminated for any reason, NSI shall pay to Rutenberg a lump sum of $598,000.
(e) Provided Rutenberg's employment has not terminated for any
reason prior to November 19, 1998, the term of each outstanding option to
purchase NSI stock held by Rutenberg as of such date shall, notwithstanding
Rutenberg's termination of employment thereafter, be extended so that it expires
eight and one-half (8 1/2) years after the expiration of the Term; provided,
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however, that (i) the option granted to Rutenberg as of October 1, 1995 shall
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not be vested and exercisable unless the conditions to such option being vested
and exercisable as set forth in the option agreement are satisfied during the
term of the option (as so extended), (ii) if Rutenberg's employment terminates
for any reason prior to November 19, 1998, his rights with respect to the
outstanding stock options shall be determined in accordance with the terms
thereof as in effect on the Restatement Date and (iii) if the options have been
extended pursuant to this Section 7(e) and thereafter Rutenberg materially
breaches his obligations under this Restated Agreement, including, without
limitation, those covenants contained in Sections 8, 9 and 10 of this Restated
Agreement, the options shall immediately terminate and Rutenberg shall have no
further rights in respect of the options.
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(f) Rutenberg shall not be required to mitigate the amount of the
termination payment provided pursuant to this Section 7 nor will such payment be
reduced by reason of Rutenberg's securing other employment.
(g) Notwithstanding anything contained in this Restated Agreement
to the contrary, to the extent that the payments and benefits provided under
this Restated Agreement and benefits provided to, or for the benefit of,
Rutenberg under any other NSI plan or agreement (such payments or benefits are
collectively referred to as the "Payments") would be subject to the excise tax
(the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of
1986, as amended (the "Code"), the Payments provided under this Agreement shall
be reduced (but not below zero) if and to the extent necessary so that no
Payment to be made or benefit to be provided to Rutenberg under this Agreement
shall be subject to the Excise Tax (such reduced amount is hereinafter referred
to as the "Limited Payment Amount"). Unless Rutenberg shall have given prior
written notice specifying a different order to NSI to effectuate the Limited
Payment Amount, NSI shall reduce or eliminate the Payments, by first reducing or
eliminating those payments or benefits which are not payable in cash and then by
reducing or eliminating cash payments, in each case in reverse order beginning
with payments or benefits which are to be paid the farthest in time from the
determination (as hereinafter defined). Any notice given by Rutenberg pursuant
to the preceding sentence shall take precedence over the provisions of any other
plan, arrangement or agreement governing Rutenberg's rights and entitlements to
any benefits or compensation. An initial determination as to whether the
Payments shall be reduced to the Limited Payment Amount pursuant to this
Agreement and the amount of such Limited Payment Amount shall be made by an
accounting firm at NSI's expense selected by NSI which is one of the five
largest accounting firms in the United States (the "Accounting Firm"). The
Accounting Firm shall provide its determination (the "Determination"), together
with detailed supporting calculations and documentation to
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NSI and Rutenberg within five (5) days of the date of termination of Rutenberg's
employment, if applicable, or such other time as requested by NSI or by
Rutenberg (provided Rutenberg reasonably believes that any of the Payments may
be subject to the Excise Tax) and if the Accounting Firm determines that no
Excise Tax is payable by Rutenberg with respect to a Payment or Payments, it
shall furnish Rutenberg with an opinion reasonably acceptable to Rutenberg that
no Excise Tax will be imposed with respect to any such Payment or Payments.
Within ten (10) days of the delivery of the Determination to Rutenberg,
Rutenberg shall have the right to dispute the Determination (the "Dispute"). If
there is no Dispute, the Determination shall be binding, final and conclusive
upon NSI and Rutenberg subject to the application of the remainder of this
Section 7(g).
As a result of the uncertainty in the application of Sections
4999 and 280G of the Code, it is possible that the Payments to be made to, or
provided for the benefit of, Rutenberg either have been made or will not be made
by NSI which, in either case, will be inconsistent with the limitations provided
above in this Section 7(c) (hereinafter referred to as an "Excess Payment" or
"Underpayment," respectively). If it is established pursuant to a final
determination of a court or an Internal Revenue Service (the "IRS") proceeding,
which has been finally and conclusively resolved, that an excess payment has
been made, such Excess Payment shall be deemed for all purposes to be a loan to
Rutenberg made on the date Rutenberg received the Excess Payment, and Rutenberg
shall repay the Excess Payment to NSI on demand (but not less than ten (10) days
after written notice is received by Rutenberg) together with interest on the
Excess Payment at the "Applicable Federal Rate" (as defined in Section 1274(d)
of the Code) from the date of Rutenberg's receipt of such Excess Payment until
the date of such repayment. In the event that it is determined (i) by the
Accounting Firm, NSI (which shall include the position taken by NSI, or together
with its consolidated group, on its federal income tax return) or the IRS, (ii)
pursuant to a
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determination by a court, or (iii) upon the resolution to Rutenberg's
satisfaction of the Dispute, that an Underpayment has occurred, NSI shall pay an
amount equal to the Underpayment to Rutenberg within ten (10) days of such
determination or resolution together with interest on such amount at the
Applicable Federal Rate from the date such amount would have been paid to
Rutenberg until the date of payment.
(h) This Section 7 sets forth the only obligations of NSI with
respect to the termination of Rutenberg's employment with NSI and Rutenberg
acknowledges that upon his termination of employment he shall not be entitled to
any payments or benefits which are not explicitly provided herein.
8. COVENANT REGARDING INVENTIONS AND COPYRIGHTS.
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(a) Rutenberg shall disclose promptly to NSI any and all
inventions, discoveries, improvements, patentable or copyrightable works
initiated, conceived or made by him, either alone or in conjunction with others,
during the Term and related to the "Business of NSI" (as defined below) and he
assigns all of his interest therein to NSI or its nominee; whenever requested to
do so by NSI, Rutenberg shall execute any and all applications, assignments or
other instruments which NSI shall deem necessary to apply for and obtain letters
patent or copyrights of the United States or any foreign country or otherwise
protect NSI's interest therein. These obligations shall continue beyond the
conclusion of the Term with respect to inventions, discoveries, improvements,
patentable or copyrightable works initiated, conceived or made by Rutenberg
during the Term and shall be binding upon Rutenberg's assigns, executors,
administrators and other legal representatives. For purposes of this Agreement,
the "Business of NSI" shall be deemed to refer to the cytological, histological,
pathological, hematological or microbiological detection or diagnosis of
conditions, diseases or other abnormalities. Notwithstanding the foregoing, any
inventions, discoveries, improvements, patentable or copyrightable works
conceived by Rutenberg
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after the date hereof which are not communicated to any third party during the
Term, and which are not referred to in any patent application or other
application as having been invented, discovered or conceived during the Term,
shall not be subject to the provisions of this Section 8(a).
(b) If Rutenberg has a concept for an invention which is within
the Business of NSI, and Rutenberg wishes NSI to support such invention, NSI
will discuss the invention with Rutenberg in good faith, including reasonable
compensation therefor.
9. PROTECTION OF CONFIDENTIAL INFORMATION.
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Rutenberg acknowledges that he has been and will be provided with
information about, and his employment by NSI will, throughout the Term, bring
him into close contact with, many confidential affairs of NSI and its
subsidiaries, including proprietary information about costs, profits, markets,
sales, products, key personnel, pricing policies, operational methods, technical
processes and other business affairs and methods, plans for future developments
and other information not readily available to the public, all of which are
highly confidential and proprietary and all of which were developed by NSI at
great effort and expense. Rutenberg further acknowledges that the services to be
performed by him under this Restated Agreement are of a special, unique,
unusual, extraordinary and intellectual character, that the business of NSI will
be conducted throughout the world (the "Territory"), that its products will be
marketed throughout the Territory, that NSI competes and will compete in nearly
all of its business activities with other organizations which are located in
nearly any part of the Territory and that the nature of the relationship of
Rutenberg with NSI is such that Rutenberg is capable of competing with NSI from
nearly any location in the Territory. In recognition of the foregoing, Rutenberg
covenants and agrees during the Term and for a period of five (5) years
thereafter:
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(i) That he will keep secret all confidential matters
of NSI and not disclose them to anyone outside of NSI, either during or after
the Term, except with NSI's prior written consent or, if during the Term, in the
performance of his duties hereunder, Rutenberg makes a good faith determination
that it is in the best interest of NSI to disclose such matters;
(ii) That he will not make use of any of such
confidential matters for his own purposes or the benefit of anyone other than
NSI; and
(iii) That he will deliver promptly to NSI on termination
of this Restated Agreement, or at any time NSI may so request, all confidential
memoranda, notes, records, reports and other confidential documents (and all
copies thereof) relating to the business of NSI, which he may then possess or
have under his control.
10. RESTRICTION ON COMPETITION, INTERFERENCE AND SOLICITATION.
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In recognition of the considerations described in Section 9
hereof, Rutenberg covenants and agrees that, from the Restatement Date and until
the date that is two (2) years after (i) the date of his termination of
employment if NSI terminates Rutenberg without Cause or (ii) in all other
events, November 1998, Rutenberg will not, directly or indirectly, (A) enter
into the employ of, or render any services to, any person, firm or corporation
engaged in any business competitive with the Business of NSI in any part of the
Territory; (B) engage in any such business for his account; (C) become
interested in any such business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee, consultant,
advisor, franchisee or in any other relationship or capacity; or (D) interfere
with NSI's relationship with, or endeavor to employ or entice away from NSI any
person, firm, corporation, governmental entity or other business organization
who or which is or was an employee, customer or supplier of, or maintained a
business relationship with, NSI at any time (whether before, during or after the
Term), or which NSI has solicited or
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prepared to solicit; provided, however, that nothing contained in this Section
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10 shall be deemed to prohibit Rutenberg from acquiring or holding, solely for
investment, publicly traded securities of any corporation all or a portion of
the activities of which are competitive with the Business of NSI so long as such
securities do not, in the aggregate, constitute more than five percent (5%) of
any class or series of outstanding securities of such corporation.
11. SPECIFIC REMEDIES.
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For purposes of Sections 8, 9 and 10 of this Restated Agreement,
references to NSI shall include all current and future majority-owned
subsidiaries of NSI and all current and future joint ventures in which NSI may
from time to time be involved. It is understood by Rutenberg and NSI that the
covenants contained in this Section 11 and in Sections 8, 9 and 10 hereof are
essential elements of this Restated Agreement and that, but for the agreement of
Rutenberg to comply with such covenants, NSI would not have agreed to enter into
this Agreement. NSI and Rutenberg have independently consulted with their
respective counsel and have been advised concerning the reasonableness and
propriety of such covenants with specific regard to the nature of the business
conducted by NSI and the interests of NSI and its stockholders. Rutenberg agrees
that the covenants of Sections 8, 9 and 10 are reasonable and valid. If
Rutenberg commits a breach of any of the provisions of Sections 8, 9, or 10,
such breach shall be deemed to be grounds for termination for Cause. In
addition, Rutenberg acknowledges that NSI may have no adequate remedy at law if
he violates any of the terms hereof. Rutenberg therefore understands and agrees
that NSI shall have (i) the right to have such provisions specifically enforced
by any court having equity jurisdiction, it being acknowledged and agreed that
any such breach will cause irreparable injury to NSI and that money damages will
not provide an adequate remedy to NSI, and (ii) the right to require Rutenberg
to account for and pay
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over to NSI all compensation, profits, monies, accruals, increments and other
benefits (collectively, the "Benefits") derived or received by Rutenberg as a
result of any transaction constituting a breach of any of the provisions of
Sections 8, 9 or 10 and Rutenberg hereby agrees to account for and pay over such
Benefits to NSI.
12. INDEPENDENCE, SEVERABILITY AND NON-EXCLUSIVITY.
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Each of the rights enumerated in Section 11 hereof shall be
independent of the others and shall be in addition to and not in lieu of any
other rights and remedies available to NSI at law or in equity. If any of the
covenants contained in Sections 8, 9 or 10, or any part of any of them, is
hereafter construed or adjudicated to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants or rights or
remedies which shall be given full effect without regard to the invalid
portions. The parties intend to and do hereby confer jurisdiction to enforce the
covenants contained in Sections 8, 9 or 10 and the remedies enumerated in
Section 11 upon the federal and state courts of New York sitting in New York
County. If any of the covenants contained in Sections 8, 9 or 10 is held to be
invalid or unenforceable because of the duration of such provision or the area
covered thereby, the parties agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision and in
its reduced form said provision shall then be enforceable. No such holding of
invalidity or unenforceability in one jurisdiction shall bar or in any way
affect NSI's right to the relief provided in Section 11 or otherwise in the
courts of any other state or jurisdiction within the geographical scope of such
covenants as to breaches of such covenants in such other respective states of
jurisdictions, such covenants being, for this purpose, severable into diverse
and independent covenants.
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13. DISPUTES.
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If NSI or Rutenberg shall dispute any termination of Rutenberg's
employment hereunder or if a dispute concerning any payment hereunder shall
exist:
(a) either party shall have the right (but not the obligation),
in addition to all other rights and remedies provided by law, to compel
arbitration of the dispute in the City of New York under the rules of the
American Arbitration Association by giving written notice of arbitration to the
other party within thirty (30) days after notice of such dispute has been
received by the party to whom notice has been given; and
(b) if such dispute (whether or not submitted to arbitration
pursuant to Section 13(a) hereof) results in a determination that (i) NSI did
not have the right to terminate Rutenberg's employment under the provisions of
this Restated Agreement or (ii) the position taken by Rutenberg concerning
payments to Rutenberg is correct, NSI shall promptly pay, or if theretofore paid
by Rutenberg, shall promptly reimburse Rutenberg for, all costs and expenses
(including attorney's fees) reasonably incurred by Rutenberg in connection with
such dispute.
14. SUCCESSORS; BINDING AGREEMENT.
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In the event of a future disposition by NSI (whether direct or
indirect, by sale of assets or stock, merger, consolidation or otherwise) of all
or substantially all of its business and/or assets in a transaction to which
Rutenberg consents, NSI will require any successor, by agreement in form and
substance satisfactory to Rutenberg, to expressly assume and agree to perform
this Restated Agreement in the same manner and to the same extent that NSI would
be required to perform if no such disposition had taken place.
This Restated Agreement and all rights of Rutenberg hereunder
shall inure to the benefit of, and be enforceable by, Rutenberg's personal or
legal
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representatives, executors, administrators, administrators c.t.a., successors,
heirs, distributees, devisees and legatees. Unless otherwise provided herein,
any amounts payable hereunder after Rutenberg's death shall be paid in
accordance with the terms of this Restated Agreement to Rutenberg's estate.
15. NOTICES.
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All notices, consents or other communications required or
permitted to be given by any party hereunder shall be in writing (including
telecopy or other similar writing) and shall be given by personal delivery,
certified or registered mail, postage prepaid, or telecopy (or other similar
writing) as follows:
To NSI:
To each of the members of the Board at their
respective business addresses or at their
respective primary residential address with a copy
to the Secretary of NSI
To Rutenberg: [Residential Address]
or at such other address or telecopy number (or other similar number) as either
party may from time to time specify to the other. Any notice, consent or other
communication required or permitted to be given hereunder shall be deemed to
have been given on the date of mailing, personal delivery or telecopy or other
similar means thereof (provided the appropriate answer back is received) and
shall be conclusively presumed to have been received on the second business day
following the date of mailing or, in the case of personal delivery or telecopy
or other similar means, the day of delivery thereof, except that a change of
address shall not be effective until actually received.
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16. MODIFICATIONS AND WAIVERS.
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No term, provision or condition of this Restated Agreement may be
modified or discharged unless such modification or discharge is authorized by
the Board of Directors of NSI and is agreed to in writing and signed by
Rutenberg. No waiver by either party hereto of any breach by the other party
hereto of any term, provision or condition of this Restated Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
17. ENTIRE AGREEMENT.
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This Restated Agreement constitutes the entire understanding
between the parties hereto relating to the subject matter hereof, superseding
all negotiations, prior discussions, preliminary agreements and agreements
relating to the subject matter hereof made prior to the date hereof.
18. LAW GOVERNING.
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Except as otherwise explicitly noted, this Restated Agreement
shall be governed by and construed in accordance with the laws of the State of
New York (without giving effect to conflicts of law).
19. INVALIDITY.
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Except as otherwise specified herein, the invalidity or
unenforceability of any term or terms of this Restated Agreement shall not
invalidate, make unenforceable or otherwise affect any other term of this
Restated Agreement which shall remain in full force and effect.
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20. HEADINGS.
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The headings contained in this Restated Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Restated Agreement.
21. CONDUCT.
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As of and after the date hereof, (a) Rutenberg will not publish
or make any statement (except statements made by Rutenberg to his legal counsel
that are subject to the attorney client privilege and with respect to which such
privilege is not waived or lost) critical of NSI or any of its subsidiaries or
affiliates, or in any way maligning the business or reputation of NSI or any of
its subsidiaries or affiliates and (b) NSI shall use its best efforts to cause
its executive officers and directors not to publish or make any statement
(except statements made by any of them to NSI's or their legal counsel that are
subject to the attorney client privilege and with respect to which such
privilege is not waived or lost) critical of Rutenberg, or in any way maligning
the business reputation of Rutenberg; provided, however, that neither party
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shall be deemed to have violated the provisions of this Section 21 by reason of
statements published or made that the party publishing or making the statement
reasonably believed were required by law to be published or made or otherwise
disclosed; and provided further, that either party shall, prior to publishing or
making any such statement, but only to the extent practicable, give notice to
the other party of its intention to publish or make any such statement.
22. RELEASE.
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Except as otherwise provided herein, effective as of the
Restatement Date, Rutenberg does hereby release, remise, acquit and forever
discharge NSI and its present and former officers, directors, executives,
agents, attorneys, employees, affiliated companies, divisions, subsidiaries,
successors, predecessors and assigns
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(collectively, the "Released Parties"), of and from any and all claims, actions,
causes of action, demands, rights, damages, debts, sums of money, accounts,
financial obligations, suits, expenses, attorneys' fees and liabilities of
whatever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, which Rutenberg, individually or as a member
of a class, now has, owns or holds, or has at any time heretofore had, owned or
held, against any Released Party arising out of or in any way connected with
Rutenberg's employment relationship with NSI, its subsidiaries, predecessors or
affiliated entities, or any event occurring or state of facts existing on or
before the Restatement Date, including, without limitation, any claims for
severance or vacation benefits, unpaid wages, salary or incentive payment,
breach of contract, wrongful discharge, impairment of economic opportunity,
intentional infliction of emotional harm or other tort, or employment
discrimination under any applicable federal, state or local statute, provision,
order or regulation including, but not limited to, any claim under Title VII of
the Civil Rights Act ("Title VII"), the Federal Age Discrimination in Employment
Act ("ADEA") and any similar or analogous state statute excepting only:
(a) those liabilities and obligations that this Restated
Agreement expressly creates or expressly provides which will continue in force
in accordance with this Restated Agreement; and
(b) any claims for benefits under any employee benefit plan of
the Company (within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended).
Rutenberg acknowledges and agrees no provision of this Restated
Agreement is to be construed in any way as an admission of any liability
whatsoever by any Released Party under any federal or state statute or the
principles of common law, any such liability having been expressly denied.
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Rutenberg acknowledges and agrees that he has not, with respect
to any transaction or state of facts existing prior to the date of execution of
this Restated Agreement, filed any complaints, charges or lawsuits against any
of the Released Parties with any governmental agency or any court or tribunal,
and that he will not do so at any time hereafter.
23. KNOWLEDGE OF CLAIMS.
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As of the date hereof, the executive officers and directors of
NSI do not have any actual knowledge of any claims, actions or causes of action
that NSI may have against Rutenberg.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year set forth above.
NEUROMEDICAL SYSTEMS, INC.
By:/s/ Uzi Ish-Xxxxxxx
-------------------
Uzi Ish-Xxxxxxx
Executive Vice President
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
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