EMPLOYMENT AGREEMENT
EXHIBIT
10.1
AGREEMENT
("Agreement")
made this 27th day of December 2005 ("Effective Date"), by and between Positron
Corporation (the "Company") and Xxxxxx X. Xxxxxxxx ("Employee").
RECITALS:
WHEREAS,
the Company is engaged in the business of manufacturing, research and
development, sales and service of Positron Emission Tomography (PET) products
and technologies;
WHEREAS,
the Company wishes to employ Employee as an Employee upon the terms hereinafter
set forth; and
WHEREAS,
Employee wishes to be so employed by the Company.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the Company and Employee agree as
follows:
1. Employment/Duties:
The
Company hereby agrees to employ Employee, and Employee hereby agrees to serve,
subject to the provisions of this Agreement, as President of the Company.
Employee shall perform such duties and responsibilities as are from time
to time
assigned to Employee by the Chairman of the Board of Directors of the Company
and shall report directly to the Chairman of the Board. Such duties and
responsibilities shall include full authority (i) to shape and implement
the strategic business plan of the Company; (ii) to direct the development
and monitoring of operating goals and objectives; (iii) to oversee
financial operations and (iv) to provide leadership, direction and
administration of all aspects of Company activities, in all cases subject
to the
supervision and authority of the Company's Board of Directors. Employee agrees
to devote sufficient attention and energies to the performance of the duties
assigned to him hereunder, and to perform such duties faithfully and to the
best
of his abilities and subject to such laws, rules, regulations and policies
from
time to time applicable to the Company's employees to the best of his knowledge.
Without limiting the generality of the foregoing, Employee shall perform
the
duties associated with the position of President.
During
the Term of this Agreement, including any renewals hereof, Employee shall
be a
voting member of the Board of Directors of the Company and entitled to such
compensation as may be provided by the Company to Board members,
Upon
consultation with the Board of Directors of the Company, Employee may serve
on
the boards or committees of corporate, civic or charitable organizations
so long
as such activities do not interfere materially with the performance of his
duties and responsibilities hereunder. Additionally, Employee shall be permitted
to act and serve as an officer, director, general partner, equity owner,
or
other principal or fiduciary of other entities or ventures, whether related
or
unrelated to the Company, provided such activities are not in direct competition
with the Company and do not interfere materially with the performance of
his
duties and responsibilities hereunder.
Company
shall provide suitable office space and equipment, and mutually agreeable
office
personnel, including without limitation, personal secretarial and other
assistance, at the offices of the Company, to enable Employee to perform
his
duties hereunder, Employee shall perform the services required hereunder
at
offices currently located at Niagara Falls, New York, and at such other mutually
agreeable Company sites, except for required travel in furtherance of Company
business.
2. Term:
The
term of this Agreement shall be for a period of two (2) years commencing
on the
Effective Date and ending on December 27, 2007 (the "Initial Term"), unless
terminated sooner pursuant to Section 7 of this Agreement. Thereafter the
Agreement is subject to automatic renewals of two (2) successive one year
periods (each a "Renewal Term" and collectively with the Initial Term, the
"Term") unless Employee or Company notifies the other in writing of its election
not to renew, such notice to be provided not less than ninety (90) days prior
to
the end of the Initial Term or the end of any Renewal Term.
3. Compensation:
(a) Base
Compensation:
For the
services of the Employee to be rendered under this Agreement the Company
shall
pay Employee an initial base salary ("Base Compensation") of One Hundred
Thousand Dollars ($100,000.00) on a pro-rated basis according to the Company's
payroll schedule and subject to applicable withholdings and other payroll
deductions. However, effective as of March 1, 2006 the Company shall pay
the
Employee Base Compensation of One Hundred Fifty Thousand Dollars ($150,000.00.),
payable on a pro-rated basis according to the Company's payroll schedule
and
subject to applicable withholdings and other payroll deductions. The Company's
Board of Directors will in good faith review Employee's performance and Base
Compensation every six (6) months. The Base Compensation may be increased
from
time to time upon review by and within the sole and absolute discretion of
the
Board of Directors of the Company.
(b) Stock
Options.
The
Company shall grant to Employee an option to purchase 7,500,000 shares of
the
Company's common stock (as adjusted for stock splits, combinations and the
like), at a price of $0.05 per share, determined by the Board of Directors
to be
the fair market value of such shares on the Effective Date. The option shall
be
granted pursuant to the Company's 2005 Stock Incentive Plan. Such options
shall
vest 2,000,000 of the shares subject to the option on the Effective Date,
2,000,000 shares on December 27, 2006 and 3,500,000 on December 27, 2007.
The
other terms and conditions of the Option shall be set forth in a stock option
agreement in the form customarily utilized by the Company for the grant of
options to similarly situated executives.
(c) Other
Benefits.
Subject
to the terms of the plans, Employee will be eligible to receive such other
benefits or rights as may be provided under any employee benefit plans provided
by the Company to its executives that are now or hereafter will be in effect,
including participation in life, medical, disability and dental insurance
plans,
vacation and sick leave, expense reimbursement and long-term incentive plans.
Notwithstanding anything to the contrary set forth in this Agreement, any
restricted stock awards, stock options or other equity incentives of the
Company
(including, without limitation, those outstanding at the time of termination
of
employment with the Company) shall be subject to the terms set forth in such
long-term incentive plans, as such plan may be in effect from time to time,
and
in any restricted stock award, stock option or other agreements (including,
without limitation, those provisions relating to vesting, exercisability,
forefeitability), as may be entered into between Employee and the Company
pursuant to such long-term incentive plans. Employee shall be entitled to
such
paid holidays as are provided to the Company's employees generally.
-2-
(d) Compensation
in Event of Disability.
In the
event Employee is not able to perform his duties as a result of personal
injury,
disability or illness, Employee shall be eligible to receive as a disability
wage continuation payment from Company the percentage of Employee's Base
Compensation than in effect in accordance with the following schedule: 100%
thereof for the first three months of disability; 75% thereof for the next
three
months of disability; 50% thereof for the next three months of disability;
and
25% thereof for the next three months of disability ("Disability
Compensation").
In
the
event of such disability, there shall be offset against Employee's Disability
Compensation (i) the proceeds of any disability insurance which the Company
may provide, (ii) the proceeds of any disability insurance received as New
York State Disability insurance benefits; and (iii) Social Security
Disability Benefits.
For
the
purposes of this Agreement, Employee shall be deemed to be "Disabled" or
have a
"Disability" if, because of Employee's personal injury, disability or illness,
he has been substantially unable to perform his duties hereunder for sixty
(60)
days in any one hundred eighty (180) day period. Employee shall be considered
to
have been substantially unable to perform his duties hereunder only if he
is
either (i) unable to reasonably and effectively carry out his duties with
reasonable accommodations by the Company or (ii) unable to reasonably and
effectively carry out his duties because any reasonable accommodation which
may
be required would cause the Company undue hardship.
The
determination as to whether and when the Employee has suffered a personal
injury, disability or illness so as to bring into effect the provisions of
Section 3(c) or Section 7(4) of this Agreement shall be made by a
physician mutually agreed upon by the Company and the Employee. Should they
be
unable to agree on a physician, the Company and the Employee shall each
designate a physician specializing in the area of Employee's disability who
together shall designate a third physician similarly qualified. The three
physicians then shall make the determination regarding the Employee's condition
with the opinion of the majority final and binding on the parties.
When
the
disabled Employee returns to work after exhausting his disability benefits
hereunder, he shall not again be entitled to the full disability benefits
provided for in this Section 3(c) unless and until he has returned to work
for a period of at least two (2) consecutive years. Notwithstanding the
foregoing, if the disabled Employee again becomes disabled after he has returned
to work for a period of at least twelve (12) consecutive months, he shall
be
entitled to receive additional Disability Compensation at a reduced level
of
benefits in accordance with the following schedule: 50% of Employee's Base
Compensation then in effect for the first three months of the second period
of
disability; 25% thereof for the next three months of disability; and 12½%
thereof for the next three months of disability.
-3-
In
the
event the disabled Employee returns to work without having exhausted his
disability benefits hereunder, and again becomes disabled within twelve (12)
months after returning to work, Employee shall be entitled to receive his
remaining, unused disability benefits hereunder during the second period
of
disability. Thereafter, he shall not again be entitled to the full disability
benefits provided for in this Section 3(c) unless and until he has returned
to work for a period of at least two (2) consecutive years..
4. Vacation:
Employee shall be entitled to receive (i) three (3) weeks paid vacation
time per year for the first year of employment under this Agreement and
(ii) four (4) weeks paid vacation time thereafter. Any vacation time which
remains unused at the end of a year of employment may be carried over to
a
succeeding year. Upon expiration or termination of this Agreement, Employee
shall receive a cash payment in lieu of the unused vacation time.
5. Business
Expenses:
The
Company will reimburse or advance Employee promptly for his reasonable and
documented out-of-pocket business expenses for travel, meals and similar
items
incurred in connection with the performance of Employee's duties, and which
are
consistent with the Company's general policies in effect regarding the
reimbursement of business expenses as the Company may from time to time
establish. All payments for reimbursement of such expenses shall be made
to the
Employee only upon the presentation to the Company of appropriate vouchers
or
receipts.
6. Confidentiality,
Non-Competition:
(a) Employee
acknowledges that: (1) the Company's industry is intensely competitive and
that Employee's employment by the Company will require that Employee have
access
to and knowledge of confidential information of the Company, including, but
not
limited to, the identity of the Company's customers, the identity of the
representatives of customers with whom the Company has dealt, the kinds of
services provided by the Company to customers and offered to be performed
for
potential customers, the manner in which such services are performed or offered
to be performed, the service needs of actual or prospective customers, pricing
information, information concerning the creation, acquisition or disposition
of
products and services, customer maintenance listings, computer software
applications and other programs, personnel information and, other trade secrets
(the "Confidential Information"); and (2) the engaging by Employee in any
of the activities prohibited by this Section 6 may constitute improper
appropriation and/or use of such information and trade secrets. Employee
expressly acknowledges the trade secret status of the Confidential Information
and that the Confidential Information constitutes a protected business interest
of the Company. Accordingly, the Company and Employee agree as
follows:
(b) For
purposes of this Section 6, the Company shall be construed to include the
Company and its parents, subsidiaries and affiliates directly engaged in
or
involved with the business of manufacturing, research and development, sales
and
service of PET products and technologies, including any divisions managed
by
Employee.
-4-
(c) During
the Term of this Agreement and at all times after the termination of Employee's
employment by expiration of the Term or otherwise, Employee shall not, without
the Company's written consent, directly or indirectly, whether individually,
as
a director, stockholder, owner, partner, employee, principal or agent of
any
business, or in any other capacity, make known, disclose furnish, make available
or utilize any of the Confidential Information, not generally available to
the
public, other than in the proper performance of the duties contemplated herein,
or as required by a court of competent jurisdiction or other administrative
or
legislative body; provided that, prior to disclosing any of the Confidential
Information to a court or other administrative or legislative body, Employee
shall promptly notify the Company so that the Company may seek a protective
order or other appropriate remedy. Employee agrees to return all Confidential
Information, including all photocopies, extracts and summaries thereof, and
any
such information stored electronically on tapes, computer disks or in any
other
manner to the Company at any time upon request by the Company and upon the
termination of his employment for any reason.
(d) For
a
period of one (1) year after he ceases to be employed hereunder by the Company,
whether upon expiration of the Term or otherwise, Employee agrees that he
will
not, without the Company's written consent, directly or indirectly, for his
benefit or for the benefit of any other person, firm or entity, do any of
the
following:
(i) Solicit,
from any customer doing business with the Company as of Employee's termination,
business of the same or of a similar nature to the business of the Company
with
such customer;
(ii) Solicit
from any known potential customer of the Company business of the same or
of a
similar nature to that which has been the subject of a known written or oral
bid, offer or proposal by the Company, or of substantial preparation with
a view
to making such a bid, proposal or offer, within three (3) months prior to
Employee's termination;
(iii) Solicit
the employment or services of, or hire, any person who was known to be employed
by or was a known employee to the Company upon the termination of Employee's
employment, or within three (3) months prior thereto; or
(iv) Otherwise
interfere with the business accounts of the Company.
(e) Employee
further acknowledges and agrees that due to the uniqueness of his services
and
confidential nature of the information he will possess, the covenants set
forth
herein are reasonable and necessary for the protection of the business and
goodwill of the Company.
7. Termination:
(a) Termination
of Employment With Cause:
In
addition to any other remedies available to the Company at law, in equity
or as
set forth in this Agreement, the Company shall have the right, upon written
notice to Employee, to terminate his employment hereunder without any further
liability or obligation to him in respect of his employment (other than its
obligation to pay Base Compensation and vacation time accrued but unpaid
as of
the date of termination and reimbursement of expenses incurred prior to the
date
of termination in accordance with Section 3(b) above) if Employee:
(i) breaches any material provision of this Agreement; or (ii) has
committed an act of gross misconduct in connection with the performance of
his
duties hereunder, as determined in good faith by the Board of Directors of
the
Company; or (iii) demonstrates habitual negligence in the performance of
his duties, as determined by the Board of Directors of the Company; or
(iv) is convicted of or pleads nolo contendere to any felony; or
(v) is convicted of or pleads nolo contendere to any misdemeanor involving
moral turpitude and the conduct underlying such misdemeanor has an adverse
or
detrimental effect on the Company, its reputation, or its business, as
determined by the Board of Directors of the Company; or (vi) has committed
any act of fraud, misappropriation of funds or embezzlement in connection
with
his employment hereunder (a "Termination With Cause").
-5-
Notwithstanding
the foregoing, no purported Termination With Cause pursuant to (i), (ii)
or
(iii) of this Section 7(a) shall be effective unless all of the following
provisions shall have been complied with: (x) Employee shall be given
written notice by the Board of Directors of the Company of the intention
to
effect a Termination With Cause, such notice to state in detail the particular
circumstances that constitute the grounds on which the proposed Termination
With
Cause is based; and (y) Employee shall have ten (10) business days after
receiving such notice in which to cure such grounds, to the extent such cure
is
possible, as determined in the sole discretion of the Board of Directors
of the
Company.
(b) Termination
of Employment Without Cause:
The
Company may at any time, in its sole discretion, terminate the employment
of
Employee hereunder for any reason (other than those set forth in
Section 7(a) above) upon written notice (the "Termination Notice") to
Employee (a "Termination Without Cause"). In such event, the Company shall
pay
Employee an amount equal to the sum of the following:
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(i)
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any
Base Compensation and vacation time accrued but unpaid as of the
date of
termination;
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(ii)
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subject
to Section 7(1) below, an amount (the "Severance Payment") equal to
Employee's monthly Base Compensation in effect on the date of termination
for six (6) months payable as and when such amounts would have
been due
and payable hereunder had such termination not occurred (the "Severance
Period");
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(iii)
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any
portion of stock options that has become vested on or before the
date of
such termination or shall become vested on or before the end of
the
calendar year of such termination shall be exercisable in accordance
with
the terms of the applicable plan, and all unvested shares shall
terminate;
and
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(iv)
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any
reimbursement for expenses incurred in accordance with
Section 5.
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Employee
acknowledges that the payments and benefits referred to in both
Section 3(b) and this Section 7, together with any rights or benefits
under any written plan or agreement which have vested on or prior to the
termination date of Employee's employment under this Section 7, constitute
the only payments which Employee shall be entitled to receive from the Company
hereunder in the event of any termination of his employment pursuant to this
Section 7, and the Company shall have no further liability or obligation to
him hereunder or otherwise in respect of his employment.
-6-
(c) Termination
of Employment With Good Reason:
In
addition to any other remedies available to Employee at law, in equity or
as set
forth in this Agreement, Employee shall have the right during the Term, upon
written notice to the Company, to terminate his employment hereunder upon
the
occurrence of any of the following events without the prior written consent
of
Employee: (a) a reduction in Employee's then current Base Compensation; or
(b) a breach by the Company of any material provision of this Agreement (a
"Termination With Good Reason").
Notwithstanding
the foregoing, no purported Termination With Good Reason pursuant to this
Section 7(c) shall be effective unless all of the following provisions
shall have been complied with: (i) the Company shall be given written
notice by Employee of the intention to effect a Termination With Good Reason,
such notice to state in detail the particular circumstances that constitute
the
grounds on which the proposed Termination With Good Reason is based and to
be
given no later than ninety (90) days after Employee first learns of such
circumstances; and (ii) the Company shall have fifteen (15) days after
receiving such notice in which to cure such grounds, to the extent such cure
is
possible.
In
the
event that a Termination With Good Reason occurs, then, subject to
Section 7(f) below, Employee shall have the same entitlement to the amounts
and benefits as provided under Section 7(b) for a Termination Without
Cause.
Employee
acknowledges that the payments and benefits referred to in both
Section 3(b) and this Section 7, together with any rights or benefits
under any written plan or agreement which have vested on or prior to the
termination date of Employee's employment under this Section 7(c),
constitute the only payments which Employee shall be entitled to receive
from
the Company hereunder in the event of any termination of his employment pursuant
to this Section 7(c), and the Company shall have no further liability or
obligation to him hereunder or otherwise in respect of his
employment
(d) Death;
Disability:
In the
event that Employee dies or becomes Disabled (as defined herein) during the
Term, Employee's employment shall terminate when such death or Disability
occurs
and the Company shall pay Employee (or his legal representative, as the case
may
be) as follows:
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(i)
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any
Base Compensation and vacation time accrued but unpaid as of the
date of
death or termination for
Disability;
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(ii)
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any
reimbursement for expenses incurred in accordance with
Section 3(b);
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(iii)
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any
portion of stock options that has become vested on or before the
date of
such termination shall be exercisable in accordance with the terms
of the
applicable plan, and all unvested shares shall terminate;
and
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(iv)
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an
amount equal to Employee's monthly base Compensation in effect
on such
termination date for six (6) months, payable as and when such amounts
would have been due and payable hereunder had such termination
not
occurred.
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-7-
Notwithstanding
the foregoing, to the extent and for the period required by any state or
federal
family and medical leave law, upon Employee's request (i) he shall be
considered to be on unpaid leave of absence and not terminated, (ii) his
group health benefits shall remain in full force and effect, and (iii) if
Employee recovers from any such Disability, at that time, to the extent required
by any state or federal family and medical leave law, upon Employee's request,
he shall be restored to his position hereunder or to an equivalent position,
as
the Company may determine, and the Term of Employee's employment hereunder
shall
be reinstated effective upon such restoration. The Term shall not be extended
by
reason of such intervening leave of absence or termination, nor shall any
compensation or benefits accrue in excess of those required by law during
such
intervening leave of absence or termination. Upon the expiration of any such
rights, unless Employee has been restored to a position with the Company,
he
shall thereupon be considered terminated.
Employee
acknowledges that the payments referred to in both Section 3(b) and this
Section 7(d) together with any rights or benefits under any written plan or
agreement which have vested on or prior to the termination date of Employee's
employment under this Section 7(d), constitute the only payments which
Employee (or his legal representative, as the case may be) shall be entitled
to
receive from the Company hereunder in the event of a termination of his
employment for death or Disability, and the Company shall have no further
liability or obligation to him (or his legal representatives, as the case
may
be) hereunder or otherwise in respect of his employment.
(e) No
Mitigation by Employee.
Except
as otherwise expressly provided herein, Employee shall not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment or otherwise, nor shall the amount of any payment provided
for
herein be reduced by any compensation earned by Employee as the result of
employment by another employer.
(f) Severance
Agreement and Release.
In the
event that Employee incurs a termination of employment pursuant to (i) a
Termination Without Cause (as defined in Section 7(b) above), or
(ii) a Termination With Good Reason (as defined in Section 7(c)
above), payment by the Company of the amounts described in said sections
shall
be subject to the execution by Employee of the Company's standard severance
agreement and release (the "Release"), a copy of which is attached hereto
as
Exhibit "A" and made a part hereof.
The
Release shall be delivered to Employee, in the case of a Termination Without
Cause, at the time of delivery of the Termination Notice, and, in the case
of a
Termination With Good Reason, upon delivery of written notice by the Employee
to
the Company. Employee shall have a period of thirty (30) days after the
effective date of termination of this Agreement (the "Consideration Period")
in
which to execute and return the original, signed Release to the Company.
If
Employee delivers the original, signed Release to the Company prior to the
expiration of the Consideration Period, then the Severance Period shall be
deemed to have commenced as of the first day of the Consideration Period
and
Employee shall be entitled to the amounts and benefits set forth in
Section 7(b) or 7(c), as the case may be.
-8-
If
Employee does not deliver the original, signed Release to the Company prior
to
the expiration of the Consideration Period, then:
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(i)
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the
Company shall pay Employee an amount equal to the sum of (i) any Base
Compensation and vacation time accrued but unpaid as of the date
of
termination, plus (ii) any reimbursement for expenses incurred in
accordance with Section 3(b);
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(ii)
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the
Company shall have no obligation to (i) pay to Employee the Severance
Payment (as that term is defined in Section 7(b)(ii) above;
and
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(iii)
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any
portion of stock options that has become vested on or before the
date of
such termination shall be exercisable in accordance with the terms
of the
applicable plan, and all unvested shares shall
terminate.
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(g) Continued
Compliance.
Employee and the Company hereby acknowledge that the amounts or benefits
payable
by the Company under Sections 7(b)(ii), 7(c), and 7(d)(iv) are part of the
consideration for Employee's undertakings under Article V below. Such amounts
and benefits are subject to Employee's continued compliance with the provisions
of Sections 6, 8 and 9 hereof, If Employee violates the provisions of such
Sections, then the Company will have no obligation to make any of the payments
that remain payable by the Company under Sections 7(b)(ii), 7(c), and
7(d)(iv) on or after the date of such violation.
8. Ownership
of Company Property:
(a) All
Confidential Information shall be the sole property of the Company and its
assigns, and the Company and its assigns shall be the sole owner of all patents,
copyrights and other rights in connection therewith, including but not limited
to the right to make application for statutory protection. Employee hereby
assigns to the Company any rights be may have or acquire in such Confidential
Information. The parties hereto acknowledge that for the purpose of this
subparagraph, the term "Confidential Information" does not include
(i) information in the public domain not as a result of a breach of this
Agreement, and (ii) information received by Employee at a time when
Employee is no longer employed by the Company from a third party who is not
subject to any confidentiality or nondisclosure obligation to the Company
either
by contract or operation of law.
(b) (i) Employee
will
promptly disclose to the Company, or any persons designated by it, all
improvements, inventions, designs, ideas, works of authorship, copyrightable
works, discoveries, trademarks, copyrights, trade secrets, formulas, processes,
techniques, know-how, source code and data, whether or not patentable, made
or
conceived or reduced to practice or learned by Employee, during the period
and
normal course of his employment (whether or not during normal working hours,
and
whether or not at the Company's premises) which are related to the Business
of
the Company, or result from tasks assigned Employee by the Company or result
from use of premises or equipment owned, leased or contracted for by the
Company
(all of the foregoing shall be collectively herein called "Inventions");
and
(ii) Employee hereby assigns to the Company any rights he may have or
acquire is all Inventions, and agrees that all Inventions shall be the sole
property of the Company and its assigns, and the Company and its assigns
shall
be the sole owner of all patents, copyrights and other rights in connection
therewith. Employee further agrees to assist the Company, as requested by
the
Company, and at no cost or expense to the Employee (and with compensation
to be
mutually agreed by the parties, acting reasonably if the Employee is no longer
employed with the Company), to obtain and from time to time enforce patents,
copyrights or other rights in said Inventions in any and all
countries.
-9-
9. Return
of Company Property:
Employee agrees that following the termination of his employment for any
reason,
he shall return all property of the Company, its subsidiaries, affiliates
and
any divisions thereof he may have managed which is then in or thereafter
comes
into his possession, including, but not limited to, documents, contracts,
agreements, plans, photographs, books, notes, electronically stored data
and all
copies of the foregoing as well as any automobile or other materials or
equipment supplied by the Company to Employee.
10. Each
Party, the Drafter:
This
Agreement and the provisions contained in it shall not be construed or
interpreted for or against any party to this Agreement because that party
drafted or caused that party's legal representative to draft any of its
provisions.
11. Waiver:
The
failure of either party to this Agreement to enforce any of its terms,
provisions or covenants shall not be construed as a waiver of the same or
of the
right of such party to enforce the same. Waiver by either party hereto of
any
breach or default by the other party of any term or provision of this Agreement
shall not operate as a waiver of any other breach or default
12. Severability:
In the
event that any one or more of the provisions of this Agreement shall be held
to
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remainder of the Agreement shall not in any way be affected or impaired
thereby. Moreover, if any one or more of the provisions contained in this
Agreement shall be held to be excessively broad as to duration, activity
or
subject, such provisions shall be construed by limiting and reducing them
so as
to be enforceable to the maximum extent allowed by applicable law.
13. Entire
Agreement:
The
provisions contained herein (including any schedules, exhibits and documents
delivered herewith or attached hereto) constitute the entire agreement between
the parties hereto with respect to the subject matter hereof and supersede
and
replace any and all previous agreements between the parties, whether written
or
oral with respect to such subject matter.
-10-
14. Independent
Counsel:
Employee and the Company each acknowledge that each of them has had the
opportunity to seek independent legal counsel in connection with entering
into
this Agreement, and has either done so or has voluntarily chosen not
to.
15. Notices:
Any
notice given hereunder shall be in writing and shall be deemed to have been
given when delivered by messenger or courier service (against appropriate
receipt), or mailed by registered or certified mail (return receipt requested),
addressed as follows:
If
to the
Company:
Positron
Corporation
0000
Xxxxxxx Xxxxx Xx. #000
Xxxxxxx,
XX 00000
If
to
Employee:
Xxxxxx
X.
Xxxxxxxx
000
Xxxxxx Xx.
Xxxxxxxx,
X.X. 00000
With
a
copy to:
Xxxxxxx
& Fine, P.C.
0000
Xxxxxxx Xxxxxxxx
Xxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Fine, Esq.
Or
at
such other address as shall be indicated to either party in writing. Notice
of
change of address shall be effective only upon receipt.
16. Governing
Law:
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Texas, without regard to its conflict of law rules.
17. Descriptive
Headings:
The
paragraph headings contained herein are for reference purposes only and shall
not in any way affect the meaning or interpretation of this
Agreement.
18. Counterparts:
This
Agreement may be executed in one or more counterparts, which, together, shall
constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
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POSITRON
CORPORATION
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By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Chairman
of the Board
|
/s/
Xxxxxx X. Xxxxxxxx
Xxxxxx
X. Xxxxxxxx
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-11-
EXHIBIT
"A"
SEVERANCE
AGREEMENT AND RELEASE
Employee
hereby agrees to end his relationship with Positron Corporation (the "Company")
on the following basis:
1. In
reliance on such representations and releases in this Agreement, Employee's
relationship with the Company will end effective ________, _____ and he will
be
paid the amounts set forth in Section 7 of his Employment Agreement dated
December 27, 2005.
2. Employee
represents that he is signing this Agreement voluntarily and with a full
understanding of and agreement with its terms, for the purpose of receiving
additional pay and benefits from the Company beyond that provided by normal
Company policy.
3. Employee
agrees that he is not entitled to receive, and will not claim, any right,
benefit, or compensation other than what is expressly set forth in this
Agreement, and hereby expressly waives any claim to any compensation, benefit,
or payment which is not expressly referenced in this Agreement.
4. In
consideration of this Agreement, Employee agrees to forever waive, release
and
discharge the Company, and each of its affiliated or related entities,
organizations, corporations, shareholders, owners, directors, officers,
employees, representatives, agents, attorneys, successors and assigns
(collectively, "Released Parties") from any and all known and/or unknown
claims,
complaints, actions, grievances, controversies, disputes, suits, charges
of
discrimination or harassment, contracts or agreements of any nature whatsoever
which you ever had, now have or may claim to have as of the moment you sign
this
Agreement, including but not limited to (a) any claim arising out of your
relationship with the Company or the cessation of that relationship,
(b) any claims for violations of the Texas Labor Code, claims for
additional compensation, wages, salary, commissions, bonuses, expenses or
benefits of any kind, or any additional claims with the Division of Labor
Standards Enforcement, (c) any common law actions or torts, and/or
(d) any federal, state or governmental constitution, statute, regulation or
ordinance, including but not limited to, Title VII of the Civil Rights Act
of
1964 and the Age Discrimination in Employment Act. You are not waiving rights
to
claims that may arise after you enter into this Agreement.
5. In
exchange for the additional pay and benefits provided in Paragraph 1, Employee
agrees to refrain from making any disparaging or unfavorable comments, in
writing or orally, about the Company, including but not limited to press
releases, communication with employees, vendors, customers, professional
references, and others.
6. This
Release shall be governed by the substantive law of the State of Texas. In
the
event of any dispute concerning the validity, interpretation, enforcement
or
breach of this Release or in any way related to Employee's employment or
termination of employment, the dispute shall be resolved by arbitration within
the County of Houston, Texas, in accordance with the then existing rules
for
employment arbitration of the American Arbitration Association, and judgment
upon any arbitration award may be entered by any state or federal court having
jurisdiction thereof. The Arbitrator's decision in any such arbitration shall
be
final and binding on the parties. Employee intends that this arbitration
provision to be valid, enforceable, irrevocable and construed as broadly
as
possible. The prevailing party in such arbitration shall recover its reasonable
costs and attorneys' fees.
7. Employee
will have twenty-one (21) days to consider this Agreement, although he may
sign
it sooner than that if Employee so desires. Employee may also retain the
right
to revoke the Agreement at any time during the seven (7) day period following
execution of the Agreement. The Agreement will not become effective or
enforceable until such seven (7) day period has expired ("Effective
Date").
8. Employee
agrees that the terms of this Agreement are confidential and he will not
disclose to any other person any information contained herein with the exception
of his tax and legal advisors and his immediate family. Employee acknowledges
that he continues to be bound by the terms of confidentiality, non-competition
and non-solicitation as stated in Section 6 of the Employment Agreement with
the
Company dated December 27, 2005.
9. By
signing below Employee acknowledges that (i) he has carefully read and
considered the matters set forth in this Agreement, (ii) understands the
terms
of this Agreement, (iii) has had a sufficient opportunity to review this
Agreement, and (iv) is signing this Agreement voluntarily for the purpose
of
receiving additional compensation beyond that provided by normal Company
policy.
10. Nothing
contained in this Agreement or the fact that Employee has signed this Agreement
shall be considered an admission of any liability whatsoever.
I
HAVE
READ THIS RELEASE THOROUGHLY, UNDERSTAND ITS TERMS AND HAVE SIGNED IT KNOWINGLY
AND VOLUNTARILY. I UNDERSTAND THAT THIS RELEASE IS A LEGAL DOCUMENT AND WILL
HAVE LEGAL CONSEQUENCES.
I
AGREE
TO THE ABOVE:
__________________________________
(Employee
Signature)
__________________________________
(Print
Name)
_______________________
(Date)
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A-2
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