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EXHIBIT 10.61
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement"), is made and entered into
as of January 26, 1999, by and between Unitron Medical Communications, Inc.,
d/b/a MOON Communications, Inc., a Florida corporation, with its principal
office located at 17757 XX 00 Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000-0000
(together with its successors and assigns permitted under this Agreement,
"MOON"), and H. Xxx Xxxx ("Employee").
WITNESSETH:
WHEREAS, MOON has determined that it is in the best interests of MOON
and its stockholders to employ Employee and to set forth in this Agreement the
obligations and duties of both MOON and Employee; and
WHEREAS, MOON wishes to assure itself of the services of Employee for
the period hereinafter provided, and Employee is willing to be employed by MOON
for said period, upon the terms and conditions provided in this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, MOON and Employee (individually a "Party" and
together the "Parties" ) agree as follows:
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1. DEFINITIONS.
(a) "BENEFICIARY" shall mean the person or persons named by Employee
pursuant to Section 11 below or, in the event that no such person is named who
survives Employee, his estate.
(b) "BOARD" shall mean the Board of Directors of MOON.
(c) "CAUSE" shall mean:
(i) Employee being found guilty of a felony or an act of fraud
or embezzlement, in each case related to MOON or its business;
(ii) any repeated and demonstrated failure by Employee to
discharge faithfully the responsibilities of his position that the Board in good
faith determines is extremely detrimental to the current and future interests of
MOON; or
(iii) a material breach by Employee of any provision of this
Agreement.
(d) "CODE" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(e) "CHANGE IN CONTROL" shall mean the occurrence of any of the
following events:
(i) Consummation of the acquisition by any person (as such term
is defined in Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) of beneficial ownership (within the meaning of Rule
l3d-3 promulgated under the 0000 Xxx) of 40 percent or more of the combined
voting power of the then outstanding voting securities of MOON, provided,
however, that the acquisition of shares of the voting securities of MOON by
Sabratek Corporation, a Delaware corporation ("Sabratek"), shall not constitute
a Change in Control hereunder; or
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(ii) Approval by stockholders of MOON of (A) a merger or
consolidation of MOON, as the case may be, if the stockholders immediately
before such merger or consolidation do not, as a result of such merger or
consolidation, own, directly or indirectly, more than 60 percent of the combined
voting power of the then outstanding voting securities of the entity resulting
from such merger or consolidation in substantially the same proportion as their
ownership of the combined voting power of the voting securities of MOON
outstanding immediately before such merger or consolidation; or (B) a complete
liquidation or dissolution, or an agreement for the sale or other disposition,
of all or substantially all of the assets of MOON, provided, however, that the
merger of MOON with Sabratek or the acquisition by Sabratek of all or
substantially all of the assets of MOON shall not constitute a Change in Control
hereunder.
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because 40 percent or more of the combined voting power of the
then outstanding securities is acquired by (i) a trustee or other fiduciary
holding securities under one or more employee benefit plans maintained for
employees of MOON, or (ii) any corporation that, immediately prior to such
acquisition, is owned directly or indirectly by the stockholders of MOON in the
same proportion as their ownership of stock of MOON immediately prior to such
acquisition.
(f) "COMMITTEE" shall mean the Compensation Committee of the Board.
(g) "DISABILITY" shall mean the illness or other mental or physical
disability of Employee, as determined under the long-term disability plan of
MOON covering Employee, or if no such plan exists, Employee's failure (i) to
perform substantially his material duties under this Agreement for a period of
three consecutive months, or for an aggregate of 135 days during any 12-
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month period, and (ii) to return to the performance of his duties within 30 days
after receiving written notice of termination.
(h) "SALARY" shall mean the annual salary provided for in Section 3
below, as adjusted from time to time.
(i) "TERM OF EMPLOYMENT" OR "TERM" shall mean the period specified in
Section 2(b) below.
(j) "YEAR" shall mean the calendar year, which is the fiscal year of
MOON.
2. EMPLOYMENT TERM, POSITIONS AND DUTIES.
(a) EMPLOYMENT OF EMPLOYEE. MOON hereby agrees to employ Employee, and
Employee hereby accepts employment with MOON, in the positions and with the
duties and responsibilities set forth below and upon such other terms and
conditions as are hereinafter stated.
(b) TERM OF EMPLOYMENT. The Term of Employment shall commence on the
date hereof and shall terminate on January 25, 2000; provided, however, that
unless either Party gives one month's written notice to the other that the Term
shall not continue past January 25, 2000 or any subsequent 12-month period for
which the Term has previously been extended, the Term shall thereafter
automatically extend for an additional 12-month period, unless the Term is
sooner terminated as provided in Section 7 below.
(c) TITLES AND DUTIES.
(i) Until the date of termination of his employment hereunder,
Employee shall be employed as Chief Executive Officer, reporting to the Board.
In his capacity as Chief Executive Officer, Employee shall have the customary
powers, responsibilities and authorities of a Chief Executive Officer of
corporations of the size, type and nature of MOON.
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(d) TIME AND EFFORT.
(i) Employee agrees to devote his full business time to the
affairs of MOON in order to carry out his duties and responsibilities under this
Agreement.
(ii) Notwithstanding the foregoing, nothing shall preclude
Employee from (A) serving on the boards of a reasonable number of trade
associations, charitable organizations and/or businesses not in competition with
MOON or Sabratek, (B) engaging in charitable activities and community affairs,
and (C) managing his personal investments and affairs; provided, however, that,
such activities do not materially interfere with the proper performance of his
duties and responsibilities specified in Section 2 (c).
3. SALARY.
Employee shall receive from MOON a Salary, payable in accordance with
the regular payroll practices of MOON, in a minimum amount of $175,000 on an
annualized basis. During the Term the Board shall review his Salary no less
often than once each Year, commencing January 1, 2000. On the basis of any such
review, the Board may in its sole discretion increase Employee's Salary
accordingly. The term "Salary" as used in this Agreement shall refer to his
Salary at any time as so adjusted.
4. BONUSES.
(a) ANNUAL BONUS. Employee shall be eligible to receive an annual
bonus for each Year or portion thereof during the Term, which bonus shall not be
(i) less than 35% of his Salary if he achieves 80% of specified performance
objectives, (ii) less than 45% of his Salary if he achieves 100% of specified
performance objectives, or (iii) less than 55% of his Salary if he achieves 120%
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of specified performance objectives for any Year. The performance objectives
shall be determined and approved at the beginning of each Year by the Board and
agreed to by Employee.
(b) SPECIAL BONUS. Employee shall be eligible to receive additional
bonuses during the Term. The Board shall determine, in its discretion, the
occasion for payment, and the amount, of any such bonus.
5. EXPENSE REIMBURSEMENT; CERTAIN OTHER COSTS.
During the Term, Employee shall be entitled to prompt reimbursement by
MOON for all reasonable out-of-pocket expenses incurred by him in performing
services under this Agreement, upon his submission of such accounts and records
as may be reasonably required by MOON.
6. EMPLOYEE BENEFIT PLANS.
During the Term, Employee shall be entitled to all benefits
specifically established for him, and to participate in all employee benefit
plans and programs made available to MOON's senior executives or to its
employees generally, as such plans or programs may be in effect from time to
time, including, without limitation, pension and other retirement plans,
profit-sharing plans, savings and similar plans, group life insurance,
accidental death and dismemberment insurance, travel accident insurance,
hospitalization insurance, surgical insurance, major and excess major medical
insurance, dental insurance, short-term and long-term disability insurance, sick
leave (including salary continuation arrangements), holidays, vacation and any
other employee benefit plans or programs that may be sponsored by MOON from time
to time, including plans that supplement the above-listed types of plans,
whether funded or unfunded.
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7. TERMINATION OF EMPLOYMENT.
(a) VOLUNTARY TERMINATION AND TERMINATION BY MUTUAL AGREEMENT.
Employee may terminate his employment voluntarily at any time. If he does so,
his entitlement hereunder shall be the same as if MOON had terminated his
employment for Cause. The Parties may terminate this Agreement by mutual
agreement at any time. If they do so, Employee's entitlement shall be as the
Parties mutually agree.
(b) GENERAL. Notwithstanding anything to the contrary herein, in the
event of termination of Employee's employment under this Agreement, he or his
Beneficiary, as the case may be, shall be entitled to receive (in addition to
payments and benefits under, and except as specifically provided in, subsections
(c) through (h) below, as applicable):
(i) his Salary through the date of termination;
(ii) any unused vacation from prior years according to MOON's
vacation policy;
(iii) any deferred compensation payable under any deferred
compensation plan of MOON;
(iv) any annual or special bonus awarded, but not yet paid to
him;
(v) any other compensation or benefits that have vested through
the date of termination or to which he may then be entitled in accordance with
the applicable terms and conditions of each grant, award or plan;
(vi) reimbursement in accordance with Section 5 above of any
business expenses incurred by Employee through the date of termination but not
yet paid to him; and
(vii) any other compensation or benefits, including without
limitation, benefits under equity grants and employee benefits under plans
described in Section 6 above, that have vested
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through the date of termination or to which he may then be entitled in
accordance with the applicable terms and conditions of each grant, award or
plan.
(c) TERMINATION DUE TO DEATH. In the event that Employee's employment
is terminated due to his death, his Beneficiary shall be entitled, in addition
to the compensation and benefits specified in Section 7(b), to:
(i) Employee's Salary, at the rate in effect immediately before
such termination, payable through the end of the month in which the proceeds of
his life insurance under MOON's group plan are paid; and
(ii) a prorated annual bonus for the Year in which his death
occurs.
(d) TERMINATION DUE TO DISABILITY. In the event of Disability, MOON or
Employee may terminate Employee's employment. If Employee's employment is
terminated due to Disability, he shall be entitled, in addition to the
compensation and benefits specified in Section 7(b), to a prorated annual bonus
for the Year in which his termination for Disability occurs.
(e) TERMINATION BY MOON FOR CAUSE. MOON may terminate Employee's
employment hereunder for Cause only upon written notice to Employee not less
than 45 days prior to any intended termination date, which notice shall specify
the grounds for such termination in reasonable detail. Upon receipt of such
notice, Employee (and his counsel) shall have the right for 30 days to present
to the Board his position regarding any dispute relating to the existence of
such Cause. Unless rescinded by the Board, termination shall be effective on the
date specified in the original notice.
In the event that Employee's employment is terminated for Cause, he
shall be entitled only to the compensation and benefits specified in Section
7(b).
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(f) TERMINATION WITHOUT CAUSE.
(i) Termination without Cause shall mean: (A) termination of
Employee's employment by MOON and shall include any reason for termination other
than (i) due to death, Disability or Cause, (ii) by Employee voluntarily, or
(iii) by mutual agreement of Employee and MOON; or (B) MOON changes the primary
employment location of Employee to a place that is outside the Tampa Bay
metropolitan area. MOON shall provide Employee ten days' prior written notice of
termination by it without Cause.
(ii) In the event of termination by MOON of Employee's employment
without Cause, he shall be entitled, in addition to the compensation and
benefits specified in Section 7(b), to:
(A) his Salary, at the rate in effect immediately before
such termination, for a period of twelve months following the date of
termination, such salary to be paid on MOON's normal payroll schedule; and
(B) a prorated annual bonus for the year in which
terminated, such bonus to be paid at the same time annual bonuses are regularly
paid by MOON; and
(C) continued coverage under the health program maintained
by MOON for a period of twelve months; and
(D) notwithstanding anything in this Section 7(f) to the
contrary, MOON shall have no further obligation to make any salary or bonus
payments for any period following the first date on which Employee takes any
action which would fall within the definition of "Restrictive Covenant" as
provided in Section 9(a) hereof, whether or not such action occurs within the
Restrictive Period (as defined in Section 9(a) hereof).
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(g) VOLUNTARY TERMINATION BY EMPLOYEE. Employee shall have the right,
upon 30 days' prior written notice, voluntarily to terminate his employment. If
he exercises this right, his employment shall cease and the Term shall terminate
as of the date stated in such notice, and he shall be entitled to receive
compensation and benefits as if MOON had terminated his employment for Cause, as
provided in Section 7(e).
(h) NOTICE THAT THE EMPLOYMENT TERM SHALL NOT RENEW. In the event that
either Party notifies the other that the Employment Term shall not renew
pursuant to the terms of Section 2(b) above, Employee shall continue to render
services to MOON through the end of the Term as in effect on the date of
delivery of such notice, unless: (A) the non-renewal decision was made by MOON,
in which case, the Board or Employee may elect to treat the notice as a
termination without Cause of Employee's employment; or (B) the non-renewal
decision was made by Employee, in which case, the Board may elect to treat the
notice as a voluntary termination of employment by Employee.
(i) CHANGE IN CONTROL. Notwithstanding anything to the contrary in
this Section 7, if, within twelve months following a Change in Control (A)
Employee's employment is terminated for any reason other than Cause, death or
Disability, or (B) there is a material adverse change in Employee's
compensation, title or duties specified herein, he shall be entitled to the
compensation and benefits provided in Sections 7(b) and 7(f)(ii), including, but
not limited to, any other compensation or benefits under equity grants and
awards described in Section 6 above, that have vested through the date of
termination or to which he may then be entitled in accordance with the
applicable terms and conditions of each grant, award or plan, provided that the
period during which Employee shall continue receiving his salary and coverage
under the health program maintained by
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MOON pursuant to Sections 7(f)(ii)(A) and (C) hereof shall increase from twelve
months to twenty-four months.
8. CONFIDENTIALITY AND LOYALTY.
(a) GENERAL.
(i) Employee hereby acknowledges that as a result of his
employment with MOON he has produced and had access to, and may hereafter
produce and have access to, material, records, data, trade secrets, inventions
and information not generally available to the public (collectively,
"Confidential Information") regarding MOON and that any such Confidential
Information is the exclusive property of MOON.
(ii) Accordingly, Employee hereby agrees that, during and
subsequent to the Term, he shall hold in confidence and not directly or
indirectly disclose, use, copy or make lists of any such Confidential
Information, except to the extent that such information is or thereafter becomes
lawfully available from public sources, or such disclosure is authorized in
writing by MOON, required by a law or any competent administrative agency or
judicial authority, or otherwise as reasonably necessary or appropriate in
connection with performance by Employee of his duties hereunder.
(b) RETURN OF DOCUMENTS. All records, files, documents and other
materials or copies thereof relating to MOON's business that Employee prepares
or uses shall be and remain the sole property of MOON and shall not be removed
from MOON's premises without its written consent. Upon termination of Employee's
employment with MOON for any reason, he shall promptly deliver to MOON all such
items that are then in his possession or control.
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(c) DUTY OF LOYALTY. Employee hereby agrees to abide by MOON's
reasonable policies, as in effect from time to time, respecting avoidance of
interests conflicting with those of MOON.
(d) REMEDIES AND SANCTIONS. In the event that Employee is found to be
in violation of Section 8(a), (b) or (c), MOON shall be entitled to relief as
provided in Section 10 below.
9. NONCOMPETITION/NONSOLICITATION.
(a) RESTRICTIVE COVENANT. Employee hereby agrees that, except with the
express prior written consent of MOON or Sabratek, as the case may be, for a
period of one year after termination of his employment with MOON for any reason
(the "Restrictive Period"), he will not directly or indirectly compete with the
business of MOON or Sabratek as conducted on the date of such termination,
including, but not by way of limitation, by (i) directly or indirectly owning,
managing, operating, controlling, financing, (ii) directly or indirectly serving
as an employee, officer or director of or consultant to, or (iii) soliciting or
inducing, or attempting to solicit or induce, any employee or agent of MOON or
Sabratek to terminate employment with MOON or Sabratek and become employed by,
any person, firm, partnership, corporation, trust or other entity that owns or
operates an entity that is engaged in the same or similar business as MOON or
Sabratek as conducted on the date of such termination (the "Restrictive
Covenant").
If Employee violates the Restrictive Covenant and MOON brings legal
action for injunctive or other relief, MOON shall not, as a result of the time
involved in obtaining such relief, be deprived of the benefit of the full period
of the Restrictive Covenant. Accordingly, the Restrictive Covenant shall be
deemed to endure for the period specified in this Section 9(a), computed from
the date the relief is granted but reduced by the time between the period when
the Restrictive Period began to run and the date of the first violation of the
Restrictive Covenant by Employee.
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(b) EXCEPTIONS. Notwithstanding anything to the contrary in Section
9(a), the Restrictive Covenant shall not:
(i) apply if MOON terminates Employee's employment without
Cause, as provided in Section 7(f) above; or
(ii) prohibit Employee from owning directly or indirectly capital
stock or similar securities which do not represent more than five percent of the
outstanding capital stock of any business similar to that of MOON as conducted
on the date of such termination.
(c) REMEDIES AND SANCTIONS. In the event that Employee is found to be
in violation of Section 9(a) above, MOON shall be entitled to relief as provided
in Section 10 below.
10. REMEDIES/SANCTIONS.
Employee hereby acknowledges that the restrictions contained in
Sections 8 (a), (b) and (c) and 9(a) above are reasonable and necessary for the
protection of the legitimate business interests of MOON, for which monetary
damages alone may not provide an adequate remedy, that any violation of these
restrictions would cause substantial injury to MOON and such interests, that
MOON would not have entered into this Agreement without receiving the additional
consideration offered by Employee in binding himself to these restrictions and
that such restrictions were a material inducement to MOON to enter into this
Agreement.
In the event of any violation or threatened violation of these
restrictions, MOON (a) shall be relieved of any further obligations under the
Agreement, (b) shall be entitled to monetary damages resulting from such
violation, and (c) in addition to and not in limitation of, any other rights,
remedies or damages available to MOON under this Agreement or otherwise at law
or in equity, shall be entitled to preliminary and permanent injunctive relief
to prevent or restrain any such
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violation by Employee and any and all persons directly or indirectly acting for
or with him, as the case may be.
11. BENEFICIARIES/REFERENCES.
Employee shall be entitled to select (and change, to the extent
permitted under any applicable law) a Beneficiary or Beneficiaries to receive
any compensation or benefit payable under this Agreement following his death by
giving MOON written notice thereof. In the event of Employee's death, or of a
judicial determination of his incompetence, reference in this Agreement to
Employee shall be deemed to refer, as appropriate, to his Beneficiary, estate or
other legal representative.
12. WITHHOLDING TAXES.
All payments to Employee or his Beneficiary under this Agreement shall
be subject to withholding on account of federal, state and local taxes as
required by law.
13. INDEMNIFICATION AND LIABILITY INSURANCE.
Nothing herein is intended to limit MOON's indemnification of Employee,
and MOON shall indemnify him to the fullest extent permitted by applicable law
consistent with MOON's Certificate of Incorporation and By-Laws as in effect at
the beginning of the Term, with respect to any action or failure to act on his
part while he is an officer, director or employee of MOON. MOON shall cause
Employee to be covered at all times by directors' and officers' liability
insurance on terms no less favorable than the directors' and officers' liability
insurance maintained by MOON in effect on the date hereof in terms of coverage
and amounts. MOON shall continue to indemnify Employee as provided above and
maintain such liability insurance coverage for him after the Term for any claims
that may be made against him with respect to his service as a director or
officer of MOON.
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14. EFFECT OF AGREEMENT ON OTHER BENEFITS.
The existence of this Agreement shall not prohibit or restrict
Employee's entitlement to participate fully in compensation, employee benefit
and other plans of MOON in which senior executives are eligible to participate.
15. PARACHUTES.
(a) APPLICATION. If all, or any portion, of the payments provided
under this Agreement, and/or any other payments and benefits that Employee
receives or is entitled to receive from MOON, including, but not limited to,
amounts generated from the exercise and sale of options granted to Employee,
constitutes an excess "parachute payment" within the meaning of Section 280G(b)
of the Code, whether or not under an existing plan, arrangement or other
agreement (each such parachute payment, a "Parachute Payment") and will result
in the imposition on Employee of an excise tax under Section 4999 of the Code,
then, in addition to any other benefits to which Employee is entitled under this
Agreement, MOON shall pay him an amount in cash equal to the sum of the excise
taxes payable by him by reason of receiving such Parachute Payments, plus the
amount necessary to put him in the same after-tax position (taking into account
any and all applicable federal, state and local excise, income or other taxes at
the highest possible applicable rates on such Parachute Payments (including
without limitation any payments under this Section 15) as if no excise taxes had
been imposed with respect to Parachute Payments (the "Parachute Gross-up").
(b) COMPUTATION. The amount of any payment under this Section 15 shall
be computed by MOON's certified public accounting firm in consultation with
legal counsel acceptable to Employee. Employee and MOON shall provide the
accounting firm with all information that it
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reasonably deems necessary in order to compute the Parachute Gross-up. The cost
and expenses of the accounting firm retained to perform the computations shall
be borne by MOON.
(c) PAYMENT. In any event, MOON shall pay to Employee, or pay on his
behalf, the Parachute Gross-up as computed by the accounting firm by the time
any taxes payable by him as a result of the Parachute Payments become due.
In the event that the Internal Revenue Service ("IRS") determines that
the amount of excise taxes thereon initially paid was insufficient to discharge
Employee's excise tax liability, MOON shall make additional payments to him as
may be necessary to reimburse him for discharging the full liability.
16. ASSIGNABILITY; BINDING NATURE.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs (in the case of Employee) and
assigns.
17. REPRESENTATIONS.
The Parties respectively represent and warrant that each is fully
authorized and empowered to enter into this Agreement and that the performance
of its or his obligations, as the case may be, under this Agreement will not
violate any agreement between such Party and any other person, firm or
organization. MOON represents and warrants that this Agreement has been duly
authorized by all necessary corporate action and is valid, binding and
enforceable in accordance with its terms.
18. ENTIRE AGREEMENT.
Except to the extent otherwise provided herein, this Agreement contains
the entire understanding and agreement between the Parties concerning the
subject matter hereof and supersedes any prior agreements, whether written or
oral, between the Parties concerning the subject
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matter hereof, between MOON and Employee, provided that the execution of this
Agreement shall not adversely affect (i) any award previously made to Employee
under any compensation plan maintained by MOON, or (ii) any statements regarding
the vesting of options or other benefits in such prior agreements. Payments and
benefits provided under this Agreement are in lieu of any payments or other
benefits under any severance program or policy of MOON to which Employee would
otherwise be entitled.
19. AMENDMENT OR WAIVER.
No provision in this Agreement may be amended unless such amendment is
agreed to in writing and signed by both Employee and an authorized officer of
MOON. No waiver by either Party of any breach by the other Party of any
condition or provision contained in this Agreement to be performed by such other
Party shall be deemed a waiver of a similar or dissimilar condition or provision
at the same or any prior or subsequent time. Any waiver must be in writing and
signed by the Party to be charged with the waiver. No delay by either Party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof.
20. SEVERABILITY.
In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
21. SURVIVAL.
The respective rights and obligations of the Parties under this
Agreement shall survive any termination of Employee's employment with MOON.
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22. GOVERNING LAW/JURISDICTION.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of Florida, without reference to principles of conflict
of laws.
23. ARBITRATION.
Any dispute or controversy other than a dispute or controversy arising
under Sections 8 or 10 hereof (actions regarding which may be brought in any
court (i) having situs within Pinellas County, Florida and (ii) having
jurisdiction over the dispute or controversy) arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three arbitrators sitting in a location selected by Employee
within thirty (30) miles from the main office of MOON, in accordance with the
rules of the American Arbitration Association then in effect. Judgment may be
entered on the arbitrator's award in any court having jurisdiction; provided,
however, that the Executive shall be entitled to seek specific performance of
his right to be paid through the date of termination during the pendency of any
dispute or controversy arising under or in connection with this Agreement.
24. LEGAL FEES.
All reasonable expenses and legal fees paid or incurred by Employee
pursuant to any bona fide dispute or question of interpretation relating to this
Agreement, including all such expenses and fees, if any, incurred in contesting
any termination of this Agreement by MOON or in seeking to obtain or enforce any
right or benefit provided by this Agreement, shall be paid or reimbursed by
MOON, provided, however, that if this Agreement is terminated for Cause or if
this Agreement is terminated voluntarily by Employee other than due to a breach
of this Agreement by MOON,
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MOON shall be obligated to pay any of Employee's expenses and legal fees arising
therefrom only if Employee is successful on the merits pursuant to a legal
judgment, arbitration or settlement.
25. NOTICES.
Any notice given to either Party shall be in writing and shall be
deemed to have been given when delivered either personally, by fax, by overnight
delivery service (such as Federal Express) or sent by certified or registered
mail postage prepaid, return receipt requested, duly addressed to the Party
concerned at the address indicated below or to such changed address as the Party
may subsequently give notice of:
If to MOON or the Board:
MOON Communications, Inc.
17757 XX 00 Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxx, Corporate Secretary
PHONE: (000) 000-0000
FAX: (000) 000-0000
If to Employee:
MOON Communications, Inc.
17757 XX 00 Xxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Chief Executive Officer
PHONE: (000) 000-0000
FAX: (000) 000-0000
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and
H. Xxx Xxxx
0000 Xxxxxxxx Xxxxxxx
Xxxxxx Xxxxxx, Xxxxxxx 00000
26. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
27. COUNTERPARTS.
This Agreement may be executed in counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have Agreement as of the date first
written above.
UNITRON MEDICAL COMMUNICATIONS,
INC., d/b/a MOON COMMUNICATIONS, INC.
By: /s/ Xxxxxxxx X. Xxxx
---------------------------------
Xxxxxxxx X. Xxxx
Its: Corporate Secretary
/s/ H. Xxx Xxxx
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H. Xxx Xxxx
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