EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "AGREEMENT") made as of February 9,
2000, between Ultra Open MRI Holding Corp., a Florida corporation (the
"COMPANY"), and Xxxx XxXxxxxxx, an individual residing in Florida (the
"Employee");
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to employ Employee as one of its senior
executive officers for the period and upon and subject to the terms herein
provided; and
WHEREAS, the Company desires to be assured that Employee will not
compete with the Company for the period and within the geographical areas
hereinafter specified; and
WHEREAS, Employee is willing to agree to be employed by the Company for
the period and upon and subject to the terms herein provided;
NOW, THEREFORE, in consideration of the premises, the parties hereto
covenant and agree as follows:
SECTION 1. TERM OF EMPLOYMENT; COMPENSATION. The Company agrees to
employ Employee from the date hereof until February 9, 2003, in a senior
managerial capacity, initially as Vice President and a Director, with the
responsibilities normally associated with such position. The Company will pay
Employee for his services during the term of the Employee's employment hereunder
at an annual rate of Sixty Thousand Dollars ($60,000), payable in arrears, in
equal installments, in accordance with standard Company practice, but in any
event not less often than monthly, subject only to such payroll and withholding
deductions as are required by law. Employee shall also be entitled to
participate in the current bonus plan of Miracor Diagnostics, Inc. on the same
terms and conditions as other executives similarly situated, subject to Miracor
Diagnostics, Inc.'s right, in any event, to modify or terminate such plan.
SECTION 2. OFFICE AND DUTIES. Employee shall have the usual duties of
senior managerial personnel and shall have responsibility, subject to the chief
executive and chief operating officers of the Company and the Board of Directors
of the Company, for participating in the management and direction of the
Company's business and operations and shall perform such specific other tasks,
consistent with the Employee's position as a senior manager, as may from time to
time be assigned to the Employee by the chief executive or chief operating
officers of the Company or the Board of Directors. Employee shall devote
substantially all of his business time, labor, skill, undivided attention, and
best ability to the performance of his duties hereunder in a manner that will
faithfully and diligently further the business and interests of the Company.
During the term of his employment, Employee shall not directly or indirectly
pursue any other business activity, without the Company's prior written consent,
which shall not be unreasonably withheld. Employee agrees that he will travel to
whatever extent is reasonably necessary in the conduct of the Company's
business.
SECTION 3. EXPENSES. Employee shall be entitled to reimbursement for
expenses incurred by him in connection with the performance of his duties
hereunder upon receipt of vouchers therefor in accordance with such procedures
as the Company has heretofore or may hereafter establish.
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Section 4. VACATION DURING EMPLOYMENT. Employee shall be entitled to
such reasonable vacations as may be allowed by either the Company or Miracor
Diagnostics, Inc. in accordance with general practices to be established, with a
minimum of ten working days in any twelve month period.
SECTION 5. ADDITIONAL BENEFITS. Nothing herein contained shall preclude
Employee, to the extent he is otherwise eligible, from participation in all
group insurance programs or other fringe benefit plans that either the Company
or Miracor Diagnostics, Inc. may hereafter in its sole and absolute discretion
make available generally to its employees, but neither the Company nor Miracor
Diagnostics, Inc. shall be required to establish or maintain any such program or
plan.
SECTION 6. TERMINATION OF EMPLOYMENT. Notwithstanding any other
provision of this Agreement, Employee's employment may be terminated:
(a) By the Company in the event of his failure, refusal, or
inability satisfactorily to perform the services required of him
hereby, or to carry out any proper direction by the Company with
respect to the services to be rendered by him hereunder or the manner
of rendering such services, his willful misconduct in the performance
of his duties hereunder, or his conviction of a crime involving moral
turpitude.
(b) By the Company upon thirty (30) days' notice to Employee
if he should be prevented by illness, accident, or other disability
(mental or physical) from discharging his duties hereunder for one or
more periods totaling three (3) months during any consecutive twelve
(12) month period.
(c) By either the Company or Employee for any material breach
by the other of the terms hereof, but only if such breach continues for
ten (10) days (or such longer period as is reasonably required to cure
such breach with diligent and good faith effort) after written notice
to the other specifying the breach relied on for such termination.
(d) In the event of Employee's death during the term of his
employment, the Company's obligation to pay further compensation
hereunder shall cease forthwith, except that Employee's legal
representative shall be entitled to receive his fixed compensation for
the period up to the last day of the month in which such death shall
have occurred.
(e) By the Company without cause upon not less than thirty
(30) days' written notice in which event the Company shall pay to
Employee an amount equal to remaining months' salary specified based on
the annual compensation in the second sentence of SECTION 1 which
remain under this Agreement.
SECTION 7. DISCLOSURE AND ASSIGNMENT OF INTELLECTUAL PROPERTY. Employee
shall promptly disclose to the Company and any successor or assign of the
Company, and grant to the Company, and its successors and assigns (without any
separate remuneration or compensation other than that received by him from time
to time in the course of his employment) his entire right, title, and interest
throughout the world in and to all research, information, inventions, designs,
procedures, developments, discoveries, improvements, patents and applications
therefor, trademarks and applications therefor, copyrights and applications
therefor, trade secrets, drawings, plans, systems, methods, specifications, and
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all other manufacturing, engineering, technical, research and development data
and know-how (herein sometimes "INTELLECTUAL PROPERTY") made, conceived,
developed, and/or acquired by him solely or jointly with others during the
period of his employment with the Company or within one year thereafter, which
relate to the manufacture, production, or processing of any products developed
or sold by the Company during the term of this Agreement or which are within the
scope of or usable in connection with the Company's business as it may, from
time to time, hereafter be conducted or proposed to be conducted. (It is
understood and agreed that Employee has heretofore disclosed to the Company, and
assigned to it, all Intellectual Property now known to him over which he has any
control.) Employee agrees to execute all appropriate patent applications
securing all United States and foreign patents on all Intellectual Property, and
to do, execute, and deliver any and all acts and instruments that may be
necessary or proper to vest all Intellectual Property in the Company or its
nominee or designee and to enable the Company, or its nominee or designee, to
obtain all such patents; and Employee agrees to render to the Company, or its
nominee or designee, all such assistance as it may require in the prosecution of
all such patent applications and applications for the re-issue of such patents,
and in the prosecution or defense of all interferences that may be declared
involving any of these patent applications or patents, but the expense of all
such assignments and patent applications, or all other proceedings referred to
herein above, shall be borne by the Company. Employee shall be entitled to fair
and reasonable compensation for any such assistance requested by the Company or
its nominee or designee and furnished by him after the termination of his
employment.
SECTION 8. CONFIDENTIALITY. Employee shall not, either during the
period of his employment with the Company or thereafter, reveal or disclose to
any person outside the Company or use for his own benefit, without the Company's
specific written authorization, whether by private communication or by public
address or publication or otherwise, any information not already lawfully
available to the public concerning any Intellectual Property, or any marketing
technique or cost method, or any customer, mailing, or supplier list, whether or
not supplied by the Company, and whether or not made, developed, and/or
conceived by Employee or by others in the employ of the Company. All originals
and copies of any of the foregoing, relating to the business of the Company,
however and whenever produced, shall be the sole property of the Company, not to
be removed from the premises or custody of the Company without in each instance
first obtaining written consent or authorization of the Company. Upon the
termination of Employee's employment in any manner or for any reason, Employee
shall promptly surrender to the Company all copies of any of the foregoing,
together with any other documents, materials, data, information, and equipment
belonging to or relating to the Company's business and in his possession,
custody, or control, and Employee shall not thereafter retain or deliver to any
other person, any of the foregoing or any summary or memorandum thereof.
SECTION 9. RESTRICTION. The Company has invested and may in the future
be required to invest substantial sums of money, directly or indirectly, to
continue and expand the business heretofore conducted by it and in connection
therewith, and as Employee recognizes that the Company would be substantially
injured by Employee disclosing to others, or by Employee using for his own
benefit, any Intellectual Property or any of the other types of information
referred to in SECTION 8 or other confidential or secret information he has
obtained or shall obtain as an employee of the Company, or that he may now
possess and that he has made available to the Company, Employee agrees to abide
by the terms of a Non-Competition Agreement of even date which Employee has
previously executed.
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SECTION 10. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been given when delivered or
three (3) days after mailing if mailed by first-class, registered, or certified
mail, postage prepaid, addressed
(a) TO EMPLOYEE:
-----------
Xxxx XxXxxxxxx
0000 Xxxxx Xxxxxxx Xxx.
Xxxxx, XX 00000
with a copy to:
Xxxxx X. Verona, Esq.
000 X. Xxxxxxxx Xxx.
Xxxxx, XX 00000
(b) TO THE COMPANY:
--------------
M. Xxx Xxxxxxxx
Miracor Diagnostics, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
with a copy to:
Xxxxx Xxxxxx & Associates, P.C.
Penthouse Suite
0000 Xxxx Xxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
and/or to such other person(s) and address(es) as either party shall
have specified in writing to the other.
SECTION 11. ASSIGNABILITY. If the Company shall be merged with, or
consolidated into, any other corporation, or in the event that it shall sell and
transfer substantially all of its assets to another corporation, the terms of
this Agreement shall inure to the benefit of, and be assumed by, the corporation
resulting from such merger or consolidation, or to which the Company's assets
shall be sold and transferred. This Agreement shall not be assignable by
Employee, but it shall be binding upon and to the extent provided in Section 6
shall inure to the benefit of, his heirs, executors, administrators, and legal
representatives.
SECTION 12. ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the Company and Employee with respect to the subject matter
thereof and there have been no oral or other agreements of any kind whatsoever
as a condition precedent or inducement to the signing of this Agreement or
otherwise concerning this Agreement or the subject matter hereof.
SECTION 13. EXPENSES. Each party shall pay its own expenses incident to
the performance or enforcement of this Agreement, including all fees and
expenses of its counsel for all activities of such counsel undertaken pursuant
to this Agreement, except as otherwise herein specifically provided.
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SECTION 14. EQUITABLE RELIEF. Employee recognizes and agrees that the
Company's remedy at law for any breach of the provisions of SECTIONS 7, 8, OR 9
hereof would be inadequate, and he agrees that for breach of such provisions,
the Company shall, in addition to such other remedies as may be available to it
at law or in equity or as provided in this Agreement, be entitled to injunctive
relief and to enforce its rights by an action for specific performance to the
extent permitted by law. If Employee engages in any activities prohibited by
this Agreement, he agrees to pay over to the Company all compensation,
remunerations, or moneys or property of any sort received in connection with
such activities; such payment shall not impair any rights or remedies of the
Company or obligations or liabilities of Employee that such parties may have
under this Agreement or applicable law.
SECTION 15. WAIVERS AND FURTHER AGREEMENTS. Any waiver of any terms or
conditions of this Agreement shall not operate as a waiver of any other breach
of such terms or conditions or any other term or condition, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof; PROVIDED, HOWEVER, that no such written waiver,
unless it, by its own terms, explicitly provides to the contrary, shall be
construed to effect a continuing waiver of the provision being waived and no
such waiver in any instance shall constitute a waiver in any other instance or
for any other purpose or impair the right of the party against whom such waiver
is claimed in all other instances or for all other purposes to require full
compliance with such provision. Each of the parties hereto agrees to execute all
such further instruments and documents and to take all such further action as
the other party may reasonably require in order to effectuate the terms and
purposes of this Agreement.
SECTION 16. AMENDMENTS. This Agreement may not be amended, nor shall
any waiver, change, modification, consent, or discharge be effected except by an
instrument in writing executed by or on behalf of the party against whom
enforcement of any waiver, change, modification, consent, or discharge is
sought.
SECTION 17. SEVERABILITY. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the conflict
of any provision with any constitution or statute or rule of public policy or
for any other reason, such circumstance shall not have the effect of rendering
the provision or provisions in question, invalid, inoperative, or unenforceable
in any other jurisdiction or in any other case or circumstance or of rendering
any other provision or provisions herein contained invalid, inoperative, or
unenforceable to the extent that such other provisions are not themselves
actually in conflict with such constitution, statute, or rule of public policy,
but this Agreement shall be reformed and construed in any such jurisdiction or
case as if such invalid, inoperative, or unenforceable provision had never been
contained herein and such provision reformed so that it would be valid,
operative, and enforceable to the maximum extent permitted in such jurisdiction
or in such case.
SECTION 18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, and in pleading or
proving any provision of this Agreement, it shall not be necessary to produce
more than one of such counterparts.
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SECTION 19. SECTION HEADINGS. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
SECTION 20. GENERAL PROVISIONS.
(a) Employee further agrees that his obligations under
SECTIONS 7, 8, AND 9 of this Agreement shall be binding upon him
irrespective of the duration of his employment by the Company, the
reasons for any cessation of his employment by the Company, or the
amount of his compensation and shall survive the termination of this
Agreement (whether such termination is by the Company, by Employee,
upon expiration of this Agreement or otherwise).
(b) Employee represents and warrants to the Company that he is
not now under any obligations to any person, firm, or corporation, and
has no other interest that is inconsistent or in conflict with this
Agreement, or that would prevent, limit or impair, in any way, the
performance by him of any of the covenants or his duties in his
employment.
SECTION 21. GENDER. Whenever used herein, the singular number shall
include the plural, the plural shall include the singular, and the use of any
gender shall include all genders.
SECTION 22. GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the law (other than the law governing
conflict of law questions) of Florida.
IN WITNESS WHEREOF, the parties have executed or caused to be executed
this Agreement as of the date first above written.
[The Company]
ULTRA OPEN MRI HOLDING CORP.
By: ///SIGNED///
-------------------------
Authorized Officer
Employee ///SIGNED///
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