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the Termination Date in employee pension, welfare or other benefit plans and
programs of or sponsored by Unitron, except as expressly provided in this
Agreement. The Xxxxxx Release is a general release and the parties intend and
agree that it shall be interpreted, construed and enforced as such.
(b) Xxxxxx acknowledges that he has (i) been given twenty-one days
to review this Agreement (or hereby waives such period or the remaining portion
of such period), (ii) has carefully read and fully understands all of the
provisions of this Agreement, (iii) knowingly and voluntarily agrees to all of
the terms set forth in this Agreement, (iv) knowingly and voluntarily agrees to
be legally bound by this Agreement, (v) has been advised and encouraged in
writing to consult with an attorney prior to signing this Agreement, (vi) has
consulted with an attorney and (vii) understands that this Agreement, including
the Xxxxxx Release, shall not become effective and enforceable until the eighth
day following the Effective Date, and that at any time prior to such date, he
may revoke this Agreement.
The foregoing notwithstanding, the Xxxxxx Release and this Section 1
shall be of no effect and shall be null and void if and upon the termination of
the Option Agreement in accordance with Section 8.1 thereof (that is, if the
closing of the transactions contemplated by the Option Agreement fails to occur
as contemplated by the Option Agreement).
2. Release of Xxxxxx.
(a) Sabratek General Release of Xxxxxx. Sabratek, including on
behalf of its successors and assigns, hereby fully, finally and forever releases
and discharges Xxxxxx and his heirs, executors, administrators and assigns, from
any and all claims, demands, liens, agreements, contracts, covenants,
undertakings, understandings, representations, rights or obligations of any
kind, actions, suits, debts, costs, actions, suits, expenses, damages,
judgments, orders and liabilities of whatever kind or nature, in law or in
equity, by statute or otherwise, whether now known or unknown, vested or
contingent, suspected or unsuspected and whether or not concealed or hidden,
which have existed or may have existed, or which do exist, but excluding (i) the
rights of Sabratek under this Agreement and (ii) the rights of Sabratek under
the Option Agreement and the other agreements specifically listed in the Option
Agreement as being entered into in connection therewith (the "Sabratek
Release"). The Sabratek Release is a general release and the parties intend and
agree that it shall be interpreted, construed and enforced as such. The Sabratek
Release shall be of no effect and shall be null and void if Xxxxxx revokes this
Agreement as contemplated by Section 1(b). The foregoing notwithstanding, the
Sabratek Release and this Section 2 shall be of no effect and shall be null and
void if and upon the termination of the Option Agreement in accordance with
Section 8.1 thereof (that is, if the closing of the transactions contemplated by
the Option Agreement fails to occur as contemplated by the Option Agreement).
(b) Unitron General Release of Xxxxxx. Unitron, including on
behalf of its successors and assigns, hereby fully, finally and forever releases
and discharges Xxxxxx and his heirs, executors, administrators and assigns, from
any and all claims, demands, liens, agreements,
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contracts, covenants, undertakings, understandings, representations, rights or
obligations of any kind, actions, suits, debts, costs, actions, suits, expenses,
damages, judgments, orders and liabilities of whatever kind or nature, in law or
in equity, by statute or otherwise, whether now known or unknown, vested or
contingent, suspected or unsuspected and whether or not concealed or hidden,
which have existed or may have existed, or which do exist, but excluding (i)
with respect to any matter related to a breach of the representations and
warranties of Unitron in the Option Agreement to which Xxxxxx had actual
knowledge at the time the representations and warranties were made, (ii) the
rights of Unitron under this Agreement and (iii) the rights of Unitron under the
Option Agreement and the other agreements specifically listed in the Option
Agreement as being entered into in connection therewith (the "Unitron Release").
The Unitron Release is a general release and the parties intend and agree that
it shall be interpreted, construed and enforced as such. The Unitron Release
shall be of no effect and shall be null and void if Xxxxxx revokes this
Agreement as contemplated by Section 1(b). The foregoing notwithstanding, the
Unitron Release and this Section 2 shall be of no effect and shall be null and
void if and upon the termination of the Option Agreement in accordance with
Section 8.1 thereof (that is, if the closing of the transactions contemplated by
the Option Agreement fails to occur as contemplated by the Option Agreement).
3. Confidential Information. Xxxxxx acknowledges that the
information, observations and data relating to the businesses of Unitron which
Xxxxxx has obtained as the director or an employee, officer or shareholder of
Unitron (including without limitation, the Work Product as defined below) are
the property of Unitron. Xxxxxx agrees that he shall not use for his own
purposes or disclose to any third party any of such information, observations or
data without the prior written consent of the Board of Directors of Unitron (the
"Unitron Board") unless and to the extent that the aforementioned matters become
generally known to and available for use by the public other than as a direct or
indirect result of a wrongful act or breach of obligation of confidentiality.
Xxxxxx shall deliver to Unitron on the Termination Date or at any other time
Unitron may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documentation (and copies thereof)
relating to the businesses of Unitron which Xxxxxx may then possess or have
under his control.
4. Inventions and Patents. Xxxxxx acknowledges that all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports, databases, computer software, copyrightable works and all similar or
related information (whether patentable or not) which relate to the actual or
anticipated business, research and development or existing or known future
products or services of Unitron and which are or were conceived, developed or
made by him (alone or jointly with others) during the period of his relationship
with Unitron (the "Work Product") belong to Unitron. Xxxxxx acknowledges and
agrees that all copyrightable Work Product was created in his capacity as an
employee of Unitron and within the scope of his employment by Xxxxxxx and thus
constitutes a "work made for hire" under the Copyright Act of 1976, as amended.
Xxxxxx hereby assigns to Unitron all right, title and interest in and to all
Work Product, and agrees that he shall: (i) promptly disclose such Work Product
upon the Termination Date to Unitron; and (ii) perform all actions reasonably
requested by Unitron to establish and confirm its ownership thereof (including,
without limitation, executing assignments, powers of attorney and other
instruments).
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5. Non-Competition.
(a) Xxxxxx shall not, for a period of three years following the
Effective Date (the "Non-Competition Period"), directly or indirectly, own any
interest in, manage, control, participate in, consult with, render services for,
or in any manner engage in any business with respect to any business competing
with any of the businesses conducted or as of the date of this Agreement
proposed to be conducted by Unitron, within any geographical area in the United
States or anywhere in the world; provided, that nothing herein shall prohibit
Xxxxxx from (i) being a passive owner of not more than 2% of the outstanding
stock of any class of a corporation which is publicly traded, so long as Xxxxxx
does not have any active participation in the business of such corporation; (ii)
being an active consultant or employee to the United Kingdom company which
Sabratek and Unitron and certain other parties contemplate will market in the
future the Unitron intellectual property in the United Kingdom pursuant to a
license (the terms related to which are set forth in a term sheet referenced in
the recitals to the Option Agreement) as may be requested in writing by such
United Kingdom company; (iii) reselling diagnostic telecommunications hardware
to physicians; or (iv) rendering any services in any manner or capacity to any
third party with respect to selling or promoting the Unitron intellectual
property or any of the products or services of Unitron if and to the extent
approved in writing by Sabratek. Nothing in this Agreement shall be construed to
prohibit Xxxxxx from serving as an employee and/or consultant of Citizens
Energy, Citizens Medical or Xxxxxxx Resources in and of itself.
(b) During the Non-Competition Period and thereafter, Xxxxxx shall
not (i) solicit any employee of Unitron to leave his or her employment with
Unitron or in any way interfere with the employment relationship between Unitron
and any of its employees or (ii) solicit any supplier, licensee, licensor,
franchisee or other business relation of Unitron to cease doing business with it
or in any way interfere with the respective relationship between Unitron and any
such person or business relation. Until the 1 year anniversary of the
consummation of the transactions contemplated by the Option Agreement, Xxxxxx
shall not hire any person who is an employee of Unitron on the Effective Date,
the Termination Date or the date of the consummation of the transactions
contemplated by the Option Agreement. Subsequent to such 1 year anniversary,
subject to the first sentence of this subsection, Xxxxxx may hire any person who
was an employee of Unitron on any of such dates but only if Xxxxxx first obtains
from such person a non-competition agreement which shall be effective for no
less than 1 year and which shall contain non-compete provisions that are
substantially similar to the provisions applicable to Xxxxxx contained in
Section 5(a) of this Agreement.
(c) During the Non-Competition Period and thereafter, Xxxxxx shall
not disparage or make any negative statements or communications about Unitron or
Sabratek, any employee or director of Unitron or Sabratek or any person which is
at such time an affiliate of Unitron or Sabratek or commit any other act or
omission disparaging the reputation of Unitron or Sabratek or any person which
is at such time an affiliate of Unitron or Sabratek, except as may be expressly
contemplated by this Agreement, the Option Agreement or as may be necessary or
appropriate to
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comply with applicable law or court order or in any arbitration. During the
Non-Competition Period and thereafter, Sabratek and Unitron shall not disparage
or make any negative statements or communications about Xxxxxx or commit any
other act or omission disparaging the reputation of Xxxxxx, except as may be
expressly contemplated by this Agreement, the Option Agreement or as may be
necessary or appropriate to comply with applicable law (including any securities
laws and any reporting requirements thereunder) or court order or in any
arbitration. Sabratek and Unitron on the one hand and Xxxxxx on the other hand
hereby agree to speak only highly of each other, except as may be expressly
contemplated by this Agreement, the Option Agreement or as may be necessary or
appropriate to comply with applicable law (including any securities laws and any
reporting requirements thereunder) or court order or in any arbitration. Xxxxxx
represents and warrants to Sabratek and Unitron that he has complied with this
covenant as written above since November 27, 1998. Xxxxxx shall not (i)
participate directly or indirectly in or try to influence the management of Moon
Communications International, Ltd. ("Moon UK"), (ii) serve on the
board/governing body or the like of Moon UK or US-UK Ventures, Inc. (or such
other entity formed by Unitron to hold its equity interest in Moon UK), (iii)
have any contact with (and shall not communicate with) any current or known
prospective customers of Moon UK regarding or relating to Moon UK or (iv) have
any contact with (and shall not communicate with) any current or known
prospective employees of Moon UK; provided that Xxxxxx may serve as a consultant
for Moon UK if so requested by Moon UK and in connection with performing any
requested responsibilities Xxxxxx shall be limited by these restrictions except
as expressly contemplated in writing in the consulting agreement with Xxxxxx.
(d) The Parties hereto agree that Unitron would suffer irreparable
harm from a breach by Xxxxxx of any of the covenants or agreements contained
herein. In the event of a breach by Xxxxxx or a breach threatened by Xxxxxx of
any of the provisions of this Agreement, Unitron or its successors or assigns
may, in addition to all other rights and remedies existing in its favor, apply
to any court of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce or prevent any violations of the
provisions hereof (including the extension of the Non-Competition Period by a
period equal to the length of the violation of this Section). In the event of a
breach or violation by Xxxxxx of any of the provisions of this Section, the
Non-Competition Period shall be tolled until such breach or violation has been
duly cured. Xxxxxx agrees that these restrictions are reasonable.
(e) If, at the time of enforcement of any of the provisions of
this Section, a court holds that the restrictions stated therein are
unreasonable under the circumstances then existing, the Parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area.
(f) Xxxxxx acknowledges and agrees that the provisions set forth
in this Section: (i) are necessary for the reasonable and proper protection of
Sabratek's and Unitron's legitimate business interests (including but not
limited to Confidential Information and Work Product); and (ii) do not preclude
Xxxxxx from earning a livelihood nor impose unreasonable limitations on his
ability to earn a living.
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(g) Xxxxxx agrees that the covenants made in this Section shall be
construed as an agreement independent of any other provision of this Agreement
and shall survive any order of a court of competent jurisdiction terminating any
other provision of this Agreement.
6. Limitations on Employment. Xxxxxx shall serve as an employee
of Unitron from the date of this Agreement through the Termination Date (the
"Employment Period"), subject to the limitations set forth in this Section.
During the Employment Period and thereafter, (i) Xxxxxx shall not participate
directly or indirectly in or try to influence the management of Unitron, (ii)
Xxxxxx shall have no signing authority with respect to Unitron, (iii) Xxxxxx
shall have no contact with (and shall not communicate with) any current or known
prospective customers of Unitron (other than on a social basis) until after the
3 month anniversary of the Effective Date except with the prior written consent
of Sabratek, which consent shall not be unreasonably withheld, (iv) Xxxxxx shall
have no contact with (and shall not communicate with) any current or known
prospective customers of Unitron (other than on a social basis) with respect to
the business of Unitron or Sabratek, (v) Xxxxxx shall have no contact with (and
shall not communicate with) any current or known prospective employees of
Unitron (other than on a social basis) and (vi) Xxxxxx shall not be present on
the grounds and facilities of Unitron at any time, except upon the prior written
consent of Sabratek, except as may be initiated by the CEO of Unitron or
Sabratek.
7. Consideration.
(a) In consideration of the services to be rendered by Xxxxxx as
an employee of Unitron, Unitron shall pay to Xxxxxx a salary of $175,000 per
annum in equal bi-monthly installments, according to the normal payroll policies
of Unitron, subject to customary payroll deductions and withholdings, from the
date of this Agreement through July 23, 1999 (the "Employment Payment"). In the
event that the Option Agreement is terminated in accordance with Section 8.1
thereof (that is, if the closing of the transactions contemplated by the Option
Agreement fails to occur as contemplated by the Option Agreement), then Xxxxxx
shall have a right to receive the bi-monthly installments described above from
July 24, 1999 until the termination of the Option Agreement in accordance with
its terms, which aggregate amount shall be paid in cash to Xxxxxx within 10
business days after such termination of the Option Agreement.
(b) In consideration of the Xxxxxx Release, the non-competition
and other covenants set forth in this Agreement, and in addition to the payments
to be received by Xxxxxx under the Option Agreement, Unitron shall make a single
lump sum payment to Xxxxxx in the amount of $262,500, subject to any customary
payroll deductions and withholdings required by law, in cash or by wire transfer
payable on (but only on) the Termination Date (the "Severance Payment").
(c) Unitron shall provide at its expense health insurance to
Xxxxxx and his dependents until July 23, 1999 as and to the extent health
insurance is provided to Xxxxxx and his dependents by Unitron on the Effective
Date. Subsequent to July 23, 1999, Unitron shall be responsible for the
provision of health care continuation coverage as required pursuant to COBRA to
the extent and while Xxxxxx is so eligible.
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(d) Unitron shall allow Xxxxxx to have full use of the Jeep
Cherokee automobile currently provided to him by Unitron and Unitron shall
continue to make the lease payments and the related car insurance payments with
respect to such automobile until July 23, 1999. Xxxxxx agrees to assume on July
23, 1999 the lease on such automobile and to make all payments required by the
lease after such date. If Xxxxxx fails to assume such lease or if such lease
cannot be assumed by Xxxxxx by its terms, he shall then immediately deliver such
automobile to Unitron if such lease cannot be assumed. Xxxxxx shall indemnify,
defend and hold each of Sabratek and Unitron and their respective successors and
permitted assigns, and their respective directors, officers, employees and
agents, and the heirs, executors and personal representatives of each of the
foregoing harmless from and against any claims, obligations, liabilities,
losses, expenses or other costs (including, without limitation, reasonable
attorneys' fees and expenses) incurred by any such indemnitee and arising out of
the use of such automobile by Xxxxxx.
(e) Xxxxxx shall be entitled to retain possession of and is hereby
given ownership by Unitron of the Aptiva 2000 computer previously furnished to
him by Unitron; provided that Unitron shall immediately purge all Unitron
related data and Unitron source code from such computer. Xxxxxx represents and
warrants to Unitron and Sabratek that he does not currently possess or retain
any Unitron related data or source code on such computer. If at any time Xxxxxx
comes into possession of Unitron related data or source code, Xxxxxx agrees to
promptly notify Unitron and, at the request of Unitron, to return the same to
Unitron.
(f) Unitron shall reimburse Xxxxxx in an amount not in excess of
$8,000 for the actual and reasonable business expenses incurred by Xxxxxx on
behalf of Unitron prior to the Effective Date, and Xxxxxx will or has supplied
Unitron with correct and accurate receipts and other documents reasonably
supporting such expenses.
8. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of Unitron and Sabratek and their respective
affiliates, successors and assigns. Xxxxxx may not transfer or otherwise assign
his rights or obligations under this Agreement, except that Xxxxxx may assign
for estate planning purposes his rights to the payments to which he is entitled
hereunder, and Xxxxxx shall be deemed for all purposes of this Agreement to have
received any such payments. Unitron and Sabratek may assign or transfer their
rights hereunder. If Sabratek elects to acquire the assets of Unitron pursuant
to the Option Agreement, then this Agreement and the rights and obligations of
Unitron hereunder shall be automatically assigned to Sabratek and become the
rights of Sabratek upon the consummation of such transaction. Any assignment of
the obligations of Unitron or Sabratek under this Agreement shall not relieve or
release Unitron or Sabratek as the case may be with respect to such assigned
obligations.
9. Xxxxxx'x Representations. Xxxxxx represents and warrants to
Unitron and Sabratek that (i) his execution, delivery and performance of this
Agreement does not and shall not conflict with, or result in the breach of or
violation of, any other agreement, instrument, order, judgment or decree to
which he is a party or by which he is bound, (ii) he is not a party to or bound
by any employment agreement, noncompete agreement or confidentiality agreement
with any other
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person or entity that would conflict with this Agreement, other than the 1994
Employment Agreement; (iii) upon the execution and delivery of this Agreement by
Unitron and Sabratek, this Agreement shall be the valid and binding obligation
of his, enforceable in accordance with its terms; and (iv) he has returned to
Unitron all company-provided credit cards, access cards, keys, computer
equipment, cell-phones, fax machines and other equipment, files, documents,
software, except as expressly contemplated by this Agreement. Xxxxxx
acknowledges that Severance Payment and the Employment payment would not have
been made without the Xxxxxx Release.
10. Governing Law. All issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Florida, without giving effect to any choice of
law or conflict of law rules or provisions that would cause the application of
the laws of any jurisdiction other than the State of Florida.
11. Severability. Whenever possible each provision and term of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision or term of this Agreement shall be
held to be prohibited by or invalid under such applicable law, then such
provision or term shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or affecting in any manner whatsoever the
remainder of such provision or term or the remaining provisions or terms of this
Agreement; provided that if a court having competent jurisdiction shall find
that the covenant contained in Section 5 hereof is not reasonable, such court
shall have the power to reduce the duration and/or geographic area and/or scope
of such covenant, and the covenant shall be enforceable in this reduced form.
12. No Strict Construction. The language used in this Agreement
shall be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
13. Modification of Waiver. No amendment, modification or waiver
of this Agreement shall be binding or effective for any purpose unless it is
made in a writing signed by the party against who enforcement of such amendment,
modification or waiver is sought. No course of dealing between the parties to
this Agreement shall be deemed to affect or to modify, amend or discharge any
provision or term of this Agreement. No delay on the part of Sabratek, Unitron
or Xxxxxx in the exercise of any of their respective rights or remedies shall
operate as a waiver thereof, and no single or partial exercise by Sabratek,
Unitron or Xxxxxx of any such right or remedy shall preclude other or further
exercises thereof. A waiver of right or remedy on any one occasion shall not be
construed as a bar to or waiver of any such right or remedy on any other
occasion.
14. Notice. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given in person, by
telegram or facsimile (receipt verified), or sent by registered or certified
mail (postage prepaid, return receipt requested), and shall be deemed to have
been duly given if so given, to Sabratek, Unitron and Xxxxxx as provided in the
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Option Agreement (or to such other address as any party may have furnished to
the other in writing, except that changes of address shall only be effective
upon receipt).
15. Captions. The captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement and
shall not be deemed to limit, characterize or in any way affect any provision of
this Agreement, and all provisions of this Agreement shall be enforced and
construed as if no caption had been used in this Agreement.
16. Counterparts. This Agreement may be executed in counterparts,
any one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same instrument. A
facsimile copy of this Agreement and any signatures hereon shall be considered
as originals for all purposes.
17. Incorporation by Reference. No terms and conditions of any
other agreement between the parties to this Agreement shall be incorporated by
reference into this Agreement unless expressly incorporated by reference into
this Agreement or referenced in this Agreement.
* * * *
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first above written.
UNITRON MEDICAL COMMUNICATIONS,
INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Its: President / C.E.O.
-------------------------------
SABRATEK CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Its: President
-------------------------------
/s/ Xxxxx X. Xxxxxx
-----------------------------------
XXXXX X. XXXXXX
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