EXHIBIT 10.14
CONSULTING AND RESTRICTIVE COVENANTS AGREEMENT
THIS CONSULTING AND RESTRICTIVE COVENANTS AGREEMENT (this "Agreement")
is made and entered into this13th day of June, 2002 by and between PSS World
Medical, Inc. (the "Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), to be effective
as of July 26, 2002 (the "Effective Date").
BACKGROUND
▇▇▇▇▇▇ currently serves as the President of the Physician Sales &
Service division of the Company, pursuant to an Employment Agreement, dated as
of April 1, 1998 between the Company and ▇▇▇▇▇▇, as amended (the "Employment
Agreement"). Prior to Effective Date, ▇▇▇▇▇▇ will resign from his positions as
an officer or employee of the Company and will thereafter provide consulting
services to the Company upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Resignations. ▇▇▇▇▇▇ hereby tenders his resignation as the President of
the Physician Sales & Service division of the Company and from any other
position he may hold as an employee or officer of the Company, which
resignation will be effective as of twelve o'clock noon E.S.T. on the
Effective Date. As provided further in this Agreement, ▇▇▇▇▇▇ will provide
consulting services to the Company after the Effective Date.
2. Release of Claims. At the Effective Date, ▇▇▇▇▇▇ shall execute and
deliver to the Company a Release of Claims in substantially the form
attached hereto as Exhibit A.
3. Severance Benefits. In accordance with Section 8(e) of the Employment
Agreement, the Company shall provide to ▇▇▇▇▇▇ the following severance
benefits:
(a) Accrued Payments. At the Effective Date, the Company shall make
payments to ▇▇▇▇▇▇ related to his employment with the Company in the
amount of his accrued but unpaid salary and any accrued but unpaid
vacation pay.
(b) Severance Payment. Upon the expiration of the seven-day revocation
period described in Section 2 of the Release of Claims, the Company
will pay to ▇▇▇▇▇▇ a lump sum severance payment of $22,920, which is
equal to 30 days' salary.
(c) Vested Benefits. ▇▇▇▇▇▇ shall be entitled to any vested benefits
he may have under the employee benefit plans of the Company as are
applicable to him on the Effective Date. Such benefits will be in
accordance with and subject to the applicable terms and conditions of
such plans or agreements.
(d) Acknowledgement. The parties acknowledge and agree that the
payments and benefits described above may be taxable income, and each
hereby covenants to comply with all federal and state income and
employment tax requirements, including all reporting and withholding
requirements, relating thereto. ▇▇▇▇▇▇ further acknowledges that the
payments and benefits described above are in full satisfaction of the
Company's obligations to him under the terms of the Employment
Agreement, and the Employment Agreement is hereby terminated and of no
further force or effect as of the Effective Date.
4. Consulting Services. ▇▇▇▇▇▇ shall provide consulting services to the
Company as an independent contractor for a period of sixty (60) months
beginning on the Effective Date (the "Consulting Period"). Consultant's
services shall include, but not necessarily be limited to, providing advice
and assistance to the Company in connection with acquisitions and the
recruitment of sales representatives for the Physician Sales & Service
division of the Company. During the Consulting Period, ▇▇▇▇▇▇ shall devote
such time and attention to his duties hereunder as is reasonably required
to provide consulting services satisfactory to the Company pursuant to this
Agreement. Notwithstanding the foregoing, the times during which, and the
locations at which, ▇▇▇▇▇▇ shall perform his services hereunder shall be
subject to the mutual agreement of ▇▇▇▇▇▇ and the Company.
5. Compensation for Consulting Services. As compensation for the consulting
services to be provided by ▇▇▇▇▇▇ hereunder, the Company shall pay and
provide the following compensation:
(a) Consulting Fee. During the Consulting Period, the Company will pay
to ▇▇▇▇▇▇ a consulting fee in the amount of U.S. $100 per hour worked.
The Company will report the payment of such amounts for income tax
purposes on a Form 1099-Misc.
(b) Expenses. The Company shall reimburse ▇▇▇▇▇▇ for all reasonable
expenses incurred by him in connection with the performance of his
duties hereunder, provided that ▇▇▇▇▇▇ shall furnish the Company with
a reasonable accounting for such expenses. The reasonableness of such
expenses shall be subject to the determination by the Company, in a
manner consistent with the Company's normal expense reimbursement
policies.
(c) Welfare Benefits Coverage. For a twenty-four (24) month period
after the Effective Date, the Company, at its expense, shall continue
benefits to ▇▇▇▇▇▇ and/or his family at least equal to those which
would have been provided to him in accordance with the welfare plans,
programs, practices and policies of the Company in which ▇▇▇▇▇▇ was
participating immediately prior to the Effective Date (including,
without limitation, medical, dental, disability, supplemental
disability, and life insurance plans and programs); provided, however,
that if ▇▇▇▇▇▇ becomes employed with another employer and is eligible
to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary and supplemental to those provided
under such other plan during such applicable period of eligibility.
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6. Independent Contractor. This Agreement calls for the performance of
services by ▇▇▇▇▇▇ as an independent contractor and ▇▇▇▇▇▇ will not be
considered an employee of the Company for any purpose. Accordingly, it
is understood and agreed that ▇▇▇▇▇▇ (a) has no authority to act for,
or bind the Company by contract or otherwise; (b) is not eligible to
participate in any employment benefit plan or program available to
employees of the Company; (c) will be treated as an independent
contractor for purposes of the Federal Insurance Contributions Act,
federal income tax withholding, the Employee Retirement Income
Security Act, state unemployment or disability insurance laws, or
other similar laws; (d) shall work with, and take general direction
from, the Chief Executive Officer of the Company; and (e) perform the
services required under and pursuant to this Agreement in good faith
and with a view toward maintaining and enhancing the reputation and
good standing of the Company.
7. Restrictions on ▇▇▇▇▇▇'▇ Conduct.
(a) General. ▇▇▇▇▇▇ acknowledges that his rights and benefits
under this Agreement are contingent upon his agreement to make
and adhere to the provisions of this Section 7. ▇▇▇▇▇▇ recognizes
and agrees that the Company will suffer irreparable harm in the
event that ▇▇▇▇▇▇ violates any of the Restrictive Covenants (as
defined below). ▇▇▇▇▇▇ and the Company understand and agree that
the purpose of the provisions of this Section 7 is to protect
legitimate business interests of the Company, as more fully
described below, and is not intended to impair or infringe upon
▇▇▇▇▇▇'▇ right to work, earn a living, or acquire and possess
property from the fruits of his labor. ▇▇▇▇▇▇ and the Company
acknowledge and agree that the Restrictive Covenants are not made
in connection with ▇▇▇▇▇▇'▇ former employment with the Company,
but rather are intended to protect the Company's interests during
the Consulting Period. ▇▇▇▇▇▇ hereby acknowledges that the
restrictions set forth in this Section 7 are reasonable and that
they do not, and will not, unduly impair his ability to earn a
living. Therefore, in consideration of (i) ▇▇▇▇▇▇'▇ rights and
benefits under this Agreement; (ii) in consideration of the
monetary compensation provided in Section 7(j); and (iii) in
consideration of receiving access to the Confidential Information
and Trade Secrets (as defined below), and, subject to the
limitations of reasonableness imposed by law, ▇▇▇▇▇▇ shall be
subject to the restrictions set forth in this Section 7.
(b) Definitions. The following capitalized terms used in this
Section 7 shall have the meanings assigned to them below, which
definitions shall apply to both the singular and the plural forms
of such terms:
"Competitive Position" means any position with a Competitor as a
Principal or Representative in which ▇▇▇▇▇▇ will use or is likely
to use any Confidential Information or Trade Secrets, or in which
▇▇▇▇▇▇ has duties for, provides services to, or otherwise assists
such Competitor where such duties, services or assistance involve
Competitive Services.
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"Competitive Services" means any activities engaged in by the
Company as of the Effective Date that relate directly to (a) the
distribution of medical supplies, equipment or pharmaceuticals to
(i) primary care and other office-based physicians, or (ii)
nursing homes, extended care facilities, assisted living
facilities, or home care or visiting nurse associations or
agencies, or (b) the distribution of medical diagnostic imaging
supplies, chemicals, equipment and service to the acute care or
alternate care market; provided, however, that Competitive
Services shall not include (x) the manufacture of medical
supplies, equipment or pharmaceuticals or medical diagnostic
imaging supplies, chemicals or equipment (collectively "Medical
Products"), (y) the provision of e-commerce or internet services
with respect to the dissemination of information or services
related to the distribution of Medical Products (but which is not
the distribution of Medical Products), or (z) the provision of
group purchasing, contract pricing or cost analyses for
physicians or medical practices. "Competitor" means any Person
engaged, wholly or in material part, in Competitive Services.
"Confidential Information" means all information regarding the
Company, its activities, business or clients that is the subject
of reasonable efforts by the Company to maintain its
confidentiality and that is not generally disclosed by practice
or authority to persons not employed by the Company, but that
does not rise to the level of a Trade Secret. "Confidential
Information" shall include, but is not limited to, financial
plans and data concerning the Company; management planning
information; business plans; operational methods; market studies;
marketing plans or strategies; product development techniques or
plans; customer lists; details of customer contracts; current and
anticipated customer requirements; past, current and planned
research and development; business acquisition plans; and new
personnel acquisition plans. "Confidential Information" shall not
include information that has become generally available to the
public by the act of one who has the right to disclose such
information without violating any right or privilege of the
Company. This definition shall not limit any definition of
"confidential information" or any equivalent term under state or
federal law.
"Person" means any individual or any corporation, partnership,
joint venture, limited liability company, association or other
entity or enterprise.
"Principal or Representative" means a principal, owner, partner,
shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
"Protected Customers" means any Person to whom the Company has
sold its products or services or to whom the Company has
submitted a written proposal to sell its products or services
during the Consulting Period or during the twelve (12) months
prior to the Effective Date.
"Protected Employees" means employees of the Company who were
employed by the Company at any time during the Consulting Period
or within six (6) months prior to the Effective Date.
"Restricted Period" means the 60-month Consulting Period.
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"Restricted Territory" with respect to the non-competition
covenant in Section 5(d)(iv) hereof means the States of
Massachusetts and Florida and each of the other ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Restrictive Covenants" means the restrictive covenants contained
in Section 7(d) hereof.
"Trade Secret" means all information, without regard to form,
including, but not limited to, technical or nontechnical data, a
formula, a pattern, a compilation, a program, a device, a method,
a technique, a drawing, a process, financial data, financial
plans, product plans, distribution lists or a list of actual or
potential customers, advertisers or suppliers which is not
commonly known by or available to the public and which
information: (A) derives economic value, actual or potential,
from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain
economic value from its disclosure or use; and (B) is the subject
of efforts that are reasonable under the circumstances to
maintain its secrecy. Without limiting the foregoing, Trade
Secret means any item of confidential information that
constitutes a "trade secret(s)" under the common law or statutory
law of the State of Florida.
(c) Protectable Employer Interests. ▇▇▇▇▇▇ and the Company
acknowledge and agree as follows: (i) that ▇▇▇▇▇▇'▇ services on
behalf of the Company require special expertise and talent in the
provision of Competitive Services; (ii) that ▇▇▇▇▇▇ will be in a
position of trust and responsibility and will have access to a
substantial amount of Confidential Information and Trade Secrets
belonging to the Company; (iii) that, during the Consulting
Period, ▇▇▇▇▇▇ will develop substantial relationships with
prospective and existing customers of the Company; and (iv) that
as a consultant to the Company, ▇▇▇▇▇▇ will be the repository of
a substantial portion of the customer goodwill of the Company.
(d) Restrictive Covenants.
(i) Restriction on Disclosure and Use of Confidential
Information and Trade Secrets. ▇▇▇▇▇▇ understands and agrees
that the Confidential Information and Trade Secrets
constitute valuable assets of the Company and its affiliated
entities, and may not be converted to ▇▇▇▇▇▇'▇ own use.
Accordingly, ▇▇▇▇▇▇ hereby agrees that he shall not,
directly or indirectly, at any time during the Restricted
Period reveal, divulge, or disclose to any Person not
expressly authorized by the Company any Confidential
Information, and he shall not, directly or indirectly, at
any time during the Restricted Period use or make use of any
Confidential Information in connection with any business
activity other than business of the Company. During the
Restricted Period, ▇▇▇▇▇▇ shall not directly or indirectly
transmit or disclose any Trade Secret of the Company to any
Person, and shall not make use of any such Trade Secret,
directly or indirectly, for himself or for others, without
the prior written consent of the Company. ▇▇▇▇▇▇ and the
Company acknowledge and agree that this Section 7 is not
intended to, and does not, alter either the Company's rights
or ▇▇▇▇▇▇'▇ obligations under any state or federal statutory
or common law regarding trade secrets and unfair trade
practices.
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(ii) Nonsolicitation of Protected Employees. ▇▇▇▇▇▇
understands and agrees that the relationship between the
Company and each of its Protected Employees constitutes a
valuable asset of the Company and may not be converted
through ▇▇▇▇▇▇'▇ solicitation to ▇▇▇▇▇▇'▇ own use.
Accordingly, ▇▇▇▇▇▇ hereby agrees that during the Restricted
Period, ▇▇▇▇▇▇ will not, directly or indirectly, on his own
behalf or as a Principal or Representative of any Person or
otherwise, solicit or induce any Protected Employee to
terminate his or her employment relationship with the
Company or to enter into any relationship of employment,
agency or independent contractorship with any other Person.
(iii) Restriction on Relationships with Protected Customers.
▇▇▇▇▇▇ understands and agrees that the relationship between
the Company and each of its Protected Customers constitutes
a valuable asset of the Company and may not be converted
through ▇▇▇▇▇▇'▇ solicitation to ▇▇▇▇▇▇'▇ own use.
Accordingly, ▇▇▇▇▇▇ hereby agrees that, during the
Restricted Period, ▇▇▇▇▇▇ will not, without the prior
written consent of the Company, directly or indirectly, on
his own behalf or as a Principal or Representative of any
Person, solicit, divert, or attempt to solicit or divert a
Protected Customer for the purpose of providing or selling
Competitive Services; provided, however, that the
prohibition of this covenant shall apply only to Protected
Customers with whom ▇▇▇▇▇▇ had Material Contact on the
Company's behalf during the Consulting Period or during the
twelve (12) months immediately preceding the Effective Date.
For purposes of this Agreement, ▇▇▇▇▇▇ had "Material
Contact" with a Protected Customer if (a) ▇▇▇▇▇▇ had
business dealings with the Protected Customer on the
Company's behalf; (b) ▇▇▇▇▇▇ was responsible for supervising
or coordinating the dealings between the Company and the
Protected Customer; or (c) ▇▇▇▇▇▇ obtained Trade Secrets or
Confidential Information about the customer as a result of
▇▇▇▇▇▇'▇ association with the Company.
(iv) Noncompetition with the Company. ▇▇▇▇▇▇ understands and
agrees that he is capable of obtaining gainful, lucrative
and desirable employment that does not violate the
restrictions contained in this Agreement. ▇▇▇▇▇▇ hereby
agree that, during the Restricted Period, ▇▇▇▇▇▇ will not,
without prior written consent of the Company, directly or
indirectly seek or obtain a Competitive Position in the
Restricted Territory with a Competitor; provided, however,
that the provisions of this Agreement shall not be deemed to
prohibit the ownership by ▇▇▇▇▇▇ of any securities of the
Company or its affiliated entities or not more than five
percent (5%) of any class of securities of any corporation
having a class of securities registered pursuant to the
Securities Exchange Act of 1934, as amended.
(e) Exceptions from Disclosure Restrictions. Anything herein to
the contrary notwithstanding, ▇▇▇▇▇▇ will not be restricted from
disclosing or using Confidential Information that: (a) is or
becomes generally available to the public other than as a result
of an unauthorized disclosure by ▇▇▇▇▇▇ or his agent; (b) becomes
available to ▇▇▇▇▇▇ in a manner that is not in contravention of
applicable law from a source (other than the Company or its
affiliated entities or one of its or their officers, employees,
agents or representatives) that is not bound by a confidential
relationship with the Company or its affiliated entities or by a
confidentiality or other similar agreement; (c) was known to
▇▇▇▇▇▇ on a non-confidential basis and not in contravention of
applicable law or a confidentiality or other similar agreement
before its disclosure to ▇▇▇▇▇▇ by the Company or its affiliated
entities or one of its or their officers, employees, agents or
representatives; or (d) is required to be disclosed by law, court
order or other legal process; provided, however, that in the
event disclosure is required by law, ▇▇▇▇▇▇ will provide the
Company with prompt notice of such requirement so that the
Company may seek an appropriate protective order prior to any
such required disclosure by ▇▇▇▇▇▇.
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(f) Reasonableness. The covenants contained in this Section 7 are
considered by the parties hereto to be fair, reasonable and
necessary for the protection of the legitimate business interests
of the Company.
(g) Rights and Remedies Upon Breach. In the event ▇▇▇▇▇▇
breaches, or threatens to commit a breach of, any of the
provisions of the Restrictive Covenants, the Company shall have
the following rights and remedies, which shall be independent of
any others and severally enforceable, and shall be in addition
to, and not in lieu of, any other rights and remedies available
to the Company at law or in equity:
(i) the right and remedy to enjoin, preliminarily and
permanently, ▇▇▇▇▇▇ from violating or threatening to violate
the Restrictive Covenants and to have the Restrictive
Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened
breach of the Restrictive Covenants would cause irreparable
injury to the Company and that money damages would not
provide an adequate remedy to the Company; and
(ii) the right and remedy to require ▇▇▇▇▇▇ to account for
and pay over to the Company all compensation paid to him
pursuant to Section (j) of this Agreement as special
consideration for the Restrictive Covenants; and
(iii) the right and remedy to require ▇▇▇▇▇▇ to account for
and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits derived or
received by ▇▇▇▇▇▇ as the result of any transactions
constituting a breach of the Restrictive Covenants.
(h) Severability of Covenants. ▇▇▇▇▇▇ acknowledges and agrees
that the Restrictive Covenants are reasonable and valid in time
and scope and in all other respects. The covenants set forth in
this Agreement shall be considered and construed as separate and
independent covenants. If any court determines that any of the
Restrictive Covenants, or any part thereof, are invalid or
unenforceable, the remainder of the Restrictive Covenants will
not thereby be affected and will be given full effect, without
regard to the invalid portions.
(i) Reformation. ▇▇▇▇▇▇ and the Company agree that it is their
mutual intention that the Restrictive Covenants be enforced in
accordance with their terms to the maximum extent possible under
applicable law. ▇▇▇▇▇▇ and the Company further agree that, in the
event any court of competent jurisdiction shall find that any
provision hereof is not enforceable in accordance with its terms,
the court shall reform the Restrictive Covenants such that they
will be enforceable to the maximum extent permissible at law.
(j) Consideration for the Restrictive Covenants. In special
consideration for Executive entering into the Restrictive
Covenants, the Company shall pay to Executive the following
amounts:
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(i) $252,080, payable in a lump sum on the Effective Date;
(ii) $275,000, payable monthly over twenty-four (24) months
after the Effective Date; and
(iii) $48,000 payable in a lump sum on February 1, 2004.
8. Representations and Warranties. ▇▇▇▇▇▇ hereby represents and
warrants to the Company that (a) he is not a party to, or otherwise
subject to, any covenant not to compete with any person or entity
which would interfere with in his consulting duties hereunder, (b) his
performance of all the terms of this Agreement and as a consultant to
the Company does not and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by
▇▇▇▇▇▇ in confidence or in trust prior to his relationship with the
Company, and (c) his execution of this Agreement and performance of
his obligations hereunder will not violate the terms or conditions of
any contract or obligation, written or oral, between ▇▇▇▇▇▇ and any
other person or entity.
9. Miscellaneous.
(a) Assignment and Successors. This Agreement is personal to
▇▇▇▇▇▇ and without the prior written consent of the Company shall
not be assignable by ▇▇▇▇▇▇ otherwise than by will or the laws of
descent and distribution. This Agreement shall inure to the
benefit of and be enforceable by ▇▇▇▇▇▇'▇ legal representatives.
This Agreement shall inure to the benefit of and be binding upon
the Company and its successors and assigns.
(b) Waiver. Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with
the terms and conditions of this Agreement shall not be deemed a
waiver or relinquishment of any right granted in this Agreement
or of the future performance of any such term or condition or of
any other term or condition of this Agreement, unless such waiver
is contained in a writing signed by the party making the waiver.
(c) Severability. If any provision or covenant, or any part
thereof, of this Agreement should be held by any court to be
invalid, illegal or unenforceable, either in whole or in part,
such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of the remaining
provisions or covenants, or any part thereof, of this Agreement,
all of which shall remain in full force and effect.
(d) Entire Agreement. Except as provided herein, this Agreement
contains the entire agreement among the Company and ▇▇▇▇▇▇ with
respect to the subject matter hereof and, from and after the
Effective Date, this Agreement shall supersede any other
agreement between the parties with respect to the subject matter
hereof, including, without limitation, the Employment Agreement.
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(e) Choice of Law; Forum Selection. The validity, interpretation
and performance of this Agreement shall be governed by and
controlled in accordance with the laws of the State of Florida,
including said State's choice of law rules. The parties hereto
voluntarily submit themselves to the jurisdiction of the state or
federal district courts in the State of Florida which shall have
exclusive jurisdiction over any case or controversy arising under
or in connection with this Agreement, including with respect to
an action to remedy any breach of or otherwise to enforce the
terms and conditions of this Agreement.
(f) Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly given if delivered
personally or three days after mailing if mailed, first class,
certified mail (return receipt requested), postage prepaid:
To the Company: PSS World Medical, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
To ▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Any party may change the address to which notices, requests, demands and
other communications shall be delivered or mailed by giving notice thereof
to the other party in the same manner provided herein.
(g) Amendments and Modifications. This Agreement may be amended
or modified only by a writing signed by both parties hereto,
which makes specific reference to this Agreement.
(h) Construction. Each party and his or its counsel have reviewed
this Agreement and have been provided the opportunity to revise
this Agreement and accordingly, the normal rule of construction
to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of
this Agreement. Instead, the language of all parts of this
Agreement shall be construed as a whole, and according to its
fair meaning, and not strictly for or against either party.
(Signatures on following page)
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Consulting Agreement as of the date first above written.
PSS WORLD MEDICAL, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and
Chief Executive Officer
▇▇▇▇▇▇:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
Form of Release of Claims
This Release ("Release") is granted effective as of the 13th day of
June, 2002, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") in favor of PSS World Medical, Inc.
(the "Company"). This is the Release referred to that certain Consulting and
Restrictive Covenants Agreement dated as of ____________, 2002 by and between
the Company and ▇▇▇▇▇▇ (the "Consulting Agreement"). ▇▇▇▇▇▇ gives this Release
in consideration of the Company's promises and covenants as recited in the
Consulting Agreement, with respect to which this Release is an integral part.
1. Release of the Company. ▇▇▇▇▇▇, for himself, his successors,
assigns, attorneys, and all those entitled to assert his rights, now and forever
hereby releases and discharges the Company and its respective officers,
directors, stockholders, trustees, employees, agents, parent corporations,
subsidiaries, affiliates, estates, successors, assigns and attorneys (the
"Released Parties"), from any and all claims, actions, causes of action, sums of
money due, suits, debts, liens, covenants, contracts, obligations, costs,
expenses, damages, judgments, agreements, promises, demands, claims for
attorney's fees and costs, or liabilities whatsoever, in law or in equity, which
▇▇▇▇▇▇ ever had or now has against the Released Parties arising by reason of or
in any way connected with any employment relationship which existed between the
Company or any of its parents, subsidiaries, affiliates, or predecessors, and
▇▇▇▇▇▇. It is understood and agreed that this Release is intended to cover all
actions, causes of action, claims or demands for any damage, loss or injury
arising from the aforesaid employment relationship, or the termination of that
relationship, that ▇▇▇▇▇▇ has, had or purports to have, from the beginning of
time to the date of this Release, whether known or unknown, that now exists
related to the aforesaid employment relationship including but not limited to
claims for employment discrimination under federal or state law, except as
provided in Paragraph 2; claims arising under Title VII of the Civil Rights Act,
42 U.S.C. ss. 2002(e), et seq. or the Americans With Disabilities Act, 42 U.S.C.
ss. 12101 et seq.; claims for statutory or common law wrongful discharge,
including any claims arising under the Fair Labor Standards Act, 29 U.S.C. ss.
201 et seq.; claims for attorney's fees, expenses and costs; claims for
defamation; claims for wages or vacation pay; claims for benefits, including any
claims arising under the Employee Retirement Income Security Act, 29 U.S.C. ss.
1001, et seq.; and provided, however, that nothing herein shall release the
Company of their obligations to ▇▇▇▇▇▇ under the Consulting Agreement or any
other contractual obligations between the Company or its affiliates and ▇▇▇▇▇▇,
or any indemnification obligations to ▇▇▇▇▇▇ under the Company's bylaws,
articles of incorporation, Florida law or otherwise.
2. Release of Claims Under Age Discrimination in Employment Act.
Without limiting the generality of the foregoing, ▇▇▇▇▇▇ agrees that by
executing this Release, he has released and waived any and all claims he has or
may have as of the date of this Release for age discrimination under the Age
Discrimination in Employment Act, 29 U.S.C. ss. 621, et seq. It is understood
that ▇▇▇▇▇▇ is advised to consult with an attorney prior to executing this
Release; that he in fact has consulted a knowledgeable, competent attorney
regarding this Release; that he may, before executing this Release, consider
this Release for a period of twenty-one (21) calendar days; and that the
consideration he receives for this Release is in addition to amounts to which he
was already entitled. It is further understood that this Release is not
effective until seven (7) calendar days after the execution of this Release and
that ▇▇▇▇▇▇ may revoke this Release within seven (7) calendar days from the date
of execution hereof.
▇▇▇▇▇▇ agrees that he has carefully read this Release and is signing it
voluntarily. ▇▇▇▇▇▇ acknowledges that he has had twenty one (21) days from
receipt of this Release to review it prior to signing or that, if ▇▇▇▇▇▇ is
signing this Release prior to the expiration of such 21-day period, ▇▇▇▇▇▇ is
waiving his right to review the Release for such full 21-day period prior to
signing it. ▇▇▇▇▇▇ has the right to revoke this Release within seven (7) days
following the date of its execution by him. However, if ▇▇▇▇▇▇ revokes this
Release within such seven (7) day period, no severance benefit will be payable
to him under the Consulting Agreement and he shall return to the Company any
such payment received prior to that date.
▇▇▇▇▇▇ HAS CAREFULLY READ THIS RELEASE AND ACKNOWLEDGES THAT IT
CONSTITUTES A GENERAL RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS AGAINST INTERVU
and its affiliates UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. ▇▇▇▇▇▇
ACKNOWLEDGES THAT HE HAS HAD A FULL OPPORTUNITY TO CONSULT WITH AN ATTORNEY OR
OTHER ADVISOR OF HIS CHOOSING CONCERNING HIS EXECUTION OF THIS RELEASE AND THAT
HE IS SIGNING THIS RELEASE VOLUNTARILY AND WITH THE FULL INTENT OF RELEASING
INTERVU and its affiliates FROM ALL SUCH CLAIMS.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Date: 6/13/02
___________
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