EXHIBIT 10(O)
NONCOMPETITION, INDEMNIFICATION AND RELEASE AGREEMENT
AGREEMENT made and entered into as of the 2nd day of November, 1995,
between Diagnostic Leasing Corp., a New York corporation ("Corporation") having
its principal place of business at 000 Xxxxxx Xxxxxxx, Xxxxxx Xxxxx, Xxx Xxxx
00000 and Xxxxxx X. Xxxxx ("Executive") residing at 000 Xxxxxx Xxxxx, Xxxxxxx,
Xxx Xxxx 00000.
W I T N E S S E T H:
WHEREAS, the Corporation is acquiring all of the Executive's outstanding
shares of capital stock of Stone Medical Supply Corporation ("Stone") in
accordance with an Agreement for Merger and Reorganization ("Merger Agreement")
dated the date hereof among the Corporation's parent Micro Bio-Medics, Inc.
("MBM"), the Corporation, Stone and Executive; and
WHEREAS, Stone is engaged in the business of selling and distributing
health care related products directly to physicians and medical clinics (the
"Business"); and
WHEREAS, in order to induce the Corporation to enter into and consummate
such acquisition and in order to protect the goodwill associated with the
Business, Executive has agreed to enter into this Agreement with the Corporation
restricting his activities relating to the business being conducted by the
Corporation as set forth herein. All capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Merger Agreement
(as defined below).
NOW THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the Corporation and Executive hereby agree as
follows:
1. COVENANTS.
(a) Except in the regular course of his duties as an employee and
director of Stone between the date hereof and the date of the Merger, Executive
will not perform any or all of the following activities:
(i) engage, directly or indirectly, within the states of New
York, New Jersey or Connecticut in any business involving the sale and
distribution of health care related products directly or indirectly to
physicians, podiatrists, medical clinics, hospitals, veterinarians, home care
dealers and other health care providers, which is competitive with the business
now conducted by the Corporation, its parent or any subsidiary or affiliate of
the Corporation.
(ii) directly or indirectly solicit, induce (or attempt to
induce), or have any part in, the diversion of employees, or former employees,
within six (6)
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months after the termination of their employment, of Stone or of the
Corporation, its parent or any subsidiary or affiliate of the Corporation or
suppliers from their relationships with Stone or the Corporation, its parent
or any subsidiary or affiliate of the Corporation;
(iii) engage, directly or indirectly, in solicitation from any
of the customers or any parent, subsidiary or affiliate thereof of any business
which is competitive with the Business now or then conducted by Stone or the
Corporation, its parent or any subsidiary or affiliate of the Corporation;
(iv) take any action which is intended, or would reasonably be
expected, to harm Stone or the Corporation or its parent or any subsidiary or
affiliate or any director, officer, employer or agent thereof or the reputation
of any of the foregoing or which would reasonably be expected to lead to
unwanted or unfavorable publicity to Stone or the Corporation or its parent or
any subsidiary or affiliate of the Corporation or materially adversely impact
their relationships with their employees, customers or suppliers; or
(v) engage in any business which uses as its name, in whole or
in part, Stone, MBM, Micro Bio-Medics, Xxxxx, Xxxxxxx or any other name used by
Stone or the Corporation, its parent or any subsidiary or affiliate of the
Corporation.
(b) For the purposes of this Paragraph 1, Executive will be deemed
directly or indirectly engaged in a business if he participates in such business
as proprietor, partner, joint venturer, stockholder, director, officer, lender,
manager, executive, consultant, advisor or agent or if he controls such
business. Executive shall not for purposes of this paragraph be deemed a
stockholder or lender if he holds less than two (2%) percent of the outstanding
equity or debt of any publicly owned corporation engaged in the same or similar
business to that of Stone or the Corporation, provided that he shall not be in a
control position with regard to such corporation or if he holds a portion of the
outstanding equity of Physicians Laboratory Management Co.
(c) Executive further agrees that for a period of ten (10) years from
the Closing Date under the Merger Agreement, unless and to the extent that any
shares of common stock of MBM which he owns are sooner transferred to an
unrelated and unaffiliated third party (other than the Escrow Agent under the
Xxxxxx Escrow Agreement) and/or repurchased by MBM, he will vote such shares in
accordance with directions of Xxxxx X. Xxxxx, or if Xxxxx X. Xxxxx dies, becomes
disabled or is otherwise unable to give such directions, then in accordance with
the directions of the Board of Directors of MBM.
2. DISCLOSURE. Executive will not at any time, directly or indirectly,
disclose or furnish to any other person, firm or corporation:
(a) any information concerning the methods of conducting or obtaining
business, of manufacturing or advertising products, or of obtaining customers of
the
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Corporation or Stone, or the parent or any subsidiary or affiliate of the
Corporation or of Stone;
(b) any information acquired by him during the course of his
employment by the Corporation or Stone, or the parent or any subsidiary or
affiliate of the Corporation or of Stone, including, without limiting the
generality of the foregoing, the names of any customers or prospective customers
of, or any person or entity, who or which have or shall have traded or dealt
with the Corporation or Stone (whether such customers have been obtained by
Executive or otherwise);
(c) any information regarding the "mix" of products sold to customers
of Stone or the Corporation, its parent or any subsidiary and affiliate of the
Corporation, or the price at which products are sold to customers of Stone or
the Corporation, its parent or any subsidiary and affiliate of the Corporation;
and/or
(d) any information relating to the products, designs, styles,
processes, discoveries, materials, ideas, creations, inventions or properties of
the Corporation or Stone, or the parent or any subsidiary and affiliate of the
Corporation or of Stone.
3. TERM AND INJUNCTIVE RELIEF. The Covenants contained in Paragraphs 1
and 2 hereof (except for subparagraph 1(c) which will continue for the period
set forth therein) will continue for a period of fifteen (15) years from and
after the date hereof. The Executive acknowledges and agrees that irreparable
damage may result to the Corporation and its Business and properties if he fails
or refuses to perform his obligations under this Agreement, that a violation of
this Agreement would be a proper subject of injunctive relief and would be
necessary to protect the Corporation's legitimate business interests and that
the remedy at law for any such failure or refusal will be inadequate.
Accordingly, it is understood that the Corporation shall be entitled to
provisional remedies (including, without limitation, injunctive relief) and
damages.
4. INDEMNIFICATION AND RELEASE.
(a) INDEMNIFICATION BY EXECUTIVE. In addition to any other
indemnification under this Agreement or otherwise of MBM and the Corporation by
Executive, and in consideration of the Corporation's paying the Executive the
consideration described in Paragraph 5 hereof, Executive hereby agrees to
indemnify and hold MBM and the Corporation harmless from and against any and all
claims, demands, actions, causes of action, debts, obligations and encumbrances
(including reasonable attorneys' fees) of any kind or nature whatsoever which
may or shall be asserted against MBM or the Corporation or any of their
respective properties arising out of or relating to:
(i) any amount by which the cost, determined on an item by item
basis (or sales price if an item of Inventory is sold for less than its cost),
of Inventory (as defined in the Merger Agreement) sold during the Indemnity
Period (as defined below) ("Actual Inventory Proceeds") is less than the cost of
all Inventory net of
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reserves for the purposes hereof as reflected on the Balance Sheet (as
defined in the Merger Agreement) (such net cost, the "Warranted Inventory
Proceeds"; such reserves recorded on the Balance Sheet, in the maximum
aggregate amount of $135,000 to reduce Inventory and the Stone Accounts
(hereinafter defined), may for the purposes hereof be allocated to reduce
either Warranted Inventory Proceeds or Warranted Account Proceeds under
subparagraph 4(a)(ii), as the Executive may decide) PROVIDED, HOWEVER, that
if the Actual Inventory Proceeds exceed the Warranted Inventory Proceeds,
then the Warranted Accounts Proceeds shall be reduced by the amount of such
excess. The "Indemnity Period" shall be the period beginning on the date
hereof and ending on the last day of the fifteenth month after the filing of
the Certificate of Merger. For purposes of this Subparagraph 4(a)(i), to the
extent that MBM owns and sells inventory of like kind as the Inventory of
Stone existing at the date hereof, such "like kind" sales and collections
shall be deemed sales of Inventory for the purpose of this Subsection;
(ii) any amount by which the total amount of cash proceeds
("Actual Account Proceeds") received during the Indemnity Period by MBM from the
Stone Accounts (as defined in the Merger Agreement) is less than the amount of
the Stone Accounts, net of reserves as reflected on the Balance Sheet (the
"Warranted Account Proceeds; such reserves on the Balance Sheet, in the maximum
aggregate amount of $135,000 against Stone Accounts and Inventory, may be
allocated to reduce Warranted Account Proceeds or Warranted Inventory Proceeds
under subparagraph 4(a)(i), as the Executive may decide); PROVIDED, HOWEVER,
that if the Actual Accounts Proceeds exceed the Warranted Account Proceeds, the
Warranted Inventory Proceeds shall be reduced by the amount of such excess. In
determining Actual Account Proceeds, effect shall be given to all credits
against future deliveries and all payments made by customers shall be applied in
accordance with customer designations; however, undesignated payments shall be
applied first to the oldest account receivable due from the customer making
payment whether it is an account receivable due to Stone or to MBM, before being
applied to any other accounts receivable owed by that customer to Stone, MBM or
to the Corporation. During the Indemnity Period, the Corporation and MBM shall
not settle or otherwise compromise any of the Stone Accounts without the
Executive's prior written consent. After the Executive has made all
indemnification payments provided for in this subparagraph 4(a)(ii), the
Corporation shall reassign to him, without representation and without recourse,
all then remaining uncollected Stone Accounts;
(iii) the breach or the alleged breach of any representation,
warranty, covenant or agreement made herein, in the Merger Agreement or
otherwise in connection with the Merger Agreement and the other documents and
transactions contemplated thereby, by Stone or by the Executive;
(iv) any and all of Stone's activities prior to the date hereof,
including, but not limited to, losses resulting from goods shipped by Stone to
customers prior to the date hereof (however, any amounts paid or payable in
indemnification pursuant to subparagraphs 4(a)(i) and/or 4(a)(ii) hereof shall
not also be payable pursuant to this subparagraph 4(a)(iv)); and
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(v) the nature of the transaction contemplated by or referred to
in this Agreement and/or the Merger Agreement and/or any other agreement or
document between or among the parties, including, without limitation, Xxxxxxxxx
Xxxxx ("Lyudmilla"), referred to in this Agreement or in the Merger Agreement,
including, without limitation, claims made by holders of Dissenting Shares,
provided, however, that Executive's obligations to MBM and the Corporation in
respect of claims made by Dissenting Shareholders shall be limited to the total
of the amount by which any payments by MBM and the Corporation to Dissenting
Shareholders exceed the payment, as measured in MBM Shares, which such persons
would have received in the Merger plus all fees, including without limitation
attorneys' fees, incurred by MBM and the Corporation in connection with any such
action or payment.
Executive's obligations under this Paragraph 4 shall apply irrespective of
whether the Merger is consummated or whether the stock purchase transaction
described in Section 8 of the Merger Agreement is consummated.
(b) INDEMNIFICATION BY MBM AND THE CORPORATION. MBM and the
Corporation agree to indemnify and hold Executive harmless from and against any
and all claims, demands, actions, causes of action, debts, obligations and
encumbrances (including reasonable attorneys' fees) of any kind or nature
whatsoever which may or shall be asserted against either of them or any of their
properties arising out of or relating to the breach or alleged breach of any
representation, warranty, covenant or agreement made herein or in the Merger
Agreement by MBM or the Corporation.
(c) WAIVER. Consummation of the transactions hereunder and under the
Merger Agreement shall not be deemed or construed to be a waiver of any right or
remedy of MBM or the Corporation against Executive or of Executive against MBM
or the Corporation nor shall this Paragraph 4 or any other provision of this
Agreement or the Merger Agreement be deemed or construed to be a waiver of any
ground of defense by MBM or the Corporation against Executive or by Executive
against MBM or the Corporation.
(d) NOTICE; DEFENSE. If indemnification is sought arising out of or
in connection with a claim made by a third party, the indemnified party shall
promptly notify the indemnifying party, MBM and the Corporation being considered
one party for purposes of this Section, of the existence of such claim, demand
or other matter to which the indemnifying party's indemnification obligations
would apply, and give the indemnifying party reasonable opportunity to defend or
contest the same at the indemnifying party's own expense with counsel of its own
selection; provided that the indemnified party shall, at all times, also have
the right to fully participate in the defense at its own expense. If the
indemnifying party shall, within a reasonable time after this notice, fail to
defend, the indemnified party shall have the right, but not the obligation, to
undertake the defense of or to contest, and to compromise or settle (exercising
reasonable business judgment) the claim or other matter on behalf, for the
account and at the risk, of the indemnifying party.
(e) PAYMENT OF INDEMNIFICATION AMOUNTS BY EXECUTIVE.
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Notwithstanding anything to the contrary contained in this Paragraph 4, if
Executive is obligated to pay any sums in indemnification pursuant to this
Paragraph 4, he shall do so within ten (10) days after Executive's obligation
for indemnification has been determined, and in respect of indemnification by
virtue of subparagraphs 4(a)(i) and 4(a)(ii) of this Agreement in no event
later than ten (10) days after the expiration of the Indemnity Period, and he
may do so by delivering to MBM or the Corporation shares of capital stock of
MBM which shares shall be deemed to have a per share value of shares of
capital stock of MBM used in determining the Conversion Ratio in accordance
with Section 2 of the Merger Agreement. The foregoing shall not in any
event, however, limit MBM's or the Corporation's recourse against Executive.
Any amounts due and payable by MBM or the Corporation to the Executive, or
Lyudmilla, if due and payable within the time when an indemnification payment
is due hereunder shall be reduced or offset by any amounts due and payable by
the Executive under this Paragraph 4 and only if such reduction or offset is
not available shall the Executive be obligated to pay as provided in this
Section.
(f) RELEASE. Executive hereby releases and discharges Stone and their
respective successors and assigns from all actions, causes of action, suits,
debts, claims or demands on any kind or nature whatsoever, in law or equity
which Executive may ever have had or now has against Stone except, those
obligations expressly provided for herein.
5. CONSIDERATION
(a) In consideration of Executive's covenants and agreements
contained herein, the Corporation hereby agrees to pay to Executive, subject to
adjustment as provided for in Paragraph 5(b) hereof, an amount equal to One
Million Two Hundred and Fifty Thousand ($1,250,000) Dollars to be paid as
follows: (i) Five Hundred Eighty-Three Thousand Three Hundred and Thirty-Three
and 33/100 ($583,333.33) Dollars as soon as XxXxxxxxxx & Xxxxx, LLP advises the
Corporation that the Executive has delivered to XxXxxxxxxx & Xxxxx, LLP, in
accordance with Section 6(a) of the Merger Agreement, certificates evidencing
1,973,750 shares of Common Stock of Stone, (ii) Three Hundred Thirty-Three
Thousand Three Hundred Thirty Three and 33/100 ($333,333.33) Dollars on the date
nine (9) months from the date hereof and (iii) Three Hundred Thirty-Three
Thousand Three Hundred Thirty Three and 33/100 ($333,333.33) Dollars on the date
ten (10) business days after the date of final determination of Executive's
liability to the Corporation, if any, under Paragraph 4(a)(i) and 4(a)(ii)
hereof; notwithstanding the foregoing, the payments referred to in (ii) and
(iii) shall not be due and payable unless and until the consummation of the
Merger in accordance with the Merger Agreement. If the date of any such payment
is not a business day, the due date of such payment shall be the next succeeding
business day. Notwithstanding the foregoing, if the Merger is not consummated as
provided in the Merger Agreement and if the Executive's Stone Shares are
purchased in accordance with Section 8 of the Merger Agreement, then the
consideration to be paid as provided herein shall only be Seven Hundred and
Fifty Thousand ($750,000) Dollars and the payments referred to in (ii) and (iii)
above shall each be reduced to Eighty-Three Thousand Three Hundred and Thirty-
Three
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($83,333.33) Dollars.
(b) Notwithstanding the provisions of this Paragraph 5, the
Corporation shall have the right to set off against its obligations under this
Agreement, in direct order of maturity, any amounts which the Executive has not
paid to the Corporation or the Corporation in discharge of his indemnification
obligations pursuant to this Agreement.
(c) Notwithstanding anything to the contrary contained herein, if the
Executive terminates his employment with the Corporation, its parent or any
subsidiary or affiliate of the Corporation, as the case may be, except if the
Corporation is in breach of the employment agreement between the Executive and
the Corporation, prior to the first anniversary of the Date of the Merger, then
the Corporation will no longer have any obligation to pay the Executive the
consideration set forth in Paragraph 5(a) hereof, but the covenants contained in
Paragraph 1 hereof shall continue in full force and effect.
(d) In the event of any dispute between the parties concerning
Executive's performance of obligations to the Corporation, which gives, or may
give, rise to the Corporation's right of offset or indemnification under this
Agreement, as a result of which the Corporation decides to withhold payments
hereunder, the Corporation shall, as a condition to Executive's refraining from
accelerating the remaining payments, make timely deposit of such disputed
payments with the Corporation's attorneys, Otterbourg, Steindler, Houston &
Xxxxx, P.C., who shall hold such payments, together with any interest earned
thereon, as escrow agent pending resolution of such dispute by mutual agreement
between the parties or by final determination by a court of competent
jurisdiction.
6. In connection with any escrow of the disputed payments with
Otterbourg, Steindler, Houston & Xxxxx, P.C., as Escrow Agent, the following
shall prevail:
a) The funds held by the Escrow Agent shall be invested at
interest in substantially the same manner as the Escrow Agent invests other
moneys in its attorney escrow account. Interest, if any, earned on any payment
shall be remitted to the party who is ultimately determined to be entitled to
such payment.
b) The Escrow Agent shall have the right to continue to
represent MBM, the Corporation and their respective affiliates and related
persons.
c) The Escrow Agent shall have the right to act in reliance
upon any document, instrument, or signature believed by it to be genuine and to
assume that any person purporting to give any notice or instructions in
accordance with provisions hereof has been duly authorized to do so.
d) If the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions, claims or demands from any of
the
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parties hereto or from third parties with respect to the funds held
hereunder, which, in its opinion, are in conflict with any provision hereof,
it shall be entitled to refrain from taking any action other than to keep
safely the escrow funds until it shall be directed otherwise in writing by
all the parties hereto and said third person, if any, or by a final order or
judgment of a court of competent jurisdiction.
e) The Escrow Agent shall not be bound by any modification,
cancellation or recision hereof unless in writing and signed by the other
parties hereto. In no event, however, shall any modification hereof which shall
affect the rights or duties of the Escrow Agent be binding on the Escrow Agent
unless it shall have given its prior written consent.
f) The Escrow Agent shall not be liable for any action taken or
omitted hereunder except in the case of its willful misconduct.
g) The Escrow Agent may at any time resign by giving written
notice of its resignation to the other parties hereto and at least ten (10) days
prior to the date specified for such resignation to take effect and upon the
effective date of such resignation all funds then held by the Escrow Agent
hereunder shall be delivered by it to such person or persons as may be
designated in writing by all of the other parties hereto, whereupon all
obligations of the Escrow Agent hereunder shall cease and terminate. If no such
person or persons shall have been designated by such date, all obligations of
the Escrow Agent hereunder shall nonetheless cease and terminate. Its sole
responsibility thereafter shall be to keep safely all funds then held by it and
to deliver the same to a person designated by all parties hereto or in
accordance with the directions of the final order or judgment of a Court of
competent jurisdiction. The parties hereto agree that XxXxxxxxxx & Xxxxx, LLP
is acceptable as replacement Escrow Agent when and if Otterbourg, Steindler,
Houston & Xxxxx, P.C. resigns as Escrow Agent, provided that said substitute
Escrow Agent consents in writing, at the time of substituting, to accept the
obligations as Escrow Agent in accordance with the terms hereof.
h) No notice, demand, requests or other communication to the
Escrow Agent in connection herewith shall be binding on the Escrow Agent unless
it is in writing, refers specifically to this Agreement, is addressed to it at
000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other address as the Escrow
Agent may at any time or from time to time designate and is actually received by
the Escrow Agent at that address.
i) MBM shall provide Executive with written notice of any
payment to the Escrow Agent. The Escrow Agent shall have no duty to notify any
party that a payment was or was not received.
7. CONSENT TO JURISDICTION AND APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS. The parties hereto irrevocably consent and submit to the non-exclusive
jurisdiction of the Supreme Court of the State of New York in New York County
and the United States District Court for the Southern District of New York in
connection with any
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action, proceeding or claim arising out of or relating to this Agreement.
Executive hereby irrevocably appoints and designates the law firm of Ruskin,
Moscou, Xxxxx & Faltischek, P.C. (or its successor in business) as his agent
for service of process in New York and agrees to consider any legal process
or any demand or notice made or served on the said agent as being made on
him. Executive hereby agrees that separate confirmation by such agent of the
foregoing irrevocable appointment as agent for service of process is not
required.
8. WAIVER OF JURY TRIAL. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND WITH RESPECT TO, IN CONNECTION WITH OR
ARISING OUT OF THIS AGREEMENT, ANY INSTRUMENT, DOCUMENT OR GUARANTY DELIVERED
PURSUANT HERETO, OR THE VALIDITY, PROTECTION, INTERPRETATION, ADMINISTRATION,
COLLECTION OR ENFORCEMENT HEREOF.
9. ABSENCE OF RESTRICTIONS. Executive represents and warrants that he is
not a party to any agreement or contract pursuant to which there is any
restriction or limitation upon his entering into this Agreement.
10. FURTHER INSTRUMENTS. Executive will execute and deliver all such
other further instruments and documents as may be necessary, in the opinion of
the Corporation, to carry out the purposes of this Agreement.
11. INVALIDITY AND SEVERABILITY. If any provisions of this Agreement are
held invalid or unenforceable, such invalidity or unenforceability shall not
affect the other provisions of this Agreement, and, to that extent, the
provisions of this Agreement are intended to be and shall be deemed severable.
In particular and without limiting the foregoing sentence, if any provision of
Paragraph 1 of this Agreement shall be held to be invalid or unenforceable by
reason of geographic or business scope or the duration thereof, such invalidity
or unenforceability shall attach only to such provision and shall not affect or
render invalid or unenforceable any other provision of this Agreement, and this
Agreement and any such provision shall be construed as if the geographic or
business scope or the duration of such provision had been more narrowly drawn so
as to be valid and enforceable.
12. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if delivered by hand or by
Federal Express or other nationally recognized overnight delivery services or if
sent by registered or certified mail, as follows:
As to Executive: Xxxxxx X. Xxxxx
000 Xxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
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As to the Corporation: Diagnostic Leasing Corp.
000 Xxxxxx Xxxxxxx
Xxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, President
or to such other address as either party hereto may designate by notice given in
accordance with this Agreement.
13. ASSIGNMENT. A party hereto may not assign this Agreement or any
rights or obligations hereunder without the consent of the other party hereto;
PROVIDED, HOWEVER, that upon the sale or transfer of all or substantially all of
the assets of the Corporation, or upon the merger by the Corporation into, or
the combination with, another corporation, this Agreement will inure to the
benefit of and be binding upon the person or entity purchasing such assets, or
the corporation surviving such merger or consolidation, as the case may be. The
Corporation may also, at any time or from time to time, assign this Agreement to
any of its parents, subsidiaries or affiliates. The provisions of this
Agreement where applicable are binding upon Executive's heirs and legal
representatives and upon the successors and assigns of the parties hereto.
14. WAIVER OF BREACH. Waiver by either party of a breach of any provision
of this Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach by such other party.
15. ENTIRE AGREEMENT. This instrument contains the entire Agreement of
the parties as to the subject matter hereof. It may not be changed orally, but
only by an Agreement in writing signed by the party against whom enforcement of
any waiver, change, modification, extension or discharge is sought.
16. APPLICABLE LAW. This Agreement shall be construed in accordance with
the laws of the State of New York.
17. NEGOTIATIONS. This Agreement is the product of full and complete
negotiations at arm's length by the parties hereto. In view of the negotiations
which have culminated in the execution of this Agreement, no prior drafts,
letters or memoranda prepared by either party hereto shall be used to construe
or interpret any provision hereof, nor shall either party hereto be considered
the "drafter" of this Agreement for the purpose of construing the terms,
conditions and obligations set forth herein.
18. ATTORNEYS' FEES AND EXPENSES.
(a) If the Corporation brings legal proceedings to enforce its rights
under this Agreement and is successful in doing so, it shall be entitled, in
addition to all other remedies, to reimbursement by the Executive for its costs
and expenses, including reasonable attorneys' fees. If the Corporation brings
such proceedings and is unsuccessful, the Corporation shall reimburse the
Executive for his costs and expenses, including reasonable attorneys fees.
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(b) If the Executive brings legal proceedings to enforce his rights
under this Agreement and is successful in doing so, he shall be entitled, in
addition to all other remedies, to reimbursement by the Corporation for his
costs and expenses, including reasonable attorneys' fees. If the Executive
bring such proceedings and is unsuccessful, he shall reimburse the Corporation
for its costs and expenses, including reasonable attorneys' fees.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed on its behalf and Executive has signed this Agreement as of the date
first above written.
DIAGNOSTIC LEASING CORP.
By: /S/ XXXXX X. XXXXX
-------------------
Title: President
/S/ XXXXXX X. XXXXX
-----------------------
Xxxxxx X. Xxxxx
The undersigned hereby guarantees payment by the Corporation of its obligations
under this Agreement.
MICRO BIO-MEDICS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------
Title: President
THE UNDERSIGNED EXECUTES THE ABOVE AGREEMENT SOLELY FOR THE PURPOSE OF HAVING
PARAGRAPH 1(C) CONSTITUTE AN AGREEMENT BETWEEN TWO SHAREHOLDERS PURSUANT TO
Section 620 OF THE NEW YORK BUSINESS CORPORATION LAW.
/s/ Xxxxx Xxxxx
---------------
XXXXX X. XXXXX
SUBPARAGRAPH 5(D) AND PARAGRAPH 6 OF THE
ABOVE AGREEMENT ARE HEREBY CONSENTED TO:
OTTERBOURG, STEINDLER, HOUSTON & XXXXX, P.C.
By:/s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
Member of the Firm
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