Exhibit 10.4.4


 


EMPLOYMENT AGREEMENT


 


AGREEMENT made
as of October 28, 2005 and effective as of October 31, 2005 (the “Effective
Date”), by and between Scott Fein, having an address at 191 Bristol Drive,
Woodbury, New York, 11797 (hereinafter referred to as “Employee”) and
Bio-Reference Laboratories, Inc., a New Jersey corporation with principal
offices located at 481 Edward H. Ross Drive, Elmwood Park, New Jersey 07407,
and its successors and assigns (hereinafter referred to as the “Company” or “Employer”).


 


WITNESSETH


 


WHEREAS, the
Company is a New Jersey Corporation and is engaged in the clinical laboratory
business, including, among other things, the ownership, operation and marketing
of licensed clinical laboratories; and


 


WHEREAS,
Employee has background and experience in the marketing of clinical laboratory
services and the servicing of customers of clinical laboratories and has been
employed by the Company since March 1994; and


 


WHEREAS,
Employee and the Company are parties to an employment agreement effective May
1, 1999 (the “1999 Agreement”); and


 


WHEREAS, the
Company desires to continue the employment of Employee as a marketing
representative; and


 


WHEREAS, the
Employee desires to continue employment with the Company, pursuant to the terms
and conditions herein set forth, superseding all prior agreements, including
but not limited to the 1999 Agreement, between the Company, its subsidiaries,
and/or predecessors and Employee;


 


NOW,
THEREFORE, it is mutually agreed by and between the parties hereto as follows:


 


ARTICLE I


EMPLOYMENT


 


Subject to and
upon the terms and conditions of this Agreement, the Company hereby agrees to
continue the employment of the Employee, and the Employee hereby accepts such
continued employment in his capacity as Senior Vice President and Sales
Representative of the Company.


 


Employee
represents and warrants that there is no restriction or impediment, contractual
or otherwise, to his accepting such employment as provided for herein, and that
he is not in breach or violation of any covenant or agreement with any party
relation to his employment. Employee represents and warrants, and covenants and
agrees that in continuing his employment with the Company and in the
performance of his duties that he is not utilizing any secret or confidential
information of any other person. The Employee also represents and warrants that
he has consulted with an attorney prior to executing this Employment Agreement.


 


Employer
represents and warrants that the products and services to be marketed and sold
by the Employee will in no way contravene any contract, nor will the
anticipated services of the Employee be in contravention of any state, Federal
or local statute or court ruling.


 


ARTICLE II


DUTIES/OBLIGATIONS


 


(A)          In exchange for
payment of the consideration set forth in this Agreement, the Employee shall,
during his continued employment with the Company, and subject to the direction
and control of the Company’s executive officers, perform such reasonable
services, duties and functions of a Senior Vice President and Sales
Representative as he may be called upon by such executive officers during the
term of this Agreement. The Employee shall report directly to the Senior
Management of the Company.


 


(B)           During the
continuation of his employment, the Employee will work for the Company on a
full-time basis and agrees to devote his best efforts to the performance of his
duties for the Company. The Employee has informed the Company that from time to
time he may be requested to act as a consultant


 


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(“Consulting Work”) for a bio-technical like company not in the
clinical laboratory testing business and not in competition with the Company (“Non-Clinical
Laboratory Companies”). The Consulting Work for Non-Clinical Laboratory
Companies primarily involves introducing these companies and their products to
the doctors that the Employee solicits or is otherwise involved with on behalf
of the Company. The Employee has also informed the Company that the Consulting Work
will not interfere with his work for the Company. The Employee agrees to notify
the Company of his acceptance of Consulting Work and the nature of the business
of the Company for which he will be consulting.


 


(C)           The services, duties
and functions referred to in subsection (A) above that the Employee may be
called upon to perform include, but are not limited to the following:


 


(i)            Those duties
attendant to the position with the Company in which he is employed, including
the marketing and sale of the various health and clinical laboratory services;


 


(ii)           Assist the Company
in the planning and implementation of all sales promotion, advertising, public
relations, personnel and product development programs;


 


(iii)          Promotion of the
relationships of the Company and its subsidiary and affiliate corporations with
their respective employees, customers, suppliers, and others in the business
community;


 


(iv)          Work with the
Company’s professional staff toward the development of special programs to
offer laboratory services to different groups of physicians and specialists;


 


(v)           Assisting other
sales personnel in marketing and servicing their accounts;


 


(vi)          Assisting the
Company in training and managing other sales and service personnel;


 


(D)          Work Product.      Employee grants to the Company, and the
Company accepts, Employee’s entire right, title and interest in and to the Work
Product (as defined below) and in and to all patents, copyrights, trade secrets
and other proprietary rights in or based on the Work Product. Employee grants
to the Company, and the Company accepts, an unlimited, unrestricted,
royalty-free, fully paid-up, worldwide and exclusive right and license, with
the right to grant licenses and sublicenses to others without accounting to
Employee, under the Background Rights (as defined below) and all proprietary
rights therein or based thereon. Employee agrees that if the Work Product or
any portion thereof is copyrightable, it shall be deemed to be a “work made for
hire,” as such term is defined in the Copyright Laws of the United States. Employee
shall cooperate with the Company or its designees and execute documents of
assignment, oaths, declaration and other documents, prepared by the Company, to
effect the foregoing or to perfect or enforce any proprietary rights resulting
from or related to this Agreement. Such cooperation and execution shall be at
no additional compensation to Employee; provided, however, the Company shall
reimburse Employee for reasonable out-of-pocket expenses incurred at the
specific request of the Company. For purposes of this provision, the following
definitions shall apply: (a) “Work Product” shall mean all data, documentation,
software and information, in whatever form, first produced or created by
Employee or for Employee as a result of or related to the performance of work
or the rendition of services under this Agreement or under any prior agreement
with the Company including, but not limited to, work or services performed by
Employee as an independent contractor for the Company; and (b) “Background
Rights” shall mean all data, documentation, software and information, in
whatever form, not first produced or created by Employee or for Employee as a
result of or related to the performance of work or the rendition of services
under this Agreement or under any prior Agreement with the Company, but
included in, necessary, useful or utilizable in or with the Work Product or any
portion thereof.


 


ARTICLE III


TERM AND COMPENSATION


 


(A)          The initial term of
this Agreement shall be for a period of four (4) years commencing on November
1, 2005 and ending on October 31, 2009. Each year of the Agreement (November 1 –
October 31) is referred to as a “Contract Year.” The period of November 1, 2005
through October 31, 2009, plus any extension years as provided in Article XIII,
is referred to as the “Employment Term.”


 


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(B)           For the Contract
Year commencing November 1, 2005, the Company shall pay to Employee a salary
(the “Base Salary”) of $150,000. For the Contract Years beginning on November
1, 2006, November 1, 2007, and November 1, 2008, the Company shall pay to
Employee a Base Salary of $350,000. The Base Salary is payable in bi-weekly
installments or otherwise pursuant to the Company’s then-current payroll
practices.


 


(C)           In addition to the
Base Salary provided for in this Article III (B) above, the Employee shall
receive sales commissions from the Employer based upon the net cash revenues
actually received by the Company from the Employee’s accounts less refunds (“Net
Cash Revenues”) at the same rates, terms and conditions as established between
the Employee and the Company prior to the Effective Date of this Agreement,
which are set forth below. (Net Cash Revenues are defined here and throughout
this Agreement as those revenues actually received by the Company less
refunds).


 


(i)            For new accounts
obtained solely by the Employee’s efforts (including new accounts obtained
prior to the Effective Date), a sales commission of 9% of the Net Cash Revenues
actually received by the Company from such accounts, which rate of commission
shall continue so long as the Company keeps such account and so long as the
Employee services the account. For the purpose of this provision, a new account
shall mean: (x) an account not previously serviced by the Company and
introduced to the Company by the Employee, or (y) an account previously
serviced by the Company which has not ordered for a period of 180 days and
which has become an active account as a result of the Employee’s efforts. An
account having been serviced within 180 days by the Company, from which an
order has been received within 180 days and/or referred to the Employee by the
Company shall be denominated a house account. The foregoing commission rate of
9% shall not apply to accounts serviced by the Employee prior to the Effective
Date where the Employee and the Company have agreed to a lower rate. For those
accounts, the lower rate shall continue to apply during the term of this
Agreement. Additionally, the 9% commission on new accounts shall not apply to
any new accounts where: (x) 50% or more of the patient mix is Medicaid and or
Medicaid/HMO, or; (y) the professional billing rate is set at the Medicaid rate
or below. For such accounts, the commission rate shall be 4.5%.


 


(ii)           For all those
accounts brought to the Company by the Employee in conjunction with another
marketing representative, the Employee will receive sales commission as
determined by mutual agreement of the Company and the Employee, based upon the
Net Cash Revenues. Those accounts considered to have been in conjunction with
another marketing representative include those accounts not serviced by the
Company within the previous 180 days, and/or those accounts not referred by the
Company. Such commission shall continue unabated so long as the Company keeps
such account and so long as the Employee and/or other marketing representative
services such account.


 


(iii)          On sales made by
the Employee to the Company’s house accounts or to accounts developed as a
result of Company referrals or leads, the Employee shall receive a sales
commission of 4.5% of the Net Cash Revenues. Such commission shall continue
unabated so long as the Employee services said account. Accounts considered by
the Company to be house accounts for the purposes of (C)(ii) above shall be
those accounts submitted to the Employee by the Company and agreed upon by the
Company representative and the Employee.


 


(iv)          The Employee will
receive commissions on the business generated from drawing stations he assisted
in establishing in accordance with sections (C)(i) and (C)(ii) above. The
commission will be mutually agreed upon by the Company and the Employee upon
establishment of each new drawing station.


 


(v)           The standard
deduction applicable to all commissions arising from reference work that was in
effect as of the Effective Date will remain in effect for the Employment Term.


 


(vi)          The sales commission
provided for herein shall be paid pursuant to the terms of the Company’s
then-current policy on the payment of commissions. The Company shall, if
required, deduct and withhold all applicable federal, state, and local employee
taxes from such payment.


 


(vii)         The Company shall
provide Employee with a report so that the Employee may determine


 


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his commission on a monthly basis.


 


(vii)         The Company reserves
the right to reasonably reject any new account sold by the Employee, solely or
jointly, that is deemed insufficiently profitable by the Company.


 


(viii)        The Employee
reserves the right to refuse to service any account, house or otherwise, which
(1) will not generate more than $500 per month in commission; (2) or the
servicing of which would substantially impair the Employee’s ability to service
other accounts necessary for him to maximize his profits under the Contract.


 


(D)          If (i) the Employee
is absent from work for more than 130 business days in any twelve-month period
by reason of illness or incapacity (whether physical or otherwise) or (ii) the
Company reasonably determines that the Employee is unable to perform his
duties, services and responsibilities hereunder by reason of illness or
incapacity (whether physical or otherwise) for more than 130 business days in
any twelve-month period during the Employment Term (“Disability” or “Disabled”),
the Company shall not be obligated to pay the Employee any compensation
(Salary, bonus or commissions) for any period in excess of such 130 business;
furthermore, any such payments during such 130 business day period shall be
reduced by any amount the Employee is entitled to receive as a result of such
disability under any plan provided through the Company or under state or
federal law. See, however, Article X hereof pursuant to which Employee’s
spouse, Debbie Fein, may assume Employee’s obligations under this Agreement.


 


(E)           Any and all taxable
income relating to the compensation and benefits to be received by Employee
hereunder shall be reported pursuant to applicable federal, state and local tax
laws, and Employee shall bear the financial responsibility for all such tax
obligations applicable to him (as distinct from those tax obligations that are
the Employer’s responsibility).


 


ARTICLE IV


SIGNING BONUS


 


The Employee
will receive a signing bonus payment as follows:


 


(A)          After the Effective Date but no later
than December 31, 2005, the Employee will receive a signing bonus of $200,000,
less all required deductions and withholdings.


 


ARTICLE V


STOCK OPTIONS


 


The Board of
Directors has authorized the Company to grant Employee non-transferable
incentive stock options (the “Options”) exercisable to purchase shares of
Bio-Reference Common Stock (the “Stock”) as set forth below. The number of
Options to be issued to Employee shall be determined by dividing $100,000 by
the closing stock price on the Date of Grant, as defined below (for example if
the closing Stock price on the Date of Grant is equal to $20, employee will be
issued 5,000 Options). The Date of Grant of the Options (“Date of Grant”) shall
be the date determined by the Board of Directors to be the Date of Grant, but
in no event shall the Date of Grant occur later than October 31, 2005. It is
the intent of the parties that the Date of Grant will occur on or prior to the
Effective Date. The Option exercise price per share shall be equal to the last
sale price on the NASDAQ Stock Market for the Stock on the Date of Grant. In
the event of and upon grant, the Company and Employee shall execute and deliver
to each other, an Incentive Stock Option Agreement (the “Stock Option Agreement”)
containing such terms and vesting provisions as shall be determined by the
Board of Directors consistent with the provisions of the Company’s Employee
Incentive Stock Option Plan (the “Plan”) pursuant to which the Options are
granted. The Stock Option Agreement will set forth, among other items, the term
of the Option, provisions as to termination in the event of cessation of
employment, death or permanent disability, method of exercise and restrictions
affecting transfer or sale of the underlying Common Stock. Consistent with the
provisions of the Plan, the aggregate fair market value of Bio-Reference Common
Stock with respect to which Options are exercisable by Employee for the first
time during any calendar year shall not exceed $100,000. Subject to the
limitations of the preceding sentence, the Options shall vest immediately upon
the Date of Grant.


 


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ARTICLE VI


BENEFITS


 


(A)          During the Employment
Term, (i) the Company shall make available to the Employee, his wife and their
dependent children eligible for coverage, the same hospital and major medical
insurance benefits coverage provided by the Company to its Senior Management;
(ii) Employee shall be reimbursed by the Company upon presentation of
appropriate vouchers for all reasonable business and entertainment expenses
incurred by the Employee on behalf of the Company; and (iii) Employee shall
receive a car allowance of $1,600 per month. In addition, the Company will pay
for gasoline, maintenance, excess annual mileage over 15,000 miles per year,
and the amount of insurance coverage necessary to maintain compliance with the
leasing company. If the Employee desires insurance coverage above the coverage
provided by the Company, the Employee may obtain coverage at his own cost.


 


(B)           In the event the
Company wishes to obtain and/or maintain Key Man Life Insurance on the life of
the Employee, the Employee agrees to cooperate with the Company in completing
any applications necessary to obtain such insurance and promptly submit to such
physical examinations and furnish such information as any proposed insurance
carrier may request, providing Employee is insurable.


 


(C)           The Company shall
provide Employee, so long as Employee continues to be employed by the Company,
a term life insurance policy in an amount equal to the lesser of one and
one-half (11⁄2) times Employee’s salary or $50,000.


 


(D)          The Company shall
indemnify and hold harmless the Employee against all claims, liability, losses,
damages and expenses, including reasonable legal fees (“Claims”) arising
directly or indirectly from acts of the Company and/or its employees, including
but not limited to all tests and other laboratory services. The indemnity
contained in the paragraph does not apply to Claims arising from the acts or
omissions of Employee or his spouse, where such acts or omissions are or were:
(i) outside the scope of their employment; (ii) the result of gross negligence,
or; (iii) the result of intentional wrongdoing.


 


ARTICLE VII


CLIENT ENTERTAINMENT


 


The Company
will provide Employee access to a country club of his choosing for the purpose
of entertaining clients. Employee will be one of the named country club members
and yearly membership fees paid by the Company will not exceed $30,000.


 


ARTICLE VIII


TERMINATION


 


(A)                 Except
as otherwise provided in this Agreement, the employment of Employee hereunder
and the Employment Term shall terminate (“Date of Termination”) upon the
earliest to occur of the dates specified below:


 


(i)            the close of
business on the date of expiration of the Employment Term;


 


(ii)           the close of
business on the date of the Employee’s death, unless, following the delivery of
notice from the Company, the obligations of this Agreement are assumed by
Debbie Fein as provided in Article X, in which case the Employment Term shall
continue for Debbie Fein;


 


(iii)          the close of
business on an early termination date mutually agreed to in writing by the
Company and the Employee;


 


(iv)          the close of
business on the day on which the Company shall have delivered to the Employee a
written notice of the Company’s election to terminate his employment for “Cause”
(as defined in Article VIII(C) hereof);


 


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(v)           the close of
business on the day on which the Company shall have delivered to the Employee a
written notice of the Company’s election to terminate his employment because of
Disability, unless, following the delivery of such notice, the obligations of
this Agreement are assumed by Debbie Fein (either permanently or temporarily)
as provided in Article X, in which case the Employment Term shall continue for
Debbie Fein and may be later assumed by Scott Fein at the conclusion of his
Disability;


 


(vi)          the close of
business on the day on which the Company shall have terminated the employment
of the Employee hereunder and such termination is not for death, Cause or
Disability; or


 


(vii)         the close of
business on the date which is five business days after the date on which the
Employee delivers to the Company a written notice of the Employee’s election to
terminate his employment hereunder (x) for “Good Reason” (as defined in Article
VIII(D) hereof) or (y) for any other reason.


 


(B)           Any purported
termination by the Company or by the Employee pursuant to Article VIII(A) (iv)
(vii) hereof shall be communicated by written “Notice of Termination” to the
other party. For purposes of this Agreement, a “Notice of Termination” shall
mean a written notice which indicates the specific termination provision in
this Agreement relied upon and which sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Employee’s
employment under the provision so indicated. For purposes of this Agreement, no
such purported termination shall be effective without delivery of such Notice
of Termination.


 


(C)           For purposes of this
Agreement, termination of Employee for “Cause” shall mean termination based on
(i) the Employee’s material breach of this Agreement; (ii) willful misconduct
or gross negligence by Employee with regard to the Company or its business,
assets or employees; (iii) the refusal of Employee to follow the proper and
reasonable direction of the Chief Executive Officer or his designee relating to
the normal, customary and reasonably related duties and responsibilities of
Employee as set forth in Article II(C) and provided that Employee is warned in
writing at least three (3) days prior to the Company terminating his employment
for Cause as defined under this paragraph (C)(iii); (iv) substantial and
continuing refusal by the Employee to attempt to perform the normal, customary,
and reasonably related duties and responsibilities of Employee as set forth in
Article II(C) (other than any such failure resulting from incapacity due to
physical or mental illness) and provided that Employee’s breach of this
paragraph (C)(iv) is not cured by Employee within 15 days following written
notice from the Company; (v) the Employee being convicted of a felony or
pleading nolo contendere to a felony (other than a felony involving a motor
vehicle); (vi) the breach by Employee of any fiduciary duty owed by Employee to
the Company; or (vii) Employee’s misappropriation or fraud with regard to the
Company (other than good faith expense account disputes).


 


(D)          For purposes of this
Agreement, the term “Good Reason” shall mean (i) in the event of a Change in
Control (as defined below), or (ii) any material breach by the Company of this
Agreement, provided, however, that Employee first delivers written notice
thereof to the Chief Executive Officer of the Company and the Company shall
have failed to cure such breach within thirty (30) days after receipt of such
written notice.


 


(E)           In the event of
termination of this Agreement, for whatever reason, the Employee agrees to
cooperate with the Company and to be reasonably available to the Company with
respect to continuing and/or future matters arising out of the Employee’s
employment or any other relationship with the Company, whether such matters are
business related, legal or otherwise. The Company agrees to reimburse the
Employee for the Employee’s reasonable expenses incurred in complying with the
terms of this paragraph upon delivery by the Employee to the Company of valid
receipts for such expenses. The provisions of this paragraph shall survive
termination of this Agreement.


 


ARTICLE IX


TERMINATION PAYMENTS


 


(A)          In the event that
Employee’s employment is terminated for any reason whatsoever, Employee shall
receive his earned but unpaid wages and commission earned through the date of
Employee’s termination and shall be notified of his rights, if any, to
continued benefits coverage under any of the


 


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Company’s benefit plans.


 


(B)           Termination
Payments in the Event of Termination By the Company Without Cause or By
Employee With Good Reason.


 


(i) If the Employee’s employment with the Company terminates pursuant
to Article VIII (A)(vi) or Article VIII (A)(vii)(x) hereof, but not within
twelve months following a Change in Control, the Company will pay to
Employee the following:


 


salary, bonus, commissions, and other benefits provided for herein for
the remainder of the Employment Term. Salary and Bonus will be paid out
pursuant to the terms of this Agreement and over the Employment Term at the
same rate and amount as Employee would have received had Employee remained
employed for the duration of the Employment Term. Commissions will be
calculated by taking the average of the commissions earned during the last six
months of Employee’s employment (“Average Commissions”). Employee will receive
the Average Commissions on a monthly basis for the remainder of the Employment
Term. To continue receiving the compensation set for in this Article IX(B)(i),
the Employee must engage in mitigation of damages by actively seeking new
employment with similar duties and obligations as set forth in Article II(C)
herein. Good faith mitigation of damages requires the Employee to accept
substantially similar employment, if offered, regularly contact prospective new
employers, investigate new markets, utilize the services of employment search
firms, and employ other avenues which will assist him in finding suitable
employment. Employee will not be obligated to accept employment as being “substantially
similar employment” unless such employment opportunity provides him with the
reasonable opportunity to earn a total financial package of at least $1,200,000
per year. Upon accepting substantially similar employment, payments under this provision
will cease.


 


(ii)           If the Employee’s
employment with the Company terminates pursuant to Article VIII (A)(vi) or
Article VIII (A)(vii)(x) hereof within twelve months following a Change in
Control, the Company will pay to Employee the following:


 


a.               In
lieu of any further compensation payments for periods subsequent to the Date of
Termination, the Company shall pay to the Employee as severance pay not later
than the tenth business day following the Date of Termination, a lump sum
payment (the “Severance Payment) equal to 2.99 times the average of the annual
Compensation which was payable by the Company and includible in the Employee’s
gross income for federal income tax purposes for the five (5) calendar years,
preceding the earlier of (x) the calendar year in which a Change in Control
occurred or (y) the calendar year of the Date of Termination (the “Base Period”).
Such average shall be determined in accordance with the provisions of Section
280G(d) of the Internal Revenue Code of 1986 as amended (the “Code”). As used
in this Agreement, the term “Compensation” shall mean and include every type
and form of compensation includible in the Employee’s gross income in respect
of his employment by the Company (but, excluding compensation or income
recognized as a result of the exercise of stock options or sale of
Bio-Reference stock), except to the extent otherwise provided in Congressional
or Joint Committee Reports or temporary or final regulations interpreting
Section 280G(d) of the Code.


 


b.              The
Severance Payment shall be reduced by the amount of any other payment or the
value of any benefit received or to be received by the Employee in connection
with the termination of his employment or contingent upon a Change in Control
(whether payable pursuant to the terms of this Agreement, any other plan,
agreement or arrangement with the Company) unless (i) the Employee shall have
effectively waived his receipt or enjoyment of such payment or benefit prior to
the date of payment of the Severance Payment, (ii) in the opinion of tax
counsel selected by the Company such other payment or benefit does not
constitute a “parachute payment” within the meaning of Section 280(G)(b)(2) of
the Code, or (iii) in the opinion of such tax counsel, the Severance Payment
(in its full amount or as partially reduced, as the case may be) plus all other
payments or benefits which constitute “parachute payments” within the meaning
of


 


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Section
280(G)(b)(2) of the Code are reasonable compensation for services actually
rendered, within the meaning of Section 280(G)(b)(4) of the Code, and such
payments are deductible by the Company. The value of any non-cash benefit or
any deferred cash payment shall be determined by the Company in accordance with
the principles of Section 280(G)(d)(3) and (4) of the Code.


 


c.               Except
to the extent that Congressional or Joint Committee Reports or temporary or
final regulations interpreting Section 280G of the Code specify that such
payments would result, under subsection (b) above, in a reduction in the
Severance Payment:


 


1.               The
Company shall pay to the Employee, no later than the tenth business day
following the Date of Termination, a lump sum amount equal to the sum of (x)
any bonus compensation which has been allocated or awarded for a fiscal year
preceding the Date of Termination but has not yet been paid, and (y) a pro rata
portion of any bonus compensation which the Employee has earned for the fiscal
year in which the Date of Termination occurs determined by multiplying the
Employee’s prior years’ bonus compensation by a fraction equal to the number of
full calendar months in the fiscal year prior to the Date of Termination over
twelve.


 


2.               The
Company shall also pay all legal fees and expenses incurred by the Employee as
a result of such termination (including all such fees and expenses, if any, in
contesting or disputing any such termination or seeking to obtain or enforce
any right or benefit provided by this Agreement).


 


d.              If
it is established pursuant to a final determination of a court or an Internal
Revenue proceeding that, notwithstanding the good faith of the Employee and the
Company in applying the terms of this Section 8, the aggregate “parachute
payments” paid are in an amount that would result in any portion of such “parachute
payments” not being deductible by the Company by reason of Section 280G of the
Code, then the Employee shall have an obligation to pay the Company upon demand
an amount equal to the sum of (i) the portion of the aggregate “parachute
payments” paid that would not be deductible by reason of Section 280G of the
Code and (ii) interest on the amount set forth in clause (i) of this sentence
at the applicable Federal rate (as defined in Section 1274(d) of the Code) from
the date of receipt of such excess until date of such payment.


 


e.               As
used in the Agreement, the term “Change in Control” shall mean a change in
control of a nature that would be required to be reported in response to Item
6(e) of Schedule 14A issued under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”) as in effect as of the date hereof (regardless of
whether or not a Proxy Statement is being filed pursuant to such Regulation at
such time), or if Item 6(e) is no longer in effect, any subsequent regulation
issued under the Exchange Act for a similar purpose, whether or not the Company
is subject to such reporting requirements; provided, that without limitation,
such a change in control shall be deemed to have occurred if:


 


1.               any
“Person” other than the Employee is or becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly of
securities of the Company representing 25% or more of the combined voting power
of the Company’s then outstanding securities;


 


2.               during
any period of two consecutive fiscal years (not including any period prior to
the date of the Agreement), individuals who at the beginning of such period
constitute the Board of Directors, and any new director, whose election by the
Board or nomination for election by the Company’s stockholders was approved by
a vote of at least two-thirds of the directors then still in their office who
either were directors at the


 


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beginning of the period or whose election or nomination for elections
was previously approved, cease for any reason to constitute a majority of the
Board; or


 


3.               the
business of the Company is disposed of by the Company pursuant to a
liquidation, sale of assets of the Company, or otherwise.


 


f.                 The
parties reserve the right to mutually amend the provisions of Article IX(B)(ii)
to provide the most favorable tax treatment to Employee and the company.


 


 


(C)           Termination
Payments in the Event of Termination For all Reasons Other than Those Covered
by Article IX (B). In the event Employee’s employment with the
Company is terminated pursuant to Article VIII (i), (ii), (iii), (iv), (v), or
(vii)(y) , the Company shall have no further obligations than those that are
set forth in Article IX(A)


 


(D)          Employee shall only
be eligible to receive the payments set forth in Article IX (B) on the
condition that he executes a separation agreement and release in a form
reasonably acceptable to the Company. Moreover, the payments set forth in
Article IX (B) upon termination shall constitute the exclusive payments due the
Employee upon termination under this Agreement, but shall have no effect on any
benefits which may be due the Employee under any plan of the Company which
provides benefits after termination of employment, except that the Employee
shall not be eligible for benefits under any Company severance plan. Nothing
herein shall affect any of the post-Employment restrictions contained in the
Key Employee Agreement attached as Exhibit A and Employee’s violation of any
provisions of such Key Employee Agreement shall result in the immediate and
permanent cessation of any and all post-employment payments under this Article
IX.


 


ARTICLE X


SURVIVAL BENEFITS


 


This Agreement
may not be assigned to any successors and assigns of the Employee. The
restriction shall not apply to any monetary benefit which the Employee may be
entitled to, which shall in that event inure to the benefit of the Employee’s
heirs, personal representatives, successors and assigns.


 


However, in the
event the Employee dies during the term of this Agreement or shall become
Disabled, the Employee, upon prior written instructions or upon becoming
Disabled, may temporarily or permanently assign this Agreement, and all
obligations, compensation and benefits hereunder to his wife, Debbie Fein, so
long as the Employee’s responsibilities are performed and his accounts are
maintained (except those lost to legitimate and normal industry account
turnover) during the term of this Agreement by his wife, Debbie Fein, and
further provided that Debbie Fein, within thirty (30) days following the event
leading to the triggering of this paragraph, agrees in writing to be bound in
the same manner as Employee pursuant to all of the provision of this Agreement.
Unless Employee is incapacitated or deceased, such an assignment must be made
in writing by the Employee. No other assignment of this Agreement may be made
nor can the Employee’s duties be fulfilled by any one other than Scott Fein or
his wife, Debbie Fein, in order for such the benefits of this Agreement to
accrue. Simultaneously herewith, Debbie Fein shall enter into the Agreement
attached hereto as Exhibit B (“DF Agreement”).


 


ARTICLE XI


POST –EMPLOYMENT RESTRICTIONS


 


As an inducement for the
Company to enter into this Agreement, Employee agrees to execute and adhere to
the obligations set forth in the Key Employee Agreement attached hereto as
Exhibit A.


 


ARTICLE XII


THE COMPANY’S REPRESENTATIONS


 


The Company
warrants and represents the following:


 


(i)            It is presently
licensed to perform clinical laboratory services and tests in New York, New
Jersey, and Connecticut and will maintain said licenses throughout the term of
this Agreement; and


 


9





















 


(ii)           It has the ability
and capacity to service the Employee’s accounts in a timely and professional
manner in accordance with all applicable governmental regulations and that
during the term of this Agreement shall maintain said ability and capacity and
will service the Employee’s accounts in a timely and professional manner in
accordance with all applicable governmental regulations.


 


(iii)          The execution and
delivery of this Agreement and the consummation of the transaction herein
contemplated and the performance, observation and fulfillment by the Company of
all the terms and conditions hereof on its part to be performed, observed and
fulfilled have been approved by resolution of the Board of Directors of the
Company.


 


(iv)          The Company has
sufficient shares to issue pursuant to Article V.


 


ARTICLE XIII


CONTRACTUAL RENEWAL


 


Notwithstanding
anything to the contrary, this Agreement shall automatically renew for an
additional Contract Year (an “Additional Contract Year”), unless either party
shall notify the other party during the month of August in any Contract Year of
the Employment Term. Thus, for example, unless either party notifies the other
between August 1, 2006 and August 31, 2006, that it desires not to renew the
Agreement, the Employment Term shall then be extended automatically to conclude
on October 31, 2010. The same cancellation option exists every year. If
cancelled, the Agreement will continue only until the end of the Contract Years
remaining in the Employment Term, unless earlier terminated by the parties
pursuant to the Agreement.   Thus, for example, if either party notifies
the other between August 1, 2006 and August 31, 2006, that it desires not to
renew the Agreement, the Employment Term would terminate as of October 31,
2009. Any Additional Contract Years added to this Agreement as a result of the
operation of this Article XIII shall be under the same terms and conditions as
are applicable to the Contract Year preceding such Additional Contract Year. Thus,
if the Agreement is automatically extended to conclude on October 31, 2010, the
terms and conditions applicable to the Additional Contract Year commencing
November 1, 2009 and concluding October 31, 2010 shall be the same as those for
the Contract Year commencing November 1, 2008 and ending October 31, 2009.


 


ARTICLE XIV


SEVERABILITY


 


If any
provision of the Agreement shall be held invalid and unenforceable, the
remainder of this Agreement shall remain in full force and effect. If any
provision is held invalid or unenforceable with respect to particular
circumstances, it shall remain in full force and effect in all other
circumstances.


 


ARTICLE XV


NOTICES


 


All notices
required to be given under the terms of this Agreement shall be in writing and
shall be deemed to have been duly given only if delivered to the addressee in
person or mailed by certified mail, return receipt requested, as follows:


 


	
  IF TO
  COMPANY:

  	
   

  	
  Marc
  Grodman, M.D.

  
	
   

  	
   

  	
  Bio-Reference
  Laboratories, Inc.

  
	
   

  	
   

  	
  481 Edward
  H. Ross Drive

  
	
   

  	
   

  	
  Elmwood
  Park, New Jersey 07407

  
	
   

  	
   

  	
   

  
	
  WITH COPY
  TO:

  	
   

  	
  Glenn J.
  Smith, Esq.

  
	
   

  	
   

  	
  Grotta
  Glassman & Hoffman

  
	
   

  	
   

  	
  75
  Livingston Avenue

  
	
   

  	
   

  	
  Roseland, NJ
  07068

  
	
   

  	
   

  	
   

  
	
  IF TO
  EMPLOYEE:

  	
   

  	
  Scott Fein

  
	
   

  	
   

  	
  191 Bristol
  Drive

  
	
   

  	
   

  	
  Woodbury,
  New York 11797

  



 


or such other additional
address as the party to receive the notice shall advise by due notice in
accordance with this paragraph.


 


10





















 


ARTICLE XVI


BENEFIT


 


This Agreement
shall inure to and be binding upon the parties hereto, the successors and
assigns of the Company and the estate, heirs and successors of the Employee.


 


ARTICLE XVII


WAIVER


 


The waiver by
either party of any breach or violation of any provision of this Agreement
shall not operate or be construed as a waiver of any subsequent breach or
construction and validity.


 


ARTICLE XVIII


GOVERNING LAW & ARBITRATION


 


The parties
hereto agree that it is their intention and covenant that this Agreement and
performance hereunder and all suits and special proceedings hereunder be
construed in accordance with and pursuant to the laws of the State of New Jersey.


 


Any dispute,
claim or controversy (whether statutory, contractual, or arising under common
law) that relates to this Agreement, Employee’s employment with the Company, or
the termination of Employee’s employment from the Company (but not relating to the
Key Employee Agreement attached hereto as Exhibit A), shall be submitted to
JAMS/Endispute (“JAMS”) for binding arbitration by the complaining party
providing written notice to JAMS and the other party. The arbitration shall
take place in a location mutually agreed upon by Employee and the Company or,
if the parties cannot agree upon a location, in a location in Bergen or Union
County, New Jersey selected by the arbitrator. The parties will try to agree on
a retired judge from the JAMS panel for the binding arbitration. If the parties
are unable to agree, JAMS will provide a list of three available judges and the
Company and the Employee can each strike one. The remaining judge will serve as
the arbitrator. Judgment on the decision of the arbitrator may be entered in
the highest court of any forum, federal or state, having jurisdiction. The
arbitrator shall set the guidelines for discovery. Nothing contained herein
shall prevent either Employee or the Company from applying to a court having
jurisdiction for emergent equitable relief. The cost for JAMS shall initially
be shared equally between Employee and the Company, with the prevailing party
being entitled to recover its share of said cost and reasonable attorneys’ fees
and expenses from the other party. BY EXECUTING THIS
EMPLOYMENT AGREEMENT, EMPLOYEE AGREES TO WAIVE HIS RIGHT TO A JURY TRIAL IN ANY
ACTION OR PROCEEDING. EMPLOYEE UNDERSTANDS THAT HE IS WAIVING HIS RIGHT TO A
JURY TRIAL VOLUNTARILY AND KNOWINGLY AND FREE FROM DURESS OR COERCION. EMPLOYEE
UNDERSTANDS THAT HE HAS A RIGHT TO CONSULT WITH A PERSON OF HIS CHOOSING,
INCLUDING AN ATTORNEY, BEFORE SIGNING THIS EMPLOYMENT AGREEMENT.


 


11





















 


IN WITNESS WHEREOF, the parties
have hereto set their hands and seals the day and year written below their
names.


 


Signed, sealed
and delivered in the presence of:


 


	
  WITNESS

  	
  BIO-REFERENCE LABORATORIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /S/ Sam
  Singer

  	
   

  	
  By:

  	
    /S/ Charles T. Todd. Jr.

  	
   

  
	
  Sam Singer

  	
  Charles T. Todd, Jr. as approved by the
  Board of Directors

  
	
   

  	
   

  
	
  WITNESS:

  	
   

  
	
   

  	
   

  
	
  /S/ Linda
  Niedweske

  	
   

  	
  By:

  	
    /S/ Scott Fein

  	
   

  
	
  Linda
  Niedweske

  	
  Scott Fein

  
	
   

  	
   

  
	
  STATE OF NEW
  JERSEY

  	
  :

  
	
   

  	
  : ss.

  
	
  COUNTY OF

  	
  :

  
						



 


On the 28th
day of October, 2005, before me personally came Scott Fein known to me to be
the individual described herein and who executed the foregoing instrument and
acknowledged that he executed same.


 


 


	
   

  	
   

  
	
   

  	
  Notary Public.

  



 


12





















 


EXHIBIT A


 


KEY EMPLOYEE AGREEMENT


 


This Key Employee Agreement is
entered into between BioReference Laboratories, Inc. (“Company”), a New Jersey
Corporation having its principal place of business in the State of New Jersey
with testing facilities in other states, and Scott Fein (“Employee”), an
individual residing at 191 Bristol Drive, Woodbury, NY 11797 on this 28th day
of October, 2005.


 


1.     Employee agrees to the
terms and conditions set forth below in exchange for: (1) Employee’s employment
with Company as set forth in the Employment Agreement (“Employment Agreement”)
to which this is attached, and; (2) Employee’s participation in Company’s
employee benefits or other programs pursuant to the terms thereof.


 


2.     Company agrees to employ
Employee and Employee agrees to work for the Company in the capacity of Senior
Vice President and Sales Representative.  Employee shall, as an employee of the Company,
devote full time best efforts and attention to the performance of Employee’s
duties, except as delineated in Article II(B) of the Employment Agreement.. Should
Employee’s position and/or compensation change, the parties agree that this Key
Employee Agreement will nevertheless remain in effect.


 


3.     This Key Employee Agreement
supplements the Employment Agreement.


 


4.     As used in this Key
Employee Agreement, “Confidential Information” is defined as information not
generally or publicly known or readily available to the public, and proprietary
to the Company, including, without limitation, information relating to past,
present or prospective customers, vendors, suppliers and distributors; marketing,
merchandising or servicing techniques, methodologies and procedures; manuals;
Agreements; reports; notes; price schedules; memoranda and correspondence;
product lists; financial records; computer programs, systems or modes;
contracts and the content of negotiations culminating in such contracts,
including any records thereof.  This
paragraph shall not apply to any Confidential Information that is or becomes
generally available to the public for reasons other than as a result of
disclosure which is prohibited under this Key Employee Agreement or any
agreement.


 


5.     As
used in this Key Employee Agreement, the term “Customer” shall include any
entity to whom the Company has sold, provided or been obligated to provide, any
service or product or who has otherwise received any benefit from the Company
within the 180-day period preceding the date of Employee’s termination of
employment.


 


6.     Employee
recognizes and acknowledges that Confidential Information, and relationships
with Employee’s actual customers and prospective customers, which Employee will
become knowledgeable of as an employee of Company are valuable, special, and
unique aspects of Company’s business, which have been created and developed at
great time, effort and expense to the Company. Employee acknowledges that this “Confidential
Information”, and these existing and prospective customer relationships are not
transitory and will not soon be obsolete.


 


A. Accordingly,
during Employee’s employment and for a period of one (1) year following the
termination of Employee’s employment with the Company (such one year period
referred to as the “Restricted Period”) for any reason set forth in Article
VIII(A) of the Employment Agreement (except as modified by Section 6(B)(1) and
6(B)(2) of this Key Employee Agreement, and regardless of the reason therefore,
Employee shall not, without the express written consent of Company, directly or
indirectly, by Employee or through any other person, firm, partnership,
corporation, entity or enterprise:


 


(1)           directly or indirectly solicit any
sales (or make or derive any sales from such


 


13





















 


direct or indirect
solicitation) from any customer or prospective customer of the Company that
Employee (or such other employees of the Company that directly report to
Employee) solicited, serviced, was responsible for or interacted with (in the
performance of Employee’s duties for the Company) while employed by the
Company; or


 


(2)           induce, approach or attempt to induce
any employee of the Company to leave the Company and become professionally
affiliated with and/or work for or with Employee or at Employee’s new employer.


 


B. The
Restricted Period may be modified as follows:


 


(1) In the
event Employee receives the severance payments set forth in Article IX(B)(ii)
of the Employment Agreement which are triggered in the event of certain
terminations following a Change in Control (as such term is defined in the
Scott Fein Employment Agreement), the Restricted Period shall be for the period
of Employee’s employment with the Company and for a period of three (3) years
following the termination of Employee’s employment with the Company.


 


(2) In the
event Employee’s employment with the Company terminates pursuant to Article
VIII (A)(iv) or Article VIII (A)(vi)of the Employment Agreement, but not
within twelve months following a Change in Control, the Restricted Period
shall be for the period of Employee’s employment with the Company and for a
period of six (6) months following the termination of Employee’s employment
with the Company.


 


C. Further,
during Employee’s employment and for an unlimited period following the
termination of Employee’s employment with the Company, whether termination is
voluntary or involuntary, and regardless of the reason therefore, Employee
shall not, without the express written consent of Company, directly or
indirectly, by Employee or through any other person, firm, partnership,
corporation, entity or enterprise:


 


(1)           disclose or use, in any manner, or
allow to be disclosed or used in any manner, “Confidential Information”.


 


D. The time
restrictions set forth herein shall run from the date of Employee’s termination
of employment for any reason, except that if Employee violates this Key
Employee Agreement, such time restrictions shall commence on the date of
compliance with the restrictions contained herein, whether such compliance is
voluntary or compelled.


 


7.             Employee acknowledges that: (1)
compliance with the restrictive covenants contained in Section 5 of this Key
Employee Agreement is necessary to protect the business and goodwill of
Company; and (2) a breach of Section 5 will result in irreparable and
continuing damage to Company for which money damages may not provide adequate
relief. Consequently, Employee agrees that, in the event Employee breaches or
threatens or attempts to breach the restrictive covenants contained in Section
5, Company shall be entitled to both: (1) a temporary restraining order,
preliminary injunction and permanent injunction in order to prevent such harm;
and (2) money damages as may be determined. Nothing in this Key Employee
Agreement shall be construed to prohibit Company from also pursuing any other
remedy, the parties agreeing that all remedies are cumulative.


 


8.             All originals and photocopies or any
other form of reports, memoranda, manuals, Agreements, books, computer records
and printouts, customer lists, sales records, and any other material and/or
equipment furnished to and/or maintained by Employee in connection with
Employee’s employment by Company shall remain the property of the Company and
shall be returned to the Company: (1) upon demand; or (2) immediately upon
termination of employment.


 


9.             If any clause or provision herein
shall be adjudged invalid or unenforceable by a court of competent jurisdiction
or by operation of any applicable law, it shall not affect the validity of any
other clause or provision, which shall remain in full force and effect. This
Key Employee Agreement shall be governed by the internal laws of the State of
New Jersey, without giving effect to its conflict of law principles. The courts
of the State of New Jersey shall have jurisdiction over any disputes arising
under this Key Employee Agreement, and each of the parties hereby consents to
such exercise of jurisdiction. If either party to this Key Employee Agreement
breaches any of the terms of this Key Employee Agreement, that party shall pay
to the non-defaulting party all of the non-defaulting party’s costs and
expenses incurred in enforcing the terms of this Key Employee Agreement,
including its attorneys’ fees.


 


14





















 


10.           The parties have attempted to limit
Employee’s activities only to the extent necessary to protect the Company from
unfair competition. The parties recognize, however, that reasonable people may
differ in making such a determination. Consequently, the parties hereby agree
that, if the scope and/or enforceability of the restrictive covenants contained
herein are in any way disputed at any time, a court or other trier of fact may
modify and enforce such covenants to the extent that it believes to be
reasonable under the circumstances existing at that time.


 


11.           The waiver by the Company of a breach
of any of the provisions of this Key Employee Agreement by Employee shall not
operate or be construed as a waiver of any subsequent breach by Employee.


 


12.           The Company shall have the right to
assign any rights or obligations under this Key Employee Agreement without the
prior written approval of Employee. The Employee shall not have the right to
assign rights or obligations under this Key Employee Agreement.


 


13.           This Key Employee Agreement contains
the entire agreement of the parties as to the subject matter hereof and
supersedes all prior written and oral agreements and understandings between the
parties as to such subject matter. This Key Employee Agreement may not be
modified, changed or altered by any oral promise or statement by whoever made,
nor shall any written modifications of this Key Employee Agreement be binding
on the Company unless such modification shall have been approved in writing by
an officer of the Company.


 


EMPLOYEE
ACKNOWLEDGES THAT EMPLOYEE HAS READ THIS KEY EMPLOYEE AGREEMENT, UNDERSTANDS IT
AND IS BOUND BY ITS TERMS AND CONDITIONS AND THAT EMPLOYEE HAS VOLUNTARILY
EXECUTED THIS KEY EMPLOYEE AGREEMENT IN ORDER TO BECOME EMPLOYED IN ACCORDANCE
WITH THE TERMS AND CONDITIONS SET FORTH HEREIN.


 


	
   /S/ Linda Niedweske

  	
   

  	
  By:

  	
  Scott Fein

  	
   

  
	
  Witness

  	
  Date
  10/28/05

  	
  (Employee)

  	
  Date 10/28/05

  
	
   

  	
   

  
	
   /S/ Sam Singer

  	
   

  	
  By:

  	
  Charles T.
  Todd, Jr.

  	
   

  
	
  Witness

  	
  Date
  10/28/05

  	
  (Company)

  	
  Date
  10/28/05

  
								



 


15





















 


EXHIBIT B


 


AGREEMENT BETWEEN DEBBIE FEIN AND BIO-REFERENCE


 


This agreement
(“DF Agreement”) is entered into between BioReference Laboratories, Inc. (“Company”),
a New Jersey Corporation having its principal place of business in the State of
New Jersey with testing facilities in other states, and Debbie Fein (“Debbie
Fein”), an individual residing at 191 Bristol Drive, Woodbury, NY 11797 on this
28th day of October, 2005.


 


1.             Debbie Fein agrees to the terms and
conditions set forth below in exchange for: (1) Scott Fein’s employment with
the Company as set forth in the Employment Agreement (“Scott Fein Employment
Agreement” ) of Scott Fein to which this is attached; (2) Debbie Fein’s
employment with the Company as set forth herein; and (3) Debbie Fein’s
participation in Company’s employee benefits or other programs pursuant to the
terms hereof.


 


2.             Company agrees to employ Debbie Fein
and Debbie Fein agrees to work for the Company in the capacity of Sales
Representative. Debbie Fein shall be paid an annual salary of $35,000, pursuant
to the regular payroll practices of the Company for the performance of her
duties.  The Board of Directors has
authorized the Company to grant Debbie Fein non-transferable incentive stock
options (the “Options”) exercisable to purchase shares of Bio-Reference Common
Stock (the “Stock”) as set forth below. The number of Options to be issued to
Debbie Fein shall be determined by dividing $100,000 by the closing stock price
on the Date of Grant, as defined below (for example if the closing Stock price
on the Date of Grant is equal to $20, Debbie Fein will be issued 5,000
Options). The Date of Grant of the Options (“Date of Grant”) shall be the date
determined by the Board of Directors to be the Date of Grant, but in no event
shall the Date of Grant occur later than October 31, 2005. It is the intent of
the parties that the Date of Grant will occur on or prior to the Effective
Date. The Option exercise price per share shall be equal to the last sale price
on the NASDAQ Stock Market for the Stock on the Date of Grant. In the event of
and upon grant, the Company and Debbie Fein shall execute and deliver to each other,
an Incentive Stock Option Agreement (the “Stock Option Agreement”) containing
such terms and vesting provisions as shall be determined by the Board of
Directors consistent with the provisions of the Company’s Employee Incentive
Stock Option Plan (the “Plan”) pursuant to which the Options are granted. The
Stock Option Agreement will set forth, among other items, the term of the
Option, provisions as to termination in the event of cessation of employment,
death or permanent disability, method of exercise and restrictions affecting
transfer or sale of the underlying Common Stock. Consistent with the provisions
of the Plan, the aggregate fair market value of Bio-Reference Common Stock with
respect to which Options are exercisable by Debbie Fein for the first time
during any calendar year shall not exceed $100,000. Subject to the limitations
of the preceding sentence, the Options shall vest immediately upon the Date of
Grant. Debbie Fein shall, as an employee of the Company, devote reasonable
effort and attention to the performance of her duties. Should Debbie Fein’s
position and/or compensation change, the parties agree that this Agreement will
nevertheless remain in effect.


 


3.             This Agreement between Debbie Fein
and the Company shall remain in effect for the duration of the term of the
Agreement between the Company and Scott Fein, which includes any assumption by
Debbie Fein of Scott Fein’s responsibilities pursuant to Article X of the
Agreement between the Company and Scott Fein.


 


4.             As used in this DF Agreement, “Confidential
Information” is defined as information not generally or publicly known or
readily available to the public, and proprietary to the Company, including,
without limitation, information relating to past, present or prospective
customers, vendors, suppliers and distributors; marketing, merchandising or
servicing techniques, methodologies and procedures; manuals; Agreements;
reports; notes; price schedules; memoranda and correspondence; product lists;
financial records; computer programs, systems or modes; contracts and the
content of negotiations culminating in such contracts, including any records
thereof.  This paragraph shall not apply
to any Confidential Information that is or becomes generally available to the
public for reasons other than as a result of disclosure which is prohibited
under this DF Agreement or any agreement.


 


5.             As used in this DF Agreement, the
term “Customer” shall include any entity to whom the Company has sold, provided
or been obligated to provide, any service or product or who has otherwise
received any benefit from the Company within the 180-day period preceding the
date of Debbie Fein’s termination of employment.


 


6.             Debbie Fein recognizes and
acknowledges that Confidential Information, and relationships with


 


16





















 


her or Scott Fein’s actual
customers and prospective customers, which she will become knowledgeable of as
an employee of Company are valuable, special, and unique aspects of Company’s
business, which have been created and developed at great time, effort and
expense to the Company. Debbie Fein acknowledges that this “Confidential
Information”, and these existing and prospective customer relationships are not
transitory and will not soon be obsolete.


 


A. Accordingly,
during Debbie Fein’s employment and for a period of one (1) year following the
termination of Debbie Fein’s employment with the Company (such one year period
referred to as the “Restricted Period”) for any reason set forth in Article
VIII(A) of the Employment Agreement (except as modified by Section 6(B)(1) and
6(B)(2) of this Key Employee Agreement and regardless of the reason therefore,
Debbie Fein shall not, without the express written consent of Company, directly
or indirectly, by Debbie Fein or through any other person, firm, partnership,
corporation, entity or enterprise:


 


(1) directly
or indirectly solicit any sales (or make or derive any sales from such direct
or indirect solicitation) from any customer or prospective customer of the
Company that Debbie Fein or Scott Fein solicited, serviced, was responsible for
or interacted with while employed by the Company; or


 


(2) induce,
approach or attempt to induce any employee of the Company to leave the Company
and become professionally affiliated with and/or work for or with Debbie Fein
or Scott Fein or at Debbie Fein’s or Scott Fein’s new employer.


 


B.The
Restricted Period may be modified as follows:


 


(1) In the
event either Scot Fein or Debbie Fein receives the severance payments set forth
in Article IX(B)(ii) of the Scott Fein Employment Agreement which are triggered
in the event of certain terminations following a Change in Control (as such
term is defined in the Employment Agreement), the Restricted Period shall be
for the period of Debbie Fein’s employment with the Company and for a period of
three (3) years following the termination of Debbie Fein’s or Scott Fein’s
employment with the Company.


 


(2) In the
event the employment of either Scott Fein or Debbie Fein with the Company
terminates pursuant to Article VIII (A)(iv) or Article VIII (A)(vi) of the
Employment Agreement, but not within twelve months following a Change in
Control, the Restricted Period shall be for the period of Employee’s
employment with the Company and for a period of six (6) months following the
termination of Employee’s employment with the Company.


 


C. Further,
during Debbie Fein’s employment and for an unlimited period following the
termination of Debbie Fein’s employment with the Company, whether termination
is voluntary or involuntary, and regardless of the reason therefore, Debbie
Fein shall not, without the express written consent of Company, directly or
indirectly, by Debbie Fein or through any other person, firm, partnership,
corporation, entity or enterprise:


 


(1) disclose
or use, in any manner, or allow to be disclosed or used in any manner, “Confidential
Information”.


 


D. The time
restrictions set forth herein shall run from the later of the date of Debbie
Fein’s termination of employment for any reason or Scott Fein’s termination of
employment for any reason, except that if Debbie Fein violates this DF
Agreement, such time restrictions shall commence on the date of compliance with
the restrictions contained herein, whether such compliance is voluntary or
compelled.


 


7.             Debbie Fein acknowledges that: (1)
compliance with the restrictive covenants contained in Section 5 of this DF
Agreement is necessary to protect the business and goodwill of Company; and (2)
a breach of Section 5 will result in irreparable and continuing damage to
Company for which money damages may not provide adequate relief. Consequently,
Debbie Fein agrees that, in the event Debbie Fein breaches or threatens or
attempts to breach the restrictive covenants contained in Section 5, Company
shall be entitled to both: (1) a temporary restraining order, preliminary
injunction and permanent injunction in order to prevent such harm; and (2)
money damages as may be determined. Nothing in this DF Agreement shall be
construed to prohibit Company from also pursuing any other remedy, the parties
agreeing that all remedies are cumulative.


 


8.             All originals and photocopies or
any other form of reports, memoranda, manuals, Agreements, books, computer
records and printouts, customer lists, sales records, and any other material
and/or equipment furnished to and/or maintained by Debbie Fein in connection
with Debbie Fein’s employment by Company shall


 


17





















 


remain the property of the
Company and shall be returned to the Company: (1) upon demand; or (2)
immediately upon termination of employment.


 


9.             If any clause or provision herein
shall be adjudged invalid or unenforceable by a court of competent jurisdiction
or by operation of any applicable law, it shall not affect the validity of any
other clause or provision, which shall remain in full force and effect. This DF
Agreement shall be governed by the internal laws of the State of New Jersey,
without giving effect to its conflict of law principles. The courts of the
State of New Jersey shall have jurisdiction over any disputes arising under
this DF Agreement, and each of the parties hereby consents to such exercise of
jurisdiction. If either party to this DF Agreement breaches any of the terms of
this DF Agreement, that party shall pay to the non-defaulting party all of the
non-defaulting party’s costs and expenses incurred in enforcing the terms of
this DF Agreement, including its attorneys’ fees.


 


10.           The parties have attempted to limit
Debbie Fein’s activities only to the extent necessary to protect the Company
from unfair competition. The parties recognize, however, that reasonable people
may differ in making such a determination. Consequently, the parties hereby
agree that, if the scope and/or enforceability of the restrictive covenants
contained herein are in any way disputed at any time, a court or other trier of
fact may modify and enforce such covenants to the extent that it believes to be
reasonable under the circumstances existing at that time.


 


11.           The waiver by the Company of a breach
of any of the provisions of this DF Agreement by Debbie Fein shall not operate
or be construed as a waiver of any subsequent breach by Debbie Fein.


 


12.           The Company shall have the right to
assign any rights or obligations under this DF Agreement without the prior
written approval of Debbie Fein. Debbie Fein shall not have the right to assign
rights or obligations under this DF Agreement.


 


13.           This DF Agreement contains the entire
agreement of the parties as to the subject matter hereof and supersedes all
prior written and oral agreements and understandings between the parties as to
such subject matter. This DF Agreement may not be modified, changed or altered
by any oral promise or statement by whoever made, nor shall any written
modifications of this DF Agreement be binding on the Company unless such
modification shall have been approved in writing by an officer of the Company.


 


DEBBIE FEIN
ACKNOWLEDGES THAT SHE HAS READ THIS DF AGREEMENT, UNDERSTANDS IT AND IS BOUND
BY ITS TERMS AND CONDITIONS AND THAT SHE HAS VOLUNTARILY EXECUTED THIS DF
AGREEMENT IN ORDER TO BECOME EMPLOYED IN ACCORDANCE WITH THE TERMS AND
CONDITIONS SET FORTH HEREIN.


 


	
   /S/ Linda Niedweske

  	
   

  	
  By:

  	
  /S/ Scott
  Fein

  	
   

  
	
  Witness

  	
  Date
         10/28/05

  	
  (Employee)

  	
  Date 10/28/05

  
	
   

  	
   

  
	
   /S/ Sam Singer

  	
   

  	
  By:

  	
  /S/ Charles
  T. Todd, Jr.

  	
   

  
	
  Witness

  	
  Date       
  10/28/05

  	
  (Company)

  	
  Date
  10/28/05

  
									



 


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