Exhibit 10.4


 


SEVERANCE AGREEMENT


 


This SEVERANCE AGREEMENT, (the “Agreement”) is
made and entered into as of March 13, 2009 (the “Effective
Date”), by and between INFOLOGIX, INC., a Delaware corporation (the “Company”), and CRAIG A. WILENSKY (“Executive”).


 


BACKGROUND


 


WHEREAS the Company provides enterprise mobility solutions to the
healthcare, pharmaceutical, retail, transportation, travel and entertainment,
supply chain/logistics, manufacturing and financial markets, which solutions
include, without limitation, designing, developing and manufacturing wireless
communication and computing devices, implementing customized RFID and other
software and proprietary technologies, and providing professional services that
support and complement customers’ wireless computing systems (the “Business”); and


 


WHEREAS the Board of Directors of the Company (the “Board”) has determined that it is in the best interests of
the Company and its stockholders that the Company attract, retain and motivate
highly qualified management; and


 


WHEREAS the Board believes that the execution by the Company of
severance agreements with certain executive officers, including Executive, is
an important factor in achieving this desired end; and


 


WHEREAS Executive’s employment agreement with the Company expired
effective December 31, 2008 and the Company desires to continue Executive’s
employment as an executive officer of the Company on an “at will” basis and to
provide Executive with certain benefits in the event his employment with the
Company is terminated; and


 


WHEREAS Executive’s annual salary for services as an employee of the
Company (the “Base Salary”) will be $295,000
effective January 1, 2009; and


 


WHEREAS the Company and Executive each acknowledge and agree that the
confidentiality, noncompetition and nonsolicitation agreements and other
restrictive covenants contained in Section 4 (Restrictive
Covenants) constitute essential elements of this Agreement.


 


NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained in this Agreement and intending to be
legally bound, the parties hereto agree as follows:


 


SECTION 1.         TERM OF
AGREEMENT


 


1.1          Term.  The term of this Agreement shall be two years
commencing on the Effective Date, as further extended or unless sooner
terminated in accordance with the other provisions of this Agreement (the “Term”).  Except as
hereinafter provided, on the second anniversary of the Effective Date and on
each subsequent anniversary thereof, the Term shall be automatically extended
for one year unless the Company provides Executive with written notice of 


 

















 


termination of this
Agreement at least 30 days prior to such anniversary, provided, however,
that (a) from and after a Separation from Service (as defined below in Section 2.1
(Certain Definitions)) during the term of this Agreement, this Agreement shall
remain in effect until all of the obligations of the parties hereunder are
satisfied or have expired, and (b) this Agreement shall terminate if
Executive shall cease to be an executive officer of the Company.


 


1.2          No Entitlement.  Nothing contained in this Agreement shall be
construed to create a contract of employment for a specified time.  Executive is employed on an “at will” basis
and may be terminated at any time.


 


SECTION 2.         TERMINATION


 


2.1          Certain Definitions. 
When used in this Agreement, the following terms shall have the specific
meanings shown in this Section unless the context of any provision of this
Agreement clearly requires otherwise:


 


(i)            “Change in Control”
of the Company shall mean any of the following events:


 


(A)          a merger or consolidation of the Company with any
other corporation, other than a merger or consolidation resulting in the
combined voting power of the securities of the Company ordinarily (and apart
from the rights accruing under special circumstances) having the right to vote
in the general election of directors (calculated as provided in paragraph (d) of
Rule 13d-3 in the case of rights to acquire such securities) immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting stock of the surviving entity) more than a majority
of the combined voting power of the securities of the Company (or such
surviving entity) immediately after such merger or consolidation;


 


(B)           any sale, lease, exchange, or other transfer (in one
transaction or a series of related transactions) of all, or substantially all,
of the assets of the Company;


 


(C)           the dissolution and liquidation of the Company;


 


(D)          any person or “group” (other than a benefit plan
sponsored by either the Company or a subsidiary of the Company) becoming the “beneficial
owner,” directly or indirectly, of securities representing a majority of the
combined voting power of the then outstanding securities of the Company
ordinarily (and apart from the rights accruing under special circumstances)
having the right to vote in the election of directors (calculated as provided
in paragraph (d) of Rule 13d-3 in the case of rights to acquire such
securities).


 


(E)           during any 12-month period, directors of the Company
in office at the beginning of such period ceasing for any reason to constitute
a majority of the Board, unless the election, or nomination for election by the
Company’s stockholders, of at least 75% of the directors who were not directors
at the beginning of such period was approved by vote of at least two-thirds of
the directors in office at the time of such election or nomination who were
directors at the beginning of such period.


 


For
purposes hereof, the terms “group” and “beneficial owner” shall have the meanings given to them in Rule 13d-3;
and “Rule 13d-3” shall mean Rule 13d-3
under the Securities Exchange Act of 


 


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1934.


 


(ii)           “Cause” shall mean the following:


 


(A)          commission of any act of fraud or dishonesty in
connection with Executive’s employment, or theft, misappropriation or
embezzlement of the Company’s funds;


 


(B)           indictment for any felony, crime involving fraud or
misrepresentation, or for any other crime (whether or not such felony or crime
is connected with Executive’s employment) the effect of which in the judgment
of the Board is likely to adversely affect the Company or its affiliates;


 


(C)           repeated and consistent failure of Executive to be
present at work during normal business hours unless the absence is because of
Executive’s Disability (as defined below);


 


(D)          violation of any lawful express direction of the
Company or any violation of any rule, regulation, policy or plan established by
the Company from time to time regarding the conduct of its employees and/or the
Business, if such violation is not remedied (if capable of remedy) by Executive
within 15 days of receiving notice of such violation from the Company;


 


(E)           gross incompetence or willful misconduct in the
performance of, or gross neglect of, Executive’s duties under this Agreement or
otherwise in the performance of his employment with the Company (after not less
than 15 days’ prior written notice specifying deficiencies in performance);


 


(F)           disclosure or use of Confidential Information, as
defined in Section 4.1 (Confidentiality), other than as required in
the performance of Executive’s employment with the Company; and


 


(G)           Executive’s use of alcohol or any unlawful controlled
substance to an extent that it interferes materially with the performance of
Executive’s employment with the Company.


 


(iii)          “Code” shall mean the Internal Revenue Code of 1986, as
amended, together with any applicable regulations thereunder.


 


(iv)          “Disability” shall mean the Executive is, in the
reasonable opinion of a physician selected by the Board, unable or
substantially unable, due to his physical, mental or emotional illness or
condition, to substantially perform his duties for a period of 16 consecutive
weeks in any 18 month period or is deemed disabled under the Company’s
disability insurance policy then in effect.


 


(v)           “Good Reason” shall mean any of the following actions
without Executive’s consent, other than due to Executive’s death or Disability:
(A) Executive’s assignment to a position, title, responsibilities, or
duties of a materially lesser status or degree of responsibility than the
position, responsibilities, or duties of the Company or removal from his
position as an executive officer of the Company, (B) the reduction of
Executive’s base salary or bonus opportunity, except 


 


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pursuant to a reduction which also applies to the
Company’s other senior executives, (C) the requirement by the Company that
Executive relocate Executive’s primary office or location more than 25 miles
from the Executive’s then current primary office or location, or (D) the
requirement that Executive report to any officer of the Company other than its
Chief Executive Officer; provided, however, that Executive must have given
written notice to the Company that Executive believes he has the right to
terminate employment for good reason, specifying in reasonable detail the
events comprising the good reason, and the Company fails to eliminate the good
reason within 15 days after receipt of the notice.


 


(vi)          “Payment Date” shall mean the 75th day after Executive’s
Separation from Service, subject to Section 3.5 (Certain Section 409A
Rules).


 


(vii)         “Separation from Service” shall mean Executive’s separation from
service with the Company and its affiliates within the meaning of Treas. Reg.
§1.409A-1(h) or any successor thereto.


 


(viii)        “Specified Employee” shall mean Executive if he is a
specified employee as defined in Section 409A of the Code as of the date
of his Separation from Service.


 


2.2          Entitlement to Severance Benefits. 
Executive shall be entitled to the benefits provided in this Agreement
in the event the Executive has a Separation from Service under the circumstances
described in (i) through (iii) below (a “Covered Termination”), provided that Executive executes, and
does not revoke, a full Release agreement in favor of the Company as described
below.  A Covered Termination shall have
occurred in the event that:


 


(i)            Executive’s employment with the Company is terminated
prior to a Change in Control other than (A) by the Company for Cause, (B) by
Executive, or (C) due to Executive’s Disability; or


 


(ii)           Executive is not offered comparable employment by the
Company’s successor upon a Change in Control; or


 


(iii)          Executive’s employment with the Company or its
successor (referred to jointly as the “Company”) is terminated within 12 months
following a Change in Control other than (A) by the Company for Cause, (B) by
Executive without Good Reason, or (C) due to Executive’s Disability (a
Covered Terminations of the type described in items (ii) and (iii) shall
be referred to herein as a “Change in Control
Termination”).


 


For
purposes of this section, a “Release” shall
mean a release (in substantially the form attached hereto as Exhibit A)
of any and all claims against the Company and all related parties with respect
to all matters arising out of Executive’s employment by the Company and its
affiliates, or the termination thereof (other than claims for any entitlements
under the terms of this Agreement). 
Notwithstanding any provision of this Agreement to the contrary, if the
Company provides a form of Release to Executive for Executive to sign,
Executive shall not be entitled to any payments or benefits under this
Agreement unless Executive signs and returns the Release to the Company before
the lump-sum payment is made to him; provided that, if the Release is not
presented to Executive within 10 days after Separation from Service, the
requirement that Executive sign the Release shall be waived.  If the Release is presented to Executive
within such 10-day period, but Executive does not sign and return the Release
to the Company by the end of the applicable consideration period 


 


4

















 


under
the federal Age Discrimination in Employment Act (currently, either 21 or 45
calendar days), then Executive shall forfeit the lump-sum payment.  If the Release is timely signed and returned
to the Company and not thereafter revoked, such lump-sum payment shall be made
to Executive on the Payment Date.


 


2.3          Severance Payment. 
In the event of a Covered Termination, Executive shall be entitled to
receive a severance amount (the “Severance Amount”)
equal to the sum of:


 


(a)           an amount equal to the Executive’s Base Salary as of
the date of the Covered Termination (the “Termination Date”);
and,


 


(b)           in addition to the amount payable under Section 2.3(a) hereof,
(i) in the event of a Change in Control Termination, in addition to the
amount payable under Section 2.3(a) hereof, an amount equal to
the maximum annual incentive cash bonus at the rate in effect as of the
Termination Date, or (ii) other than in the event of a Change in
Control Termination, an amount equal to the pro rata portion of the maximum
annual incentive cash bonus at the rate in effect as of the Termination Date,
which shall be calculated based on a numerator equal to the number of days
between January 1 and the date of the Covered Termination and a
denominator of 365.


 


Executive
will also be entitled to the benefits and payments referred to in Sections
3.1 (Welfare Benefits) and 3.3 (Other Payments and Benefits).  The Severance Amount shall be deposited into
a third-party escrow account within 10 days of the Termination Date and paid to
Executive in a lump-sum on the Payment Date.


 


2.4          Vesting of Equity Compensation.  In the event
of a Covered Termination, and notwithstanding any provision to the contrary in
any of the Company’s equity compensation plans, all of Executive’s outstanding
equity compensation awards shall become fully vested and exercisable as of the
Termination Date.


 


SECTION 3.         BENEFITS FOLLOWING TERMINATION


 


3.1          Welfare Benefits.  Subject to Section 3.2
(Effect of Other Employment), for a period of up to 18 months following a
Covered Termination of Executive, Executive and Executive’s dependents shall be
entitled to participate in the Company’s medical and dental insurance plans at
Executive’s expense, in accordance with the terms of such plans at the time of
such Covered Termination as if Executive were still employed by the Company or
its affiliates under this Agreement.  The
continued coverage provided to Executive under this Section 3.1
shall meet the requirements for COBRA health care continuation coverage, and
the COBRA health care continuation coverage period under section 4980B of the
Code shall run concurrently with the period of continued health coverage
following the Termination Date.


 


3.2          Effect of Other Employment.  In the event
Executive becomes employed during the period with respect to which benefits are
continuing pursuant to Section 3.1 (Welfare Benefits):  (a) Executive shall notify the Company
not later than the day such employment commences; and (b) the benefits
provided for in Section 3.1 (Welfare Benefits) shall terminate as
of the date of such employment.  Nothing
herein shall relieve the Company of its obligations for compensation or
benefits accrued up to the time of termination provided for herein.


 


5

















 


3.3          Other Payments and Benefits. 
On the Payment Date, the Company shall pay or cause to be paid to
Executive his earned but unpaid Base Salary and accrued vacation through the
Termination Date.  Executive shall be
entitled to receive any other payments or benefits to which he is entitled
pursuant to the express terms of any plan, policy or arrangement of the
Company, provided that the Severance Amount (i) shall be in lieu of any
severance payments to which Executive might otherwise be entitled and (ii) shall
be credited against any severance payments to which Executive may be entitled
by statute.


 


3.4          Death After Covered Termination.  In the event
Executive dies after a Covered Termination occurs, (a) any payments due to
Executive under Section 2 (Termination)  and Section 3.3 (Other Payments
and Benefits) and not paid prior to Executive’s death shall be made to the
person or persons who may be designated by Executive in writing or, in the
event he fails to so designate, to Executive’s personal representatives, and (b) Executive’s
spouse and dependents shall continue to be eligible for the welfare benefits
described in Section 3.1 (Welfare Benefits).  Payments pursuant to subsection (a) above
shall be made on the date payment would have been made to Executive without
regard to Section 3.5 (Certain Section 409A Rules).


 


3.5          Certain Section 409A Rules.


 


(a)           Specified Employee. 
Notwithstanding any provision of this Agreement to the contrary, if
Executive is a Specified Employee, any payment or benefit under this Agreement
that constitutes deferred compensation subject to Section 409A of the Code
and for which the payment event is Separation from Service shall not be made or
provided for before the date that is six months after the date of Executive’s
Separation from Service.  Any payment or
benefit that is delayed pursuant to this Section 3.5 shall be made
or provided on the first business day of the seventh month following the month
in which Executive’s Separation from Service occurs.  With respect to any cash payment delayed
pursuant to this Section 3.5, the first payment shall include
interest, at the Wall Street Journal Prime Rate published in the Wall Street
Journal on the date of the Separation of Service (or the previous business day
if such date is not a business day), for the period from the date the payment
would have been made but for this Section3.5 through the date payment is
made.  The provisions of this Section 3.5
shall apply only to the extent required to avoid Executive’s incurrence of any
additional tax or interest under Section 409A of the Code.


 


(b)           Reimbursement and In-Kind Benefits. 
Notwithstanding any provision of this Agreement to the contrary, with
respect to in-kind benefits provided or expenses eligible for reimbursement
under this Agreement that are subject to Section 409A of the Code, (i) the
benefits provided or the amount of expenses eligible for reimbursement during
any calendar year shall not affect the benefits provided or expenses eligible
for reimbursement in any other calendar year, except as otherwise provided in
Treas. Reg. §1.409A-3(i)(1)(iv)(B), and (ii) the reimbursement of an
eligible expense shall be made as soon as practicable after Executive requests
such reimbursement (subject to Section 3.5(a)), but not later than
the December 31 following the calendar year in which the expense was
incurred.


 


(c)           Interpretation and Construction. 
This Agreement is intended to comply with Section 409A of the Code
and shall be administered, interpreted and construed in accordance therewith to
avoid the imposition of additional tax under Section 409A of the Code.


 


6

















 


3.6          Limitation on Payment Obligation.


 


(a)           Definitions.  For purposes
of this Section 3.6, all terms capitalized but not otherwise
defined herein shall have the meanings as set forth in Section 280G of the
Code.  In addition:


 


(i)            the term “Parachute Payment”
shall mean a payment described in Section 280G(b)(2)(A) or Section 280G(b)(2)(B) of
the Code (including, but not limited to, any stock option rights, stock grants,
and other cash and noncash compensation amounts that are treated as payments
under either such section) and not excluded under Section 280G(b)(4)(A) or
Section 280G(b)(6) of the Code;


 


(ii)           the term “Reasonable Compensation”
shall mean reasonable compensation for prior personal services as defined in Section 280G(b)(4)(B) of
the Code and subject to the requirement that any such reasonable compensation
must be established by clear and convincing evidence; and


 


(iii)          the portion of the “Base Amount” and the amount of “Reasonable
Compensation” allocable to any “Parachute Payment” shall be determined in
accordance with Section 280G(b)(3) and (4) of the Code.


 


(b)           Limitation.  Notwithstanding
any other provision of this Agreement, Parachute Payments to be made to or for
the benefit of Executive but for this subsection (b), whether pursuant to this
Agreement or otherwise, shall be reduced if and to the extent necessary so that
the aggregate Present Value of all such Parachute Payments shall be at least
one dollar ($1.00) less than the greater of (i) three times Executive’s
Base Amount and (ii) the aggregate Reasonable Compensation allocable to
such Parachute Payments.  Any reduction in
Parachute Payments caused by reason of this subsection (b) shall be
applied in the manner least economically detrimental to Executive.  In the event reduction of two or more types
of payments would be economically equivalent, the reduction shall be applied
pro-rata to such types of payments.


 


This subsection (b) shall be interpreted and applied to limit the
amounts otherwise payable to Executive under this Agreement or otherwise only
to the extent required to avoid any material risk of the imposition of excise
taxes on Executive under Section 4999 of the Code or the disallowance of a
deduction to the Company under Section 280G(a) of the Code.  In the making of any such interpretation and
application, Executive shall be presumed to be a disqualified individual for
purposes of applying the limitations set forth in this subsection (b) without
regard to whether or not Executive meets the definition of disqualified
individual set forth in Section 280G(c) of the Code.  In the event that Executive and the Company are
unable to agree as to the application of this subsection (b), the Company’s
independent auditors shall select independent tax counsel to determine the
amount of such limits.  Such selection of
tax counsel shall be subject to Executive’s consent, provided that Executive
shall not unreasonably withhold his consent. 
The determination of such tax counsel under this Section 3.6
shall be final and binding upon Executive and the Company.


 


(c)           Illegal Payments. 
Notwithstanding any other provision of this Agreement, no payment shall
be made hereunder to or for the benefit of Executive if and to the extent that
such payments are determined to be illegal.


 


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SECTION 4.         RESTRICTIVE COVENANTS


 


4.1          Confidentiality.


 


(a)           Executive shall not, either
during or after his employment with the Company, directly or indirectly use,
publish or otherwise disclose or divulge to any third party any Confidential
Information other than as required by law or except as may be necessary in the
performance of Executive’s employment with the Company.  Executive will comply with all policies
generally applicable to Company employees then in effect, including, without
limitation, confidentiality policies, security and access policies and other
comparable policies.  The Company may
amend these policies from time to time upon reasonable notice to
Executive.  As used in this Agreement, “Confidential Information” shall mean all Intellectual
Property and all confidential and proprietary information, technical data,
trade secrets or know-how of the Company, including, without limitation, any
information concerning customers (including customer lists), vendors, services,
products, product plans, processes, designs, research, developments, inventions,
formulas, technology, drawings, engineering, hardware configuration
information, pricing policies, business plans or records, any technical or
financial information or data, any information relating to the history or
prospects of the Company or any of its stockholders, or other business
information disclosed to Executive by the Company either directly or indirectly
in writing, orally or by drawings or Executive’s observation of parts or
equipment, unpublished information and all information and data that is not
generally known by the industry.


 


(b)           Executive shall not, either
during or after his employment with the Company, directly or indirectly copy,
reproduce or remove from the Company’s premises, except as may be necessary in
the performance of Executive’s employment with the Company, any Confidential
Information (in any medium) or any Company documents, files or records
(including, without limitation, any invoices, customer correspondence, business
cards, orders, computer records or software, or mailing, telephone or customer
lists).  All such documents, files and
records, and all other memoranda, notes, files, records, lists and other
documents made, compiled or otherwise acquired by Executive in the course of
his employment with the Company are and shall remain the sole property of the
Company and all originals and copies thereof shall be delivered to the Company
upon termination of employment for whatever reason.


 


4.2          Inventions and Improvements. 
Executive hereby assigns, and agrees to assign (when first reduced to
practice or first fixed in a tangible medium, as applicable), to the Company
all of Executive’s right, title and interest (to the extent not already owned
by the Company as a work for hire or otherwise), without further consideration,
free from any claim, lien for balance due, or rights of retention, in and to
and any all Intellectual Property.  “Intellectual Property” means all patents, trademarks,
copyrights, and trade secrets, including without limitation, writings,
inventions, improvements, processes, procedures, ideas and/or techniques,
whether or not patentable or registerable under copyright or similar statutes,
which Executive may have made, conceived, discovered, developed, learned or
reduced to practice, or which Executive may make, conceive, discover, develop,
learn or reduce to practice, either solely or jointly with any other person or
persons, at any time during his employment with the Company, whether or not
during working hours and whether or not at the request or upon the suggestion
of the Company, which (i) are related or relate to or are useful in
connection with any business previously, now or hereafter carried on or
contemplated by the Company, including developments or expansions of its
present fields of operations, (ii) resulted or result from any work
performed by Executive for the Company or any of its clients; or (iii) resulted
or result from the use of the premises or personal property (whether 


 


8

















 


tangible or intangible) owned, leased, or contracted
for by the Company, in each case whether or not the Intellectual Property was
reduced to drawing, written description, documentation, models or other
tangible form, or is related to the general line of business engaged in by the
Company.  Executive
acknowledges that any Intellectual Property relating to Executive’s activities
while working for the Company and that Executive has, solely or jointly with
any other person or persons, conceived, developed or reduced to practice or caused
to be conceived, developed or reduced to practice within 12 months after
termination of Executive’s employment with the Company may have been conceived
in significant part while employed by the Company.  Accordingly, Executive agrees that such
Intellectual Property shall be presumed to have been conceived during Executive’s
employment with the Company and is to be assigned to the Company in accordance
with this Agreement unless and until Executive has established the
contrary.  Executive acknowledges that
all Intellectual Property that is an original work of authorship made by
Executive (solely or jointly with any other person or persons) in the course of
Executive’s employment and is protectable by copyright shall be owned
exclusively by the Company as a “work made for hire” within the meaning of the
Copyright Act of 1976, as amended (the “Act”).  Executive agrees that he shall make full
disclosure to the Company of all such writings, inventions, improvements,
processes, procedures and techniques, and shall do everything necessary or
desirable to vest, and from time to time enforce, the absolute title thereto in
the Company.  Executive’s obligations to
assist the Company shall include, without being limited to, Executive’s writing
and preparation of all specifications and procedures regarding such inventions,
improvements, processes, procedures and techniques, and otherwise aiding and
assisting the Company so that the Company can prepare and present applications
for copyright or letters patent therefor and can secure such copyright or
wherever possible, continuations, continuations-in-part, divisionals, reissues,
renewals, and extensions thereof, and can obtain the record title to such
copyright or patents so that the Company shall be the sole and absolute owner
thereof in all countries in which it may desire to have copyright or patent
protection. Executive’s obligations to assist Company shall survive termination
of this Agreement and continue until the expiration of the last available
protection obtained on the Intellectual Property developed during the Executive’s
term of employment. Executive shall not be entitled to any additional or
special compensation or reimbursement regarding any and all such writings,
inventions, improvements, processes, procedures and techniques.  If the Company is unable, after reasonable
effort, to obtain Executive’s full cooperation and secure Executive’s signature
on any document needed in connection with the actions specified in this
Section, whether because of Executive’s physical or mental incapacity or for
any other reason whatsoever, Executive hereby irrevocably designates and
appoints the Company and its duly authorized officers and agents as Executive’s
agent and attorney-in-fact, to act for Executive and on his behalf to execute,
verify and file any such documents and to do all other lawfully permitted acts
to further the purposes of this Section with the same legal force and
effect as if personally executed by Executive. 
Executive hereby waives and quitclaims to the Company any and all
claims, of any nature whatsoever, which Executive now or may hereafter have for
infringement of any Intellectual Property assigned or to be assigned hereunder
to the Company.


 


4.3          Noncompetition and
Nonsolicitation.  During the
Term and for one  year after any termination of
Executive’s employment for any reason, Executive shall not, for his own benefit
or the benefit of any other person or entity, directly or indirectly, in any
capacity (as an employee, officer, director, shareholder, partner, agent,
principal, independent contractor, owner or otherwise) (i) engage in or be
financially interested in any business operation in the United States that
engages in whole or in part (A) in the Business or (B) in the
manufacture, assembly, design, distribution or marketing of any product or
equipment substantially similar to or in competition with any product or
equipment that at any time during the Term or the immediately preceding twelve
month period has been manufactured, sold or distributed by the Company or any
product or 


 


9

















 


equipment that the Company
was developing during the Term or such twelve month period for future
manufacture, sale or distribution or the provision of any service substantially
similar to or in competition with any service offered by the Company at any
time during the Term or such twelve month period or that the Company was
developing during the Term or such twelve month period; (ii) solicit, or
attempt to solicit  any customer of the
Company; (iii) solicit, or contact with a view to the engagement or
employment by, or hire any person or entity of any person who is an employee of
the Company; (iv) seek to contract with or engage (in such a way as to
adversely affect or interfere with the business of the Company) any person or
entity who has been contracted with or engaged to manufacture, assemble, supply
or deliver products, goods, materials or services to the Company; or (v) engage
in or participate in any effort or act to induce any of the customers,
associates, consultants or employees of the Company or any of its affiliates to
take any action that might be disadvantageous to the Company or any of its
affiliates; except that nothing in this Agreement shall prohibit Executive and
his affiliates from owning, as passive investors, in the aggregate not more
than 5% of the outstanding publicly traded stock of any corporation so
engaged.  The duration of Executive’s
covenants set forth in this Section shall be extended by a period of time
equal to the number of days, if any, during which Executive is in violation of
the provisions contained in this Agreement.


 


4.4          Injunctive
and Other Relief.


 


(a)           Executive acknowledges that
the covenants contained in this Agreement are fair and reasonable in light of
the consideration paid under this Agreement, and that damages alone shall not
be an adequate remedy for any breach by Executive of any provision of this Section 4,
and accordingly expressly agrees that, in addition to any other remedies that
the Company may have, the Company shall be entitled to injunctive relief in any
court of competent jurisdiction for any breach or threatened breach by
Executive of any of the covenants set forth in this Agreement.  Nothing contained in this Agreement shall
prevent or delay the Company from seeking, in any court of competent
jurisdiction, specific performance or other equitable remedies in the event of
any breach or intended breach by Executive of any of his obligations under this
Agreement.


 


(b)           Notwithstanding the
equitable relief available to the Company, Executive, in the event of a breach
of his covenants contained in this Section 4, understands that the
uncertainties and delays inherent in the legal process would result in a
continuing breach for some period of time, and therefore, continuing injury to
the Company until and unless the Company can obtain such equitable relief.  Therefore, in addition to such equitable
relief, the Company shall be entitled to monetary damages for any such period
of breach until the termination of such breach, in an amount deemed reasonable
to cover all actual and consequential losses, plus all monies received by
Executive as a result of said breach.  If
Executive should use or reveal to any other person or entity any Confidential
Information, it will be considered a continuing violation on a daily basis for
so long a period of time as such Confidential Information used by Executive or
any such other person or entity.


 


(c)           Executive agrees that the territorial and time limitations
set forth in this Section 4 are reasonable and properly required
for the adequate protection of the business of the Company and that in the
event that any such territorial or time limitation is deemed to be unreasonable
by a court of competent jurisdiction, then Executive agrees and submits to the
reduction of either such territorial or time limitation to such an area or
period as such court shall deem reasonable.


 


10
















 


SECTION 5.       MISCELLANEOUS


 


5.1                               Arbitration.


 


(a)                                  All
disputes arising out of or relating to this Agreement that cannot be settled by
the parties shall promptly be submitted to and determined by a single
arbitrator in Montgomery County, Pennsylvania, pursuant to the rules and
regulations then existing of the American Arbitration Association; but nothing
in this Agreement shall preclude the Company from seeking, in any court of
competent jurisdiction, damages, specific performance or other equitable remedies
in the case of any breach or threatened breach by Executive of Section 4
(Restrictive Covenants).  The decision of
the arbitrator shall be final and binding upon the parties, and judgment upon
such decision may be entered in any court of competent jurisdiction.


 


(b)                                 Discovery
shall be allowed pursuant to the intendment of the United States Federal Rules
of Civil Procedure and as the arbitrators determine appropriate under the
circumstances.


 


(c)                                  The
arbitrator shall be required to apply the contractual provisions of this
Agreement in deciding any matter submitted to it and shall not have any
authority, by reason of this Agreement or otherwise, to render a decision that
is contrary to the mutual intent of the parties as set forth in this Agreement.


 


5.2                               Severability.  The invalidity or unenforceability of any
particular provision or part of any provision of this Agreement shall not
affect the other provisions or parts of this Agreement.  If any provision of this Agreement is
determined to be invalid or unenforceable by a court of competent jurisdiction
by reason of the duration or geographical scope of the covenants contained in
this Agreement, such duration or geographical scope, or both, shall be
considered to be reduced to a duration or geographical scope to the extent
necessary to cure such invalidity.


 


5.3                               Assignment.


 


(a)                                  This
Agreement is personal to Executive and shall not be assignable by Executive, by
operation of law or otherwise, without the prior written consent of the Company
other than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of
Executive’s heirs and legal representatives.


 


(b)                                 This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns, including, without limitation, any subsidiary of the
Company to which the Company may assign any of its rights hereunder.


 


(c)                                  The
Company shall require any successor (whether direct or indirect, by purchase,
merger, consolidation, operation of law, or otherwise) to all or substantially
all of the business and/or assets of the Company to assume expressly and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place,
but, irrespective of any such assignment or assumption, this Agreement shall
inure to the benefit of, and be binding upon, such a successor.


 


5.4                               Notices.  All notices, consents, waivers, and other
communications required or permitted by this Agreement shall be in writing and
shall be deemed given to a party when (a) 


 


11

















 


delivered to the appropriate address by hand or by nationally
recognized courier service (costs prepaid); (b) sent by facsimile with
confirmation of transmission by the transmitting equipment; or (c) received or
rejected by the addressee, if sent by certified mail, return receipt requested;
in each case to the following addresses or facsimile numbers and marked to the
attention of the person (by name or title) designated below (or to such other
address or facsimile number, or person as a party may designate in writing to
the other parties):


 


	
  (a)

  	
   

  	
  If to the Company:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  InfoLogix, Inc.

  
	
   

  	
   

  	
  101 E. County Line Road

  
	
   

  	
   

  	
  Suite 210

  
	
   

  	
   

  	
  Hatboro, PA 19040

  
	
   

  	
   

  	
  Tel: (215) 604-0691

  
	
   

  	
   

  	
  Fax: (267) 681-0682

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention: Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
  (b)

  	
   

  	
  If to Executive:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [                                                        ]

  



 


A
copy of any and all notices and other communications sent by facsimile pursuant
to this Section5.4 shall also be sent by United States mail to the
appropriate address in accordance with this Section 5.4.


 


5.5                               Entire
Agreement and Modification.  This
Agreement constitutes the entire agreement between the parties with respect to
the matters contemplated in this Agreement and supersedes all prior agreements
and understandings with respect to those matters.  Any amendment, modification, or waiver of
this Agreement shall not be effective unless in writing.  Neither the failure nor any delay on the part
of any party to exercise any right, remedy, power or privilege shall operate as
a waiver thereof, nor shall any single or partial exercise of any right,
remedy, power or privilege preclude any other or further exercise of the same
or of any other right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege
with respect to any other occurrence.


 


5.6                               Withholding.  Notwithstanding any provision of this Agreement
to the contrary, the Company may, to the extent required by law, withhold
applicable Federal, state and local income and other taxes from any payment to
Executive hereunder.


 


5.7                               Governing
Law.  This Agreement is made
pursuant to, and shall be construed and enforced in accordance with, the
internal laws of the Commonwealth of Pennsylvania (and United States federal
law, to the extent applicable), without giving effect to otherwise applicable
principles of conflicts of law of that or any other jurisdiction.


 


5.8                               Headings;
Counterparts.  The headings of
paragraphs in this Agreement are for convenience only and shall not affect its
interpretation.  This Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original and all of which, when taken together, shall be deemed to constitute
but one and the same Agreement.


 


12

















 


5.9                               Further
Assurances.  Each of the parties
shall execute such further instruments and take such other actions as any other
party shall reasonably request in order to effectuate the purposes of this
Agreement.


 


5.10                        Waiver.  Neither the failure nor any delay on the part
of either party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any other right, remedy, power or privilege, nor
shall any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or privilege
with respect to any other occurrence.


 


5.11                        Survival.  The terms and conditions contained in Section
4 (Restrictive Covenants) shall survive the termination or expiration of
this Agreement.


 


5.12                        Previous
Agreements.  By entering into
this Agreement, the parties agree that any previous agreements or
understandings regarding Executive in connection with a change in control be
terminated.


 


5.13                        Indemnification.  Executive shall be covered by the Company’s
directors and officers liability insurance policies and indemnification
policies on the same terms and conditions as apply to the Company’s other
senior executives.


 


[signature page follows]


 


13

















 


IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.


 


	
   

  	
   

  	
  INFOLOGIX
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  David T. Gulian

  
	
   

  	
   

  	
   

  	
  Name:
  David T. Gulian

  
	
   

  	
   

  	
   

  	
  Title:
  Chief Executive Officer/President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Craig A. Wilensky

  
	
   

  	
   

  	
  Craig
  A. Wilensky

  
	
   

  	
   

  	
  Executive

  



 


14

















 


Exhibit A


 


FORM OF RELEASE


 


This GENERAL RELEASE (“Release”)
is made and entered into by and between INFOLOGIX, INC. (the “Company”) and
[                      ]
(“Executive”).


 


WHEREAS Executive’s employment with the Company has
terminated; and


 


WHEREAS pursuant to the Severance Agreement by and
between the Company and the Executive dated
[                          ]
(the “Agreement”), the Company has agreed to
pay Executive certain amounts and to provide him with certain rights and
benefits, subject to the execution of this Release.


 


NOW, THEREFORE, in consideration of these premises
and the mutual promises contained herein, and intending to be legally bound,
the parties agree as follows:


 


1.                                       Termination
Date.  Executive’s employment with
the Company has concluded permanently and irrevocably effective
[                        ]
(“Termination Date”).


 


2.                                       Good
and Valuable Consideration / No Further Payment.  Executive acknowledges that the payments,
rights and benefits set forth in Sections 2.3, 2.4, 3.1
and 3.3 of the Agreement constitute full and final settlement of all his
rights under the Agreement and, except as otherwise provided in this Release,
the Company does not and will not have any other liability or obligation to the
Executive.  The Executive further
acknowledges that, in the absence of the execution of this Release, the
benefits and payments specified in Sections 2.3, 2.4 and 3.1
of the Agreement would not otherwise be due him.


 


3.                                       Restrictive
Covenants.  Executive
acknowledges that the restrictive covenants contained in Section 4
of the Agreement will survive the termination of his employment.  Executive affirms that those restrictive
covenants are reasonable and necessary to protect the legitimate interests of
the Company and that he received adequate consideration in exchange for
agreeing to those restrictions and he will abide by those restrictions.


 


4.                                       General
Release.  In consideration of the
payments, rights and benefits referred to in Paragraph 2 hereof and intending
to be legally bound, Executive hereby irrevocably and unconditionally releases
and forever discharges the Company and any and all of its parents,
subsidiaries, affiliates, related entities, and each of its and their
predecessors, successors, customers, insurers, owners, directors, officers,
employees, attorneys, and other agents (“Released Parties”)
of and from any and all rights, obligations, promises, agreements, debts,
losses, controversies, claims, causes of action, liabilities, damages, and
expenses, including without limitation attorneys’ fees and costs, of any nature
whatsoever, whether known or unknown, asserted or unasserted, which he ever
had, now has, or hereafter may have against the Released Parties, or any of
them, that arose at any time before or upon his signing this Release, including
without limitation the right to take discovery with respect to any matter,
transaction, or occurrence existing or happening at any time before or upon his
signing this Release and any and all claims arising under any oral or written
Company 


 


1

















 


program, policy or practice, contract, agreement
or understanding (except this Release), any common-law principle of any
jurisdiction, any federal, state or local statute or ordinance, with all
amendments thereto, including without limitation the Civil Rights Acts of 1866,
1871, 1964, and 1991, the Equal Pay Act, the Age Discrimination in Employment
Act of 1967, the Fair Credit Reporting Act, the Employee Retirement Income
Security Act of 1974, the Americans With Disabilities Act of 1990, the Family
and Medical Leave Act of 1993, the Health Insurance Portability and
Accountability Act of 1996, the Pennsylvania Human Relations Act and any other
employee-protective law of any jurisdiction that may apply.


 


5.                                       Non-Disparagement.  Executive will not disparage any Released
Person or otherwise take any action which could reasonably be expected to
adversely or affect the personal or professional reputation of any released
person.


 


6.                                       Confidentiality.  Executive agrees that, except in an action
for breach of this Release, the terms of this Release shall not be disclosed or
introduced or used in any future proceedings. 
Executive agrees that he shall keep the terms of this Release STRICTLY
CONFIDENTIAL and that he shall not disclose them to any person other than his
immediate family and his current or future attorneys, accountants or tax
advisors, each of whom shall agree before any such disclosure to be bound by
this confidentiality provision.


 


7.                                       Good
Faith Settlement.  This
Release constitutes the good faith compromise and settlement of all claims and
potential claims Executive has against any one or more of the Released Parties
and is not and shall not be construed as an admission of any wrongful or
unlawful act against Executive or that the conclusion of Executive’s employment
was in any way wrongful or unlawful.


 


8.                                       Knowing
and Voluntary Agreement.  Executive acknowledges that he received this Release on
[                                    ];
that the Company advised him in writing, by this Paragraph, to consult with an
attorney before signing this Release; that the Company is providing him with no
less than 21 days to consider this Release before signing it; that the Company
is providing him with no less than 7 days to revoke this Release after signing
it, if he chooses to do so; that Executive carefully read and fully understands
all of the provisions and effects of this Release; that Executive is entering
into this Release voluntarily and free of coercion and duress; and that neither
the Company nor any of its agents or attorneys made any representations or promises
concerning the terms or effects of this Release.


 


9.                                       No
Right to Relief.  Executive
shall have no right to obtain or receive any money damages, injunctive or other
relief through any lawsuit, complaint, action or proceeding commenced or
maintained in any court, agency or other forum by him or any person or entity
on his behalf with respect to any act, omission, claim or other matter that is
covered by Paragraph 4 of this Release. 
If Executive violates or challenges the enforceability of any provisions
of the Restrictive Covenants or this Release, no further payments, rights or
benefits under Sections 2.3, 2.4 and 3.1 of the Agreement
will be due to Executive.


 


10.                                 Governing
Law.  This Release shall in all
respects be interpreted, enforced, and governed under the laws of the
Commonwealth of Pennsylvania, without reference to the principles of conflicts
of law otherwise applicable therein.


 


2

















 


11.                                 Entire
Agreement.  Except as
otherwise provided herein, this Release sets forth the entire agreement between
the parties and fully supersedes any and all written or oral contracts,
agreements or understandings between the parties pertaining to the subject
matter hereof.


 


3

















 


IN WITNESS
WHEREOF, and intending to be legally bound hereby, the parties have executed
this General Release.


 


	
   

  	
   

  	
  INFOLOGIX, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date

  	
   

  	
  [                                                             ]

  
	
   

  	
   

  	
  Executive

  



 


4