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EXHIBIT 10.142
AGREEMENT OF XXXXXXX X. XXXXX TO RESIGN
AS PRESIDENT AND CEO OF BIOSHIELD TECHNOLOGIES, INC.
This AGREEMENT is made this 10th day of November, 2000, (the "Effective
Date") between BioShield Technologies, Inc., a Georgia corporation ("COMPANY")
and Xxxxxxx X. Xxxxx, an individual resident of the state of Georgia ("Moses").
WHEREAS, Moses desires to withdraw from his day-to-day duties as an
employee of the Company;
WHEREAS, the Company wishes for Moses to continue to perform services
for the Company as Chairman of the Company's Board of Directors; and
WHEREAS, the Company wishes to continue to receive advice and
consultation from Moses from time to time on an as-needed basis;
NOW THEREFORE, the Company and Moses covenant and agree as follows:
1. Effective November 16, 2000, the Employment Agreement between
the Company and Moses dated January 1, 1998 ("Employment Agreement") and Moses's
employment thereunder is terminated by mutual agreement and Moses resigns as
President and CEO of BioShield Technologies, Inc. Moses shall remain as Chairman
of the Board of Directors of BioShield until the earlier of: (i) his
resignation; and (ii) removal by the shareholders of the Company. He will
continue to be an officer and director of Electronic Medical Distribution, Inc.
("EMD"). The arrangements between the Company and Moses set forth below shall be
Moses complete severance package and shall be in lieu of all amounts payable
and/or benefits due Moses under the Employment Agreement upon termination of
employment or otherwise.
2. Moses will continue to receive his monthly salary of Twenty
Thousand Eight Hundred Thirty Three Dollars ($20,833) per month through
December, 2003 (the "End Date") less all state and federal withholding in
accordance with Company practice and policy. Such payments shall be directly
deposited into the same bank account under the instructions currently in place
for Moses. In the event of Moses' death prior to his receipt of the payments
described herein, the Company shall have the option to continue monthly payments
as described herein or make a lump sum payment of the then-present value of the
remaining payments hereunder to Moses' spouse if surviving and, if not, to
Moses' QTIP Trust utilizing the following assumptions: 1983 GAM Table average
male and female and an interest rate factor of 6.5%.
3. Through the End Date, Moses will continue to receive an
automobile allowance at the Company's expense of One Thousand Five Hundred
Dollars ($1,500.00) per month as well as all health, dental, and life insurance
and disability benefits on the same basis as he received such benefits
immediately before the termination of the Employment Agreement, subject only to
future changes by the Company in insurance plans and coverages available to the
Company's most senior executive officers.
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4. Concurrently with the execution of this Agreement,
non-qualified, immediately vested options to purchase an additional One Million
(1,000,000) shares of Company common stock with full voting power at the strike
price of $ 1.00 per share (the "Options"). Moses shall be solely responsible for
any and all tax consequences to him of the grant of the options and their
exercise. The Options shall be exercisable via any method permitted by law.
Moses specifically agrees and acknowledges that, upon the exercise of the
Options, he will not pledge, sell short, loan, hypothecate, or margin the shares
received ("Option Shares") through the exercise of the Options and, further,
that any such attempted pledge, assignment as security, margining, or other
hypothecation of the Option Shares shall be void and of no force and effect.
Moses further agrees that he will vote all of the Option Shares as directed by a
majority of the Board of Directors for a period of one year following the
Effective Date with respect to the election of BioShield Directors and Officers.
The Parties agree that any attempt by Moses to pledge, assign as security,
margin, or otherwise hypothecate any of the Option Shares would constitute an
immediate material breach of this Agreement and would cause the Company serious
damages, which would not be readily ascertainable. The parties therefore agree
that any such breach shall entitle the Company to recover, as liquidated
damages, all amounts which remain unpaid to Moses under Paragraphs 2 and 3
hereof as of the date of the Breach, such amounts being a reasonable estimation
of the Company's damages.
5. Moses shall also receive a loan from the Company in an amount
sufficient to cover the exercise price of the Options, which the Company
estimates will be One Million and No/100 Dollars ($1,000,000). The sole and
exclusive purpose of the loan shall be the exercise of the Options. Moses shall
execute a note evidencing the indebtedness ("Note") The Note shall bear interest
at a rate of Nine percent (9%), with the Prime Rate being defined as the Prime
Rate published by the Wall Street Journal on the Effective Date or the business
day closest to the Effective Date in the even that the Effective Date is not a
business day. The interest payable under the Note shall be capitalized into the
principal, and the total amount of principal and interest under the Note shall
be due and payable on the first anniversary of the Effective Date.
6. In order to secure payment of the Note and any liquidated
damages which become due under Paragraph 4, the Company is hereby granted a
security interest in, and a right of recoupment against, any and all payments
due from the Company to Moses pursuant to Paragraphs 2 and 3 hereof
("Collateral"). Xxxxx agrees to sign his name to all documents (including
UCC-1's), and to take all actions, which are necessary or appropriate to the
perfection of the Company's security interest. In addition, the Company's right
to setoff against the Collateral any claims it may have, from time to time,
against Moses is hereby expressly acknowledged.
7. Moses agrees to execute such additional documents, if any, as
may be reasonably requested by the Company to transition operational
responsibilities, including assignment of patent and/or inventorship rights on
patents and/or patentable technology developed for the Company during the term
and within the scope of Moses' employment up to and including the Effective
Date, provided, however, that the Company expressly acknowledges that Moses may,
subsequent to the Effective Date, develop patentable or potentially patentable
technology, and unless such technology is developed by Moses for the Company
pursuant to a written agreement, the Company shall have no right of ownership,
title, or interest in or to any such subsequently developed technology.
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8. From the Effective Date through the End Date, Moses agrees to
make himself reasonably available at mutually acceptable times to advise and
consult with the Company with respect to Company's technology, products,
financial affairs, and fund raising. The Company agrees to pay Moses a bonus at
Moses' election in Company common stock, cash, setoff against the Note, options
to purchase Company common stock, or warrants, having a value equal to five
percent (5%) of the net proceeds of any funds raised for the Company at its
written request through or by the direct efforts of Moses, excluding funds
raised through X.X. Xxxxx Securities, Inc., Greenfield Capital Management,
Xxxxxx LLC, or their affiliates. In no event shall the total compensation paid
by the Company to Moses and any third party exceed ten percent (10%) of the
proceeds raised, and Moses agrees to reduce his compensation so that such total
compensation not exceed ten percent (10%). In addition the Company agrees to pay
Moses a fee of $500,000 (and Moses agrees to accept payment of the fee in the
form of a setoff against the Note which reduces the amount payable under the
Note by $500,000 plus all interest accrued on that amount from the date of the
Note) if he is able to successfully restructure all of the convertible
securities of the Company which are issued to Greenfield Capital Management,
Xxxxxx LLC, and Xxxxxxx LLC or any of their affiliates ("Convertible
Securities") such that half of the Convertible Securities are exchanged for
unsecured securities of EMD without any residual liability to BioShield and the
other half of the Convertible Securities are modified to extend for six months
the inception date of the holders right to convert such securities into
BioShield stock without an increase in the interest rate of such Convertible
Securities above fifteen percent (15%).
9. Moses agrees not to sell more Company stock than is allowed
under Rule 144 or to sell any Company stock during any Company blackout periods
and trading windows, as in effect from time to time.
10. All options to acquire shares of common stock of the Company,
including options to acquire shares of EMD, granted hereunder and all prior
grants (the "Options") shall expire on the fifth (5th) anniversary of the
Effective Date. The Options shall survive any merger, change in control, or
transaction in which the Company is not the surviving entity and shall be
subject to adjustment (to the extent of any unexercised Options) to reflect the
effect of any stock split, reinvestments, dividend, and/or transfer which would
have an impact on (i) the number of options; and/or (ii) the option strike
price.
11. The Company and Moses agree that they shall not engage in any
communications that shall disparage one another or interfere with their
respective business relationships and business opportunities. The Company and
Moses shall issue a joint, mutually acceptable press release concerning this
Agreement.
12. No failure or delay on the part of the Company or Moses in
exercising any right, power, or remedy under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy.
13. No amendment, supplement, modification, termination, waiver,
or departure from the terms of any provision of this Agreement shall be
effective unless signed in writing by the
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Company and Moses. Any amendment, supplement, or modification of or to any of
this Agreement, any waiver of any provision of this Agreement, and any consent
to any departure from the terms of any provision of this Agreement shall be
effective only in the specific instance and for the specific purpose for which
made or given.
14. This Agreement shall be binding upon the Company and Moses and
their respective successors and permitted assigns.
15. This Agreement and the rights and obligations hereunder shall
be construed and enforced in accordance with and governed by the laws of the
state of Georgia, without giving effect to the principles of conflicts of laws
thereof.
16. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability only without invalidating
the remaining provisions hereof or affecting the validity or enforceability of
such provision in any other jurisdiction.
17. This Agreement, if and when consummated, shall be the entire
agreement between the Company and Moses with respect to the subject matter
hereof and there are no promises or undertakings with respect thereto not
expressly set forth herein.
18. Notwithstanding anything herein to the contrary, nothing
herein shall limit or otherwise operate to limit, abrogate, or supplant any
authority, rights, duties, or obligations as Moses may retain as Chairman of the
Board of Directors of the Company as provided by the By-Laws and the Charter of
the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BIOSHIELD TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Chairman, CEO and President
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