Agreement
Exhibit
10.11
Agreement
This Agreement is entered
into between Apro Bio Pharmaceutical Corporation, a Colorado corporation (the
"Company") and Xxxxx Floor (“Floor”), this 8th day of
January, 2009.
Recitals
Whereas, Floor has been employed as an officer and director of the
Company pursuant to an employment agreement dated March 1st, 2006,
a copy of which is attached hereto as Exhibit A..
Whereas, Floor has agreed to resign as an officer and director of the
Company at the Closing Date (as hereinafter defined).
Whereas, the parties desire to amicably resolve their outstanding
issues.
Agreement
Now, therefore, for good and valuable consideration, the receipt of which is
hereby acknowledged by both parties, the parties agree as
follows:
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1.
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Resignation. Floor
hereby resigns as an officer and director of the Company effective on the
closing date (the “Closing Date) of the proposed merger between the
Company and Across America Financial Services, Inc. pursuant to an
Agreement and Plan of Merger dated November 17, 2008, and affirms that he
is no longer acting as an officer or director of the
Company.
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2.
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Payment. In
consideration of the agreements set forth in this Agreement, the Company,
in full and final settlement of all of Floor’s stated and unstated claims,
including any claim for severance, reimbursement of vacation or sick pay,
or other compensation, or any other rights or obligations which may be
asserted by Floor, agrees to make the following payment, and issue the
shares provided for, to Floor (the “Payment and
Issuance”):
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(a)
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The
Company, shall pay to Floor $95,000 in cash or certified funds within 5
days of Closing Date. Such payments reflect $75,000 of compensation and
reimbursement of $20,000 of
expenses.
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(b)
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The
Company shall issue to Floor 50,000 shares of the Company’s restricted
common stock within 5 days of the Closing
Date.
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3.
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Confidentiality. Floor
agrees that he will not, without the prior written consent of the Company,
directly or indirectly disclose to any individual, corporation or other
entity (other than the Company or its affiliates or their respective
officers, directors or employees entitled to such information) or use for
their own or such another’s benefit, any information, whether or not
reduced to written or other tangible form, which (a) is not generally
known to the public or in the industry; (b) has been treated by the
Company as confidential or proprietary; and (c) is of competitive
advantage to the Company or any of its Affiliates (such information being
referred to in this paragraph as "Confidential
Information"). Confidential Information which becomes generally
known to the public without violation of this Agreement shall cease to be
subject to the restrictions of this
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4.
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Non-Disparagement.
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a.
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Effective
the Closing Date, Floor agrees that he shall not make any disparaging
statements about the Company or its affiliates or the directors, officers
or employees of any of them; provided that the provisions of this clause
shall not apply to truthful testimony as a witness, compliance with other
legal obligations, or truthful assertion of or defense against any claim
of breach of this Agreement, or to his truthful statements or disclosures
to officers or directors of the Company, and shall not require Floor to
make false statements or
disclosures.
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b.
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The
Company agrees that neither it nor its affiliates,
directors, officers, nor employees of the Company nor any
spokesperson for any of them shall make any disparaging statements about
Floor; provided that the provisions of this clause shall not apply to
truthful testimony as a witness, compliance with other legal obligations,
truthful assertion of or defense against any claim of breach of this
Agreement or truthful statements or disclosures to Floor, and shall not
require false statements or disclosures to be
made.
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5.
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Releases. Except
for a claim based upon a breach of this Agreement and the performance of
the obligations contained herein, effective as of the Closing Date Floor
shall release the Released Parties (as defined below), and the Company
shall release Floor, from any and all claims, suits, demands, actions or
causes of action of any kind or nature whatsoever, whether the underlying
facts are known or unknown, which Floor or the Released Parties have or
now claim, or might have or claim, pertaining to or arising out of Floor’s
employment by the Company or his separation therefrom, or any breach or
non-performance of any employment or other agreements with Floor, or under
any local, state or federal common law, statute, regulation or ordinance,
including without limitation those claims dealing with employment
discrimination, including without limitation, Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., 42 U.S.C. §
1981, Americans with Disabilities Act, or claims for breach of contract,
for breach of fiduciary duty, for misrepresentation, for defamation, for
wrongful discharge under the common law of any state, for infliction of
emotional distress or for any other tort under the common law of any
state. This release shall run to and be binding upon the
Company and each of its affiliates, and all predecessors, successors and
assigns thereof and each of their
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members,
trustees, shareholders, partners, principals, members, directors,
officers, trustees, employees, agents and attorneys, past or present, and
all predecessors, successors, heirs and assigns thereof (collectively,
"Released Parties"). This release shall also run to and be
binding upon Floor, and all predecessors, successors and assigns thereof
and each of his employees, agents and attorneys, past or present, and all
predecessors, successors, heirs and assigns
thereof.
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6.
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Covenant
Not to Xxx. To the maximum extent permitted by law, as
of the Closing Date, the Company and Floor covenant not to xxx or to
institute or cause to be instituted any action in any federal, state or
local agency or court against the other party regarding the matters
covered by the release contained in paragraph 5 above (except to enforce
the terms of this Agreement). If any party breaches the terms
of the release and covenant not to xxx, then the aggrieved party shall be
entitled to recover its costs, including reasonable attorneys’ fees
incurred in defending such action.
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7.
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Company
Property. Upon execution of this Agreement, Floor shall
return all of the Company’s personal property to the Company, including
all Confidential Information, books and records of the Company and any
other property of the Company or its
affiliates.
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8.
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Modification. No
modification of this Agreement shall be valid unless signed by the party
against whom such modification is sought to be
enforced.
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9.
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Legal
Counsel. Floor acknowledges that he has carefully read
and fully understands the terms and provisions of this Agreement and all
of their rights and obligations thereunder, has had an opportunity to be
represented by legal counsel of his choosing prior to executing this
Agreement which contains a general release and waiver and that his
execution of this Agreement is
voluntary.
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10.
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No
Admission. The parties agree that neither this Agreement
nor performance hereunder constitutes an admission by any party of any
violation of any federal, state or local law, regulation, common law, of
any breach of any contract or any other wrongdoing of any
type.
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11.
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Entire
Agreement. This instrument constitutes the entire
agreement between the
parties.
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12.
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Severability. If
any provision, section, subsection or other portion of this Agreement
shall be determined by any court of competent jurisdiction to be invalid,
illegal or unenforceable in whole or in part, and such determination shall
become final, such provision or portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining
provisions and portions of this Agreement enforceable. This
Agreement as thus amended shall be enforced so as to give effect of the
intention of the parties insofar as that is possible. In
addition, the parties hereby expressly empower a court of competent
jurisdiction to modify any term or provision of this Agreement to the
extent necessary to comply with existing law and to enforce this Agreement
as modified.
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13.
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Governing
Law. This Agreement shall be construed in accordance
with the laws of the State of
Colorado.
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14.
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Counterparts. This
Agreement may be signed in multiple counterparts, each of which shall be
deemed to be an original for all
purposes.
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15.
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Term of
Agreement. This
Agreement shall terminate, and be of no futher force or effect, if the
Payment and Issuance is not completed in its entirety on or before
February 27, 2009. In the event this Agreement termintats as
provided in this paragraph, the resignation of Floor pursuant to paragraph
1 shall have no effect on the payment or other obligations of the Company
or its successor under the Employment
Agreement.
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IN WITNESS WHEREOF, the
parties have executed this Agreement on the date first above
written.
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Apro
Bio Pharmaceutical Corporation
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By:
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/s/ Xxxxx D.E. Barone__________________ | |
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Printed
Name:
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Xxxxx
D.E. Barone____________________
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Its:
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Chair______________________________ | ||
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Name:
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Xxxxx Floor_________________________ | ||
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AMENDMENT
TO SETTLEMENT AGREEMENT
This
Amendment, entered into this 24th day of February, 2009, modifies the Agreement
by and among Apro Bio Pharmaceuticals Corporation (the “Company”) and Xxxx Floor
(“Floor”) dated January 8, 2009 (the “Settlement Agreement”).
WHEREAS,
the Parties desire to amend the Settlement Agreement as set forth below, for the
purposes of extending the term of Agreement until after the Company’s pending
merger with Across America Financial Services, Inc.
NOW
THEREFORE, the Company and Floor agree to amend the Agreement as
follows:
Section
15 Term of Agreement is amended so that “February 27, 2009” is deleted and
replaced with “March 16, 2009”.
All of
the terms and conditions of the original Agreement and Schedules remain in full
effect, unless specifically modified by the terms herein.
IN
WITNESS WHEREOF, the parties hereto hereby execute this Amendment by their duly
authorized representatives on the dates set forth below.
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/s/ Xxxx Floor
________________________
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Xxxx
Floor
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Date
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/s/ Xxxxx X. X. Xxxxxx
__________________
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Xxxxx
X. X. Xxxxxx
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Date
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Chairman
of the Board
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Apro
Bio Pharmaceutical Corporation
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SECOND
AMENDMENT TO SETTLEMENT AGREEMENT
This
Second Amendment, entered into this 16th day of March, 2009, modifies the
Agreement by and among Apro Bio Pharmaceuticals Corporation (the “Company”) and
Xxxx Floor (“Floor”) dated January 8, 2009 (the “Settlement Agreement”) and the
Amendment to Settlement Agreement dated February 24, 2009.
WHEREAS,
the Parties desire to amend the Settlement Agreement as set forth below, for the
purposes of extending the term of Agreement until after the Company’s pending
merger with Across America Financial Services, Inc.
NOW
THEREFORE, the Company and Floor agree to amend the Agreement as
follows:
Section
15 Term of Agreement is amended so that “March 16, 2009” is deleted and replaced
with “April 1, 2009”.
All of
the terms and conditions of the original Agreement and Schedules remain in full
effect, unless specifically modified by the terms herein.
IN
WITNESS WHEREOF, the parties hereto hereby execute this Amendment by their duly
authorized representatives on the dates set forth below.
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/s/ Xxxx Floor
________________________
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Xxxx
Floor
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Date
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/s/ Xxxxx X. X. Xxxxxx
__________________
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Xxxxx
X. X. Xxxxxx
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Date
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Chairman
of the Board
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Apro
Bio Pharmaceutical Corporation
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