EXHIBIT 10.8
AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of the 13th day of June
2002, by and between OmniComm Systems, Inc., a Delaware corporation (the
"Company"), and Dr. Xxxxx Xxxxxxxx ("Xxxxxxxx" and collectively with OmniComm,
the "Parties").
WHEREAS, the Parties believe that it is in the best interests of the
Company for Xxxxxxxx to relinquish his role as CEO and director of the Company
and assume the role of a medical consultant to the Company; and
WHEREAS, the Company and Xxxxxxxx have reached certain agreements with
regard to this transition and desire to set forth their agreements and
understanding in a definitive agreement.
NOW THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained, and for other valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound hereby, agree as follows:
1. Xxxxxxxx hereby resigns as CEO and as a director of the Company's
Board of Directors (the "Board"), effective immediately. Xxxxxxxx is hereby
appointed as principal medical consultant to the Board and President of the
Company's Medical Advisory Board. Such appointment shall be for a term of one
year from the date hereof, extendable upon mutual agreement of the Parties.
Xxxxxxxx shall devote approximately six days per month (1-1/2 days per week on
average) to performing advisory and consulting activities for the Company.
Xxxxxxxx shall at all times report to the Board and his activities shall at all
times be subject to the Board's direction and control. Xxxxxxxx shall have no
authority to enter into any contracts binding upon the Company, or to create any
obligations on the part of the Company, except such as shall be specifically
authorized by the Board in writing. The services to be rendered hereunder by
Xxxxxxxx can be rendered at the Company's facility or other location(s) as the
parties hereto reasonably agree.
2. In consideration of rendering services and providing agreements
hereunder Xxxxxxxx will receive $250,000 annually, payable in monthly
installments in accordance with the Company's current payroll practices. In
addition, the Company shall continue to make available to Xxxxxxxx (a) health
insurance through May 31, 2003 at the Company's expense and (b) dental insurance
through May 31, 2003 at Xxxxxxxx'x expense. After May 31, 2003, the Company
shall offer Xxxxxxxx to continue such benefits with COBRA, in accordance with
applicable laws.
3. As Xxxxxxxx will no longer be CEO or a director of the Company,
Xxxxxxxx shall relinquish all his rights, title and interest to stock options
for the purchase of 1,190,000 shares of Common Stock of the Company ("Stock
Options"), issued in his name, vested and non-vested. Xxxxxxxx hereby represents
and warrants that he has not endorsed, sold, delivered, gifted, pledged,
transferred, assigned, hypothecated or otherwise encumbered the Stock Options to
any third party at any time. Xxxxxxxx acknowledges that the Company is relying
upon these representations in entering into this Agreement. Notwithstanding the
foregoing, the parties agree
and understand that Xxxxxxxx owns and will continue to own after the execution,
delivery and performance of this Agreement the following securities in the
Company: 136,756 shares of Common Stock, 10,000 shares of Series B Convertible
Preferred Stock and warrants to purchase up to 400,000 shares of Common Stock at
$0.25 per share. The execution, delivery and performance of this Agreement shall
not affect Xxxxxxxx'x ownership of or rights in the securities described in the
immediately preceding sentence.
4. In the event that the Company and/or its shareholders consummate a
transaction with a third party resulting in the sale, merger, consolidation,
reorganization or other business combination involving all or a majority of the
business, assets or stock of the Company, whether effected in one transaction or
a series of transactions (a "Sale Transaction"), due to the initiative of
Xxxxxxxx (whether or not during the term of this Agreement), Xxxxxxxx shall
receive a fee equal to 1% of the Aggregate Consideration above $90,000,000 upon
consummation of the sale (the "Fee").
For purposes of this Section 4, the "initiative of Xxxxxxxx"
shall include, but not be limited to, the introduction or referral of a third
party to the Company or any officer or director of the Company for any purpose,
including but not limited to any such introduction or referral of a purchaser,
strategic partner, financing source or otherwise, which results (whether or not
through the efforts of Xxxxxxxx) in the consummation of a Sale Transaction;
provided however that if the purpose of Xxxxxxxx'x initiative is other than for
the purpose of a Sale Transaction, then the Fee would only be payable if such
introduction or referral resulted in a Sale Transaction that is consummated
within a period of one year following such introduction or referral.
For purposes of this Section 4, the term Aggregate
Consideration means the amount of cash and the fair market value (on the date of
payment) of securities (whether debt or equity) or assets receivable by the
Company, its employees or its securityholders, as the case may be. Aggregate
Consideration shall also include the amount of any indebtedness of the Company
assumed, continued, refinanced or otherwise paid in connection with a Sale
Transaction. The fair market value of non-cash, non-publicly traded securities
shall be mutually determined in good faith by the Company and Xxxxxxxx.
5. The Company and Xxxxxxxx agree not to, directly or indirectly,
disparage each other, nor shall Xxxxxxxx directly or indirectly disparage the
Company's products, services, directors or employees in any way to any third
parties including any of the Company's customers, employees, vendors, partners
or anyone who does or may in the future have any business relationship with the
Company. The Parties recognize that any such disparagement of the other will
cause irreparable harm and therefore agree that the disparaging party shall pay
the disparaged party $100,000 in liquidated damages should he or it violate this
paragraph. In addition, the disparaged party will also be entitled to recover
from the disparaging party, attorney's fees and costs incurred due to any breach
of this paragraph.
6. The Company represents, warrants, covenants and agrees as follows:
(a) The Company has the requisite corporate power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated herein and such has been duly authorized by all
necessary corporation action on the part of the Company.
(b) This Agreement has been duly executed and delivered by the
Company, and the Agreement constitutes the legal, valid and binding obligation
of the Company, enforceable against the Company in accordance with its terms.
(c) Other than the approval of its board of directors, the
Company is not required to give any notice to or obtain any consent from any
Person in connection with the execution and delivery of this Agreement or any of
the documents contemplated hereby or the consummation or performance of any of
the transactions contemplated hereby.
(d) Except for $175,536 of employment-related taxes due and
payable by the Company, the Company has paid all taxes due and payable by the
Company. The Company covenants to use its best efforts to pay such
employment-related taxes in full as soon as is reasonably possible. The Company
agrees to indemnify and hold Xxxxxxxx harmless for all losses, expenses and
costs (including attorneys' fees) associated with any failure by the Company to
pay taxes.
(e) There is no pending or, to the Company's knowledge,
threatened legal proceeding by or against the Company that challenges, or that
may have the effect of preventing, delaying, making illegal or otherwise
interfering with, any of the transactions contemplated hereby.
7. Xxxxxxxx represents and warrants the following:
(a) Xxxxxxxx has all necessary legal capacity to enter into
this Agreement and to perform his obligations hereunder and thereunder.
(b) This Agreement has been duly executed and delivered by
Xxxxxxxx, and the Agreement constitutes the legal, valid and binding obligation
of Xxxxxxxx, enforceable against Xxxxxxxx in accordance with its terms.
(c) Xxxxxxxx is not required to give any notice to or obtain
any consent from any Person in connection with the execution and delivery of
this Agreement or the consummation or performance of any of the transactions
contemplated hereby.
(d) There is no pending or, to Xxxxxxxx'x knowledge,
threatened legal proceeding by or against Xxxxxxxx that challenges, or that may
have the effect of preventing, delaying, making illegal or otherwise interfering
with, any of the transactions contemplated hereby.
8. Xxxxxxxx recognizes and acknowledges that the Company's trade
secrets and proprietary information and processes, as they may exist from time
to time, are valuable, special and unique assets of the Company's business.
Xxxxxxxx will not, during or after the term of this Agreement by the Company, in
whole or in part, disclosure such secrets, information or processes to any
person, firm, corporation, association or other entity for any reason or purpose
whatsoever, nor shall Xxxxxxxx make use of any such property for his own
purposes or for the benefit of any person, firm, corporation or other entity
except the Company under any circumstances during or after the term of this
Agreement, provided that after the term of this Agreement, these restrictions
shall not apply to such secrets, information and processes which are then in the
public domain provided that Xxxxxxxx was not responsible, directly or
indirectly, for such secrets, information or processes entering the public
domain without the Company's consent. Xxxxxxxx agrees to hold as the Company's
property, all memoranda, books, papers, letters, formulas and other data, and
all copies thereof and therefrom, in any way relating to the Company's business
and affairs, whether made by him or otherwise coming into his possession during
the term hereof, and on termination of this Agreement, or on demand of the
Company, at any time, to deliver the same to the Company.
9. For a period of one (1) year from the date hereof, Xxxxxxxx shall
not (i) engage in an activity that is, directly or indirectly, competitive with
the Company, (ii) interfere with, disrupt or attempt to disrupt the
relationship, contractual or otherwise, between the Company and any customer,
client, supplier, consultant, or employee of the Company or (iii) be an investor
(representing more than 5% equity interest) in any entity that engages in an
activity that is, directly or indirectly, competitive with the Company and
derives a majority of its operating revenues from such competitive activities.
The phrase "engaging in an activity that is, directly or indirectly, competitive
with the Company" shall mean performing services whether as an employee,
officer, consultant, director, partner, or sole proprietor for any person or
entity, if such services involve the development and marketing of an
internet-based and/or intranet-based system to collect, manage, and compile
clinical trial and research data; provided that the parties agree that Xxxxxxxx
may provide services to any person or entity and in any capacity, so long as
such services do not involve the development and marketing of an internet-based
and/or intranet-based system to collect, manage, and compile clinical trial and
research data.
10. Xxxxxxxx hereby sells, transfers and assigns to the Company or to
any person, or entity designated by the Company, all of the entire right, title
and interest of Xxxxxxxx in and to all inventions, ideas, disclosures and
improvements, whether patented or unpatented and copyrightable material, made or
conceived by Xxxxxxxx, solely or jointly, or in whole or in part, during the
term of this Agreement which (i) relate to methods, apparatus, designs,
products, processes or devices sold, leased, used or under construction or
development by the Company or any subsidiary, or (ii) otherwise relate to or
pertain to the business, functions or operations of the Company or any
subsidiary, or (iii) arise wholly or partly from the efforts of Xxxxxxxx during
the term of this Agreement. Xxxxxxxx shall communicate promptly disclose to the
Company, in such form as the Company requests, all information, details and data
pertaining to the aforementioned inventions, ideas, disclosures and improvements
and, whether during the term of this Agreement or thereafter, Xxxxxxxx shall
execute and deliver to the Company such formal transfers and assignments and
such other papers and documents as may be required of Xxxxxxxx at the Company's
expense to permit the Company or any person or entity designated by the Company
to file and prosecute the patent applications and, as to copyrightable material,
to obtain copyright thereon.
11. If there is a breach or threatened breach by Xxxxxxxx of the
provisions of Section 9, or 10 of this Agreement, the Company shall be entitled
to an injunction restraining Xxxxxxxx from such breach. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies for such
breach or threatened breach. The covenants of Sections 9 and 10 shall terminate
and become of no further force in the event that the Company breaches its
payment obligations set forth in Section 2 hereof.
12. Reference is made to that certain Employment Agreement (the
"Employment Agreement") dated as of September 1, 2001 between the Company and
Xxxxxxxx. The Employment Agreement is hereby terminated and shall not be of any
further force or effect. The Company agrees and acknowledges that, to its
knowledge, (a) Xxxxxxxx fully satisfied his respective duties under the
Employment Agreement and (b) Xxxxxxxx was at no time in breach of any of his
obligations thereunder.
13. The Company shall indemnify, defend and hold Xxxxxxxx harmless from
any actions, causes of action, suits, claims, controversies, covenants,
contracts, agreements, rights, promises, trespasses, damages, losses and
expenses, judgments, sums of money, debts, dues, demands, obligations or
liabilities of any nature whatsoever, at law or in equity, whether asserted or
unasserted, mature or contingent, known or unknown, accrued or unaccrued
pertaining to taxes owed or to be owed by the Company, including but not limited
to employment-related taxes and legally-mandated withholdings.
14. This Agreement shall be binding upon and inure the benefit of the
Parties hereto and their respective successors, assigns, heir and devisees, if
any.
15. This Agreement shall be construed and enforced in accordance with
the laws of the State of Florida. Any action or proceeding arising out of or
relating hereto shall be brought in Broward County, State of Florida.
16. The Parties agree to cooperate in resolving any matters that may
arise in connection with this Agreement. The Parties further agree to execute
such additional documents and take such further actions as may be necessary to
effectuate the terms of this Agreement.
17. All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent by certified or
registered mail, facsimile message or Federal Express or other overnight and
nationally reputable delivery service to the addresses listed below. Any notices
shall be deemed given upon the earlier of the date when received at, or refused
when sent by registered or certified mail, the day on which it is personally
delivered, the day on which it is sent by facsimile message (with confirmation
receipt received by sender) or the day after the date when sent by Federal
Express (or other overnight and nationally reputable delivery service) to, the
address or fax number set forth below, unless such address or fax number is
changed by notice to the other party hereto given in accordance with the
foregoing notice procedures:
If to the Company:
OmniComm Systems, Inc.
0000 Xxxxx Xxxx, Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
Attention: Cees Wit, CEO
Fax: (000) 000-0000
If to Xxxxxxxx:
Dr. Xxxxx Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Blank Rome Xxxxxxx & XxXxxxxx LLP
0000 X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxx, Esquire
Fax: (000) 000-0000
18. The parties to this Agreement shall pay their own respective
expenses incident to the preparation, negotiation and execution of this
Agreement including, without limitation, all fees and costs and expenses of
their respective accountants and legal counsel whether or not the transactions
contemplated hereunder are consummated.
19. This Agreement may be amended, modified or supplemented only by a
written instrument duly executed by each of the parties hereto. If any provision
of this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained herein. This Agreement shall be binding upon and inure to the benefit
of and be enforceable by the respective heirs, legal representatives, successors
and permitted assigns of the parties hereto. No party to this Agreement shall
have the right to assign this Agreement without the prior written consent of the
other parties. Any term or provision of this Agreement may be waived at any time
by the party entitled to the benefit thereof by a written instrument duly
executed by such party. The parties hereto shall execute and deliver any and all
documents and take any and all other actions that may be deemed reasonably
necessary by their respective counsel to complete the transactions contemplated
hereby.
20. Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such provision, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
21. This Agreement and the appendix contemplated hereby constitutes the
entire agreement among the parties hereto and any other prior agreements between
or among them are hereby terminated and shall have no other force or effect.
22. This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Parties hereto, each acting under due and
proper authority, have executed this Agreement as of the date written above.
OMNICOMM SYSTEMS, INC.
By:/s/Cornelis Wit
-------------------------
Cees Wit, CEO
/s/Xxxxx Xxxxxxxx
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