Agreement
Exhibit
10.10
Agreement
This Agreement is entered into between
Apro Bio Pharmaceutical Corporation, a Colorado corporation (the "Company") and
Xxxxx Xxxxx (“Xxxxx”), this 6th day of March, 2009 (“Effective
Date”).
Recitals
Whereas,
Xxxxx was employed as an officer and director of the Company.
Whereas,
Xxxxx has resigned as an officer and director of the Company, and has made
claims against the Company for amounts due and owing to him.
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. Xxxxx
hereby acknowledges that he has resigned as an officer and director of the
Company 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 and subject to Xxxxx’x performance of the
undertakings set forth in this Agreement, the Company, in full and final
settlement of all of Xxxxx’x stated compensation claims, including any
unpaid compensation, claim for severance, reimbursement of vacation or
sick pay, or other compensation, or any other rights or obligations which
may be asserted by Xxxxx, agrees to make the following payments and
additional consideration to Xxxxx:
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(a)
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The
Company, shall pay to Xxxxx $45,000 in cash by wire transfer due and
payable on the closing date of financing by the Company in aggregate of at
least One Hundred Fifty Thousand dollars ($150,000 USD) from the Effective
Date.
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(b)
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The
Company shall issue to Xxxxx 60,000 shares of the Company’s restricted
common stock within five days of the closing date of the financing
referenced in section 2(a) above, with a certificate of the issued shares
to be delivered to Xxxxx within thirty (30) days of the closing
date. Such shares shall not be sold until one year following
the date of issuance. Thereafter, such shares shall also be
registered whenever any Company shares owned by its directors are included
in a future Registration Statement.
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(c)
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Upon
execution of this Agreement, the Company will issue and take any other
action necessary to ensure Xxxxx will have a total of 50,000 vested
warrants in the Company granted to Xxxxx pursuant to one or more
resolutions by the Company’s
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(d)
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Board
of Directors as additional compensation to Xxxxx as a director of the
Company. Such warrants will be included in the Company’s next
scheduled Registration Statement if any Company warrants owned by the
Company’s directors are currently registered or, if no such warrants are
currently registered, Xxxxx’x warrants will be registered whenever any
Company warrants owned by its directors are included in a future
Registration Statement.
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(e)
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Company
shall grant to Xxxxx or his designee any and all equity (e.g. options,
warrants, shares or other equity position) that Company would have granted
to Bathgate Capital Partners or its successors, assignees or designees
upon the merger, spin out or other business combination relating to the
“Cell Rejection” technology as it was referred to while Xxxxx was an
officer of the Company, if such business combination occurs within (12)
months of the Effective Date. Xxxxx acknowledges no fees or
other consideration will be due and owing to him if Bathgate Capital
Partners or any of its directors, officers principals, or employees are
not involved in any such business
combination.
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3.
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Lock Up
Agreement. Xxxxx agrees that he will execute a Lock Up
Agreement in conjunction with the Company’s proposed merger upon the same
terms and conditions as the officers, directors and owners of Bathgate
Capital Partners for all of his shares other than the shares to be issued
pursuant to Paragraph 2(b). If Bathgate Capital Partners or any
of its officers, directors, principals or owners obtains a modification or
release from the restrictions placed on the transfer of Restricted
Securities (as defined in the Lock Up Agreement), the Company shall
provide immediate written notification thereof to Xxxxx and he shall have
the right to the same modification or release upon written notice to the
Company.
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4.
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Confidentiality. Each
party agrees not to, without the prior written consent of the other party,
directly or indirectly disclose to any third party individual, corporation
or other entity (other than the Company or its affiliates or each party’s
respective officers, directors, representatives 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 or was disclosed
to a party by a third party without an obligation of confidentiality to
the other party shall cease to be subject to the restrictions of the
Paragraph. As used in this Agreement, the term “affiliate” or
Affiliate” shall mean any entity that is at least fifty percent (50%)
owned or controlled by a party, an entity which directly or indirectly
owns or controls more than fifty (50%0) of the voting stock of a party, or
any entity, the majority ownership of which is directly or indirectly
common to the ownership of party.
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5.
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Company
property. Xxxxx and the Company acknowledge that Xxxxx is in
possession of certain Company property, specifically, an HP docking
station, flat computer screen, two book cases, and several computer
accessories. . Xxxxx may keep said property as his personal property
provided all Company related files and documents contained or
stored
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in
said property are returned to the Company. The
Company agrees to provide Xxxxx with copies of all returned files and
documents, to be delivered to his residence within seven (7) days of
receipt. The Company further acknowledges that all computers and other
office equipment in Xxxxx’x possession are the property of
Xxxxx. Upon execution of this Agreement, Xxxxx shall return all
other Company property to the Company, including all Confidential
Information, books and records of the Company and any other property of
the Company or its affiliates. If Xxxxx later discovers other
Company property in his possession, Xxxxx will notify the Company
requesting instructions for shipment or destruction of such property.
Company shall bear all costs related to the shipment or destruction of
such property.
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6.
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Non-Disparagement.
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x.
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Xxxxx
agrees that he shall not make any disparaging statements about the Company
or its affiliates or the directors, its 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 Xxxxx to make false
statements or disclosures.
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b.
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The
Company agrees that neither it nor its directors, officers, nor
employees of the Company nor any spokesperson for any of them shall make
any disparaging statements about Xxxxx; 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
Xxxxx, and shall not require false statements or disclosures to be
made.
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7.
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Releases. Releases. Except
for a claim based upon a breach of this Agreement and the performance of
the obligations contained herein, effective as of the receipt of all
payments and consideration specified in Paragraph 2(a)-(c) above, the
Xxxxx Released Parties (as defined below) shall release the Company
Released Parties (as defined below), and the Company Released Parties
shall release the Xxxxx Released Parties, from any and all claims, suits,
demands, actions or causes of action of any kind or nature whatsoever
(“Claims”), whether the underlying facts are known or unknown, which the
Xxxxx Released Parties or the Company Released Parties have or now claim,
or might have or claim, pertaining to or arising out of Xxxxx’x employment
by the Company or his separation therefrom, or any breach or
non-performance of any employment or other agreements between Xxxxx and
the Company, 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
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of
its affiliates, and all predecessors, successors and assigns thereof and
each of their members, trustees, partners, principals, members, directors,
officers, trustees, employees, agents and attorneys, past or present (but
only for their activities as members, trustees, partners, principals,
members, directors, officers, trustees, employees, agents and attorneys
for the Company), and all predecessors, successors, heirs and assigns
thereof (collectively, "Company Released Parties") and to Xxxxx, his
affiliates, heirs, successors and assigns, and each of his employees,
agents and attorneys (collectively, the Xxxxx Released
Parties).
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8.
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Covenant
Not to Xxx. To the maximum extent permitted by law, the
Company and Xxxxx 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 Claims covered by the release
contained in paragraph 6 above (except to enforce the terms of this
Agreement). The covenants herein shall expire on March 11, 2009
(extended to March 31, 2009), unless all payments under Paragraph 2(a)-(c)
have been received by Xxxxx at which time such covenants shall remain in
effect with the releases of Paragraph 6. 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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9.
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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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10.
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Legal
Counsel. Xxxxx 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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11.
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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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12.
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Entire
Agreement. This instrument constitutes the entire
agreement between the parties.
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13.
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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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14.
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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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15.
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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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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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Chairman ___________________________ | ||
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Name:
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Xxxxx Olson_________________________ | ||
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