EXHIBIT 10.6
REPAYMENT AGREEMENT
This AGREEMENT (this "Agreement") made as of the 20th day of April
2007, by and between SurgiLight, Inc., a Florida corporation having its
office at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 (the "Company"),
and Xxxxxx Xxxxxxxxx, residing at 0000 X Xxxx Xxxxxxx Xxxx Xxxxxx Xxxx,
Xxxxxxx, ("Xxxxxxxxx"). The Company and Xxxxxxxxx shall collectively be
referred to as the "Parties".
WITNESSETH
WHEREAS, the Company and GEM SurgiLight Investors, LLC, ("GEM") have
entered into a Secured Line of Credit Agreement, of even date herewith (the
"Credit Agreement"), whereby GEM extended a $2.5 million secured line of
credit to the Company and GEM has agreed to purchase shares of preferred
stock for an aggregate purchase price of $500,000 in preferred stock
(collectively, the "Financing"), and
WHEREAS, Xxxxxxxxx shall resign as the Chief Financial Officer and as a
member of the board of directors of the Company upon the initial closing of
the Financing; and
WHEREAS, as of December 14, 2006, and pursuant to the terms of the Loan
Agreement dated October 22, 2002, and the Addendum to Loan Agreement dated
December 15, 2004 (collectively referred to as the "Loan Agreement") the
Company was obligated to pay Xxxxxxxxx an aggregate of $178,683 (the
"Obligations") secured by intangible assets of the Company (hereinafter
referred to as the "Intangible Property"), including patents, assigned
patents, patent licenses and patents pending, as described in the Loan
Agreement and the UCC-1 financing statement (the "Financing Statement") filed
with the Florida Secured Transactions Registry by Xxxxxxxxx on December 3,
2004 (filing number 200408438701); and
WHEREAS, Xxxxxxxxx has agreed to repayment of the Obligations on the
terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements hereinafter contained, the parties hereto do hereby agree as
follows:
1. Term. This Agreement shall commence on the date of its execution
by the Parties (the "Effective Date") and terminate upon repayment of the
Obligations, including any accrued interest thereon (the "Term").
2. Repayment of Obligations. On the Effective Date, the Company
shall pay to Xxxxxxxxx one-half of the Obligations by wire transfer to an
account designated by Xxxxxxxxx (the "Initial Payment"). Subsequent to the
Initial Payment, and in full satisfaction of all of its Obligations, the
Company shall pay to Xxxxxxxxx the balance of the Obligations in 12 equal
monthly installments, the first such payment commencing on the first day of
the second calendar month following the Initial Payment. By way of example,
if the Initial Payment occurred on February 15, the first of twelve monthly
installments would occur on April 1. Interest or other charges shall accrue
on the unpaid balance of the Obligations subsequent to December 14, 2006, at
the rate of the lesser of 12% per annum or the maximum rate of interest
permitted under applicable law, and payable as follows: (a) in the event
that any payments of the Obligations are not made on or before the date due,
then all interest accrued hereunder on the then outstanding Obligations shall
be added to the Obligations and payable in equal amounts on the remaining
installments due under this Agreement and (b) in the event that all payments
described herein are made on or before the dates due, then all interest
accrued hereunder shall be waived. The Obligations shall continue to be
secured by the Intangible Property, as set forth in the Financing Statement
and the Loan Agreement. The terms of the Loan Agreement shall remain in
effect unless specifically superseded by this Agreement.
3. Default on Repayment of Obligations. If the Company fails to
make a wire transfer of the equal monthly installment on the first day of the
month and fails to cure such default within 10 days after notice from
Xxxxxxxxx or if the Company shall be in default under its obligations to GEM
under the Credit Agreement, the Company shall be deemed in breach of this
Agreement and each and all of the following remedies will occur:
(i) The entire remaining balance of the Obligations will become
due and payable immediately;
(ii) Xxxxxxxxx may, without further notice or demand, resort to
any remedies available to him under this Agreement, this security interest
and/or Loan Agreement.
4. Xxxxxxxxx recognizes and acknowledges that in the course of his
employment by the Company, his job responsibilities required that he had been
given access to confidential and trade secret information that is the
property of the Company, its owners, its client(s), or other organizations
with which the Company conducts its business. The foregoing are all called
"Confidential Information" and defined below.
For a period of four years following the Effective Date ("Non-
Disclosure Period"), Xxxxxxxxx agrees to use his utmost diligence to guard
and protect from disclosure all Confidential Information, except as required
by regulatory agencies. Further, Xxxxxxxxx agrees that he will not, during
the Non-Disclosure Period, use for himself or others, or divulge to others,
including employees or non-employees of the Company, any Confidential
Information which he may develop, obtain or learn about unless authorized to
do so by the Company in writing. Xxxxxxxxx agrees that within five business
days following the Effective Date, he will return any computer disks,
records, papers, or materials of any kind in any media that may contain
Confidential Information. Notwithstanding the prohibitions herein, if
Xxxxxxxxx is required by law to disclose certain of the Confidential
Information, he may do so, but, if permitted by applicable law, Xxxxxxxxx
shall give the Company at least five business days notice of the need to
disclose and the precise information which Xxxxxxxxx is required to
disclose.
"Confidential Information" includes, but not limited to all of the
Company's information in whatever form (including without limitation visual,
oral, electronic data, or written), including Infrared technologies,
technologies concerning the treatment of presbyopia with lasers, operation,
all software and software codes, security information, FDA regulations,
applications, financial data and related financial information, joint
ventures, business, supplier information of the Company's hardware and/or
system parts, all software codes, design, customers and potential customers,
products, solutions, operations, services, technical specifications etc,
regardless of whether such information is marked "Confidential," which
Xxxxxxxxx came into possession or knowledge of while employed by Company and
in the course of his duties and responsibilities for Company and not from any
outside source.
Nothing in this Agreement shall prevent Xxxxxxxxx from using
information which (i) is or becomes generally known to the public; (ii) is
obtained by Xxxxxxxxx from a third party; (iii) is or was independently
developed by Xxxxxxxxx without use of the Company's Confidential Information
or (iv) was known to Xxxxxxxxx prior to his association with Company.
5. No Disparaging, Untrue or Misleading Statements. During the Non-
Disclosure Period, Xxxxxxxxx and the Company each agree that they shall not
make to any third party (including past or present customers, employees,
business associates, and/or media) any disparaging, untrue, negative,
defamatory or misleading written or oral statements about or relating to each
other or any of their respective products or services (or about or relating
to any officers, directors, agents, employees, or other persons acting on
their behalf), or any of their respective employment or business practices or
policies.
6. Breach of Non-Disparagement and Confidentiality Provisions. The
Parties acknowledge that the provisions set forth in Sections 4 and 5 of this
Agreement are essential terms. A violation by any party to this Agreement of
such provision(s) shall be a material breach of this Agreement. A breach by
any party to this Agreement of Sections 4 and 5, shall entitle the non-
breaching party(s) to recover such damages as may be shown to have resulted
from any violation and/or to seek such other remedies as are available under
applicable law, including specific performance and injunctive relief. If
any term or provision of Section 4 and 5, or the application thereof to any
person or circumstances shall, to any extent, be invalid or unenforceable,
the remainder of such Section or Sections or the application of such term or
provision to persons or circumstances other than those as to which it is held
invalid or unenforceable, shall not be affected thereby, and each term and
provision of Section 4 and 5 shall be valid and enforceable to the fullest
extent permitted by law.
7. Release. The Parties acknowledge that as of the Effective
Date, the Company shall have no obligations to Xxxxxxxxx, and Xxxxxxxxx shall
have no obligations to the Company, except as set forth in this Agreement and
the Loan Agreement and, as of the Effective Date, the Company and Xxxxxxxxx
have executed, the General Releases attached hereto as Exhibit A.
8. Modification of Lien. In consideration for GEM providing the
Financing, a portion of the proceeds of which Financing shall be used to
satisfy a portion of the Obligations, and Xxxxxxxxx'x xxxx on the Intangible
Property, pursuant to the Financing Statement, shall be pari passu with the
interests of GEM and Xxxxxxx Xxxxxx in such assets, as provided in the
intercreditor agreement attached hereto as Exhibit B and subject to the
provisions of Section 3. Said security interest of Xxxxxxxxx, his heirs and
assigns, shall be extinguished upon the Company having repaid the
Obligations. The security interest of Xxxxxxxxx shall remain superior to GEM
until the first payment hereunder, on the Effective Date, is made. Xxxxxxxxx
agrees to execute and deliver any instrument or document and take any other
action that is necessary to modify Xxxxxxxxx'x security interest pursuant to
the terms of this Section 8.
9. Condition Precedent. The timely receipt by Xxxxxxxxx of the
Initial Payment is a condition precedent to all obligations of Xxxxxxxxx
under this Agreement. If the Initial Payment is not made as required under
this Agreement, then this Agreement shall be deemed null and void in its
entirety and of no further force and effect.
10. Assignment. This Agreement and all rights hereunder are personal
to Xxxxxxxxx and shall not be assignable and any purported assignment in
violation thereof shall be void and not be valid or binding on the Company.
11. Severability. The invalidity or unenforceability of any
provision hereof shall in no way affect the validity or enforceability of any
other provision.
12. Entire Agreement, Waiver, Amendment. This Agreement constitutes
the whole agreement between the Parties and there are no terms other than
those stated herein. No variation hereof shall be deemed valid unless in
writing and signed by the Parties, and no discharge of the terms hereof shall
be deemed valid unless by full performance by the Parties or by writing
signed by the Parties. No waiver by either party of any provision or
condition of this Agreement to be performed shall be deemed a waiver of
similar or dissimilar provisions and conditions at the same time or any prior
or subsequent time. This Agreement supersedes and replaces any and all
present, written or oral, agreements of employment between the Parties, and
all such agreements are hereby deemed canceled, revoked and of no further
force or effect.
13. Notices. Any notice, request, demand or other communications
required or permitted pursuant to this Agreement shall be in writing and
shall be deemed to have been properly given if delivered in person or by
courier or other overnight carrier, by facsimile transmission (with
confirmation of receipt) or by certified or registered mail, postage prepaid
and return receipt requested, to each party hereto at the address indicated
above or at any other address as may be designated from time to time by
written notice to each party. If notice is sent to the Company, a copy of
such notice shall be sent to Xxxxxx X. Xxxxxxxx, XxXxxxxxxx & Xxxxx, LLP, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000. Notice under this Agreement shall be
deemed given upon delivery.
14. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida, without giving effect
to its conflict of law principles. Xxxxxxxxx and the Company agree that all
disputes arising out of or concerning the terms of this Agreement will be
subject solely to binding arbitration. The arbitrator selection and conduct
of the arbitration will be pursuant to the Commercial Arbitration Rules of
the American Arbitration Association. The place of the arbitration shall be
in Orange County, Florida and judgment on the award may be entered in any
court having jurisdiction thereof. If either party believes it is necessary
to undertake discovery on asserted statutory claims, such party shall apply
to the arbitrator or arbitrators for rights to undertake discovery and the
arbitrator shall allow discovery sufficient for either party to adequately
arbitrate, vindicate, or defend the statutory claims, including access to
essential documents and witnesses. At the conclusion of the arbitration, the
arbitrator or arbitrations shall issue a decision in writing setting forth
the essential findings and conclusions, and this decision is subject to
review, confirmation, correction, or vacation pursuant to the provisions Code
of Civil Procedure 1285 through 1288.8 in effect at the time the decision is
rendered. The prevailing party in any action arising under this Agreement
shall be entitled to reimbursement of the costs of such action, including
reasonable attorney's fees.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals causing these presents to be executed as of the day and year
first above written.
SURGILIGHT, INC. Xxxxxx Xxxxxxxxx
By: /s/ Xxxxxxx Xxxx By: /s/ Xxxxxx Xxxxxxxxx
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Xxxxxxx Xxxx, President Xxxxxx Xxxxxxxxx
