EXHIBIT 10.1
Final: October 28, 2008
AGREEMENT
This Agreement is entered into between BioAgra, LLC, a Georgia Limited
Liability Company (the "Company"), Xxxx Xxxxxxxxxx ("Xxxxxxxxxx"), Xxxxxx
Holdings, Inc., a Florida corporation ("Xxxxxx") and Vyta Corp., Inc., a Nevada
corporation ("Vyta"), this ____ day of October, 2008.
RECITALS
WHEREAS, Xxxxxxxxxx has been employed as a Manager, President and CEO of the
Company and has served as the daily manager and supervisor of the Company.
WHEREAS, Xxxxxx and Vyta are the sole Members of the Company pursuant to an
Operating Agreement dated August 15, 2005 between Nanopierce Technologies, Inc
(n/k/a Vyta) and XACT Resources International, Inc. (n/k/a Xxxxxx) (the
"Operating Agreement").
WHEREAS, the parties have determined that it is in the best interest of the
Company if Xxxxxxxxxx ceases his activities as a Manager and executive officer
of the Company and Xxxxxx ceases to be a Member of the Company.
WHEREAS, the Company desires to have Xxxxxxxxxx continue to act as a consultant
to the Company.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt of which is
hereby acknowledged by both parties, the parties agree as follows:
1. RESIGNATION. Xxxxxxxxxx hereby resigns as a Manager and Executive
Officer of the Company and from all other positions and employment with
the Company effective upon the closing of this Agreement (the "Closing
Date"), except as otherwise agreed to herein.
2. TRANSFER OF MEMBERSHIP INTEREST. Xxxxxx hereby assigns and conveys to
Vyta all of its right, title and interest in and to its membership
interest in the Company and the Operating Agreement as of the Closing
Date and shall transfer to Vyta the Certificate of Membership No. 3.
Such transfer shall be free and clear of any and all liens, security
interests, pledges, mortgages, charges, limitations, claims,
restrictions, rights of first refusal, rights of first offer, rights of
first negotiation or other encumbrances of any kind or nature
whatsoever.
3. MANAGER OF THE COMPANY. Xxxxxx and Xxxxxxxxxx hereby agree and consent
to the appointment of Xxxx Xxxxxxxxx as the sole Manager, President and
Chief Executive Officer of the Company, and waive all of their rights
under the Operating Agreement.
-1-
4. PAYMENT. In consideration of the agreements and subject to Xxxxxxxxxx'x
and Justin's performance of the undertakings set forth in this
Agreement, the Company and VYTA, in full and final settlement of all of
Xxxxxxxxxx'x and Justin's stated and unstated claims, including any
claim for severance, reimbursement of vacation or sick pay, or other
compensation, as well as any claims for return of capital
contributions, distributions from the Company, allocations of profits
or losses, or any other rights or obligations under the Operating
Agreement, agrees to make the following payments to Xxxxxxxxxx:
(a) The Company and Vyta, jointly and severally, shall pay to
Xxxxxxxxxx $6,000 per month, with payments commencing on the
1st of the month immediately following the Closing Date and
continuing for a period of sixty (60) months from the Closing
Date.
(b) The Company shall pay to Xxxxxx ten percent (10%) of all
Profits generated by the Company, until a maximum aggregate
payment to Xxxxxx of $500,000 has been paid. For purposes
hereof, "Profits" shall have the meaning as in Appendix One to
the Operating Agreement. Within ninety days of the conclusion
of each Fiscal Year of the Company, the Company shall provide
to Xxxxxxxxxx copies of the Company's audited and/or certified
financial statements to determine whether or not the Company
had a Profit for the Fiscal Year and payment as provided
herein. Xxxxxx shall have the right to assign said payments
upon written notice to the Company.
5. CONSULTANT. Xxxxxxxxxx hereby agrees that for a period of five (5)
years from the Closing Date, Xxxxxxxxxx shall be available to the
Company on an as needed basis, for up to a maximum of ten (10) hours
per week, to provide advice to, and consult with, the Company
concerning the Company's business and relationship with its employees,
contractors, vendors and customers. Said advice and consultation shall
be provided to the Company in such form, manner and place as the
Company reasonably requests. Company shall not be prevented or barred
from seeking or requiring services of a same or similar nature from
persons other than Xxxxxxxxxx. In no event shall Xxxxxxxxxx be required
or allowed by this Agreement to act as the agent of Company or
otherwise to represent or make decisions for Company. All final
decisions with respect to acts of Company or its affiliates, whether or
not made pursuant to or in reliance on information or advice furnished
by Xxxxxxxxxx hereunder, shall be those of Company. The Company agrees
to indemnify Xxxxxxxxxx, for claims against Xxxxxxxxxx that result from
the good faith performance of his consulting work performed at the
request of the Company. Said indemnification shall include any attorney
fees and costs.
6. EXPENSE REIMBURSEMENT. The Company will reimburse Xxxxxxxxxx for
business expenses he incurs on its behalf from and after the Closing
Date in his capacity as a Consultant, provided, however, that
Consultant shall not incur any such business expenses without the prior
written approval of the Company.
7. BENEFIT PLANS. The Company shall, whether pursuant or supplemental to
its existing employee benefit plans, provide to Xxxxxxxxxx, for a
period of five (5) years from the Closing Date, the same or comparable
health insurance arrangements in which he currently participates.
-2-
8. NON-COMPETITION. For the period beginning on the Closing Date and
ending at the conclusion of the payments referenced in Paragraph 4(a),
Xxxxxxxxxx agrees that he will not directly or indirectly engage in,
assist, perform services for, establish, or have any equity interest
(other than ownership of 1% or less of the outstanding stock of any
corporation listed on the New York or American Stock Exchanges or
included in the NASDAQ National Market System) in, whether as an
employee, officer, director, agent, security holder, creditor,
consultant or otherwise, any entity or person which manufactures,
markets or sells a beta glucan product in the United States, United
Kingdom, Ireland, France, Italy, Germany, Saudi Arabia, the United Arab
Emirates, Egypt, China, India, Vietnam, Malaysia, Thailand and
Australia.
9. CONFIDENTIALITY. Xxxxxxxxxx and Xxxxxx agree that for a period of five
years from the date of this Agreement, they 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
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 Affiliates 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
paragraph.
10. COVENANTS GENERALLY. The parties agree and acknowledge that the
duration, scope and geographic areas applicable to the covenants set
forth in paragraphs 8 and 9 of this Agreement are fair, reasonable and
necessary and that adequate compensation has been received by
Xxxxxxxxxx and Xxxxxx for these obligations. If, however, for any
reason any court determines that the restrictions in this Agreement are
not reasonable, that the consideration to Xxxxxxxxxx and Xxxxxx
therefore is inadequate or that Xxxxxxxxxx has been prevented from
earning a livelihood, such restrictions shall be deemed without further
action by the parties to be interpreted, modified or rewritten to
include as much of the duration, scope and geographic area of such
restrictions as are valid and enforceable.
11. NON-DISPARAGEMENT.
x. Xxxxxxxxxx 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 Xxxxxxxxxx to make false
statements or disclosures.
b. The Company and Vyta agree that neither they nor their
directors, officers, nor employees of the Company nor any
spokesperson for any of them shall make any disparaging
statements about Xxxxxx and/or Xxxxxxxxxx; provided that the
provisions of this clause shall not apply to truthful
-3-
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 Xxxxxxxxxx, and shall not require false
statements or disclosures to be made.
c. The parties agree that the Company may issue a press release
regarding this Agreement, which shall be approved jointly by
the Company and Xxxxxxxxxx.
12. 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 Xxxxxxxxxx and Xxxxxx shall release the Released
Parties (as defined below), and the Company and VYTA shall release
Xxxxxxxxxx and Xxxxxx, 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 Xxxxxxxxxx, Xxxxxx or the
Released Parties have or now claim, or might have or claim, pertaining
to or arising out of Xxxxxxxxxx'x employment by the Company or his
separation therefrom, or any breach or non-performance under the
Operating Agreement, 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.ss.2000e ET SEQ., 42 U.S.C.ss.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, Vyta and each of their
Affiliates, and all predecessors, successors and assigns thereof and
each of their 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 Xxxxxxxxxx, Xxxxxx and each of their
Affiliates, and all predecessors, successors and assigns thereof and
each of their members, trustees, shareholders, partners, principals,
members, directors, officers, trustees, employees, agents and
attorneys, past or present, and all predecessors, successors, heirs and
assigns thereof.
13. COVENANT NOT TO XXX. To the maximum extent permitted by law, the
Company, Vyta, Xxxxxxxxxx and Xxxxxx 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 12 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.
14. SPECIFIC ENFORCEMENT. Xxxxxxxxxx and Xxxxxx agree that any breach by
them of paragraphs 8 through 11 of this Agreement will cause the
Company great injury which will be difficult, if not impossible, to
measure and that such injury will be immediate and irreparable for
which the Company will have no adequate remedy at law. Consequently,
Xxxxxxxxxx and Xxxxxx agree that any material breach by them of the
foregoing paragraphs 8 through 11 of this Agreement shall entitle the
Company to injunctive relief, provided that if a material breach
-4-
occurs, the Company shall notify Xxxxxxxxxx or Xxxxxx of such breach
and Xxxxxxxxxx or Xxxxxx xxx, if possible, attempt to cure such
material breach.
15. COMPANY PROPERTY. Upon execution of this Agreement, Xxxxxxxxxx and
Xxxxxx shall return all of the Company's personal property to the
Company, including all Confidential Information, books and records of
the Company, check books, debit cards, credit cards, account
statements, passwords to bank accounts, bank cards or other accounts
and any other property of the Company or its Affiliates.
16. DEFAULT. If any payment to be made under this Agreement by the Company
and/or VYTA is not paid within 30 days after it has become due, the
Company will pay interest on such unpaid amount at the Company's in the
amount of 11 percent per annum. In the event a default by the Company
and/or VYTA occurs for more than 60 days, Xxxxxx and/or Xxxxxxxxxx may
bring an action against the Company and/or VYTA, in either Georgia or
Florida.
17. MODIFICATION. No modification of this Agreement shall be valid unless
signed by the party against whom such modification is sought to be
enforced.
18. LEGAL COUNSEL. Xxxxxxxxxx and Xxxxxx acknowledge that they have
carefully read and fully understand the terms and provisions of this
Agreement and all of their rights and obligations thereunder, have had
an opportunity to be represented by legal counsel of their choosing
prior to executing this Agreement which contains a general release and
waiver and that their execution of this Agreement is voluntary.
19. 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.
23. ENTIRE AGREEMENT. This instrument constitutes the entire agreement
between the parties.
24. 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.
25. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Georgia.
-5-
26. COUNTERPARTS. This Agreement may be signed in multiple counterparts,
each of which shall be deemed to be an original for all purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
BIOAGRA, LLC
By:
------------------------------------------------------
Printed Name:
--------------------------------------------
Its:
-----------------------------------------------------
VYTA CORP.
By:
------------------------------------------------------
Printed Name:
--------------------------------------------
Its:
-----------------------------------------------------
XXXXXX HOLDINGS, INC.
By:
------------------------------------------------------
Printed Name:
--------------------------------------------
Its:
-----------------------------------------------------
---------------------------------------------------------
Name: Xxxx Xxxxxxxxxx
-6-
