EXHIBIT 10.16
AGREEMENT
This Agreement is entered into by Xxxxxx Xxxxxxxxx and
Electropharmacology, Inc., 0000 X.X. 00xx Xx., Xxxxx 000, Xxxxxxx Xxxxx,
Xxxxxxx 00000 (EPI hereafter) on this 12th day of April, 1997. Although
written by hand, all parties agree that it is their mutual intention to enter
into the Agreement as a final, enforceable binding agreement. All parties
wish to resolve all disputes and conflicts they have or might ever have
between themselves by this agreement. This agreement replaces all other oral
or written agreements between the parties.
1. The parties agree that the Employment Agreement entered into 8/5/96 between
the parties is terminated effective upon Xx. Xxxxxxxxx permitted
resignation at the 4/1/96 telephonic board meeting of EPI, except that
Paragraphs 17 and 20(a) shall survive and are incorporated herein.
2. As a resolution to any and all disputes that might exist between the
parties, they have agreed to the following paragraphs.
3. EPI agrees to execute and deliver to Xx. Xxxxxxxxx the promissory note
attached as Exhibit A, which shall be incorporated herein by reference.
Additionally, EPI will give Xx. Xxxxxxxxx a warrant to purchase 25,000
shares of common stock at the closing price of EPI common stock on
April 11, 1997. Such right shall be exercised by April 11, 2007. EPI
acknowledges that Xx. Xxxxxxxxx is fully vested with respect to 207,236
shares of EPI common stock at a purchase price of $5.50 a share exercisable
on or before August 5, 2006. The remaining options which Xx. Xxxxxxxxx may
have had any interest in revert to EPI. The amount of such shares is
estimated at 384,856. Additionally, Xx. Xxxxxxxxx had an option right
relating to the exercise of the Xxxxxxx warrant (10% of 1.3 million
shares). That right, too, is voided by this Agreement.
4. Xx. Xxxxxxxxx agrees he will not reveal to any person or entity information
(that has not been disclosed to the public) about EPI which he learned
exclusively during the term of his employment with EPI. He will not use
such above-described information for any purpose. (The term of employment
is 8/5/96 to 4/1/97.)
5. All parties acknowledge that it is a material inducement for each to enter
into this Agreement that neither makes critical and/or negative comments
regarding Xx. Xxxxxxxxx'x resignation and/or the company's business
affairs. The parties agree that the terms of this agreement, the
negotiations leading up to it, other than what is expressed
Page 1 of 22
in the Board minutes of EPI of 4/1/97, will be held confidential unless
required to be revealed by action of a court of competent jurisdiction.
The parties agree Xx. Xxxxxxxxx will have to discuss the matter and
disclose the agreement in his lawsuit with his former employer, AME,
(now Orthofix Ltd.) sited in Dallas, Texas. The parties will uses the
information in the press release issued April 2, 1997 in describing the
separation of Xx. Xxxxxxxxx from his employment with EPI.
6. Xx. Xxxxxxxxx agrees that he will cooperate with EPI in that he will, at no
additional cost to EPI, consent to execute any and all documents necessary
to perfect and secure patent protection that will be assigned to EPI on
inventions made by Mooibroek (battery powered unit and multiplexing
system). Xx. Xxxxxxxxx agrees he will prepare and deliver to EPI by
4/25/97 the First Draft of his disclosures of the inventions which will
become an Exhibit to the Agreement after he cooperates with EPI in putting
that draft in final form (Exhibit B).
7. The parties agrees that no non-compete clause is to be implied to be part
of this Agreement.
8. EPI acknowledges that the shares of common stock (in lieu of salary) which
were assigned to Xx. Xxxxxxxxx for 1996 (5,555 shares), which have not yet
been delivered to him by May 15, 1997. EPI will use its best efforts to
deliver the certificates by 4/25/97. If the shares are not delivered to
Xx. Xxxxxxxxx by 5/15/97, then the shares shall be declared lost and re-
issued to Xx. Xxxxxxxxx as soon as possible.
9. No party in entering into this agreement admits to any liability or
wrongdoing. All parties agree this Agreement is binding on their heirs,
successors and assigns.
10. The parties agree that they have entered into Mutual General Releases which
are attached as Exhibit C which are incorporated by reference.
11. The parties agree that each is represented by counsel; that the agreement
will be governed by Florida law; that any dispute under the agreement will
be litigated in a court in Broward County; and any such litigation will
result in an award which grants attorneys fees and costs to the prevailing
party. In case of relocation of the corporate offices, a court of
competent jurisdiction in any county in Florida where EPI has an office
will be appropriate venue.
12. If any portion of this Agreement is found to be invalid, such invalidity
will not affect the validity of the remaining provisions.
Page 2 of 22
13. Xx. Xxxxxxxxx has been fully informed of the protections provided by the
OLDER WORKER'S PROTECTION ACT. Understanding that the matter has to be
resolved for reasons that inure to each party's benefit, he has
intentionally waived his rights to consider this matter for an additional
21 days. Xx. Xxxxxxxxx is aware that EPI is filing a 10K with the SEC on
April 15, 1997. In order for EPI to in good faith treat this matter as
resolved, Xx. Xxxxxxxxx acknowledges his right to revoke this agreement for
a statutorily establish seven day period and agrees he will not act to so
revoke.
In witness whereof, the parties have signed in Fort Lauderdale, Florida,
this 12th day of April 1997.
WITNESS ELECTROPHARMACOLOGY, INC.
/s/ Xxxxxxxxx X. du Fresne /s/ Xxxxx Xxxxxx
-------------------------------- --------------------------------
Xxxxx Xxxxxx,
/s/ Xxxxx X. Xxxxx Executive Vice President
--------------------------------
/s/ Xxxxxx Xxxxxxxxx
/s/ Xxxxxxxxx X. du Xxxxxx --------------------------------
-------------------------------- Xxxxxx Xxxxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------
Verifying that he has agreed that Xx. Xxxxxxxxx'x promissory note will
have preference and stand before any obligations EPI has to Xxxxxx Xxxxxxx
and/or his assigns.
/s/ Xxxxxx Xxxxxxx
--------------------------------
Xxxxxx Xxxxxxx
Page 3 of 22
PAGES 4 THROUGH 15 INTENTIONALLY LEFT BLANK.
RETURN TO: (ENCLOSE SELF-ADDRESSED STAMPED ENVELOPE) GENERAL RELEASE
NAME:
Xxxxx X. Xxxxx
ADDRESS:
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
THIS INSTRUMENT PREPARED BY:
ADDRESS:
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE SPACE ABOVE THIS LINE
FOR PROCESSING DATA FOR RECORDING DATA
KNOW ALL MEN BY THESE PRESENTS:
That, first party, Xxxxxx Xxxxxxxxx, for and in consideration of the sum
of Ten and 00/100 Dollars ($10.00), and other valuable considerations,
received from or on behalf of Electropharmacology, Inc., second party, the
receipt whereof is hereby acknowledged,
(Wherever used herein the terms "first party" and "second party" shall
include singular and plural, officers, directors, agents, attorneys,
employees, insurers, heirs, legal representatives, and assigns of
individuals, and the successors and assigns of corporations, wherever
the context so admits or requires.)
HEREBY remise, release, acquit, satisfy, and forever discharge the said
second party of and from all, and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, which said first party ever had, now
has, or which any personal representative, successor, heir or assign of said
first party, hereafter can, shall or may have, against said second party,
for, upon or by reason of any claims that have been made for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day of these presents, including without limitation, any claims
raised or that could have been raised in connection with or related to the
first party's management of or employment by the first party; except that,
this release is not intended to and shall not release second party from his
obligations and duties under that certain Settlement Agreement, dated April
12, 1997, between Electropharmacology, Inc. and Xxxxxx Xxxxxxxxx.
Page 16 of 22
IN WITNESS WHEREOF, I have hereunto set my hand and seal, this 12th day
of April, 1997.
Signed, sealed and delivered in presence of: XXXXXX XXXXXXXXX
/s/ XXXXXXXXX X. DU XXXXXX /s/ XXXXXX XXXXXXXXX
----------------------------------- ---------------------------------
Witness Signature
Xxxxxxxxx X. du Xxxxxx Xxxxxx Xxxxxxxxx
----------------------------------- ---------------------------------
Printed Name Printed Name
/s/ XXXXX X. XXXXX 17643 Bocaine Way
----------------------------------- ---------------------------------
Witness Signature Post Xxxxxx Xxxxxxx
Xxxxx X. Xxxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
-----------------------------------
Printed Name
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgments,
the foregoing instrument was acknowledged before me by _______________________
__________________________, who is personally known to me or who has produced
______________________________ as identification.
WITNESS my hand and official seal in the County and State last aforesaid
this _____ day of ____________________, 19__.
/s/ XXXXXXXXX X. DU XXXXXX
--------------------------------------
Notary Public
--------------------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires:
Page 17 of 22
RETURN TO: (ENCLOSE SELF-ADDRESSED STAMPED ENVELOPE) GENERAL RELEASE
NAME:
Xxxxx X. Xxxxx
ADDRESS:
X.X. Xxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
THIS INSTRUMENT PREPARED BY:
ADDRESS:
Xxxxx, McClosky, Smith,
Xxxxxxxx & Xxxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
00xx Xxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
--------------------------------------------------------------------------------
SPACE ABOVE THIS LINE SPACE ABOVE THIS LINE
FOR PROCESSING DATA FOR RECORDING DATA
KNOW ALL MEN BY THESE PRESENTS:
That, first party, Electropharmacology, for and in consideration of the
sum of Ten and 00/100 Dollars ($10.00), and other valuable considerations,
received from or on behalf of Xxxxxx Xxxxxxxxx, second party, the receipt
whereof is hereby acknowledged,
(Wherever used herein the terms "first party" and "second party" shall
include singular and plural, officers, directors, agents, attorneys,
employees, insurers, heirs, legal representatives, and assigns of
individuals, and the successors and assigns of corporations, wherever
the context so admits or requires.)
HEREBY remise, release, acquit, satisfy, and forever discharge the said
second party of and from all, and all manner of action and actions, cause and
causes of action, suits, debts, dues, sums of money, accounts, reckonings,
bonds, bills, specialties, covenants, contracts, controversies, agreements,
promises, variances, trespasses, damages, judgments, executions, claims and
demands whatsoever, in law or in equity, which said first party ever had, now
has, or which any personal representative, successor, heir or assign of said
first party, hereafter can, shall or may have, against said second party,
for, upon or by reason of any claims that have been made for, upon or by
reason of any matter, cause or thing whatsoever, from the beginning of the
world to the day of these presents, including without limitation, any claims
raised or that could have been raised in connection with or related to the
second party's management of or employment by the first party; except that,
this release is not intended to and shall not release second party from his
obligations and duties under that certain Settlement Agreement, dated April
12, 1997, between Electropharmacology, Inc. and Xxxxxx Xxxxxxxxx.
Page 18 of 22
IN WITNESS WHEREOF, I have hereunto set my hand and seal, this 12th day
of April, 1997.
Signed, sealed and delivered in presence of: ELECTROPHARMACOLOGY, INC.
/s/ XXXX XXX By: /s/ XXXXX XXXXXX (L.S.)
----------------------------------- ---------------------------------
Witness Signature As Executive Vice President
-------------------------------
Xxxx Xxx
----------------------------------- ---------------------------------
Printed Name Printed Name
/s/ XXXXX X. XXXXX
----------------------------------- ---------------------------------
Witness Signature Post Office Address
Xxxxx X. Xxxxx
-----------------------------------
Printed Name
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgments,
the foregoing instrument was acknowledged before me by _______________________
________________________, the ________________________ of Electropharmacology,
Inc., a Florida corporation, freely and voluntarily under authority duly
vested in him/her by said corporation and that the seal affixed thereto is
the true corporate seal of said corporation. He/She is personally known to
me or who has produced ______________________________ as identification.
WITNESS my hand and official seal in the County and State last aforesaid
this _____ day of ____________________, 1997.
/s/ XXXXXXXXX X. DU XXXXXX
--------------------------------------
Notary Public
--------------------------------------
Typed, printed or stamped name of
Notary Public
My Commission Expires:
Page 19 of 22
PROMISSORY NOTE
$128,700.00 City of Fort Lauderdale
State of Florida
FOR VALUE RECEIVED, ELECTROPHARMACOLOGY, INC., a Florida corporation
("Borrower"), promise to pay to the order of XXXXXX XXXXXXXXX ("MOOIBROEK"),
the principal amount of ONE HUNDRED AND TWENTY EIGHT THOUSAND SEVEN HUNDRED
DOLLARS AND 00/100 DOLLARS ($128,700.00).
This Note shall be paid according to the following terms:
$15,000 due no later than April 18, 1997;
$15,000 due no later than May 1, 1997;
$15,700 due no later than May 15, 1997;
$10,000 due no later than June 1, 1997;
$10,000 due no later than June 15, 1997;
$10,000 due no later than July 1, 1997;
$10,000 due no later than July 15, 1997;
$10,000 due no later than August 1, 1997;
$10,000 due no later than August 15, 1997;
$10,000 due no later than September 1, 1997;
$11,000 due no later than September 15, 1997; and
$ 2,000 due no later than October 1, 1997
All payments to be received no later than 5:00 p.m. on the date that such
payment is due. This Note may be prepaid at any time without premium or fee.
If Borrower obtains financing in an amount greater than One Million
Dollars ($1,000,000), or if Borrower defaults on any payment to be made
herein and any such Default continues for more than ten (10) calendar days
from the date payment is due, the entire principal sum shall become due and
payable at the option of Mooibroek. Failure to exercise this option shall not
constitute a waiver of the right to exercise the same at any other time.
Upon the occurrence of any default under this Note, the unpaid principal
of this Note and any part thereof, shall bear interest at the rate of
eighteen (18) per cent after Default until paid (the "Default Rate"). The
prevailing party in any action to collect upon this Note shall be entitled to
all costs of collection, including reimbursement of their attorney's fees,
including any appeals.
All payments on this Note shall be payable in lawful currency of the
United States of America at Xxxxxx Xxxxxxxxx, 00000 Xxxxxxx Xxx, Xxxx Xxxxx,
Xxxxxxx 00000 in immediately available funds.
Page 20 of 22
Borrower hereby (a) waives demand, presentment for payment, notice of
nonpayment, protest, notice of protest and all other notice, filing of suit
and diligence in collecting this Note; and (b) agrees that Mooibroek shall
not be required first to institute any suit, or to exhaust its remedies
against Borrower or any other person or party to become liable hereunder in
order to enforce payment of this Note.
Anything contained herein to the contrary notwithstanding, if for any
reason the effective rate of interest on this Note should exceed the maximum
lawful rate, the effective rate shall be deemed reduced to and shall be such
maximum lawful rate, and any such sums of interest which have been collected
in excess of such maximum lawful rate shall be applied as a credit against
the unpaid balance due hereunder.
The provisions of this Note may from time to time be amended, modified or
waived only by written agreement executed by Borrower and Mooibroek.
This Note is made under and governed by the laws of the State of Florida,
without regard to conflict of laws or principles.
WAIVER OF JURY TRIAL. BORROWER AND MOOIBROEK HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED ON THIS NOTE, OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR MOOIBROEK'S ACCEPTING THIS
NOTE FROM BORROWER.
BORROWER:
ELECTROPHARMACOLOGY, INC.,
a Florida corporation
By: /s/ XXXXX XXXXXX
-------------------------------------
Xxxxx Xxxxxx, Vice Chairman/Chief
Financial Officer
Page 21 of 22
STATE OF FLORIDA )
) SS:
COUNTY OF BROWARD )
I HEREBY CERTIFY that on this day, before me, an officer duly authorized
in the State aforesaid and in the County aforesaid to take acknowledgments,
the foregoing instrument was acknowledged before me by _______________, the
________________ of _______________, a _______________ corporation, freely
and voluntarily under authority duly vested in him/her by said corporation
and that the seal affixed thereto is the true corporate seal of said
corporation. He/She is personally known to me or who has produced
______________ as identification.
WITNESS my hand and official seal in the County and State last aforesaid
this __ day of ___________, 19__.
XXXXXXXXX X. DU XXXXXX
--------------------------
Notary Public
--------------------------
Typed, printed or stamped
name of Notary Public
My Commission Expires:
Page 22 of 22
