EXHIBIT 10.1
Final: October 28,
2008
AGREEMENT
This Agreement is entered into between BioAgra, LLC, a Georgia Limited
Liability Company
(the "Company"), Neal Bartoletta ("Bartoletta"), Justin
Holdings, Inc., a
Florida corporation ("Justin") and Vyta Corp., Inc., a Nevada
corporation ("Vyta"), this ____ day of October, 2008.
RECITALS
WHEREAS, Bartoletta
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, Justin 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 Justin) (the
"Operating Agreement").
WHEREAS, the parties
have determined that it is in the best
interest of the
Company if Bartoletta
ceases his activities as a Manager and executive officer
of the Company and Justin ceases to be a Member of the Company.
WHEREAS, the Company
desires to have Bartoletta 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.
Bartoletta 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. Justin
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. Justin and Bartoletta hereby agree
and consent
to the appointment of Paul Metzinger as the sole Manager, President
and
Chief Executive
Officer of the Company, and waive all of their rights
under the Operating Agreement.
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<PAGE>
4.
PAYMENT. In consideration of the agreements and subject to
Bartoletta's
and Justin's
performance
of the undertakings set forth in this
Agreement, the Company and VYTA, in full and final settlement of
all of
Bartoletta's 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 Bartoletta:
(a) The
Company and Vyta,
jointly and severally, shall pay to
Bartoletta $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 Justin ten percent (10%) of all
Profits generated by
the Company, until a
maximum aggregate
payment to Justin 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 Bartoletta 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. Justin
shall have the right
to assign said
payments
upon written notice to the Company.
5.
CONSULTANT. Bartoletta
hereby agrees that for a period of five (5)
years from the Closing
Date, Bartoletta 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 Bartoletta. In no event shall Bartoletta 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 Bartoletta hereunder, shall be those of Company. The
Company agrees
to indemnify Bartoletta, for claims against Bartoletta 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 Bartoletta 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 Bartoletta, for a
period of five (5) years from the Closing Date, the same or comparable
health insurance arrangements in which he currently
participates.
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8.
NON-COMPETITION. For
the period
beginning on the Closing Date and
ending at the conclusion of the payments referenced in Paragraph 4(a),
Bartoletta 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.
Bartoletta and Justin agree that for a period of five
years from the date of this A
