EXHIBIT 10(i)
AGREEMENT
This agreement is entered into between Xxxxxxxx X. Xxxx ("Xxxx") and
Clinicor, Inc., a Nevada corporation (the "Company"), on the 5th day of March,
1996.
W I T N E S S E T H:
WHEREAS, Xxxx has in the past provided certain consulting services to the
Company; and
WHEREAS, Xxxx is the beneficiary of certain contract rights arising under
various agreements to which Xxxx and the Company are parties; and
WHEREAS, in consideration of Xxxx'x prior consulting services and his
relinquishment of the above-referenced contract rights, the Company has agreed
to issue to Xxxx an option (the "Option") to purchase certain shares of the
Company's common stock and to pay Xxxx Twenty Five Thousand and No/100 Dollars
($25,000.00) in cash;
NOW, THEREFORE, the parties hereto agree as follows:
1. Actions at Closing. Simultaneously with the execution hereof, the
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Company (i) shall pay to Xxxx Twenty Five Thousand and No/100 Dollars
($25,000.00) in cash, (ii) shall pay to SJ Capital Inc. Eleven Thousand One
Hundred Seventy and 34/100 Dollars ($11,170.34) in cash, which will satisfy in
full the Company's obligation to pay consulting fees pursuant to Section 3(c) of
that certain Sales Agent Agreement made effective as of September 15, 1995 by
and between the Company and SJ Capital Inc. and (iii) shall
execute and deliver to Xxxx an option agreement in the form attached hereto as
Exhibit A.
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2. Covenants and Representations. Xxxx represents to the Company the
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following:
(a) Xxxx understands that the Option and any Common Stock
(collectively, the "Securities") purchased upon its exercise are securities, the
issuance of which requires compliance with federal and state securities laws.
(b) Xxxx is aware of the Company's business plan and financial
condition and has acquired sufficient information about the Company to reach an
informed and knowledgeable decision to acquire the Securities. Xxxx is acquiring
the Securities for investment for his own account and not with a view to, or for
resale in connection with, any "distribution" thereof within the meaning of the
Securities Act of 1933, as amended (the "Securities Act").
(c) Xxxx acknowledges and understands that the Securities constitute
"restricted securities" under the Securities Act and must be held indefinitely
unless they are subsequently registered under the Securities Act or an exemption
from such registration is available. Xxxx further acknowledges and understands
that the Company is under no obligation to register the Securities. Xxxx
understands that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such
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registration is not required in the opinion of counsel satisfactory to the
Company, and any other legend required under applicable state securities laws.
(d) In connection with any subsequent underwritten public offering of
the Company's securities, Xxxx agrees: (i) not to sell, make short sale of,
loan, grant any options for the purchase of, or otherwise dispose of any shares
of Common Stock acquired through exercise of the Option without the prior
written consent of the Company or the underwriters managing such underwritten
public offering for a period of one hundred eighty (180) days from the effective
date of such registration, and (ii) to execute any agreement reflecting this
Section 2(d) as may be requested by the underwriters at the time of the public
offering.
(e) Xxxx has reviewed with his own tax and securities advisors the
federal and state consequences associated with receipt and exercise of the
Option. Xxxx is relying solely upon his own advisors and not upon any statements
or representations of the Company or any of its agents with respect to tax
treatment of the Option or transferability of the Common Stock issuable upon
exercise of the Option. Xxxx understands that Xxxx (and not the Company) shall
be responsible for Xxxx'x own tax liability that may result in connection with
the transactions contemplated by this Agreement. Xxxx hereby authorizes the
Company to make appropriate
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arrangements for any withholding of tax that may be required under applicable
law in connection with the exercise of the Option.
3. Release of Contract Rights. Xxxx hereby releases and discharges the
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Company from any and all obligations of the Company to Xxxx pursuant to (i) the
Preemptive Rights Agreement dated February 27, 1995 between the Company, Xxxx
and others and (ii) the Investment Banking Rights Agreement dated February 27,
1995 between Xxxx and the Company. Xxxx agrees that, upon execution hereof, he
will have no continuing claims or rights of any kind (whether known, unknown,
accrued, absolute, contingent or otherwise) under either such agreement. Xxxx
hereby consents to any modification or amendment that may hereafter be proposed
by the Company to the Covenant Not to Compete Agreement dated February 27, 1995
among the Company, Xxxxxx X. X'Xxxxxxx and Xxxxxx Xxxxxx or to the Employee
Proprietary Information and Inventions Agreements to which the Company and
Xxxxxx X. X'Xxxxxxx and Xxxxxx Xxxxxx are parties, regardless of when those
amendments or modifications may be proposed or effected. Xxxx hereby waives and
relinquishes any contract rights and claims (whether known, unknown, accrued,
absolute, contingent or otherwise) that he may have pursuant to (i) the
Agreement and Plan of Merger dated February 27, 1995, by and among Xxxx, the
Company and others, (ii) the Stock Purchase Agreement dated February 27, 1995
between Xxxx and the Company and (iii) any other agreements between Xxxx and the
Company, regardless
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of whether the contracts in question are expressly identified herein.
4. Survival. The representations, warranties, covenants and agreements
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made herein shall survive the closing of the transactions contemplated hereby.
5. Successors and Assigns. Except as otherwise expressly provided
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herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6. Entire Agreement. This Agreement constitutes the entire agreement.
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7. Title and Subtitles. The titles of the Sections and subsections of
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this Agreement are for the convenience of reference only and are not to be
considered in construing this Agreement.
8. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
9. Applicable Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year hereinabove first written.
/s/ Xxxxxxxx Xxxx
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XXXXXXXX X. XXXX
CLINICOR, INC.
By /s/ Xxx X'Xxxxxxx
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Its President
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EXHIBIT A
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OPTION AGREEMENT
This Agreement, dated the _____ day of _______________, 1996, by and
between Clinicor, Inc., a Nevada corporation (the "Company"), and Xxxxxxxx X.
Xxxx (the "Optionee");
W I T N E S S E T H:
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WHEREAS, the Company desires to grant unto the Optionee an option to
purchase fifty thousand (50,000) shares of its common stock;
NOW, THEREFORE, for good and valuable consideration, as well as the
covenants and agreements herein contained, the receipt and sufficiency of all of
which are hereby acknowledged, the parties hereto agree as follows:
1. Grant of Option. The Company hereby grants to the Optionee the right
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and option to purchase, subject to all of the terms and conditions of this
Agreement, up to an aggregate fifty thousand (50,000) shares of the common
stock, $.001 par value, of the Company (referred to herein as the "Option
Stock"), at a cost of One Dollar ($1.00) per share (the "Option"). The per
share exercise price from time to time in effect hereunder is referred to herein
as the "Exercise Price."
2. Term of Option. The term of the Option shall commence on the date
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hereof and shall automatically terminate and expire on February 28, 2001.
3. Time of Exercise. This Option may be exercised by Optionee at any time
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during the term hereof, in whole or in part, but for not less than five thousand
(5,000) shares at a time (subject to adjustment pursuant to Section 10 below).
4. Method of Exercise. As modified by Section 6, the Option may be
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exercised by the Optionee's delivery to the Company of a written notice stating
that the Optionee desires to exercise the Option, specifying the number of
shares of Option Stock to be purchased, together with cash or a certified or
cashier's check payable to the order of the Company for an amount equal to the
Exercise Price multiplied by the number of shares of Option Stock being
purchased. The Company may then require that there be presented to and filed
with it such evidence as it may deem necessary to establish that the Option
Stock to be purchased is being acquired for investment and not with a view to
distribution or resale and is otherwise being acquired in accordance with
applicable securities laws.
5. Delivery. As promptly as possible after receipt of the Optionee's
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written notice and payment and of such evidence of intent to acquire for
investment and of compliance with applicable securities laws as may be required
by the Company, the Company will deliver to the Optionee certificates for the
number of shares of Option Stock being purchased, issued in the Optionee's name.
6. Like Kind Exercise. Notwithstanding any provisions herein to the
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contrary, if on the date of exercise the fair market
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value of one (1) share of Option Stock is greater than the Exercise Price, then
in lieu of exercising this Option for cash, the Optionee may elect (by
appropriate designation in the written notice of exercise) to receive shares
equal to the value of this Option (or the portion thereof being exercised), in
which event the Company shall issue to the Optionee a number of shares of Common
Stock computed using the following formula:
Y (A-B)
X = _______
A
Where X = the number of shares of Common Stock to be issued to the
Optionee
Y = the number of shares of Option Stock being purchased under
the Option
A = the fair market value of one (1) share of the Option Stock
(at the date of exercise)
B = Exercise Price (as adjusted to the date of exercise)
For purposes of the above calculation, fair market value of one (1) share of
Option Stock shall be determined by the Company's Board of Directors in good
faith; provided, however, that where there exists a public market for the
Company's Common Stock at the time of such exercise, and where the average
trading volume for the forty-five (45) trading days prior to exercise is not
less than twenty thousand (20,000) shares per day (reflecting the buy and sell
sides of transactions involving an average of ten thousand (10,000) shares per
day), then the fair market value per share shall be the average of the closing
bid and asked prices of the Common Stock
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quoted in the Over-The-Counter Market Summary or the last reported sale price or
the closing price quoted on the Nasdaq National Market or on any exchange on
which the Common Stock is listed, whichever is applicable, for such forty-five
(45) trading days prior to the date of exercise. Notwithstanding the foregoing,
in the event the Option is exercised in connection with a Company's initial
public offering of Common Stock, the fair market value per share shall be the
per share public price.
7. Rights of Optionee. This Option shall not entitle the Optionee to any
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of the rights of a stockholder of the Company.
8. Transfer of Option. This Option may not be transferred in any manner
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otherwise than by will or by the laws of descent or distribution and may be
exercised during the lifetime of Optionee only by Optionee. The terms of this
Option shall be binding upon the executors, administrators, heirs, successors
and assigns of Optionee.
9. Notices. Whenever the Exercise Price or the number of shares of
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Option Stock purchasable hereunder shall be adjusted pursuant to Section 10
hereof, the Company shall issue a certificate signed by its Chief Financial
Officer setting forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment was
calculated, and the Exercise Price and number of shares purchasable hereunder
after giving effect to such adjustment, and shall cause a copy of such
certificate to be mailed to the Optionee.
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10. Adjustments. The Exercise Price and the number of shares purchasable
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hereunder are subject to adjustment from time to time as follows:
(a) Merger, Reorganization, etc. If at any time while this Option is
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outstanding there shall be (i) a reorganization (other than a combination,
reclassification, exchange or subdivision of shares otherwise provided for
herein) or (ii) a merger or consolidation of the Company with or into another
corporation in which the Company is not the surviving entity, or a reverse
triangular merger in which the Company is the surviving entity but the shares of
the Company's capital stock outstanding immediately prior to the merger are
converted by virtue of the merger into other property, whether in the form of
securities, cash, or otherwise, then, as a part of such reorganization, merger
or consolidation, provision shall be made so that the Optionee shall thereafter
be entitled to receive upon exercise of this Option the number of shares of
stock or other securities or property of the successor corporation resulting
from such reorganization, merger or consolidation that a holder of the shares
deliverable upon exercise of this Option would have been entitled to receive in
such reorganization, consolidation or merger if this Option had been exercised
immediately before such transaction, all subject to further adjustment as
provided in this Section 10. The foregoing provisions of this Section 10 shall
similarly apply to successive reorganizations, consolidations and mergers. If
the
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per-share consideration payable to the Optionee for shares in connection with
any such transaction is in a form other than cash or marketable securities, then
the value of such consideration shall be determined in good faith by the
Company's Board of Directors.
(b) Reclassification, etc. If the Company, at any time while this
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Option remains outstanding, by reclassification of securities or otherwise,
shall change any of the securities as to which purchase rights under this Option
exist into the same or a different number of securities of any other class or
classes, this Option shall thereafter represent the right to acquire such number
and kind of securities as would have been issuable as the result of such change
with respect to the securities that were subject to the purchase rights under
this Option immediately prior to such reclassification or other change, and the
Exercise Price therefor shall be appropriately adjusted, all subject to further
adjustment as provided in this Section 10.
(c) Split, Subdivision or Combination of Shares. If the Company at
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any time while this Option, or any portion thereof, remains outstanding and
unexpired shall split, subdivide or combine the securities as to which purchase
rights under this Option exist, into a different number of securities of the
same class, the Exercise Price for such securities shall be proportionately
decreased in the case of a split or subdivision or proportionately increased in
the case of a combination.
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11. Notices. Any notice or communication required or permitted hereunder
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shall be sufficiently given if in writing and if delivered (including delivery
by private courier or facsimile transmittal) or sent by registered or certified
mail, postage prepaid, return receipt requested:
(a) if to the Company, addressed to
Clinicor, Inc.
000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President
(b) if to the Optionee, addressed to
Xxxxxxxx X. Xxxx
000 Xxxxxxxxx
Xxxxxxxx, XX 00000.
or to such other address as either party shall designate by written notice to
the other. Such notice shall be effective as of the date received or (if mailed
as described above) three (3) days after the date of mailing.
12. Law. This Option shall be governed and construed in accordance with
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the laws of the State of Texas, exclusive of principles of conflicts of law.
13. Section Headings. Section and other headings contained in this Option
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are for reference purposes only and are in no way intended to define, amplify or
limit the scope or intent of this Option or any of its provisions.
14. Terms. Common nouns and pronouns will be deemed to refer to the
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masculine, feminine, neuter, singular and plural as the
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identity of a person or persons, firm or corporation may in the contexts
require.
15. Further Actions. Each party will execute and deliver such papers,
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documents and instruments, and perform such acts, as are necessary and
appropriate to implement the terms of this Option and the intent of the parties
hereto.
16. Amendments. No alterations, modifications, amendments or changes to
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this Option will be effective or binding upon the parties unless the same shall
have been agreed to in writing by all parties.
IN WITNESS WHEREOF, the parties hereto have executed this agreement on the
day and year first written above.
COMPANY:
CLINICOR, INC.
By_________________________________
Its______________________________
OPTIONEE:
/s/ Xxxxxxxx X.Xxxx
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XXXXXXXX X. XXXX
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