AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement, effective as of August 20th, 2001 (the
"Agreement"), is entered into by and between LEXON, INC., an Oklahoma
corporation (the "Company"), the principal offices of which are located at 0000
Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx, 00000, and XXXXX XXXXXX
("Xxxxxx"). This Amended Employment Agreement is intended to amend the original
Employment Agreement between Xxxxxx and Lexon dated January 3, 2001. In
consideration of the mutual covenants and conditions contained in this
Agreement, the parties agree to the following:
WITNESSETH
Whereas, the Employee has agreed to perform services for and on behalf of
the Company, as well as to devote her time, attention and energies to the
business of the Company during the term of this Agreement; and
Whereas, the Company and the Employee have mutually agreed upon the
remuneration the Employee shall receive from the Company as an employee during
the term of this Agreement; and
Whereas, the Company and the Employee have agreed it is in their best
interest to set forth in this Agreement the specific manner in which such
remuneration is to be paid the Employee by the Company; and
Whereas, the Parties hereby recognize that the Employee has served without
pay or other non-equity compensation since the Company's inception in December
of 1997. The fair market value of these services has been estimated by
management of the Company and recognized as a capital contribution.
Whereas, it is the intention of both the Company and the Employee that this
Agreement be entered into with strict adherence to the definition of Employee
Benefit Plan as set forth in Rule 405 of the Securities Act of 1933, as amended;
Whereas the parties agree that any portion of this Agreement which
conflicts with the Company's Articles of Incorporation or Bylaws shall be void
and the rest of this Agreement shall remain effective.
Whereas, the Company represents that by executing this contract that they
have taken all necessary steps to have the legal authority to bind the Company;
The Company hereby agrees to employ Xxxxxx as its Employee, and Xxxxxx
agrees to be employed by the Company upon the terms and conditions hereinafter
set forth.
ARTICLE 1
DUTIES AND COMPENSATION
1.01 Term of Employment and Duties. The Company and Xxxxxx agree that for
the period commencing on January 3rd, 2001 and terminating on January
3, 2002 (the "Termination Date"), the Company shall employ Xxxxxx and
Xxxxxx shall perform duties ("duties") for the Company as
Administrative Director of the Company as set forth in the Company's
Articles of Incorporation and Bylaws and shall report to the
President.
1.02 Commitment to the Company. During the term of this Agreement, Xxxxxx
shall devote such working time, attention and energies to the business
of the Company, as is necessary or appropriate for the performance of
her duties as Administrative Director of the Company.
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However, this commitment shall not be construed as preventing Xxxxxx
from participating in other businesses or from investing Xxxxxx'x
personal assets in such form or manner as may occasionally require
substantial time on the part of Xxxxxx in the management, conservation
and protection of such investments and provided that such investments
or business cannot be construed as being competitive or in conflict
with the business of the Company.
1.03 Renewal of Term. Upon each Termination Date this Agreement shall renew
and continue in effect for an additional two-year period, and each
successive Termination Date shall thereafter be designated as the
"Termination Date" for all purposes under this Agreement.
1.04 (a) Compensation. Xxxxxx shall receive a salary of $100,000.00 per
year, payable in 24 semi-monthly installments. Each January the
President shall review Xxxxxx'x salary and shall make such increases
in salary, as it considers appropriate. Xxxxxx'x salary during the
term of this Agreement shall never be less than $100,000.00 per year.
Effective at the beginning of each calendar year Xxxxxx shall be
entitled to at least an increase in salary that is equal to the
percentage increase in the Consumer Price Index during the previous
calendar year.
(b) The employee, at the employee's discretion, may elect to accept
stock in lieu of cash payments.
(c) Bonus. During the term of this Agreement Xxxxxx shall be entitled
to participate in all bonuses, as the President, in its sole
discretion, shall determine.
(d) Fringe Benefits. During the term of this Agreement the Company
shall provide to Xxxxxx each of the following: (i) all reasonable and
customary executive "fringe benefits," including, but not limited to,
participation in pension plans, profit-sharing plans, employee stock
ownership plans, stock option plans (whether statutory or not), stock
appreciation rights plans, hospitalization insurance, medical
insurance, dental insurance, disability insurance, life insurance, and
such other benefits that are granted to or provided for executives now
in the employ of the Company or that may be granted to or provided for
them during the term of Xxxxxx'x employment under this Agreement; and
(ii) paid vacation and sick leave, as determined by the President.
(e) Reimbursement of Expenses. (i) During the term of this Agreement
the Company shall pay directly or reimburse Xxxxxx for all reasonable
and necessary travel, entertainment, or other related expenses
incurred by her in carrying on her duties and responsibilities under
this Agreement. In addition, the Company shall furnish Xxxxxx with a
cellular telephone and suitable office space and facilities for the
performance of her duties. (ii) During the term of this Agreement the
Company shall pay for Xxxxxx'x membership dues in professional
organizations and for any seminars and conferences related to Company
business.
1.05 Assistance of Xxxxxx. Xxxxxx agrees to assist the Company during any
and all investigative matters, threatened or pending litigation during
and after her employment. After employment assistance shall not be
required in matters to which she is personally a party or which she
has written opinion and advise of counsel that the same would be
personally damaging.
1.06 (a) Indemnification. Xxxxxx shall be indemnified by the Company for
all legal expenses and all liabilities incurred in connection with any
proceeding involving her by reason of her being or having been an
officer, director, employee, or agent of the Company to the fullest
extent permitted by the laws of the State of Oklahoma.
(b) Payment of Expenses. In the event of any action, proceeding or
claim against Xxxxxx arising out of her serving or having served in a
capacity specified in Section 1.01 above, which in Xxxxxx'x sole
judgment requires her to retain counsel (such choice of counsel to be
made by Xxxxxx with the prior consent of the Company, which may not
unreasonably withhold its consent)
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or otherwise expend her personal funds for her defense in connection
therewith, the Company shall pay for or reimburse Xxxxxx for all
reasonable attorney's fees and expenses and other costs associated
with Xxxxxx'x defense of such action as such fees and costs are
incurred.
ARTICLE II
TERMINATION OF EMPLOYMENT
2.01 Termination Procedure. Either party to this Agreement may terminate
Xxxxxx'x employment under this Agreement by giving the other party
written notice of the intent to terminate at least thirty days prior
to the proposed termination date except as set out in section 2.02. A
decision by the Company to terminate Xxxxxx'x employment under this
Agreement shall require an affirmative vote of more than 66-2/3% of
the Board except as set out in Section 2.02.
2.02 Death. This Agreement shall terminate on the date of Xxxxxx'x death.
If this Agreement is terminated as a result of Xxxxxx'x death, the
Company shall pay to Xxxxxx'x estate, not later than the 30th day
following her death, a lump sum severance payment consisting of (1)
Xxxxxx'x salary and accrued salary through the date of her death, (2)
all amounts Xxxxxx would have been entitled to upon termination of her
employment under the Company's employee benefit plans and (3) a pro
rata amount of bonus Xxxxxx was eligible to receive under any Company
bonus plan.
2.03 Disability. The Company shall have the right to terminate this
Agreement if Xxxxxx incurs a permanent disability during the term of
her employment under this Agreement. For purposes of this Agreement,
"Permanent Disability" shall mean inability of Xxxxxx to perform the
services required hereunder due to physical or mental disability which
continues for either (i) a total of 180 working days during any
12-month period or (ii) 150 consecutive working days. In the event
that either party disputes whether Xxxxxx has a permanent disability,
such dispute shall be submitted to a physician mutually agreed upon by
Xxxxxx or her legal guardian and the Company. If the parties are
unable to agree on a mutually satisfactory physician, each shall
select a reputable physician, who, together, shall in turn select a
third physician whose determination of Xxxxxx'x ability to perform her
job duties shall be conclusive and binding to the parties. Evidence of
such disability shall be conclusive notwithstanding that a disability
policy or clause in an insurance policy covering Xxxxxx shall contain
a different definition of "permanent disability." If Xxxxxx'x
employment under this Agreement is terminated by the Company because
she has a permanent disability, the Company shall pay Xxxxxx, not
later than the 30th day following the date of termination, a lump sum
severance payment consisting of (1) Xxxxxx'x salary through the date
of her termination, (2) all amounts Xxxxxx is entitled to upon
termination of employment under the Company's employee benefit plans,
(3) Xxxxxx'x undiscounted salary through the Termination Date, or if
greater for a period of 24 months, and (4) a pro rata amount of bonus
she is eligible to receive under any Company bonus program.
2.04 Termination With Cause. The Company shall have the right to terminate
this Agreement for cause. For purposes of this Agreement, "for cause"
shall exclusively be defined to mean (a) conviction of a felony which
is materially detrimental to the Company, (b) proof beyond a
reasonable doubt of the gross negligence or willful misconduct which
is materially detrimental to the Company, or (c) proof beyond a
reasonable doubt of a breach of a fiduciary duty which is materially
detrimental to the Company. If the Company terminates Xxxxxx'x
employment "for cause" the Company shall pay Xxxxxx, not later than
the 30th day following the date of termination, a lump sum severance
payment consisting of (1) Xxxxxx'x salary and accrued salary through
the date of her termination and (2) all amounts Xxxxxx is entitled to
upon termination of employment under the Company's employee benefits
plans.
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2.05 Termination Without Cause. If the Company terminates Xxxxxx'x
employment for any reason other than for cause as that term is defined
in section 2.04, the Company shall pay Xxxxxx, not later than the 30th
day following the date of termination, a lump sum severance payment
consisting of (1) Xxxxxx'x salary and accrued salary through the date
of her termination, (2) all amounts Xxxxxx is entitled to upon
termination of employment under the Company's employee benefits plans,
(3) Xxxxxx'x undiscounted salary through the Termination Date, or if
greater for a period of 24 months, and (4) a pro rata amount of bonus
she is eligible to receive under any Company bonus program.
2.06 Resignation. If Xxxxxx resigns from her employment under this
Agreement other than for a reason of change of control as defined in
section 2.07, the Company shall pay Xxxxxx, not later than the 30th
day following the effective date of her resignation, a lump sum
severance payment consisting of (1) Xxxxxx'x salary through the date
of her termination, (2) all amounts Xxxxxx is entitled to upon
termination of employment under the Company's employee benefit plans,
(3) Xxxxxx'x undiscounted salary for a period of 90 days after her
resignation and (4) a pro rata amount of bonus she is eligible to
receive under any Company bonus program. Xx. Xxxxxx'x accrued salary
shall be paid within thirty days if the Company has available funds,
if the Company does not have said funds then the accrued salary shall
be paid in a reasonable time after her severance in no case shall that
time period extend over six months.
2.07 Change of Control. Xxxxxx shall have the right to resign from her
employment under this Agreement if there is a change of control. For
purposes of this Agreement a Change of Control shall be deemed to have
occurred if any of the following occur: (i) at any time during any
period of 12 consecutive months, at least a majority of the directors
serving on the Board ceases to consist of individuals who have served
continuously on such Board since the beginning of such 12 month
period, unless the election of directors during such period, or
nomination for election by the shareholders of the Company, was
approved by a vote of at least two-thirds of the members of such Board
at such time still in office and who shall have served continuously on
such Board since the beginning of such 12-month period by reason of
death or disability; or (ii) a merger or consolidation occurs to which
the Company is a party unless following such merger or consolidation
(A) more than 50% of the then outstanding shares of voting capital
stock of the corporation surviving such merger or resulting from such
consolidation is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were the
beneficial owners of the outstanding voting capital stock of the
Company immediately prior to such merger or consolidation in
substantially the same proportions as their ownership, immediately
prior to such merger or consolidation, of the outstanding voting
capital stock of the Company, and (B) at least a majority of the
members of the Board surviving such merger or resulting from such
consolidation were members of the Board immediately prior to such
merger or consolidation; or (iii) the sale of all, or substantially
all, of the assets of the Company; or (iv) a person or entity who is
not an owner of voting capital stock of the Company as of the date of
this Agreement acquires more than 50% of the voting capital stock of
the Company. Notwithstanding the foregoing, however, a Change of
Control shall not be deemed to have occurred upon the consummation of
an Initial Public Offering of the capital stock of the Company. If
Xxxxxx exercises her right to terminate her employment following a
Change of Control, she shall receive, not later than the 30th day
following the date of termination, a lump sum severance payment
consisting of (1) Xxxxxx'x salary through the date of her termination,
(2) all amounts Xxxxxx is entitled to upon termination of employment
under the Company's employee benefits plans, (3) Xxxxxx'x undiscounted
salary through the Termination Date, or if greater for a period of 24
months, and (4) a pro rata amount of bonus she is eligible to receive
under any Company bonus program.
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2.08 Mitigation. Xxxxxx shall have no obligation to mitigate any damages or
payments made to her under Article II of this Agreement.
2.09 Excess Parachute Payments. In the event that payment of the amounts
this Agreement requires the Company to pay Xxxxxx would cause Xxxxxx
to be the recipient of an excess parachute payment (within the meaning
of Section 280G(b) of the Internal Revenue Code of 1986), the amount
of the payments to be made to Xxxxxx pursuant to this Agreement shall
be reduced to an amount equal to one dollar less than the amount that
would cause the payments hereunder to be excess parachute payments.
The manner in which such reduction occurs, including the items of
payment and amounts thereof to be reduced, shall be agreed to by
Xxxxxx and the Company.
ARTICLE III
RESTRICTIONS DURING AND AFTER EMPLOYMENT
3.01 Company Records and Documents. All Company-related records and
documents are considered to be the exclusive property of the Company.
Upon the termination of Xxxxxx'x employment by the Company for any
reason, she shall promptly return to the Company all such records and
documents in her possession or under her control. Xxxxxx shall have
the right to retain copies of Company records and documents that she
believes are reasonably necessary for her to retain to be able to
exercise her rights under the Indemnification Provisions of this
Agreement.
ARTICLE IV
MISCELLANEOUS
4.01 Notice. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and sent by certified mail
by the Company to the residence of Xxxxxx, or by Xxxxxx to the
Company's principal office.
4.02 Further Assurances. Each party agrees to perform any further acts and
to execute and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
4.03 Severability. In the event that any of the provisions, or portions
thereof, of this Agreement are held to be unenforceable or invalid by
any court of competent jurisdiction, the validity and enforceability
of the remaining provisions or portions thereof, shall not be affected
thereby.
4.04 Construction. Whenever used herein, the singular number shall include
the plural, and the plural number shall include the singular.
4.05 Headings. The headings contained in this Agreement are for purposes of
reference only and shall not limit or otherwise affect the meaning of
any of the provisions contained herein.
4.06 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all
of which together shall constitute one and the same instrument.
4.07.1 Governing Law. This Agreement has been executed in and shall be
governed by the laws of the State of Oklahoma.
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4.07.2 Assignment. This Agreement shall be assignable and binding upon any
purchasers or successors in interest of the Company.
4.08 Inurement. Subject to the restrictions against transfer or assignment
as herein contained, the provisions of this Agreement shall inure to
the benefit of, and shall be binding on, the assigns, successors in
interest, personal representatives, estates, heirs and legatees of
each of the parties hereto.
4.09 Waivers. No waiver of any provision or condition of this Agreement
shall be valid unless executed in writing and signed by the party to
be bound thereby, and then only to the extent specified in such
waiver. No waiver of any provision or condition of this Agreement
shall be construed as a waiver of any other provision or condition of
this Agreement, and no present waiver of any provision or condition of
this Agreement shall be construed as a future waiver of such provision
or condition.
4.10 Amendment. This Agreement may be amended only by a written document
signed by the parties and stating that the document is intended to
amend this Agreement.
4.11 Disputes. In any dispute or proceeding to construe this Agreement, the
parties expressly consent to the exclusive jurisdiction of state and
federal courts in Tulsa County, Oklahoma, the principal place of
business for Lexon. The prevailing party in any suit brought to
interpret this Agreement shall be entitled to recover reasonable
attorney's fees and expenses in addition to any other relief to which
it is entitled.
4.12 Payment of Xxxxxx'x Attorney's Fees and Expenses in Advance in
Connection with this Agreement. If the Company brings a suit against
Xxxxxx in connection with this Agreement or if Xxxxxx brings suit
against the Company in connection with this Agreement, the Company
shall pay Xxxxxx'x reasonable attorney's fees and expenses as incurred
as limited by Oklahoma law. If a determination is made in a court of
competent jurisdiction in favor of the Company, then the Company shall
be entitled to be reimbursed by Xxxxxx for her attorney's fees and
expenses, which were paid by the Company.
4.13 Execution. Each party to this Agreement hereby represents and warrants
to the other party that such party has full power and capacity to
execute, deliver and perform this Agreement.
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective this 20th day of August, 2001.
XXXXX XXXXXX LEXON, INC.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxx
---------------------------- --------------------------------------------
Xxxxx Xxxxxx, an Individual By: Xxxxxxx X. Xxxxx
Chief Executive Officer & President
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