AGREEMENT
This Agreement ("Agreement") is entered into and effective this 31st day of
December, 1997 by and among M. Xxxxx Xxxx ("Xxxxx Xxxx"), Xxxx Health Company,
Inc. ("Ives"), Xxxxxxx Xxxxx ("Xxxxx"), and Maxxon, Inc. ("Maxxon").
Whereas, Ives and Maxxon completed a share exchange in August, 1997
pursuant to which Ives became a wholly owned subsidiary of Maxxon; and
Whereas, the parties have concluded that it is in their mutual best
interests and the interests of their shareholders to enter into this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Formation of Newco. Upon execution of this Agreement, Maxxon will
organize a new corporation ("Newco") under Oklahoma law with an authorized
capitalization of 50,000,000 shares of common stock, par value $.001 per share,
whose name shall be Ives Health Company, Inc. Xxxxx Xxxx shall designate the
directors and officers of Newco. Maxxon will change the name of its current
subsidiary and make the name "Ives Health Company, Inc." available to this new
corporation.
2. Resignation of Xxxxx Xxxx. Upon execution of this Agreement, Xxxxx Xxxx
agrees to resign as a director, officer, employee, agent, and representative of
Maxxon in every other capacity and as a director, officer, employee, agent and
representative of The Health Club, Inc. and in every other capacity of The
Health Club, Inc.
3. Initial Business Plan for Newco.
(a) The parties agree to issue at par 7,000,000 shares of common stock to
Xxxxx Xxxx. The parties agree to issue in a stock for stock tax free
reorganization, 1,700,000 shares of Common Stock of Newco in exchange for all
the issued and outstanding shares of Ives. Simultaneously, and as consideration
for the above stock exchange, Xxxxx Xxxx agrees to surrender to Maxxon 275,360
shares of Maxxon Common Stock owned by him, so that thereafter he shall
personally own of record 80,000 shares of Maxxon Common Stock.
(b) The parties agree that Newco will immediately commence to conduct a
private offering under SEC Regulation D, Rule 504 to sell up to 1,000,000 shares
of Newco for $1.00 per share for up to $1,000,000 less costs and expenses
thereof ("Offering"). Newco shall bear all the costs and expenses in connection
with the Offering, including all printing, copying, mailing, shipping, filing
fees, and federal and state compliance expenses, and related brokerage and
finder's fees, expenses and commissions.
(c) In connection with the Offering, Maxxon agrees to introduce to Newco at
least 5 persons who might agree to assist Newco in the conduct of this Offering
for a fee upon terms and conditions which shall be agreed to by Xxxxx Xxxx.
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(d) Maxxon agrees to assist Newco in drafting a private offering
memorandum, including projections generated from information supplied by Newco,
for use by Newco in the conduct of the Offering and supplying Ives/Newco a
copied disk of the Offering. All the information in the private placement
memorandum shall be provided by Newco and Xxxxx Xxxx. The parties agree that
Maxxon is rendering its services to Newco in connection with the Offering
memorandum solely as an accommodation to Newco and as an independent contractor
for no fee whatsoever. It is expressly agreed that the content of the private
placement memorandum is solely the product of Newco, for which Newco is solely
responsible; and Maxxon shall have no responsibility or liability in connection
with the Offering for any reason whatsoever, including assisting Newco in
preparing disclosure documents. The failure to disclose any facts and the
omission of disclosures from the private placement memorandum is a matter within
the sole discretion of Newco and Xxxxx Xxxx and is not the determination of or
within the power or discretion of Maxxon in any respect.
(e) Newco and its officers, directors, agents, employees and
representatives shall be solely responsible for compliance with federal and
state securities laws in connection with the Offering, including the filing of
notice of Form D and all applicable state law requirements in connection
therewith. Maxxon will assist and consult with this and all applicable
compliance and filings.
(f) The parties agree that neither Maxxon nor any of its directors,
officers, employees, agents, or representatives shall have any responsibility or
liability for any matter relating to the Offering; and Newco agrees to indemnify
and hold them harmless therefrom.
(g) As soon as reasonably appropriate and after substantial completion of
the Offering, Maxxon agrees to assist Newco in the preparation of a filing with
the SEC under Section 15c211 of the Securities Exchange Act of 1934; provided
all information contained therein shall be supplied by Newco; and further
provided, neither Maxxon nor any of its directors, officers, employees, agents
or representatives shall have any responsibility or liability for the content
thereof or in connection therewith.
(h) Xxxxx agrees to consult with Newco and Xxxxx Xxxx for up to 25 hours
after the execution of this Agreement; provided the times at which such
consulting services shall be rendered shall be at mutually agreed times and
further provided Xxxxx shall have no liability with respect to any advice given
or information provided during such consulting services.
4. Option to Unwind Maxxon's Acquisition of The Health Club, Inc. Maxxon
hereby grants Xxxxx Xxxx the right for two years from the date of execution of
this Agreement to unwind Maxxon's acquisition of The Health Club, Inc. by paying
Maxxon the $10,000 paid to Xxxxx Xxxx and by returning to Maxxon the 35,000
shares of Maxxon Common Stock issued to Xxxxx Xxxx in connection with Maxxon's
acquisition thereof.
5. Distribution Agreement. Maxxon agrees to propose, execute, deliver and
enter into a distribution agreement with Newco granting Newco a non-exclusive
right to sell the Maxxon Safety Syringe TM for a period of five years after the
date hereof containing standard wholesale prices and upon terms no less
favorable to Newco than to any other distributor purchasing the same volumes,
upon the same terms and subject to other applicable requirements. Newco shall be
granted the ability to verify the terms and/or contracts of other distributors.
A draft non-exclusive distributorship agreement is attached hereto as "Exhibit
A" and will be executed by Xxxxx Xxxx and Maxxon contemporaneously with the
execution of this agreement.
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6. Payment of Outstanding Invoice. The parties agree to pay the outstanding
invoices, invoiced to Ives from Xxxxxxxxx X. Xxxxxxx and Cross and Xxxxxxxx, CPA
to Ives before this agreement can be finalized.
(a) All information, documents, etc., in the possession of Cross &
Xxxxxxxx, CPA, that was removed from Ives CPA, E. Xxxxxxx Tolmans' office must
be returned to Ives before this agreement can be finalized
(b) Regarding this transaction, Ives is responsible for payment to Xxxxxxx
Xxxxxx, Attorney at Law and Maxxon is responsible for payment to Xxxxxxxxx X.
Xxxxxxx, Attorney ar Law and/or any other counsel.
7. No Restrictions upon Ives, Newco or Xxxxx Xxxx. The parties agree that
upon execution and delivery of this Agreement there shall be imposed by Maxxon
no restrictions of any kind upon Ives, Xxxxx Xxxx or Newco.
8. Transfer Restrictions of Maxxon Shares. This Agreement shall have no
adverse effect upon any applicable transfer restrictions under SEC Rule 144 or
otherwise to the extent such provisions are available.
9. Release. The parties agree that the execution and delivery of this
Agreement constitute a full and complete general release, settlement, discharge,
accord and satisfaction by Newco, Xxxxx Xxxx and Ives, on the one hand, and by
Xxxxx and Maxxon, on the other hand, and their respective directors, officers,
employees, agents, partners, representatives, successors and assigns, from and
against any and all claims, actions, causes of action, rights, obligations,
debts, duties, demands, damages or liabilities of every kind, character and
description whatsoever, whether known or unknown, actual or contingent, from the
beginning of time through the date hereof, except as Xxxxx Xxxx/Ives may bring
action against Maxxon/Xxxxx in the event Xxxxx Xxxx/Newco are sued by third
parties which have as its basis any allegations attributable to or resulting
from the action of Maxxon/Xxxxx.
10. Full Settlement. Each party hereto represents and acknowledges to the
other that it has read and understands the terms, conditions and legal effect of
this Agreement; that it has been represented by counsel of its own choosing in
connection herewith; that its counsel is competent and has explained the meaning
and legal effect of the terms of this Agreement to its satisfaction; that this
Agreement is made voluntarily without any promise, inducement, threat, coercion
or intimidation of any kind, character and description from anyone; and that the
execution and delivery of this Agreement constitutes a full and final general
release, accord, satisfaction, acquittal, compromise, adjustment, adjudication,
reimbursement, restitution, discharge and settlement of all claims of Xxxxx Xxxx
and Ives, on the one hand, and Xxxxx and Maxxon, on the other hand, and vice
versa, which either has or may have against the other. This Agreement does not
constitute an admission of wrongdoing or of liability for any reason whatsoever.
The Agreement may not be used for any purpose whatsoever except to reflect the
settlement of the parties as set forth herein.
11. Covenant not to Disparage. Xxxxx Xxxx, Newco and Ives, on the one hand,
and Xxxxx and Maxxon, on the other hand, agree not to make untrue or disparaging
statements with respect to the other.
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12. Confidentiality with respect to this Agreement. The parties agree to
keep confidential the terms of this Agreement to the extent permitted by law and
not to disclose the terms hereof to any person without the written consent of
the other parties except as required by law. In the event any lawful process,
action, subpoena or other process is commenced against any party hereto which
seeks in whole or in part the disclosure of all or any portion of the terms and
conditions of this Agreement, the party against whom such disclosure agrees to:
(1) promptly and before any such disclosure is made notify the other parties to
this Agreement of the nature of such request; (2) seek by all appropriate means
a protective or other order preventing such disclosure; (3) cooperate fully with
the other parties in seeking a protective order preventing such disclosure; (4)
respond by stating that the information is covered by a confidentiality
agreement which cannot be disclosed without an order from a court of competent
jurisdiction requiring such disclosure; and (5) decline to make any such
disclosure unless and until ordered to do so by a court of competent
jurisdiction.
13. Binding Effect. This Agreement shall be binding upon, shall inure to
the benefit of, and shall be enforceable by and against, all the parties and
their respective heirs, legal representatives, successors and assigns.
14. Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original and all of which shall
constitute one agreement. The parties agree that faxed signed copies of this
Agreement shall have the same force and effect as originals.
15. Representations. Each individual executing this Agreement on behalf of
a corporation or other entity represents and warrants that he has express
authority to bind, enter and deliver this Agreement on behalf of that entity
which he represents and that this Agreement is valid, binding and enforceable in
accordance with its terms.
16. Non Compete Clause. Maxxon/Xxxxx or its successors may not enter into
any negotiations or attempt to buy products or the actual operation of Cap Tabs
NFM, Inc. 0000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xx 00000 and/or Summa Rx Laboratories,
Inc., 00000 XX Xx. #0000, Xxxxxxx Xxxxx, Xx 00000. Additionally, Maxxon/Xxxxx or
its successors may not use any information attained from Xxxxx Xxxx/Ives to
start, fund or induce start up of any competitive business, for a period of five
(5) years in any areas where Ives conducts its business, including but not
limited to the United States of America.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorized representatives effective the 31st day of December,
1977.
MAXXON, INC. IVES HEALTH COMPANY, INC.
By: __________________________ By: __________________________
Xxxxxxx Xxxxx, President M. Xxxxx Xxxx, President
______________________________ ______________________________
Xxxxxxx Xxxxx, Individually M. Xxxxx Xxxx, Individually
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