XXXX XXXXXXXXXXX - TEXXON, INC.
AGREEMENT
THIS AGREEMENT made as of the 13th day of May 2002, Texxon, Inc., an Oklahoma
corporation, hereinafter referred to as "Company," with its principal offices at
000 Xxxx Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000; and Xxxx Xxxxxxxxxxx, whose
residence is at 00 Xxxxxx Xxxx, X'Xxxxxx, Xxxxxxxx 00000.
WITNESSETH
WHEREAS, Company requires expertise in the area of chemical analysis,
methods, reactions, and processes to support its business and growth; and
WHEREAS, Xxxx Xxxxxxxxxxx has substantial knowledge in the areas of
chemical analysis, methods, reactions, and processes that may be beneficial to
Company and desires to act as a consultant and provide general chemical process
consulting and advisory services to Company.
WHEREAS, Company desires to retain Xxxx Xxxxxxxxxxx to render certain
general chemical process consulting and advisory services.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein and subject specifically to the conditions
hereof, and intending to be legally bound thereby, the parties agree as follows:
1.0 Certain Definitions - When used in this Agreement, the following terms
shall have the meanings set forth below:
o Affiliates - Shall be any persons employed by or entities controlled
by a party to this Agreement.
o Contact Person - The person who shall be primarily responsible for
carrying out the duties of the parties hereunder or responsible for
the delegation of the duties to be performed.
o Extraordinary Expenses - The expenses that are beyond those expenses
that are usual, regular or customary (e.g. local and long distance
telephone, facsimile transmission, postage, computer, secretarial and
printing) in the conduct of in-house activities in fulfillment of the
scope of this Agreement.
o Payment or Payable In-Kind - The distribution of the proceeds of a
transaction shall be in the same type and form as was given as
valuable consideration for the transaction.
o Engagement Period - One year from the execution date of this
agreement.
2.0 Contact Persons - The Contact Person for Company is Gifford M. "Buddy"
Xxxxx III, President.
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3.0 Services to be Rendered by Xxxx Xxxxxxxxxxx - Xxxx Xxxxxxxxxxx agrees to
render the following services:
3.1 Recovery Process (Chemical) - Xxxx Xxxxxxxxxxx shall assist Company in its
efforts to determine the chemical reactions responsible for the recovery of
platinum metal. This assistance shall include identifying the species of
platinum metal, background information relative to the recovery process,
and the actual chemical reactions responsible for the recovery of platinum
metal in mineralized water. Furthermore, Xxxx Xxxxxxxxxxx shall assist
Company in its efforts to optimize and increase the batch size of the
recovery process utilizing the information obtained during the background
research and the determination of the actual chemical reactions.
3.2 Recovery Process (Mechanical) - Xxxx Xxxxxxxxxxx shall assist Company in
its efforts to optimize the mechanical aspects of the recovery process.
This assistance shall include aiding in the identification of improvements
in the mechanical aspects of the recovery process including but not limited
to filtering, kiln/furnace usage, and tank material selection.
3.3 Communication with Company - Xxxx Xxxxxxxxxxx shall stay in constant
contact with Company. This contact shall include monthly conferences to
inform Company of recent developments and to discuss potential responses
and actions necessary to further the objectives of this Agreement.
3.4 Other Services - Xxxx Xxxxxxxxxxx shall assist Company in any other aspects
mutually deemed necessary or beneficial to the objectives of Company.
4.0 Compensation to Xxxx Xxxxxxxxxxx.
4.1 Exemption - Xxxx Xxxxxxxxxxx shall be compensated with 20,000 shares of
Common Stock valued at $10,000. The offer of this Common Stock is being
made in reliance upon the provisions of Regulation D promulgated under the
1933 Act, Section 4(2) of the 1933 Act, and/or such other exemption from
the registration requirements of the 1933 Act as may be available with
respect to all purchases of Common Stock to be made hereunder.
4.2 Other Compensation - Xxxx Xxxxxxxxxxx shall be compendsated $5000 in cash
upon the consummation of one or more funding transactions resulting in the
receipt by Texxon or its successors in interest of at least $100,000.
4.3 Extraordinary Expenses - Extraordinary expenses of Xxxx Xxxxxxxxxxx shall
be submitted to Company for approval prior to expenditure and shall be paid
by Company, within ten (10) business days of receipt of Xxxx Xxxxxxxxxxx'x
invoice for payment. No invoice shall be rendered until after the services
have been performed.
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4.4 Recovery Process Improvement (Chemical) Compensation - In the event Xxxx
Xxxxxxxxxxx is able to determine the chemical reactions responsible for the
recovery of the platinum metal, and is able to make material improvements
to the recovery process, Company agrees to compensate Xxxx Xxxxxxxxxxx with
100,000 shares of Common Stock valued at $50,000. The offer of this Common
Stock is being made in reliance upon the provisions of Regulation D
promulgated under the 1933 Act, Section 4(2) of the 1933 Act, and/or such
other exemption from the registration requirements of the 1933 Act as may
be available with respect to all purchases of Common Stock to be made
hereunder.
4.5 Recovery Process Improvement (Process) Compensation - In the event Xxxx
Xxxxxxxxxxx is able to determine the improvements to the mechanical process
used for the recovery of the platinum metal, and is able to make material
improvements to the mechanical recovery process, Company agrees to
compensate Xxxx Xxxxxxxxxxx with 100,000 shares of Common Stock valued at
$50,000. The offer of this Common Stock is being made in reliance upon the
provisions of Regulation D promulgated under the 1933 Act, Section 4(2) of
the 1933 Act, and/or such other exemption from the registration
requirements of the 1933 Act as may be available with respect to all
purchases of Common Stock to be made hereunder.
5.0 Indemnification - Each party agrees to indemnify and hold the other party
harmless from and against any liability, loss, cost, expense or damage
caused by reason of any breach, neglect, default or material omission of it
or any of its agents, employees, or other representatives arising out of
the failure to perform its duties or obligations under this Agreement,
provided there shall be no liability for punitive, consequential, special
or exemplary damages under any circumstances. Nothing herein is intended to
nor shall it relieve either party from liability from its own act, omission
or negligence. All remedies provided by law or in equity shall be
cumulative and not in the alternative.
6.0 Representations and Warranties - Each party hereby represents, covenants
and warrants to the other party as follows:
6.1 Authorization - It and its signatories herein have full power and
authority to enter into this Agreement and to carry out the
transactions contemplated hereby.
6.2 No Violation - Neither the execution and delivery of this Agreement
nor the consummation of the transactions contemplated hereby will
violate any provision of its charter or bylaws or violate any term or
applicable law, rule or regulation.
6.3 Agreement in Full Force and Effect - All of its contracts, agreements,
leases, and licenses referenced herein are valid and in full force and
effect.
6.4 Litigation - There is no action, suit, inquiry, proceeding or
investigation by or before any court or governmental or other
regulatory or administrative agency or commission pending or, to the
best of its knowledge threatened against it, or which questions or
challenges the validity of this Agreement and the subject matter
hereof; and it does not know or have any reason to believe any valid
basis for any such action, proceeding or investigation.
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6.5 Consents - No consent of any person, other than the signatories
hereto, is necessary for the execution, delivery and consummation of
the transactions contemplated hereby, including, without limitation,
consents from parties to loans, contracts, leases or other agreements
and consents from governmental agencies, whether federal, state or
local.
6.6 Reliance - It has and will rely upon the documents, instruments and
written information furnished
to it by the other party's officers, employees and representatives.
6.7 Accuracy - All representations, warranties and statements provided by
it are true, complete and accurate in all material respects.
6.8 Compliance with Law - Each party agrees to comply with all applicable
laws, rules and regulations applicable to it, including especially all
applicable federal and state securities laws.
6.9 Publicity - Each party agrees to use its good faith efforts to keep
the other informed with respect to all material facts and
circumstances related to it.
7.0 Representations by Xxxx Xxxxxxxxxxx.
7.2 Disclosure of Relationship with Company - Xxxx Xxxxxxxxxxx agrees to
disclose in a manner consistent with applicable laws, rules and
regulations that he is providing the services set forth in section
three of this Agreement in exchange for Common Stock of Company.
7.3 Short Sales - Xxxx Xxxxxxxxxxx, his affiliates and related parties
(including all family members) shall not under any circumstances
engage either directly or indirectly in short sales of Company's
Stock. Xxxx Xxxxxxxxxxx shall not direct any third parties to short
sales of Company's Stock.
7.4 Assignment - No part of this Agreement shall be assignable. Xxxx
Xxxxxxxxxxx may not transfer any portion of his rights, obligations or
duties under this contract to a third party without Company's prior
written consent.
7.5 Purchase Entirely for Own Account - This Agreement is made in reliance
upon Xxxx Xxxxxxxxxxx 's representation to Company, which by Xxxx
Xxxxxxxxxxx 's execution of this Agreement, Xxxx Xxxxxxxxxxx hereby
confirms, that Company's Common Stock is being acquired for investment
purposes for Xxxx Xxxxxxxxxxx 's own account and not with a view for
resale or distribution of any part thereof except in accordance with
applicable federal and state securities laws.
7.6 Restricted Securities - Xxxx Xxxxxxxxxxx understands that Company's
Common Stock issued hereunder may not be sold, transferred, or
otherwise disposed of without registration under the Securities Act or
an exemption therefrom, and that in the absence of an effective
registration statement or an available exemption from registration
under the Securities Act, the Common Stock must be held indefinitely.
Xxxx Xxxxxxxxxxx is aware that the Common Stock may not be sold under
Rule 144 unless of all of the conditions of that rule have been met.
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8.0 Miscellaneous Provisions.
8.1 Amendment and Modification - This Agreement may be amended, modified
and supplemented only by written agreement of Xxxx Xxxxxxxxxxx and
Company.
8.2 Waiver - Any failure of Xxxx Xxxxxxxxxxx, on the one hand, or Company,
on the other, to comply with any obligation, agreement or condition
herein may be expressly waived in writing, but such waiver or failure
to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
8.3 Expenses - Whether or not the transactions contemplated by this
Agreement are consummated, Xxxx Xxxxxxxxxxx agrees that all fees and
expenses incurred by Xxxx Xxxxxxxxxxx in connection with this
Agreement shall be borne by Xxxx Xxxxxxxxxxx and Company agrees that
all fees and expenses incurred by Company in connection with this
Agreement shall be borne by Company, including, without limitation as
to both Xxxx Xxxxxxxxxxx or Company, all fees and expense of their
respective counsel and accountants.
8.4 Other Business Opportunities - Except as expressly provided in this
Agreement, each party hereto shall have the right independently to
engage in and receive full benefits from other business activities.
8.5 Notices - Any notices to be given hereunder by any party may be
effected by personal delivery in writing or by mail, registered or
certified, postage prepaid with return receipt requested or by fax.
Mailed notices shall be addressed to the parties at the addresses
appearing in the introductory paragraph of this Agreement, but any
party may change its address by written notice in accordance with this
subsection. Notices delivered personally and by fax shall be deemed
communicated upon actual receipt. Mailed notices shall be deemed
communicated as of three (3) business days after mailing.
8.6 No Assignment - This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns, but neither this
Agreement nor any right, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written
consent of the other parties, except by operation of law.
8.7 No Delegation - Neither party shall delegate the performance of its
duties under this Agreement without the prior written consent of the
other party.
8.8 Advertising and Publicity - Neither Xxxx Xxxxxxxxxxx nor Company shall
make or issue, or cause to be made or issued, any announcement or
written statement concerning this Agreement or the transactions
contemplated hereby for dissemination to the general public without
the prior consent of the other party. This provision shall not apply,
however, to any announcement or written statement required to be made
by law or the regulations of any federal or state governmental agency,
except that the party shall consult with the other party concerning
the timing and content of such announcement before such announcement
is made.
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8.9 Governing Law - This Agreement and the legal relations among the
parties hereto shall be governed by and construed in accordance with
the laws of the State of Oklahoma, without regard to its conflict of
law doctrine. Company and Xxxx Xxxxxxxxxxx agree that if action is
instituted to enforce or interpret any provision of this Agreement,
then jurisdiction and venue shall be Tulsa County, Oklahoma.
8.10 Counterparts - This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
8.11 Heading - The heading of the sections of this Agreement are inserted
for convenience only and shall not constitute a part hereto or affect
in any way the meaning or interpretation of this Agreement.
8.12 Entire Agreement - This Agreement, including any Exhibits hereto, and
the other documents and certificates delivered pursuant to the terms
hereto, set forth the entire Agreement and understanding of the
parties hereto in respect of the subject matters contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party
hereto.
8.13 Third Parties - Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person or corporation, other
than the parties hereto and their successors or assigns, any rights or
remedies under or by reason of this Agreement.
8.14 Attorneys' Fees and Expenses - If any action is necessary to enforce
and collect upon the terms of this Agreement, the prevailing party
shall be entitled to reasonable attorneys' fees and expenses, in
addition to any other relief to which that party may be entitled. This
provision shall be construed as applicable to the entire Agreement.
8.15 Survivability -If any part of this Agreement is found or deemed by a
court of competent jurisdiction to be invalid or unenforceable, that
part shall be severed from the remainder of this Agreement.
8.16 Further Assurances - Each of the parties agrees that it shall from
time to time take such actions and execute such additional instruments
as may be reasonably necessary or convenient to implement and carry
out the intent and purpose of this Agreement.
8.17 Right to Data After Termination - After termination of this Agreement
each party shall be entitled to copies of all non-confidential
information acquired hereunder prior of the date of termination.
8.18 Intellectual Property Rights - All reports, documentation, drawings,
electronic communications and/or presentations, whether in printed or
electronic format shall become the property of Company.
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8.19 Relationship of the Parties - Each party is an independent contractor
and an independent business not controlled by or under common control
of the other party. Nothing contained in this Agreement shall be
deemed to cause either party to be a partner, agent or legal
representative of the other, or create any fiduciary relationship
between them. Neither party shall have any authority to act for or to
assume any obligation or responsibility on behalf of the other party.
The rights, duties, obligations and liabilities of the parties shall
be several, not joint or collective. Neither party shall have any
authority to take or withhold any action for the other or to represent
to anyone that it has the power and authority to do so.
9.0 Term of Agreement and Termination. This Agreement shall be effective upon
execution, shall continue for one (1) years unless terminated sooner, by
either party, upon giving to the other party thirty (30) days' written
notice, after which time this Agreement is terminated. Xxxx Xxxxxxxxxxx
shall be entitled to the Recovery Process Compensation described in this
Agreement for improvements implemented by Company or its affiliates within
one (1) year after termination of this Agreement if said improvements were
the result of Xxxx Xxxxxxxxxxx `s initial introduction and its material
efforts in the consummation thereof prior to the termination of this
Agreement.
10.0 Arbitration: Indemnification.
WITH RESPECT TO THE ARBITRATION OF ANY DISPUTE, THE UNDERSIGNED HEREBY
ACKNOWLEDGE THAT:
(i) ARBITRATION IS FINAL AND BINDING ON THE PARTIES;
(ii) THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK A REMEDY IN COURT,
INCLUDING THEIR RIGHT TO JURY TRIAL;
(iii)PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED AND DIFFERENT
FROM COURT PROCEEDINGS;
(iv) THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF ANY RULING BY THE ARBITRATORS IS STRICTLY LIMITED;
(v) THE PANEL OF ARBITRATOR MAY INCLUDE ARBITRATORS WHO WERE OR ARE
AFFILIATED WITH THE SECURITIES INDUSTRY; AND
(vi) THIS ARBITRATION AGREEMENT IS SPECIFICALLY WRITTEN TO INCLUDE ANY AND
ALL STATUTORY CLAIMS ARISING UNDER THIS AGREEMENT THAT MIGHT BE
ASSERTED BY ANY PARTY.
THE PARTIES AGREE THAT:
A. ALL DISPUTES, CONTROVERSIES OR DIFFERENCES BETWEEN COMPANY AND XXXX
XXXXXXXXXXX OR ANY OF THEIR OFFICERS, DIRECTORS, LEGAL
REPRESENTATIVES, ATTORNEYS, ACCOUNTANTS, AGENTS OR EMPLOYEES, OR ANY
CUSTOMER OR OTHER PERSON OR ENTITY, ARISING OUT OF, IN CONNECTION WITH
OR AS A RESULT OF THIS AGREEMENT, SHALL BE RESOLVED THROUGH
ARBITRATION RATHER THAN THROUGH LITIGATION.
B. ALL DISPUTES FOR RESOLUTION SHALL BE SUBMITTED EITHER TO THE AMERICAN
ARBITRATION ASSOCIATION OR THE NATIONAL ASSOCIATION OF SECURITIES
DEALERS, INC., WHICHEVER ASSOCIATION HAS JURISDICTION OVER THE
DISPUTE, WITHIN THIRTY (30) DAYS AFTER RECEIVING A WRITTEN REQUEST TO
DO SO FROM ANY PARTY.
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C. IF ANY PARTY FAILS TO SUBMIT THE DISPUTE TO ARBITRATION ON REQUEST,
THEN THE REQUESTING PARTY MAY COMMENCE AN ARBITRATION PROCEEDING.
D. ANY HEARING SCHEDULED AFTER ARBITRATION IS INITIATED SHALL, UNLESS THE
PARTIES AGREE OTHERWISE, TAKE PLACE IN TULSA, TULSA COUNTY, OKLAHOMA,
AND THE FEDERAL ARBITRATION ACT SHALL GOVERN THE PROCEEDING.
E. IF ANY PARTY SHALL INSTITUTE ANY COURT PROCEEDING IN AN EFFORT TO
RESIST ARBITRATION AND BE UNSUCCESSFUL IN RESISTING ARBITRATION OR
UNSUCCESSFULLY CONTESTS THE JURISDICTION OF ANY ARBITRATION FORUM
LOCATED IN TULSA, TULSA COUNTY, OKLAHOMA, OVER ANY MATTER WHICH IS THE
SUBJECT OF THIS AGREEMENT, THE PREVAILING PARTY SHALL BE ENTITLED TO
RECOVER FROM THE LOSING PARTY ITS LEGAL FEES AND ANY OUT-OF-POCKET
EXPENSES INCURRED IN CONNECTION WITH THE DEFENSE OF SUCH LEGAL
PROCEEDING AND ITS EFFORTS TO ENFORCE ITS RIGHTS TO ARBITRATION AS
PROVIDED FOR HEREIN.
F. EACH PARTY WILL SIGN ANY REQUIRED AND CUSTOMARY AGREEMENT TO ARBITRATE
REQUIRED BY THE AMERICAN ARBITRATION ASSOCIATION OR THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC., AS APPROPRIATE, AT THE TIME
ANY DISPUTE IS SUBMITTED FOR ARBITRATION.
G. THE PARTIES AGREE TO BE BOUND BY THE DECISION OF ANY AWARD AS BEING
FINAL AND CONCLUSIVE AND AGREE TO ABIDE THEREBY.
H. ANY DECISION MAY BE FILED WITH ANY COURT AS A BASIS FOR JUDGMENT AND
EXECUTION FOR COLLECTION.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
Texxon, Inc. Xxxx Xxxxxxxxxxx
By: /s/ Xxxxxxx Xxxxx III /s/ Xxxx Xxxxxxxxxxx
------------------------ -------------------------
Xxxxxxx Xxxxx III Xxxx Xxxxxxxxxxx
President and Chief Executive Officer (individually)
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