INVESTOR RELATIONS AGREEMENT
This
Agreement is made as of this 1st day of April 2009, by and between Optex Systems
(the “Company” or “OPTX”), a corporation duly organized and existing under the
laws of the State of Delaware, having its principal place of business at 0000
Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxx, XX. 00000 and American Capital Ventures, Inc.
(the “Consultant”), a corporation duly organized and existing under the laws of
the State of Florida, with offices at 0000 X.X. 000xx Xxxxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxx 00000.
WHEREAS, the Company
manufactures optical sighting systems and assemblies primarily for Department of
Defense (DOD) applications;
WHEREAS, the Consultant is
experienced in providing consulting and investor relations advice to
publicly-traded companies and;
WHEREAS, the Company wishes to
retain the services of the Consultant on a non-exclusive basis on the following terms
and conditions:
1. The
Company hereby retains the services of the Consultant for a period of one year
from date above.
2. In
exchange for the Consulting Services (as that term is defined below) rendered
during the Initial Term. The Consultant shall receive a monthly cash fee of
$5,000 (five thousand) payable upon the execution of this agreement and the 1st
of every month for the next 11 months. The Consultant shall also receive a fee
of 1,000,000 (one million) “Rule 144” restricted shares with 250,000 shares
being released from escrow and due on the date of execution of this Agreement
and then 68,190 shares being released from escrow on the one month anniversary
of the date of execution thereof , and 68,181 released from escrow on each of
the two through 11 month anniversaries of the date hereof. All shares are
considered earned as due. The Consultant shall also be reimbursed actual
reasonable travel and other out of pocket expenses which will be billed in
arrears and are due payable within (15) days of the Company’s receipt of the
subject xxxx(s). All travel and other out of pocket expenses must be pre
approved by the Company.
3. The
Consultant shall utilize its best efforts to provide the following services to
the Company: (a) assist the Company in making presentations to interested
brokerage firms, hedge funds and institutional investors that buy and follow
security and defense companies (b) coordinate meetings with analysts
to cover the Company’s stock and help disseminate the Company’s investment
profile to these analysts, as well as brokerage firms, hedge fund managers and
institutional investors through a variety of electronic and manual sources, (c)
a review of public relations and marketing materials that have been, or may be,
distributed to the U.S. financial community and make appropriate suggestions as
to how these materials can or should be changed, (d) advise the Company on
symposium presentations, as well as investor conferences, (e) through media
contacts, attempt to initiate interviews for the Company on news shows such as
CNBC, CNN and Bloomberg. The services referred to in this paragraph
shall be known as the “Consulting Services.”
4. The
Consultant shall be an independent contractor and shall have no right or
authority to assume or create any obligations or responsibility, express or
implied, on behalf of or in the name of the Company, unless specifically
authorized in writing by the Company. No provision of this Agreement
shall be construed to preclude the Consultant, or any officer, director, agent,
assistant, affiliate or employee of the Consultant from engaging in any activity
whatsoever, including, without limitation receiving compensation for managing
investments, or acting as an advisor, broker or dealer to, or participate in,
any corporation, partnership, trust or other business entity or from receiving
compensation or profit therefore. The Consultant shall have no
obligation to present any business combination to the Company and shall incur no
liability for its failure to do so.
5. The
Consultant (including any person or entity acting for or on behalf of the
Consultant) shall not be liable for any mistakes of fact, errors of judgment,
for losses sustained by the Company or any subsidiary or for any acts or
omissions of any kind, unless caused by the gross negligence or intentional
misconduct of the Consultant or any person or entity acting for or on behalf of
the Consultant.
6. The
Company and its present and future subsidiaries, jointly and severally, agree to
indemnify and hold harmless the Consultant and its present and future
shareholders as well as its and their officers, directors, affiliates,
associates, employees, shareholders, attorneys and agents (“Indemnified Parties”
or “Indemnified Party”) against any loss, claim, damage or liability whatsoever
(including reasonable attorneys’ fees and expenses), to which such Indemnified
Party may become subject as a result of performing any act (or omitting to
perform any act) contemplated to be performed by the Consultant pursuant to this
Agreement if such act or omission did not violate the provisions of Section 4 of
this Agreement and was not otherwise due to the Consultant’s negligence, gross
negligence or intentional misconduct or failure to act when action was
required. So long as the Company has not provided counsel to the
Indemnified Party in accordance with the terms of this Agreement, the Company
and its subsidiaries agree to reimburse the defense of any action or
investigation (including reasonable attorneys’ fees and expenses) subject to an
understanding from such Indemnified Party to repay the Company or its
subsidiaries if it is ultimately determined that such Indemnified Party is not
entitled to such indemnity. In case any action, suit or proceeding
shall be brought or threatened, in writing, against any Indemnified Party, it
shall notify the Company within twenty (20) days after the Indemnified Party
receives notice of such action, suit or such threat. The Company
shall have the right to appoint the Company’s counsel to defend such action,
suit or proceeding. The Indemnified Party, or its co-counsel, shall
promptly supply the Company’s counsel with copies of all documents, pleadings
and notices that are filed, served or submitted in any of the
aforementioned. No Indemnified Party shall enter into any settlement
without the prior written consent of the Company.
7. This
Agreement shall be binding upon the Company and the Consultant and their
respective successors and assigns.
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8. If
any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever; (i) the validity, legality
and enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any section of this Agreement containing any
such provision held to be invalid, illegal or unenforceable) shall not in any
way be affected or impaired thereby; and (ii) to the fullest extent possible,
the provisions of this Agreement (including, without limitation, each portion of
any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held, invalid illegal or unenforceable.
9. No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by both parties hereto. No waiver of any other provisions
hereof (whether or not similar) shall be binding unless executed in writing by
both parties hereto nor shall such waiver constitute a continuing
waiver.
10. This
Agreement may be executed in one or more counterparts, each of which shall for
all purposes be deemed to be an original but all of which shall constitute one
and the same Agreement.
11. This
Agreement shall be governed by the laws of the State of Florida. The
parties agree that, should any dispute arise in the administration of this
Agreement, the dispute shall be resolved through arbitration under the rules of
the American Arbitration Association, with its location in Miami,
Florida.
12. This
Agreement contains the entire agreement between the parties with respect to the
services to be provided to the Company by the Consultant and supersedes any and
all prior understandings, agreement or correspondence between the
parties.
13. Consultant
agrees to keep all information provided to it by the Company
confidential. CONSUTLANT AGREES TO NOT TRADE IN THE COMPANY’S STOCK
WHILE IN POSSESSION OF ANY MATERIAL INSIDE INFORMATION UNTIL THREE BUSINESS DAYS
AFTER SUCH INFORMATION IS MADE PUBLIC BY THE COMPANY.
IN
WITNESS WHEREOF, the Company and the Consultant have caused this Agreement to be
signed by their duly authorized representatives as of the day and year first
above written.
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Optex
Systems, Inc.
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American
Capital Ventures, Inc.
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By:
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/s/
Xxxxxxx X. Xxxxxxxxx
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By:
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/s/
Xxxxxx Xxxxxxxxx
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Name: Xxxxxxx
X. Xxxxxxxxx
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Name: Xxxxxx
Xxxxxxxxx
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Title: President
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Title: President
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