LEXON, INC.
CONSULTING AGREEMENT WITH
THE VIKING GROUP, LLC
This Agreement ("Agreement") is entered into this 1st day of June and
effective as of October 29, 1998 by and among Lexon, Inc. ("Lexon") and The
Viking Group, LLC ("TVG").
WHEREAS, Lexon is a development stage company which owns the exclusive
right to manufacture and market a cancer detection blood test kit in development
whose stock is traded on the Over the Counter Bulletin Board under the symbol
"LXXN"; and
WHEREAS, TVG has extensive experience and expertise in matters of
corporate development, strategic and financial planning, corporate structuring
and investment banking; and
WHEREAS, TVG has extensive contacts and acquaintances in the investment
community and among individual investors and with broker-dealers who have
interests in investing in companies like Lexon and in providing bridge financing
to companies like Lexon; and
WHEREAS, Lexon has agreed to engage TVG and TVG has accepted an
engagement to provide consulting services to Lexon and make introductions to and
to assist Lexon in arranging funding from time to time in accordance with the
terms and conditions of this Agreement.
Now, therefore, in consideration of the premises and for other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, parties agree as follows:
1. Acceptance of Engagement. Lexon hereby agrees to engage TVG to
provide, and TVG agrees to accept the engagement from Lexon, to
provide consulting services to Lexon and to make introductions to
and assist Lexon in the receipt of funding from time to time in
accordance with the terms of this Agreement.
2. Scope of Services Consulting Services. TVG agrees to provide the
following services to Lexon:
A. Generate potential investor and broker-dealer leads and
create interest in Lexon and its common stock in the
brokerage community and among potential investors;
B. Participate in investor information meetings with potential
investors, the brokerage community and others regarding
Lexon;
C. Make available to Lexon a data bank with the names,
addresses, telephone numbers, fax numbers, email addresses
and other similar information regarding investors, potential
investors, brokers, and others in the investment community;
and
D. Assist Lexon in arranging bridge financing upon mutually
accepted terms and conditions from time to time; and
E. Make itself reasonably available to consult with, advise,
assist and provide their respective expertise and experience
to Lexon.
3. Scope of Information to be Provided. TVG agrees to provide to
investors, brokers, dealers, and others in the investment and
brokerage community only information which is received from and
approved by Lexon. Xxxxxxxxx and TGV agree not to provide any
information regarding Lexon or its securities which is false or
materially misleading or omit to provide any information
regarding Lexon which is necessary is not false or materially
misleading. If either Xxxxxxxxx or TVG receives
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any inquiry which calls for a response with information that is
has not been approved by Lexon or as to which either of them does
not know the correct and current answer, Xxxxxxxxx and TGV each
agrees to request the information from Lexon and not provide a
guess, a projection, or an assumption without Lexon's prior
written consent.
4. Compensation. Lexon agrees to grant to Xxxxxxxxx or TVG or their
designees 300,000 options to purchase the shares of common stock
in Lexon at $1.20 per share, the fair market value as determined
by the Board of Directors on the date of grant.
5. Nature of Relationship. TGV, on the one hand, and Lexon, on the
other hand, are independent contractors and are not partners,
joint venturers, employees, agents, or other representatives of
the other. Neither TVG nor Lexon is authorized or empowered to
bind the other in any capacity without the express written
consent of the other. TGV, on the one hand, and Lexon, on the
other hand, are solely responsible for all costs and liabilities
incurred by them arising from taxes of every kind or relating to
its own employees and other representatives, or relating to the
conduct of its business as an independent entity, and each agrees
to indemnify and hold the other harmless therefrom. TGV is in the
business of providing investment banking, strategic financial and
business planning and other consulting services and to make
investments for its own account. TVG will not undertake for and
on behalf of Lexon any activity which will require either of them
to be a required to be a registered broker-dealer. Lexon
acknowledges and agrees that TVG intends to engage in various
businesses and advisory and consulting arrangements with other
companies in the conduct of business that will not directly or
indirectly compete with the business of Lexon. Neither TVG nor
any other of its affiliates shall be entitled to receive any
employee or other compensation or benefit from Lexon.
6. No Conflicting Activities. TVG agrees not to engage in any
activities that violate its duties under this Agreement or
represent any other entity that is engaged in the manufacture or
sale of products or services that directly compete with the
business, products or services of Lexon, without the prior
consent of Lexon.
7. Inside and Confidential Information. TVG agrees not to disclose,
use or disseminate any information of or relating to Lexon which
is proprietary, confidential and competitively sensitive
("Confidential Information") without the prior written approval
of Lexon; and each further agrees not to act for its own account
or for the account of another upon any non-public information in
connection with the purchase or sell securities of Lexon or in
violation of any SEC rule or regulation, including SEC Rule
10b-5.
8. Disclosure of Relationship with Lexon. TVG agrees to disclose in
a manner consistent with applicable laws, rules and regulations
that it is providing investor relations and public relations
services in exchange for common stock of Lexon and that it
maintains a financial and ownership interest in the success of
Lexon.
9. Ownership of Information. TGV will receive information concerning
Lexon. TVG agrees that all such material belongs to and is the
property of Lexon. Likewise, TVG agrees to maintain certain
information regarding potential investors that it considers to be
proprietary. Lexon agrees not to disclosure or use any such
information only in the furtherance of its business, provided
that Lexon investor information shall not be deemed for any
purpose to belong to Xxxxxxxxx and TVG.
10. Term. This Agreement shall expire 1 year from the date set forth
above, unless sooner terminated by either party by it giving the
other not less than 30 days' prior written notice of termination.
11. Termination of Agreement. This Agreement shall terminate upon the
occurrence of any of the following events: (a) voluntary notice
of termination given in writing not less than 60 days' prior
notice by either party; (b) a party becomes legally or
practically unable to perform its obligations
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hereunder; and (c) for cause. "Cause" shall mean (i) material
breach of this Agreement; (ii) misrepresentation of a material
fact; (iii) omission of a material fact; (iv) willful misconduct;
(v) material negligence; and (vi) failure to comply with an
applicable law, rule or regulation. In the event of a proposed
termination for cause, notice of the facts and circumstances
surrounding the alleged cause shall be given to the other party
and the party against whom a termination for cause is asserted
shall be provided with an opportunity to present a response to
the alleged reason for cause and to cure the cause. If not so
cured, the party against whom a cause is asserted shall be
entitled to no further benefits under this Agreement and shall
immediately return all client lists, client files, manuals,
documents, files, reports, property and equipment relating to or
owned by the other and all other Confidential Information (as
described above).
12. Remedies. Each party shall be entitled to exercise all remedies
available to it under a law or in equity in the event the other
party breaches its obligations hereunder. The remedies set forth
herein are cumulative, may be exercised individually or together
with one or all other remedies and are not exclusive but instead
are in addition to all other rights and remedies available to the
parties at law or in equity in the event the other party breaches
its obligations hereunder. In addition, any shares of Lexon
securities issued to TVG for services rendered shall be canceled
for failure of consideration to the extent such services are not
performed in accordance with this agreement while such shares are
held by TVG. Any such securities while such shares are held by
TVG shall also be canceled to the extent TVG violates the terms
of this Agreement to the extent of the value of such shares at
the time of any breach of this Agreement by TVG or its respective
designees.
13. Miscellaneous.
A. Notices. Any notice, request, demand or other communication
required to be made or which may be given to either party
hereto shall be delivered by certified U.S. mail, postage
prepaid, to that party's attention at the address set forth
below or at such other address as shall be changed from time
to time by giving notice hereunder.
B. Entire Agreement. This document constitutes the complete and
entire employment agreement between the parties hereto with
reference to the subject matters hereof. No statement or
agreement, oral or written, made prior to or at the signing
hereof, and no prior course of dealing or practice by either
party shall vary or modify the written terms hereof.
C. Headings. The headings and captions contained in this
Agreement are for ease and convenience of reference only and
shall not be deemed for any purpose to affect the
substantive meaning of the rights and duties of the parties
hereto in any way.
D. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their
respective successors and assigns.
E. Counterparts. This Agreement may be executed in multiple
counterparts, each of which has the same text and each of
which shall be deemed an original for all purposes, but
together they constitute one single and the same agreement.
F. Amendments. 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.
G. Applicable Law. This Agreement shall be governed by and
construed in accordance with Oklahoma law.
H. Disputes. All disputes not resolved by mutual agreement
within 60 days, or such longer time as the parties mutually
agree, shall be submitted to binding arbitration pursuant to
the Commercial Rules of Arbitration of the American
Arbitration Association. All arbitration
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hearings shall be held in Tulsa, Oklahoma. The parties agree
to be finally bound by all arbitration awards to the extent
permitted by law. In any dispute or proceeding to construe
this Agreement not resolved by final arbitration or to
enforce an arbitration award, the parties expressly consent
to the exclusive jurisdiction of state and federal courts in
Tulsa County, Oklahoma, the principal place of business of
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
which it is entitled.
I. Additional Documents. The parties hereto shall enter into
and execute such additional agreements, understandings,
documents or instruments as may be necessary to implement
the intent of this Agreement.
J. Cumulative Remedies. The remedies of the parties as set
forth herein are cumulative and may be exercised
individually or together with one or all other remedies, and
are not exclusive but instead are in addition to all other
rights and remedies available to the parties at law or in
equity.
K. Severability. If any provision of this Agreement or the
application thereof to any person or circumstances shall be
held invalid or unenforceable to any extent, the remainder
of this Agreement and the application of such provisions to
other persons or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by
law.
L. Costs and Expenses. Each party agrees to be responsible for
its own out of pocket expenses. No party shall incur costs
or expenses for or on behalf of the other, at the expense or
liability of the other, without that party's express prior
consent.
M. Waiver. The failure of a party to enforce any provision of
this Agreement shall not constitute a waiver of such party's
right to thereafter enforce such provision or to enforce any
other provision at any time.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed as of the 1st day of June, 1999 and effective this 29th day of
October, 1998.
LEXON, INC. THE VIKING GROUP, LLC
BY: /s/ XXXXXXX X. XXXXX BY: /s/ XXXXXXX XXXXXXXXX
XXXXXXX X. XXXXX, PRESIDENT XXXXXXX XXXXXXXXX, PRESIDENT
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