XXXX XXXXX - TEXXON, INC.
AGREEMENT
THIS AGREEMENT made as of the 28th day of August 2001, Texxon, Inc., an Oklahoma
corporation, hereinafter referred to as "Company," with its principal offices at
0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxx, Xxxxxxxx 00000; and Xxxx Xxxxx, with
offices in Vancouver, Canada.
WITNESSETH
WHEREAS, Company requires expertise in the area of general business
consulting to support its business and growth; and
WHEREAS, Xxxx Xxxxx has substantial contacts among the members of the
investment community and industry relationships that may be beneficial to the
Company and desires to act as a consultant and provide general business,
consulting and advisory services to Company.
WHEREAS, the Company desires to retain Xxxx Xxxxx to render certain general
business 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 Xxxxxxx Xxxxx III.
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3.0 Services to be Rendered by Xxxx Xxxxx - Xxxx Xxxxx agrees to render the
following services:
3.1 Strategic Business Advice - Xxxx Xxxxx shall assist the Company in its
strategic industry planning. This assistance shall include referrals
to industry contacts, as well as identifying potential corporate or
strategic partners. Furthermore, Xxxx Xxxxx shall evaluate potential
industry or strategic partnerships and advise the Company during all
stages of negotiations including contractual obligations and financial
structure.
3.2 Market Strategy - Xxxx Xxxxx shall advise the Company with regards to
the timing of entry onto an exchange, the selection of an exchange,
choosing a specialist or market maker. In addition, Xxxx Xxxxx shall
advise the Company and its response to any unusual trading volume or
trading patterns. In addition, Xxxx Xxxxx shall assist the Company in
monitoring of institutional ownership. Furthermore, Xxxx Xxxxx shall
review investment patterns of investment managers, to locate
institutions as prospective purchasers and shall assist in tracking
peer companies to identify additional potential investors.
3.3 Financings - Xxxx Xxxxx shall assist the Company to identify, evaluate
and facilitate all financing options including initial public
offerings, secondary offerings, mezzanine financings, and equity line
financings, debt financings and financing through the issuance of
additional classes of securities.
3.4 Merger and Acquisition - Xxxx Xxxxx shall advise the Company during
the process of identifying potential merger and acquisition
candidates, shall assist the Company in evaluating a potential merger
or acquisition, and shall assist and advise the Company during the
negotiation stage.
3.5 Communication with Company - Xxxx Xxxxx shall stay in constant contact
with the Company. This contact shall include monthly conferences to
inform the Company of recent developments and to discuss potential
responses and actions necessary to further the objectives of this
Agreement.
3.6 Analyst Reports - Xxxx Xxxxx shall engage an independent financial
analyst to prepare, at the Company's expense, a corporate profile and
periodic corporate reports, and updates in accordance with applicable
federal and state securities laws.
3.7 Additional Analyst Introduction - Xxxx Xxxxx shall assist the Company
in scheduling and preparing for meetings with buy and sell side
analysts so that additional independent analysis reports can be
drafted to increase the Company's exposure to the Investment
Community.
3.8 Corporate Image - Xxxx Xxxxx shall inform the Company of its
communications with the financial community to ascertain how
Institutional Investors, Financial Analysts, Investment Bankers,
Retail Brokers and the Media perceive the Company.
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4.0 Compensation to Xxxx Xxxxx.
4.1 Exemption - Xxxx Xxxxx shall be compensated with 1,000,000 shares of
Common Stock valued at $140,000. 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. The Company shall pay all legal fees and expenses incurred
in drafting, reviewing and/or amending any offering documents and/or
contracts associated with this relationship. The Company acknowledges
that it has approved the employment/retention of Counsel to draft,
review and/or amend such agreements and will promptly pay upon demand
any legal fees and expenses anticipated or incurred.
4.2 Extraordinary Expenses - Extraordinary expenses of Xxxx Xxxxx 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
Xxxxx'x invoice for payment. No invoice shall be rendered until after
the services have been performed.
4.3 Finder's Fees - In the event Xxxx Xxxxx first introduces Company or a
Company Affiliate to any third party funding source, underwriter,
merger partner, or joint venture and Xxxx Xxxxx provides material
assistance to Company in consummating a funding, underwriting, merger,
joint venture or similar agreement with Company or Company's Affiliate
within one (1) year after terminating this Agreement, Company agrees
to pay Xxxx Xxxxx an advisory fee of 5% of the gross proceeds received
from such funding or underwriting, or 5% of the consideration paid in
a merger, joint venture or similar agreement with Company or Company's
Affiliate payable upon the consummation of such finding, underwriting,
merger, joint venture with Company or Company's' Affiliate in the same
form of compensation received.
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.
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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.
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. Xxxx Xxxxx agrees not to disseminate or
permit retail brokers, employees, representatives or agents to provide
or disseminate to investors, brokers or others in the investment
community any information regarding Company or its securities that
Company has not approved in advance.
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7.0 Representations by Xxxx Xxxxx.
7.1 Disclosure of Relationship with Company - Xxxx Xxxxx agrees to
disclose in a manner consistent with applicable laws, rules and
regulations that it is providing the services set forth in section
three of this Agreement in exchange for Common Stock of the Company.
Specifically Xxxx Xxxxx agrees to abide by Section 17(b) of the 1933
Act which provides that it is unlawful for any person: "to publish,
give publicity to, or to circulate any notice, circular, or
advertisement, newspaper article, letter, investment service, or
communication which, though not purporting to offer a security for
sale, describes such security for a consideration received or to be
received, directly or indirectly, from an issuer, underwriter or
dealer, without fully disclosing receipt, whether past or prospective,
of such compensation and the amount thereof."
7.2 Scope of Information to be Provided by Xxxx Xxxxx - Xxxx Xxxxx shall
only provide information to the securities brokerage community, its
retail brokers and all others described in section three of this
Agreement, which is received from and approved by the Company. Xxxx
Xxxxx agrees not to provide any information (written, electronic or
verbal), which is materially false or misleading or omit to provide
any information regarding the Company that is necessary so that the
information provided by Xxxx Xxxxx is not false or materially
misleading.
7.3 Short Sales - Xxxx Xxxxx, his affiliates and related parties
(including all family members) shall not under any circumstances
engage either directly or indirectly in short sales of the Company's
Stock. Xxxx Xxxxx shall not direct any third parties to short sales of
the Company's Stock.
7.4 Assignment - No part of this Agreement shall be assignable. Xxxx Xxxxx
may not transfer any portion of his rights, obligations or duties
under this contract to a third party without the Company's prior
written consent.
7.5 Purchase Entirely for Own Account - This Agreement is made in reliance
upon Xxxx Xxxxx'x representation to the Company, which by Xxxx Xxxxx'x
execution of this Agreement, Xxxx Xxxxx hereby confirms, that the
Company's Common Stock is being acquired for investment purposes for
Xxxx Xxxxx'x 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 Accredited Investor - Xxxx Xxxxx represents that he is an "accredited
investor" as that term is defined in SEC rule 501(a) of Regulation D,
17 C.F.R.501 (a).
7.7 Restricted Securities - Xxxx Xxxxx understands that the 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 Xxxxx 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 Representations of the Company.
8.1 Right of First Refusal - The Company hereby agrees to provide Xxxx
Xxxxx with the absolute right to provide and find any additional
sources of capital that the Company may require or need at any time
during the term of this Agreement. The Company and Xxxx Xxxxx shall
agree on the amount of compensation to be paid to Xxxx Xxxxx by the
Company at that time.
9.0 Services Not Expressed or Implied.
9.1 Xxxx Xxxxx Is Not a Market Maker - Xxxx Xxxxx has not agreed to
provide and is not providing to Company any market-maker service in
the securities of Company.
9.2 Xxxx Xxxxx Is Not Being Paid for Market-Maker Services - Any payment
made herein to Xxxx Xxxxx is not, and shall not be construed as,
compensation to Xxxx Xxxxx for the purposes of making a market in the
securities of Company or to cover Xxxx Xxxxx'x out-of-pocket expenses
for making a market in Company's securities.
9.3 Xxxx Xxxxx Is Not Being Paid to Influence the Market - No payment made
herein to Xxxx Xxxxx is for the purpose of affecting the price of any
Company security or influencing any market-making functions,
including, but not limited to, bid/ask quotations, initiation and
termination of quotations, retail securities activities.
10.0 Miscellaneous Provisions.
10.1 Amendment and Modification - This Agreement may be amended, modified
and supplemented only by written agreement of Xxxx Xxxxx and Company.
10.2 Waiver - Any failure of Xxxx Xxxxx, 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.
10.3 Expenses - Whether or not the transactions contemplated by this
Agreement are consummated, Xxxx Xxxxx agrees that all fees and
expenses incurred by Xxxx Xxxxx in connection with this Agreement
shall be borne by Xxxx Xxxxx 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
Xxxxx or Company, all fees and expense of their respective counsel and
accountants.
10.4 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.
10.5 Compliance with Regulatory Agencies - Each party agrees that all
actions, direct or indirect, taken by it and its respective agents,
employees and affiliates in connection with this Agreement and any
financing or underwriting hereunder shall conform to all applicable
federal and state securities laws.
10.6 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.
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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.
10.7 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.
10.8 No Delegation - Neither party shall delegate the performance of its
duties under this Agreement without the prior written consent of the
other party.
10.9 Advertising and Publicity - Neither Xxxx Xxxxx 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.
10.10Governing 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 Xxxxx agree that if action is
instituted to enforce or interpret any provision of this Agreement,
then jurisdiction and venue shall be Tulsa County, Oklahoma.
10.11Counterparts - 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.
10.12Heading - 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.
10.13Entire 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.
10.14Third 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.
10.15Attorneys' 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.
10.16Survivability -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.
10.17Further 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.
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10.18Right 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.
10.19Relationship 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.
11.0 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 Xxxxx shall be
entitled to the finder's fees described in this Agreement for funding or
underwriting commitments entered into by Company or its affiliates within
one (1) year after termination of this Agreement if said funding or
underwriting was the result of Xxxx Xxxxx'x initial introduction and its
material efforts in the consummation thereof prior to the termination of
this Agreement.
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12.0 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 XXXXX
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.
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
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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 Xxxxx
By:/s/ Xxxxxxx X. Xxxxx III /s/ Xxxx Xxxxx
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Xxxxxxx Xxxxx III Xxxx Xxxxx
President and Chief Executive Officer
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