LEXON, INC.
INVESTOR RELATIONS SERVICES AGREEMENT WITH
XXXXXX-XXXXXXXX, INC.
This ("Agreement") is entered into and effective November 1, 1998 by
and between Lexon, Inc. ("Lexon") and Xxxxxx-Xxxxxxxx, Inc. ("MPI").
WHEREAS, Lexon is a development stage company which owns the exclusive
right to manufacture and market a cancer detection test kit in development whose
stock is traded on the Over the Counter Bulletin Board under the symbol "LXXN";
and
WHEREAS, MPI is in the business of providing companies with
shareholder, investor, and broker relations services; and
WHEREAS, Lexon has agreed to engage MPI and MPI has accepted an
engagement to provide shareholder, investor, and broker relations services 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 MPI to
provide, and MPI agrees to accept the engagement from Lexon to
provide traditional financial public relations and shareholder
relations information and other services in accordance with this
Agreement.
2. Scope of Services of MPI. MPI agrees to provide public relations,
education, information and the following related services:
A. Generate potential investor leads and inform, follow up,
update and create interest in Lexon and its common stock
through providing current information concerning Lexon,
including due diligence material;
B. Provide direct one-on-one telephonic contact with brokers,
investors, potential investors and others with respect to
Lexon;
C. Prepare and distribute periodically detailed "research
reports" regarding Lexon along with an abbreviated
"corporate profile" of Lexon;
D. Prepare and distribute news releases which are approved in
advance by Lexon;
E. Distribute initial and updated investor information packets
to brokers and potential investors information containing
current information concerning Lexon, including any
disclosure materials filed with the SEC, applicable state
securities commissions, financial rating services,
independent analysts' reports, product reports and similar
information;
F. Prepare and distribute audio and video presentations
concerning Lexon and its business and products;
G. Arrange and attend press conferences regarding Lexon;
H. Arrange and assist Lexon in attending television and radio
investment forums;
I. Write news articles approved by Lexon and distribute them to
investments clubs, investment newsletters, investor
magazines, and public print media;
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J. Develop and maintain an Internet Website for Lexon which
provides current information regarding Lexon;
K. Respond accurately and promptly to faxes, email and other
electronic inquiries concerning Lexon;
L. Write and distribute articles for investor club newsletters;
M. Arrange and participate in investor information meetings
with potential investors, the brokerage community and others
regarding Lexon;
N. Place articles at least quarterly regarding Lexon in
investor and news magazines;
O. Arrange, attend and assist Lexon in attending and making
presentations at investor trade shows at least 2 times a
year;
P. Use its good faith diligent efforts to know the current
facts concerning Lexon and ensure that its employees and
representatives remain current in their information
regarding Lexon;
Q. Establish and maintain 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
R. Generally, keep the public, the investor community and the
brokerage community well informed with concise, accurate and
timely information concerning Lexon and its business, its
progress and its potential.
3. Scope of Information to be Provided by MPI. MPI agrees to provide
only information that is received from and approved by Lexon. MPI
agrees not to provide any information that is false or materially
misleading or omit to provide any information regarding Lexon
which is necessary so that whatever information is provided by
MPI is not false or materially misleading. If MPI receives any
inquiry which calls for a response with information that has not
been approved by Lexon or as to which MPI does not know the
correct and current answer, MPI agrees to request the information
from Lexon and not provide a guess, a projection, or an
assumption.
4. Compensation. MPI agrees that as a founder of Lexon it shall
perform its services without additional compensation during the
term of this Agreement.
5. Nature of Relationship. MPI and Lexon are independent contractors
and are not partners, joint venturers, employees, agents, or
other representatives of the other. Neither MPI nor Lexon is
authorized or empowered to bind the other in contract or in any
other way or to act as a representative of the other in any
capacity without the express written consent of the other. Each
party is solely responsible for all costs and liabilities 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 party agrees to indemnify and
hold the other party harmless therefrom. MPI is in the business
of providing information to the investing public and the
investment community. MPI is not a registered broker or
investment advisor, and MPI agrees not to undertake any activity
which will require it to be so registered.
6. Costs of Investor Relations Function. MPI will bear the costs of
and be solely responsible for the investor relations activities
as described in paragraph 2, above MPI and Lexon understand that
MPI has the discretion and duty to spend its resources in the
manner, at the time and for the purposes for which MPI believes
in its best, reasonable good faith determination will be the most
effective in the furtherance of providing the investing public
current, accurate and timely information regarding
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Lexon. MPI will coordinate in writing with Lexon regarding any
material deviations from the investor relations activities.
Failure to perform the investor relations activities in a
material way shall constitute a breach of this Agreement.
7. No Conflicting Activities. MPI 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.
8. Inside and Confidential Information. MPI agrees not to disclose,
use or disseminate any information of or relating to Lexon which
is proprietary, confidential and competitively sensitive without
the prior written approval of Lexon. MPI further agrees not to
act upon for its own account or for the account of another and
not to disclose or disseminate any non-public information that is
used to purchase or sell securities of Lexon.
9. Disclosure of Relationship with Lexon. MPI 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.
10. Ownership of Information. MPI will receive information concerning
Lexon and MPI will create advertising and other promotional
materials for the benefit of Lexon. MPI agrees that all such
material belong to and are the property of Lexon. Likewise, MPI
maintains 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 MPI.
11. Term. This Agreement shall expire 2 years 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.
12. 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 by either
party; (b) a party becomes legally or practically unable to
perform its obligations 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 within 20 days. 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).
13. 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.
14. 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
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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 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 both
Xxxxxx-Xxxxxxxx and 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. 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.
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IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement
to be executed effective this 1st day of November, 1998.
LEXON, INC. XXXXXX-XXXXXXXX, INC.
BY /s/ XXXXXXX X. XXXXX BY /s/ XXX XXXXXX
XXXXXXX X. XXXXX, PRESIDENT XXX XXXXXX, MANAGING DIRECTOR
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OPTION AGREEMENT
This Option Agreement ("Agreement") is made and entered into October 29,
1998 by and Xxxxxx-Xxxxxxxx, Inc. ("Optionee") and Lexon, Inc. ("Lexon").
WHEREAS, Lexon desires to grant Optionee an option to purchase 1,000,000
shares of common stock of Lexon upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt, adequacy
and sufficiency of which are hereby acknowledged, the parties agree:
1. Grant of Option. Subject to the terms and conditions of this Agreement,
Lexon hereby grants Optionee an option to purchase 1,000,000 shares of common
stock of Lexon at an exercise price of $1.20 per share or higher in accordance
with Exhibit A hereto. The Board of Directors has determined the fair market
value of the common stock of Lexon on the date hereof is $1.20 per share.
2. Term. The term of this Option shall begin on the effective date of this
Agreement and expire if not earlier exercised on October 27, 2008. Any Option
granted hereunder not exercised in accordance with the terms hereof on or before
October 27, 2008 shall terminate.
3. Vesting. The Options granted hereby shall become vested only after the
satisfaction of each element of the Performance Criteria ("Performance
Criteria") during a particular period as set forth in Exhibit A hereto. The
elements of Performance Criteria consist of (1) the average between the closing
bid and the asked price on the OTC bulletin board during a particular period;
and (2) the average number of shares traded on a daily basis during that
particular period. For example, if the average closing price quoted on the OTC
bulletin board for common stock of Lexon is equal to or greater than $2.75 for
the period beginning January 1, 1999 and ending March 31, 1999 and if at least
1.5% of the number of free-trading shares eligible to be traded ("Float") have
in fact been traded on a daily basis during that period, the Option covering
45,000 shares at an exercise price of $1.20 per share becomes vested. For
purposes of calculating the Float, see Exhibit B hereto. By reason of satisfying
those Performance Criteria, that Option becomes fully vested and exercisable at
any time up through October 27, 2008, in Optionee's sole discretion in whole or
in part, so long as that vested Option has not been canceled or terminated in
accordance herewith. On the other hand, if those Performance Criteria are not
met, that portion of the Options hereby granted shall terminate and forever be
rescinded, never to be eligible for exercise. Notwithstanding the cancellation
of a particular portion of the Options hereby granted because the Performance
Criteria have not been satisfied, no other portion of the Options hereby granted
shall be affected thereby, whether such other portions have become vested and
eligible for exercise prior thereto or may thereafter become vested and eligible
for exercise by the common stock achieving the applicable Performance Criteria
therefor.
4. Procedure for Exercise. This Option may be exercised in whole or in part
by written notice to the Shareholders stating the number of shares to be
purchased and accompanied by a check for payment of the exercise price per share
times the number of shares to be purchased. Lexon shall promptly issue to
Optionee certificates representing the Option Shares so purchased.
5. Transferability. This Option is not transferable by Optionee and is
subject to compliance with the requirements of applicable securities and other
laws. No shares may be issued if to do so would violate any applicable
securities or other laws.
6. Rights as Shareholder. Optionee shall be deemed to own all rights,
titles and interests in the Option Shares immediately upon receipt of payment
for the exercise price of the Option Shares so exercised and the delivery of
required investment representations and other subscription agreement
requirements reasonable impose by Lexon in order for it to satisfy all
applicable requirements of applicable securities, together with a written notice
of exercise. Optionee shall have no rights as a Shareholder with respect to and
of the Option Shares until proper exercise and payment of the exercise price has
been received.
7. Fundamental Corporate Changes. If Lexon changes its capital structure or
mergers, consolidates, sells all or substantially all of its assets or dissolves
("Fundamental Change"), then Optionee shall be entitled to purchase that number
and class of securities to which Optionee would have been entitled to purchase
if immediately prior to the effective date of such Fundamental Change, Optionee
had exercised this Option in full. Lexon agrees to adjust the number of Option
Shares and the exercise price therefor accordingly.
8. No Restrictions. The existence of this Option or any unexercised
portions hereof shall not effect in any way the right or power of Lexon to (1)
make or authorize any or all adjustments, recapitalizations, reorganizations or
other Fundamental Changes in its capital structure or its business, or (2) issue
other common shares or subscriptions therefor, or (3) issue notes, debentures,
bonds or preferred stock with preferential rights to the rights of common stock,
or (4) dissolve or liquidate the issuer, or (5) sell or transfer all or any part
of its assets or business.
9. Corporate Changes. If the outstanding shares of Lexon shall at any time
be changed or exchanged by a stock dividend, stock split, combination of shares
or recapitalization, the number and kind of shares subject to any unexpired
portion of this Option and the exercise price therefor shall automatically,
proportionately and equitably be adjusted; and the Shareholders agree to make
such changes in the number and exercise price of the Option Shares to eliminate
any dilution caused thereby. No adjustment shall be made in this Option or in
the exercise price or number of shares covered by this Option if Lexon makes any
Fundamental Change as described in Paragraph 6 above.
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10. Merger, Business Combination, or Sale of Assets. In the event Lexon
consummates a merger, business combination, sale of all or substantially all of
its assets or any other similar transaction on or before December 31, 2000 in a
manner so that the Performance Criteria applicable to any period before that
time cannot be achieved, or in the event the common stock of Lexon ceases for
any reason to be eligible for trading in the OTC bulletin board, the NASDAQ
national market system or on any recognized regional or national stock exchange
in the US, all Options not theretofore vested shall automatically be canceled
and of no further force or effect. Options which have become vested hereunder
prior to the occurrence of such an event shall continue to remain vested and
eligible for exercise; provided that in accordance with the terms and conditions
of any such event, the vested Options which have theretofore not been exercised
shall be deemed exercised with the exercise price being deducted from the
consideration payable to Optionee thereunder. For example, if Optionee holds
unexercised vested Options granted hereunder for 20,000 shares at an exercise
price of $1.20 and the consideration payable to shareholders of Lexon common
stock equals $4.00 per share, Optionee shall be entitled to receive $2.80 per
share times 20,000 shares ($4.00 minus $1.20 equals $2.80 per share).
11. Conditions to the Exercise of this Option. Optionee agrees to enter
into such representations, warranties or agreements as the Lexon may reasonably
request in order to comply with applicable securities or other laws and with
this Agreement. Compliance with all such applicable laws is a condition to the
exercise of this Option, and Lexon shall not be obligated to reissue shares upon
the exercise of this Option if to do so would violate any applicable law, rule
or regulation.
12. Taxes. Optionee shall be responsible for all taxes payable by reason of
the exercise of this Option. Optionee shall have no liability for any taxes
imposed upon Lexon for any reason whatsoever.
13. Investment Representation. The Optionee agrees that it is acquiring
this Option and the Option Shares for its own account for investment purposes
and not with a view to the sale or other distribution thereof except as
permitted by law and in compliance with applicable securities and other laws.
Optionee agrees that it has such knowledge and experience in financial and
business matters and specific knowledge about Lexon as it deems necessary or
appropriate in order to exercise the Options. Optionee agrees that Optionee
shall be required to bear the full investment risks associated with ownership of
this Option and the Option Shares.
14. Free Trading Shares. Lexon represents and warrants that the Option
Shares that will be issued upon the exercise of the Options hereby granted will
be issued pursuant to Rule 504 and subject to the limitations imposed by Rule
504.
15. Binding Agreement. This Option Agreement is binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
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16. Governing Law. This Agreement and the Option shall be interpreted by
and construed in accordance with the laws of Oklahoma.
Lexon, Inc.
By: XXXXXXX XXXXX
Xxxxxxx Xxxxx, President
0000 X. Xxxx, Xxxxx 000
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx-Xxxxxxxx, Inc.
By /s/ XXX XXXXXX
Xxx Xxxxxx, Managing Director
0000 X. Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
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EXHIBIT A
Xxxxxx-Xxxxxxxx, Inc.
Option Agreement
PERFORMANCE CRITERIA
------------------------------
Daily Average
Bid & Asked Average Daily
Number of During The Volume as a %
Vesting Period Option Shares Exercise Price Vesting Period Of The Float
-------------- ------------- -------------- -------------- -------------
January 1, 1999-
March 31, 1999 45,000 $1.20 $2.75 1.5%
April 1, 1999-
June 30, 1999 70,000 $1.50 $3.25 1.5%
July 1, 1999-
September 30, 1999 95,000 $1.75 $3.75 1.5%
October 1, 1999-
December 31, 1999 120,000 $2.00 $4.25 1.5%
January 1, 2000-
March 31, 2000 135,000 $2.25 $5.00 1.5%
April 1, 2000-
June 30, 2000 160,000 $2.50 $5.50 1.5%
July 1, 2000-
September 30, 2000 175,000 $2.75 $6.00 1.5%
October 1, 2000-
December 31, 2000 200,000 $3.00 $6.50 1.5%
TOTAL SHARES 1,000,000
EXHIBIT B
Calculation of Float
Float means all the shares of Common Stock of Lexon which are not
restricted and are free trading at any particular time. At the date hereof, the
shares included in the Float are listed in the attachment hereto and not marked
with an "X". [See attachment]
