EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement"), dated as of August
5, 2011 effective as of the Commencement Date (as defined below), is
entered into between PMX Communities, Inc., a Nevada corporation having
a place of business at 0000 Xxxxxx Xxxx, Xxxx Xxxxx, Xxxx Xxxxx Xxxxxx,
Xxxxxxx ( "Employer"), and Xxxx Xxxxxxx an individual residing in
Broward County, Florida ("Employee"). The aforementioned parties are
hereinafter collectively referred to as the "Parties" and individually
as a "Party". Capitalized terms shall have the meaning ascribed to them
in the Agreement.
WHEREAS, Employer desires to employ Employee; and
WHEREAS, Employee is willing to accept such employment on the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set
forth herein, Employer and Employee hereby agree as follows:
ARTICLE I
EMPLOYMENT; POSITION, DUTIES AND RESPONSIBILITIES
1.01 Employment. Employer agrees to, and does hereby, employ
Employee, and Employee agrees to, and does hereby, accept such
continued employment, upon the terms and subject to the conditions set
forth in this Agreement. Employee represents and warrants to Employer
that (a) Employee has the legal capacity to execute and perform this
Agreement, (b) this Agreement is a valid and binding agreement
enforceable against Employee according to its terms, and (c) the
execution and performance of this Agreement by Employee does not
violate the terms of any existing agreement or understanding to which
Employee is a party or by which Employee may be bound.
1.02 Position, Duties and Authority. During the Term (as defined
below), Employee shall serve as President and Chief Executive Officer.
Employer must do all things reasonably necessary to assist Employee in
the performance of his duties, including the disclosure of information
necessary to obtain investors, customers and venders of Employer and
shall have such responsibilities, duties and authority as are
consistent with such position and as may, from time to time, be
reasonably assigned by Employer's Board of Directors (the "Board").
Employee shall also be elected to the board of directors. Any
substantial changes to such responsibilities, duties and authority
shall be provided to Employee in writing or otherwise agreed to between
Employer and Employee. During the Term, Employee shall serve Employer,
faithfully and to the best of Employee's ability, and shall devote an
adequate amount of Employee's business time, attention, skill and
efforts exclusively to the business and affairs of Employer (including
its subsidiaries and affiliates) and the promotion of its interests as
is necessary for the successful discharge of employees' duties and
obligations. Notwithstanding the foregoing, Employee may engage in
aircraft and avionics sales, internet marketing except in the sale of
gold and precious metals and financial services, charitable,
educational, religious, civic and similar types of activities (all of
which shall be deemed to benefit Employer) to the extent that such
activities do not interfere with the performance of Employee's duties
hereunder or inhibit or conflict with the business of Employer, its
subsidiaries and affiliates. In no event may Employee serve on boards
of directors or advisory committees without the prior written consent
of the Board, which consent shall not be unreasonably withheld.
ARTICLE II
TERM
2.01 Term of Employment. Employee's employment under this Agreement
shall commence on August 1, 2011 (the "Commencement Date") and, subject
to earlier termination pursuant to Article IV hereof, shall continue
until the two (2) year anniversary of the Commencement Date (the
"Term"); provided, however, that unless either party gives written
notice to the other at least 120 days prior to the expiration of the
then-current Term that such party elects not to renew this Agreement,
the then-current Term shall be automatically extended for additional
one-year periods. The election of Employer not to extend the then-
current Term as provided in this Section 2.01 shall not be deemed a
termination by Employer under Section 4.01(C) or (D) or constitute
"Good Reason" under Section 4.01(E), and, in such event, Employee only
shall be entitled to the compensation set forth in Section 4.02(B).
The election of Employee not to extend the then-current Term, as
provided in this Section 2.01 shall not be deemed a termination for
Good Reason and in such event Employee only shall be entitled to the
compensation set forth in Section 4.02(A).
ARTICLE III
COMPENSATION AND EXPENSES
3.01 Compensation and Benefits. For all services rendered by Employee
in any capacity during the Term, including, without limitation,
services as an officer, director or member of any committee of
Employer, or any subsidiary, affiliate or division thereof, Employee
shall be compensated as follows (subject, in each case, to the
provisions of Article IV below):
(A) Base Salary. During the Term, Employer shall pay to
Employee a base salary at the rate of US$125,000.00 on an annualized
basis. ("Base Salary"), which Base Salary shall be payable in
accordance with Employer's customary payroll practices in place from
time to time, but no less frequently than twice per month. Employee's
Base Salary shall be subject to annual performance review and increases
effective as of the first day of each fiscal year (January 1 - December
31) commencing with the fiscal year 2012, which increases (if any)
shall be in amounts as the Board (or committee thereof) shall deem
appropriate; provided, however, that such increases shall be in an
amount at least equal to the percentage increase during the previous
twelve (12) months in the Consumer Price Index for All Urban Consumers.
In the event that such percentage increase in the above-mentioned
Consumer Price Index is not available as of the date the increased Base
Salary is required to be effective, Employee shall continue to receive
his then current Base Salary until such percentage increase is
available, at which time the Base Salary shall be increased effective
April 1 of the applicable fiscal year and paid in arrears to April 1 of
the applicable fiscal year. The term "Base Salary" as used in this
Agreement shall refer to Base Salary as may be increased from time to
time.
Upon commencement of employment, Employee shall be issued six million
(6,000,000,000) shares of common stock in the Company as one (1) time
bonus. Such shares shall be fully paid, non-assessable, restricted and
have not been registered under the Securities Act. Additionally,
Employee represents and warrants that he has been advised and
understands that he must continue to bear the economic risk of
ownership of the Shares for an indefinite period of time because (i)
the Shares have not been registered under the Securities Act of 1933,
as amended (the "Securities Act") or the securities laws of any states
and therefore cannot be sold unless it is subsequently registered under
the Securities Act and the laws of such states or an exemption from
such registration is available, and (ii) PMX will be under no
obligation to register the Shares.
(B) Discretionary Bonus. During the Term, Employee shall be
eligible to receive an annual cash or stock bonus, in such amount, if
any, as may be determined by the Board (or committee thereof) in its
sole discretion ("Discretionary Bonus"). The Discretionary Bonus, if
any, shall be determined as of the end of each fiscal year of
employment, and payable within sixty (60) days after the last day of
each such year. To be eligible to receive any Discretionary Bonus (or
any portion thereof), Employee must be employed by Employer both at the
time the amount of the Discretionary Bonus, if any, is determined, and
at the time any such bonus is to be paid. Employee shall receive any
Discretionary Bonus awarded to Employee as of the end of a fiscal year
by the Board (or committee thereof) and not yet paid at the time this
Agreement is terminated for any reason by Employer other than for Cause
(as defined below) prior the payment of the Discretionary Bonus.
(C) Incentive Stock Option Grants. During the Term, Employee
shall be eligible to receive from time to time stock option grants in
amounts, if any, to be approved by the Board (or committee thereof) in
its sole discretion. Such stock option grants will be subject to the
terms and conditions established within the Employer's Stock Option
Plan or any successor stock option plan as may be in place from time to
time (the "Plan") and a separate stock option grant agreement between
Employer and Employee that sets forth, among other things, the exercise
price, expiration date and vesting schedule of such options. Upon a
Change in Control (as defined below), all outstanding and unvested
options to purchase shares of Employer's common stock granted to
Employee shall be deemed fully vested and exercisable. Further, if,
during the Term, Employer shall terminate this Agreement and Employee's
employment hereunder without Cause (as defined below) and other than as
a result of Employee's death or Disability (as defined below) or
Employee shall terminate this Agreement and Employee's employment
hereunder for Good Reason (as defined below), then all outstanding and
unvested options to purchase shares of Employer's common stock granted
to Employee shall be deemed fully vested and exercisable. Employer
shall use commercially reasonable efforts to register the shares of
common stock issuable upon exercise of such Options on a registration
statement on Form S-8 to be filed with the Securities and Exchange
Commission and to maintain the effectiveness of such registration
during the period in which such Options remain outstanding.
(D) Benefits. During the Term, Employee shall be entitled to
participate in all Employer's employee benefit plans and programs
(excluding severance plans, if any) as Employer generally maintains
from time to time during the Term for the benefit of its employees, in
each case subject to the eligibility requirements, enrollment criteria
and other terms and provisions of such plans or programs. Employer may
amend, modify or rescind any employee benefit plan or program and/or
change employee contribution amounts to benefit costs without notice in
its discretion.
(E) Vacation Days. During the Term, Employee shall be entitled
to paid vacation days in accordance with Employer's policies with
respect to such vacation days in place from time to time; provided,
however, that Employee shall accrue or earn no less than 15 paid
vacation days per calendar year. Employee will not forfeit vacation
days if they are not taken by the end of the calendar year; provided,
however, once Employee has accrued or earned the maximum number of
vacation days provided for in any one calendar year as provided in the
preceding sentence, no additional vacation days will accrue or be
earned by Employee until Employee has taken accrued or earned vacation
days and reduced the balance of accrued or earned vacation days below
that maximum level. Thereafter, vacation days will accrue or be earned
on a prospective basis only until, and if, the maximum is again
reached.
3.02 Expenses. Employee shall be entitled to receive
reimbursement from Employer for all reasonable out-of-pocket expenses
incurred by Employee during the Term in connection with the performance
of Employee's duties and obligations under this Agreement, according to
Employer's expense account and reimbursement policies in place from
time to time and provided that Employee shall submit reasonable
documentation with respect to such expenses.
ARTICLE IV
TERMINATION
4.01 Events of Termination. This Agreement and Employee's employment
hereunder shall terminate upon the occurrence of any one or more of the
following events:
(A) Death. In the event of Employee's death, this Agreement and
Employee's employment hereunder shall automatically terminate on the
date of death.
(B) Disability. To the extent permitted by law, in the event
of Employee's physical or mental disability that prevents Employee from
performing Employee's duties under this Agreement for a period of at
least 60 consecutive days in any 12-month period or 120 non-consecutive
days in any 12-month period, Employer may terminate this Agreement and
Employee's employment hereunder upon written notice to Employee.
(C) Termination by Employer for Cause. Employer may, at its
option, terminate this Agreement and Employee's employment hereunder
for Cause (as defined herein) upon giving notice of termination to
Employee. As used in this Agreement, the term "Cause" shall mean
Employee's (i) conviction of, plea of guilty or nolo contendre to, or
confession of guilt of, a felony or criminal act involving moral
turpitude, (ii) commission of a fraudulent, illegal or dishonest act
(which dishonest act results in material damage to Employer) in respect
of Employer or any of its affiliates or subsidiaries, (iii) willful
misconduct or gross negligence that reasonably could be expected to be
injurious (monetarily or otherwise) to the business operations or
reputation of Employer or any of its affiliates or subsidiaries, as
determined in the reasonable discretion of Employer(iv) material
violation of Employer's policies or procedures in effect from time to
time; provided, however, to the extent such violation is subject to
cure, Employee will have a reasonable opportunity to cure such
violation after written notice thereof, (v) after a written warning and
a reasonable opportunity to cure non-performance, continued failure to
perform Employee's duties as reasonably and in good faith assigned to
Employee from time to time, or (vi) other material breach of this
Agreement (including, without limitation, any breach of Employee's
obligations under Article V hereof).
(D) Without Cause by Employer. Subject to Section 4.02,
Employer may, at its option, at any time terminate this Agreement and
Employee's employment hereunder for no reason or for any reason
whatsoever (other than for Cause or as a result of Employee's death or
Disability) by giving 30 days prior written notice of termination to
Employee.
(E) Termination By Employee. Employee may terminate this
Agreement and Employee's employment hereunder with or without Good
Reason (as defined below) by giving (30) days prior written notice of
termination to Employer; provided, however, that Employer reserves the
right to accept Employee's notice of termination and to accelerate such
notice and make Employee's termination effective immediately, or on any
other date prior to Employee's intended last day of work as Employer
deems appropriate. For purposes of this Agreement, "Good Reason" shall
mean, in the absence of the consent of Employee:
(i) the failure of Employer or its successor to pay any
amounts due to Employee or to fulfill any other material obligations to
Employee under this Agreement, other than failures that are remedied by
Employer or its successor within 30 days after receipt of written
notice thereof given by Employee; or
(ii) action by Employer or its successor that results in a
material diminution in Employee's title, position, authority or duties
from those contemplated in Section 1.02; or
(iii) any move of the offices of Employer or its successor
without Employee's consent, such that Employee would be required to
commute more than 10 miles more each way than Employee commutes
immediately prior to such move.
(iv) the failure of the Employer to reasonably assist
Employee in the performance of his duties.
Notwithstanding the foregoing, placing Employee on a paid leave
for up to 30 days, pending a determination of whether there is a basis
to terminate Employee for "Cause," shall not constitute a "Good
Reason." Employee shall be deemed to have consented to any act or
event that would otherwise give rise to "Good Reason," unless Employee
provides written notice of termination for Good Reason to Employer
within thirty (30) days following the action or event constituting Good
Reason.
(F) Mutual Agreement. This Agreement and Employee's employment
hereunder may be terminated at any time by the mutual agreement of
Employer and Employee.
(G) Expiration of Term. This Agreement and Employee's
employment hereunder shall automatically terminate upon the expiration
of the Term in accordance with the 30 day notice provision herein.
4.02 Employer's Obligations Upon Termination.
(A) For Cause; Other than For Good Reason. If, during the Term,
Employer shall terminate this Agreement and Employee's employment
hereunder for Cause or Employee shall terminate this Agreement and
Employee's employment hereunder other than for Good Reason, Employer's
sole obligation to Employee under this Agreement or otherwise shall be
to, on the next regular paydate following the date of termination, (i)
pay to Employee any Base Salary earned, but not yet paid to Employee,
prior to the date of such termination, (ii) pay to Employee any
accrued, but unused, vacation days through the date of termination, and
(iii) reimburse Employee for any expenses incurred by Employee through
the date of termination in accordance with Section 3.02 (collectively,
the "Accrued Obligations"). All vested stock options shall remain in
effect pursuant to the terms of the Plan.
(B) Expiration of Term. Upon the expiration of the Term,
Employer's sole obligation to Employee under this Agreement or
otherwise shall be to pay to Employee the Accrued Obligations, which
Accrued Obligations shall be paid or provided in the manner described
in Section 4.02(A) above.
(C) Death; Disability. If, during the Term, this Agreement and
Employee's employment hereunder shall terminate as a result of
Employee's death or Disability, Employer's sole obligation to Employee
or Employee's heirs, beneficiaries, assigns or estate, as applicable,
under this Agreement or otherwise shall be to pay to Employee or
Employee's estate, as applicable, the Accrued Obligations, which
Accrued Obligations shall be paid or provided in the manner described
in Section 4.02(A) above. All incentive stock options vested at the
time of death shall be transferred to Employee's estate, subject to the
terms of the Plan.
(D) Without Cause; for Good Reason
(i) If, during the Term, Employer shall terminate this
Agreement and Employee's employment hereunder without Cause and other
than as a result of Employee's death or Disability or Employee shall
terminate this Agreement and Employee's employment hereunder for Good
Reason, Employer's sole obligation to Employee under this Agreement or
otherwise shall be to: (a) pay to Employee the Accrued Obligations,
which Accrued Obligations shall be paid or provided in the manner
described in Section 4.02(A) above, and (b) subject to Employee's
execution, delivery and non-revocation of a general release in a form
satisfactory to Employer (the "Release") (which Release, among other
things, will include a general release of Employer, its affiliates and
subsidiaries and their respective officers, directors, managers,
members, shareholders, partners, employees and agents from all
liability ), continue to pay to Employee Employee's Base Salary for a
period equal to twelve (12) months following the date of termination.
(ii) Notwithstanding the provisions of Section 4.02(D)(i)
above, in the event that Employer shall terminate this Agreement and
Employee's employment hereunder without Cause and other than as a
result of Employee's death or Disability within twelve (12) months
following a Change in Control (as defined below) or Employee shall
terminate this Agreement and Employee's employment hereunder for Good
Reason within twelve (12) months following a Change in Control, then,
in lieu of the amounts to be paid by Employer pursuant to Section
4.02(D)(i) above, Employer shall have no further obligations under this
Agreement or otherwise to Employee other than the obligation to (a) pay
to Employee the Accrued Obligations, which Accrued Obligations shall be
paid or provided in the manner described in Section 4.02(A) above, and
(b) subject to Employee's execution, delivery and non-revocation of the
Release, continue to pay to Employee Employee's Base Salary for a
period equal to eighteen (18) months following the date of termination.
The Base Salary continuation payments contemplated by this Section
4.02(D) shall commence to be paid on the next regular paydate following
the 8th day after Employee's execution and delivery of the Release;
provided, however, if necessary to comply with the restriction in
Section 409(A)(a)(2)(B) of the Internal Revenue Code of 1986, as
amended (the "Code") concerning payments to "specified employees," the
salary continuation payments shall commence on the first regular
paydate in the seventh (7th) month following the date of Employee's
termination and the first such payment shall include the cumulative
amount of any payments that would have been paid prior to such date if
not for such restriction.
As used in this Agreement, "Change in Control" means:
(A) Any "person" (as such term is used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended) becomes the
"beneficial owner"(as defined in Rule 13d-3 under said Act), directly
or indirectly, of securities of Employer representing more than 50% of
the total voting power represented by Employer's then outstanding
voting securities.
(B) The consummation of a merger or consolidation of Employer
with any other corporation, other than a merger or consolidation which
would result in the voting securities of Employer outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the
surviving entity) at least fifty percent (50%) of the total voting
power represented by the voting securities of Employer or such
surviving entity outstanding immediately after such merger or
consolidation; or
(C) The consummation of the sale or disposition by Company of
all or substantially all of Company's assets.
In addition to the payments and benefits set forth in this Section
4.02, amounts that are vested benefits or that Employee is otherwise
entitled to receive under any plan, program, policy or practice (with
the exception of those relating to severance) on the date of
termination, shall be payable in accordance with such plan, policy,
practice or agreement.
ARTICLE V
CONFIDENTIALITY, ASSIGNMENT OF DEVELOPMENTS, NON-COMPETITION,
NON-SOLICITATION AND OTHER COVENANTS
5.01 Confidentiality. While working or performing services for
Employer or otherwise, Employee may previously have developed or
acquired, or may in the future develop or acquire, knowledge in
Employee's work or from directors, officers, employees, agents or
consultants of Employer and its affiliates and subsidiaries
(collectively, the "Company") or otherwise of Confidential Information
relating to the Company, its business, potential business or that of
its customers and vendors. "Confidential Information" includes all
trade secrets, know-how, show-how, theories, technical, operating,
financial, and other business information, whether or not reduced to
writing or other medium and whether or not marked or labeled
confidential, proprietary or the like, specifically including, but not
limited to, information regarding source codes, software programs,
computer systems, algorithms, formulae, schematics, concepts,
creations, costs (including, without limitation, manufacturing costs),
plans, materials, enhancements, research, specifications, works of
authorship, techniques, documentation, models and systems, sales and
pricing techniques, designs, inventions, discoveries, products,
improvements, modifications, methodology, processes, concepts, records,
files, memoranda, reports, plans, proposals, price lists, client,
customer, and supplier lists and information, product development,
project procedures developed by Employer and Gold Deposit Technologies,
Inc. Confidential Information does not include general skills,
experience or information that is generally available to the public,
other than information which has become generally available as a result
of Employee's direct or indirect act or omission or information that
Employee learned, or was aware of, prior to negotiations/ discussions
with employer back to November 2010.
With respect to Confidential Information of the Company and its
customers and vendors:
(A) Employee has used, and will use, Confidential Information
only in the performance of Employee's duties for Employer. Employee
has not used, and will not use, Confidential Information at any time
(during or after Employee's employment with Employer) for Employee's
personal benefit, for the benefit of any other individual or entity, or
in any manner adverse to the interests of the Company and its customers
and vendors;
(B) Employee has not, and will not disclose, Confidential
Information at any time (during or after Employee's employment with
Employer) except to authorized Employer personnel, unless Employer
consents in advance in writing, the Confidential Information
indisputably becomes of public knowledge or enters the public domain
(other than through Employee's direct or indirect act or omission), or
the disclosure of which is required by law and reasonable written
notice has been provided to Employer sufficient to enable Employer to
contest the disclosure;
(C) Employee has safeguarded, and will safeguard, the
Confidential Information by all reasonable steps and abide by all
policies and procedures of Employer in effect from time to time
regarding storage, copying, destroying, publication or posting, or
handling of Confidential Information, in whatever medium or format the
Confidential Information takes;
(D) Employee acknowledges that Employer may be required to sign
non-disclosure or confidentiality agreements with customers or vendors,
prospective customers or vendors, and other third parties in which
Employer agrees that its employees and agents will not disclose
Confidential Information of such customers or vendors, prospective
customers or vendors, or other third parties. By executing this
Agreement, Employee acknowledges and agrees that Employer may rely, and
will rely, on this Agreement for purposes of entering into such other
agreements. Further, Employee will execute and abide by all
confidentiality agreements reasonably requested by Employer's customers
or vendors, prospective customers or vendors, and other third parties;
and
(E) Employee will return all materials, substances, models,
software, prototypes and the like containing and/or relating to
Confidential Information, together with all other property of the
Company (all of which shall remain the exclusive property of the
Company) and its clients and customers, to Employer when Employee's
employment relationship with Employer terminates or otherwise on
demand. Employee shall not retain any copies or reproductions of
correspondence, memoranda, reports, notebooks, drawings, photographs,
databases, diskettes, or other documents or electronically stored
information of any kind relating in any way to the business, potential
business or affairs of the Company and its clients and customers.
5.02 Assignment of Developments. Employee has disclosed, and
will disclose, promptly and fully to Employer and to no one else:
(i) all inventions, ideas, improvements, discoveries, works
modifications, processes, software programs, works of authorship,
documentation, formulae, techniques, designs, methods, trade secrets,
technical specifications and technical data, know-how and show-how,
concepts, expressions or other developments whatsoever or any interest
therein (whether or not patentable or registrable under copyright,
trademark or similar statutes or subject to analogous protection) made,
authored, devised, developed, discovered, reduced to practice,
conceived or otherwise obtained by Employee (collectively, together
with all patent rights, copyrights, trade secret rights and other
intellectual property rights, worldwide, and the right to xxx for
present, past and future infringements thereof, the "Developments"),
solely or jointly with others, during the course of Employee's
employment with Employer (whether prior to or after the date of this
Agreement) that (a) are related to the business of the Company or any
of the products or services being researched, developed, distributed,
manufactured or sold by the Company or which may be used in relation
therewith or (b) result from tasks assigned to Employee by the Company;
(ii) any Development that is related to the business of the Company and
in which Employee had an assignable interest at the time of Employee's
first employment by Employer; or (iii) any Development made using the
time, materials or facilities of the Company, even if such Development
does not relate to the business of the Company. The determination as
to whether a Development is related to the business of the Company
shall be made solely by an authorized representative of Employer. Any
Development relating to the business of the Company and disclosed to
the Company within one year following the termination of Employee's
employment with Employer shall be deemed to fall within the provisions
of this Section 5.02. The "business of the Company" as used in this
Section 5.02 includes the actual business currently conducted by the
Company, as well as any business conducted by the Company during the
course of Employee's employment prior to the Commencement Date and any
business in which the Company is actively engaged in the development of
at any time during the period of Employee's employment. Employee
agrees that, to the maximum extent possible, all such Developments
listed above and the benefits thereof are and shall immediately become
the sole and absolute property of Employer from conception, as "works
made for hire" (as that term is used under the U.S. Copyright Act of
1976, as amended) or otherwise. Employee shall have no interest in any
Developments. To the extent that title to any Developments or any
materials comprising or including any Developments does not, by
operation of law, vest in Employer, Employee hereby irrevocably assigns
to Employer all of Employee's right, title and interest (including,
without limitation, tangible and intangible rights such as patent
rights, trademarks, copyrights and all other intellectual property
rights, worldwide, and the right to xxx for present, past and future
infringements thereof) that Employee may have or may acquire in and to
all such Developments, benefits and/or rights resulting therefrom, and
agrees promptly to execute any further specific assignments related to
such Developments, benefits and/or rights at the request of Employer.
Employee also hereby assigns to Employer, or waives if not assignable,
all of Employee's "moral rights" in and to all such Developments, and
agrees promptly to execute any further specific assignments or waivers
related to moral rights at the request of Employer. Employee
represents and warrants to Company that Employee has at no time
assigned or otherwise transferred any interest in any Development
(including, but not limited to, any Developments arising in connection
with Employee's employment prior to the Commencement Date), to any
third party, or granted any third party any license, permission, or
other right with respect to any such Development, or permitted any
lien, security interest or other encumbrance to be imposed on any such
Development, or entered into any contract or other arrangement pursuant
to which Employee has agreed to do any of the foregoing.
Employee agrees to assist Employer without charge for so long as
Employee is an employee of Employer and for as long thereafter as may
be necessary (but at Employer's expense including reasonable
compensation to Employee if Employee is no longer an employee of
Employer): (1) to apply, obtain, register and renew for, and vest in,
Employer's benefit alone (unless Employer otherwise directs), patents,
trademarks, copyrights, mask works, and other protection for such
Developments in all countries, and (2) in any controversy or legal
proceeding relating to Developments. In the event that Employer is
unable to secure Employee's signature after reasonable effort in
connection with any patent, trademark, copyright, mask work or other
similar protection relating to a Development, Employee hereby
irrevocably designates and appoints Employer and its duly authorized
officers and agents as Employee's agent and attorney-in-fact, to act
for and on Employee's behalf and stead to execute and file any such
application and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, trademarks, copyrights, mask works
or other similar protection thereon with the same legal force and
effect as if executed by Employee.
5.03 Obligations to Other Persons. Employee hereby represents
and warrants that Employee does not have any non-disclosure, non-
compete, non-solicitation or other obligations to any previous employer
or other individual or entity that would prohibit, limit, conflict or
interfere with the performance of Employee's duties for Employer or
Employee's other obligations under this Agreement. Employee will not
disclose to the Company or its customers and clients or induce the
Company or its customers and clients to use any secret confidential
information or material belonging to others, including Employee's
former employer.
5.04 Covenant Against Competition and Solicitation.
(A) Employee acknowledges and understands that, in view of the
position that Employee holds or will hold as an employee of Employer,
Employee's relationship with Employer will afford Employee extensive
access to Confidential Information of the Company. Employee therefore
agrees that during the course of Employee's employment with Employer
and for a period of 18 months after termination of Employee's
employment with Employer (for any reason or no reason) (collectively,
"Restricted Period"), Employee shall not, anywhere in the world, either
directly or indirectly, as an owner, stockholder, member, partner,
joint venturer, officer, director, consultant, independent contractor,
agent or employee, with or without remuneration, engage in any business
or other commercial activity that is engaged in the business of (i)
designing, developing and/or commercializing electrotherapeutic
technologies or (ii) designing, developing, marketing, selling,
distributing and/or providing any products or services that are of the
same nature as a product or service provided by the Company or a
product or service that the Company is developing or seeking to provide
and of which Employee has knowledge. Notwithstanding the foregoing,
nothing herein shall be deemed to prohibit Employee's ownership of less
than 2% of the outstanding shares of any publicly traded corporation
that conducts a business competitive with that of Employer.
(B) Employee further agrees that, during the Restricted Period,
Employee shall not, directly or indirectly, either on Employee's own
behalf or on behalf of any other individual or commercial enterprise:
(i) contact, communicate, solicit or transact any business with or
assist any third party in contacting, communicating, soliciting or
transacting any business with (x) any of the customers or vendors of
the Company, (y) any prospective customers or vendors of the Company
being solicited at the time of Employee's termination, or (z) any
individual or entity who or which was within the most recent twelve
(12) month period a customer or vendor of the Company, for the purpose
of inducing such customer or vendor or potential customer or vendor to
be connected to or benefit from any competitive business or to
terminate its or their business relationship with the Company; (ii)
solicit, induce or assist any third party in soliciting or inducing any
individual or entity who is then (or was at any time within the
preceding 12 months) an employee, consultant, independent contractor or
agent of Company) to leave the employment of the Company or cease
performing services for the Company; (iii) hire or engage or assist any
third party in hiring or engaging, any individual or entity that is or
was (at any time within the preceding 12 months) an employee,
consultant, independent contractor or agent of the Company, or (iv)
solicit, induce or assist any third party in soliciting or inducing any
other person or entity (including, without limitation, any third-party
service provider or distributor) to terminate its relationship with the
Company or otherwise interfere with such relationship.
5.05 Non-Disparagement. Employee will not at any time (during
or after Employee's employment with Employer) disparage the reputation
of Employer, its affiliates and their respective clients, customers and
its or their respective officers, directors, agents or employees.
Employer will not at any time (during or after Employee's employment
with Employer) disparage the reputation of Employee.
5.06 Cooperation. Employee agrees to cooperate both during and
after Employee's employment with Employer, at Employer's sole cost and
expense, with the investigation by the Company involving the Company or
any employee or agent of the Company.
5.07 Reasonable Restrictions/Damages Inadequate Remedy;
Breaches.
(A) Employee acknowledges that the restrictions contained
in this Article V are reasonable and necessary to protect the
legitimate business interests of the Company and that any breach or
threatened breach by Employee of any provision contained in this
Article V will result in immediate irreparable injury to the Company
for which a remedy at law would be inadequate. Employee understands
that the Employer's business is global and, accordingly, the
restrictions can not be limited to any particular geographic area.
Employee further acknowledges that the restrictions contained in this
Article V will not prevent Employee from earning a livelihood during
the applicable period of restriction. Accordingly, Employee
acknowledges that Company shall be entitled to temporary, preliminary
and permanent injunctive or other equitable relief in any court of
competent jurisdiction (without being obligated to post a bond or other
collateral) and to an equitable accounting of all earnings, profits and
other benefits arising, directly or indirectly, from such violation,
which rights shall be cumulative and in addition to (rather than
instead of) any other rights or remedies to which the Company may be
entitled at law or in equity. In addition (and not instead of those
rights), Employee further covenants that Employee shall be responsible
for payment of the fees and expenses of the Company's attorneys and
experts, as well as the Company's court or other forum costs,
pertaining to any suit, arbitration, mediation, action or other
proceeding (including the costs of any investigation related thereto)
arising directly or indirectly out of Employee's violation or
threatened violation of any of the provisions of this Article V.
(B) Notwithstanding the foregoing, in the event Employee
breaches or threatens to breach any term or condition of this
Agreement, including the provisions of Section 5.04 or other sections
of this Article V, whether or not any court of competent jurisdiction
shall determine that any one or more of the provisions contained in
this Article V, including Section 5.04, is unenforceable, it shall
constitute a material breach of this Agreement and in addition to and
not instead of the Company's other remedies hereunder or otherwise at
law or in equity, Employee shall be required to, upon written notice
from the Company, return the payments paid by the Company pursuant to
Section 4.02 of this Agreement, less the greater of: (a) $500, or (b)
5% of the payments paid by Employer hereunder. However, the Company
will not demand repayment if such breach is (in the good faith
discretion of the Company) subject to cure and is cured to the
Company's satisfaction by Employee within five (5) calendar days
following such notice of such breach. Without limitation, in no event
shall any breach of the provisions of Section 5.04 be subject to cure.
Employee agrees that if Employee is required to return the payments,
this Agreement shall continue to be binding on Employee and the Company
shall be entitled to enforce the provisions of this Agreement as if the
payments had not been repaid to the Company. In the event the Company
provides written notice to Employee of a breach or threatened breach,
the Company, at the direction of its Board of Directors, shall have the
right to suspend all further payment obligations to Employee hereunder
and shall have no further payment obligations unless a court of
competent jurisdiction finds that Employee has not breached his
obligations under this Agreement. In the event of a threatened breach
that has been cured to the Company's satisfaction within five (5) days
of notice to Employee, the Company shall resume making payments
pursuant to this Agreement.
In addition to the foregoing and any other rights to which the partie's
may be entitled, at law or in equity (and not instead of such rights)
each party shall have the right to collect, from the other party,
payment of the reasonable fees and expenses of attorneys and experts,
as well as the court or forum costs, pertaining to any suit,
arbitration, mediation, action or other proceeding (including the costs
of any investigation related thereto) arising directly or indirectly
out of the other party's breach of any of the provisions of this
Agreement. In the event of a breach or threatened breach, the party's
reserve to all remedies available to it under this Agreement or
otherwise at law or in equity.
5.08 Separate Covenants. In the event that any court of
competent jurisdiction shall determine that any one or more of the
provisions contained in this Article V shall be unenforceable in any
respect, then such provision shall be deemed limited and restricted to
the extent that the court shall deem the provision to be enforceable.
It is the intention of the parties to this Agreement that the covenants
and restrictions in this Article V be given the broadest interpretation
permitted by law. The invalidity or unenforceability of any provision
of this Article V shall not affect the validity or enforceability of
any other provision hereof. The covenants and restrictions contained
in this Article V shall be deemed a series of separate covenants and
restrictions one for each of the fifty states of the United States of
America. If, in any judicial or arbitration proceedings, a court of
competent jurisdiction or arbitration panel should refuse to enforce
all of the separate covenants and restrictions in this Article V, then
such unenforceable covenants and restrictions shall be eliminated from
the provisions of this Agreement for the purpose of such proceeding to
the extent necessary to permit the remaining separate covenants and
restrictions to be enforced in such proceeding.
ARTICLE VI
MISCELLANEOUS
6.01 Benefit of Agreement and Assignment. This Agreement shall
inure to the benefit of Employer, its affiliates and subsidiaries, and
its and their respective successors and assigns (including, without
limitation, the purchaser of all or substantially all of any of its or
their respective assets) and shall be binding upon Employer and its
successors and assigns. This Agreement shall also inure to the benefit
of and be binding upon Employee and Employee's heirs, administrators,
executors and assigns. Employee may delegate Employee's duties under
this Agreement, without the prior written consent of Employer, but the
Employee remains fully bound by this Agreement and any such delegation
shall not relieve Employee of his duties hereunder.
6.02 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be given in
writing and shall be deemed to have been duly given (i) on the date
delivered if personally delivered, (ii) upon receipt by the receiving
party of any notice sent by registered or certified mail (first-class
mail, postage pre-paid, return receipt requested) or (iii) on the date
targeted for delivery if delivered by nationally recognized overnight
courier or similar courier service, in each case addressed to the
Employer or Employee, as the case may be, at the respective addresses
indicated in the caption of this Agreement or such other address as
either party may in the future specify in writing to the other.
6.03 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto with respect to the terms and
conditions of Employee's employment during the Term and activities
following termination of this Agreement and supersedes any and all
prior agreements and understandings, whether written or oral, between
the parties with respect to the subject matter of this Agreement This
Agreement may not be changed or modified except by an instrument in
writing, signed by both Employee and the Chief Executive Officer of
Employer.
6.04 Indemnification. Employer shall indemnify Employee against
all claims arising out of Employee's actions or omissions occurring
during Employee's employment with Employer to the fullest extent
provided (A) by Employer's Certificate of Incorporation and/or Bylaws,
and (B) under the Nevada or Florida General Corporation Law, as each
may be amended from time to time. Employer may maintain a Directors &
Officers liability insurance policy ("D&O Coverage") covering Employee
to the extent Employer provides such coverage for its other executive
officers. Employer agrees to make such policy available to Employee
within five (5) days, upon request.
6.05 280G Cut-Back. Notwithstanding anything set forth in this
Agreement to the contrary, in the event that any payment, coverage or
benefit provided under this Agreement would, in the opinion of the
independent certified accountants for Employer, not be deemed to be
deductible in whole or in part in the calculation of the Federal income
tax of Employer or any other person making such payment or providing
such coverage or benefit, by reason of Section 280G of the Code, the
aggregate payments, coverages or benefits provided under this Agreement
shall be reduced to the "safe harbor" level under Section 280G so that
the entire amount which is paid or provided to Employee shall be
deductible notwithstanding the provisions of Section 280G of the Code.
6.06 No Attachment. Except as required by law, no right to
receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge,
or hypothecation or to execution, attachment, levy, or similar process
or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no
effect; provided, however, that nothing in this Section 6.06 shall
preclude the assumption of such rights by executors, administrators or
other legal representatives of Employer or his estate and their
assigning any rights hereunder to the person or persons entitled
thereto.
6.07 Source of Payment. All payments provided for under this
Agreement shall be paid in cash from the general funds of Employer.
Employer shall not be required to establish a special or separate fund
or other segregation of assets to assure such payments, and, if
Employer shall make any investments to aid it in meeting its
obligations hereunder, Employee shall have no right, title or interest
whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken
pursuant to its provisions, shall create or be construed to create a
trust of any kind, or a fiduciary relationship, between Employer and
Employee or any other person. To the extent that any person acquires a
right to receive payments from Employer hereunder, such right, without
prejudice to rights which employees may have, shall be no greater than
the right of an unsecured creditor of Employer.
6.08 No Waiver. The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a
continuing waiver or as a consent to or waiver of any subsequent breach
hereof.
6.09 Headings. The Article and Section headings in this
Agreement are for the convenience of reference only and do not
constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
6.10 Governing Law; Jurisdiction; Jury Trial Waiver. Any and
all actions or controversies arising out of this Agreement or
Employee's employment, including, without limitation, tort claims,
shall be construed and enforced in accordance with the internal laws of
the State of Florida, without regard to the choice of law principles
thereof. With respect to any such actions or controversies, Employer
and Employee hereby (a) irrevocably consent and submit to the sole
exclusive jurisdiction of the United States District Court for the
Southern District of Florida or the Circuit Court in and for Palm Beach
County, Florida (and of the appropriate appellate courts therefrom),
(b) irrevocably waive, to the fullest extent permitted by law, any
objection that any of them may now or hereafter have to the laying of
the venue of any such actions or controversies in any such court or
that any such any such actions or controversies which is brought in any
such court has been brought in an inconvenient forum, and (c)
irrevocably waive any right to request a trial by jury in any such
actions or controversies and represents that such party has consulted
with counsel specifically with respect to this waiver.
6.11 Validity. The invalidity or enforceability of any
provision or provisions of this Agreement shall not affect the validity
or enforceability of any other provision or provisions of this
Agreement, which shall remain in full force and effect.
6.12 Employee Withholdings and Deductions. All payments to
Employee hereunder shall be subject to such withholding and other
employee deductions as may be required by law.
6.13 Counterparts. This Agreement may be executed in one more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
6.14 Agreement to Take Actions. Each party to this Agreement
shall execute and deliver such documents, certificates, agreements and
other instruments, and shall take all other actions, as may be
reasonably necessary or desirable in order to perform his/her or its
obligations under this Agreement.
IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement as of the date first written above.
EMPLOYER:
PMX Communities, Inc.
BY: /s/Xxxxxxx X. Xxxxx
----------------------
Xxxxxxx Xxxxx, Chief Executive Officer
EMPLOYEE:
/s/Xxxx Xxxxxxx
-----------------------
Xxxx Xxxxxxx
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