Xxx. 00-x
XXXXXXX HOLDINGS, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement is effective September 14, 2005 by and
between the following parties:
1. Palmera Holdings, LLC a Florida Corporation ("Palmera") or
other merged entity Palmera may merge into and
2. Xx. Xxxxxxxx Xxxxx, an individual residing at 0000 Xxxxxxx
Xxxxx Xxxxx, Xxxx Xxxxx, XX 00000 ("Executive").
RECITALS
Palmera desires to obtain the services and employment of Executive and
Executive wishes to provide such services in accordance with the terms
and conditions provided herein.
AGREEMENTS
In consideration of the Recitals and Agreements herein and for other
good and valuable consideration, the receipt and sufficiency of which
are acknowledged, the parties intend to be bound to the following:
1. EMPLOYMENT. Palmera agrees to employ Executive and Executive
agrees to be employed by and to serve Palmera, effective
September 14, 2005 ("Effective Date") on the terms and conditions
set forth herein.
2. TERM. The Term of this Agreement shall commence the Effective
Date and shall terminate on September 14, 2010 ("Initial Term")
unless extended. Commencing September 14, 2010 and on each such
anniversary date thereafter, the Term automatically shall extend
by one year ("Extended Term") unless six months prior thereto
Executive has received written notice from Palmera that Palmera
intends to terminate upon the next anniversary date. The word
"Term" in this Agreement includes both the Initial Term and
Extended Terms.
3. DUTIES. a. Position and Duties. Executive shall serve as
Palmera's Chairman and Chief Executive Officer and shall have
such responsibilities, duties and authority consistent with such
positions. Executive shall report directly to Palmera's Board of
Directors. Executive shall devote substantially all of his
working time to the business and affairs of Palmera with the
exception of the Executive's involvement in the related entity
The Xxxxx Foundation.
b. Indemnification. Palmera shall indemnify Executive, to the
fullest extent permitted by law and Palmera's Articles of
Incorporation and ByLaws, for all amounts (including without
limitation judgments, fines, settlement payments, losses,
damages, costs and expenses, including reasonable attorneys'
fees), incurred or paid by Executive in connection with any
action, suit, investigation or other proceeding, arising out of
or relating to this Agreement, Executive's employment with
Palmera or performance of services for Palmera, or his acting as
a fiduciary of any Palmera employee benefit plan, program or
arrangement or as a director, officer or employee of Palmera or
any of its subsidiaries or related companies. This provision
shall remain in effect following termination until all potential
claims are barred. Palmera shall provide adequate liability
insurance coverage for Executive on the same terms and conditions
as that being provided for any other Palmera director and officer
during the Term.
4. LOCATION. Executive shall maintain its official place of work
employment at _____________________________________________;
however, Executive may conduct business in various locations
including his residential location at 0000 Xxxxxxx Xxxxx Xxxxx,
Xxxx Xxxxx, XX 00000.
5. COMPENSATION AND RELATED MATTERS
a. MONTHLY COMPENSATION. Palmera shall pay to Executive an
initial monthly base salary of $5,000.00 per month for the
first four months of employment followed by a $10,000.00
per month base salary, to be in paid in accordance with
Palmera's salaried employee policies. For the first year
compensation will be accrued and deferred until such time
as Palmera is able to raise capital in the amount of
$1,000,000.00 at which time all accrued and deferred
compensation shall be paid to Executive. Palmera will
allow an increase in this salary up to a maximum of 10% per
year on each anniversary date of the Effective Date.
b. BONUS. Palmera shall pay to Executive an annual bonus
payment of no more than 25% once the successful
commercialization of the technology has been implemented.
The definition of successful commercialization of the
technology shall ultimately be defined by the Board of
Directors and will be tied to revenue generation from the
commercialized technology.
c. OTHER BENEFITS. Executive shall be entitled to paid
vacation of not less than three weeks and five personal
leave days for each twelve-month period of the Term. In
addition, Executive shall be entitled to paid holidays in
accordance with Palmera policy covering executive employees.
d. EXPENSES. Executive shall be entitled to be reimbursed for
all reasonable and customary expenses incurred by Executive
in performing services hereunder, including all expenses of
travel and accommodations while away on Palmera business.
6. TERMINATION BY PALMERA.
a. DEATH. Executive's employment shall terminate upon his death.
b. DISABILITY. Executive's employment shall terminate at the
end of the Term, if, as a result of Executive's incapacity
due to physical or mental illness, Executive is absent from
his duties on a full time basis for the entire period of
twelve consecutive months and he does not return to such
duties within thirty days after his receipt of written
notice hereof.
c. CAUSE. Palmera may terminate Executive's employment thirty
days from Executive's receipt of notice in reasonable
detail of the following:
i) Conviction of a felony.
ii) Gross misconduct that did not cease within ten
business days after Executive's receipt of
written notice from Palmera of the specific
conduct at issue and demand to rectify the
conduct.
iii) Willful misconduct that is intended to and does
have a material adverse impact on Palmera.
d. DISPUTE. If Executive notifies Palmera within thirty days
after receipt of a notice of termination that a dispute
exists concerning the termination, the termination shall be
abated and Executive shall be entitled to receive the
compensation defined in Paragraph 5 hereof until the
dispute is finally resolved.
7. TERMINATION BY EXECUTIVE.
a. Executive may terminate his employment voluntarily upon
ninety days' prior written notice to Palmera.
b. Executive may terminate his employment immediately for the
following:
i) Palmera's material breach of this Agreement that
is not cured within ten business days of its
receipt of notice from Executive of the specific
conduct at issue and a demand to rectify the conduct.
ii) Diminution of Executive's title or authority.
iii) After a "Change in Control", which occurs when
any one of the two occurs:
a) Upon a merger (exclusive of a reverse merger
transaction) or acquisition of Palmera
b) Palmera shareholders approve a plan of complete
liquidation of Palmera or an agreement for the
sale or disposition by Palmera of all or
substantially all of its assets.
8. COMPENSATION UPON TERMINATION.
a. DISABILITY. Palmera shall pay to Executive (1) all unpaid
amounts to which Executive is entitled as of the
termination date within fifteen business days of that date
and (2) all other unpaid amounts under any compensation or
benefit plan or program in accordance with the terms of the
applicable plan or program (collectively, "Accrued
Obligations").
b. DEATH. If employment is terminated by death, Palmera shall
pay the Accrued Obligations and the amount for which
Executive is entitled to as of the date of death.
c. CAUSE. If employment is terminated for cause as set forth
in Paragraph 6(c), Palmera shall in any event pay the
Accrued Obligations. If any amount is deemed by Palmera to
be payable to the company as a result of an activity which
precipitated the Executive's termination for cause, such
amount shall be offset against any amounts due Executive
from the payment of Accrued Obligations.
d. CHANGE OF CONTROL. If employment is terminated either
following a Change in Control or while a Potential Change
in Control (defined in Paragraph 7)b)iii)), Palmera shall
pay, the Accrued Obligations and the amount for which
Executive is entitled to as of the date of termination.
e. OTHER TERMINATION. If employment is terminated for any
other reason, Palmera shall pay the Accrued Obligations and
shall provide Executive with outplacement services
commensurate with his position.
9. NONSOLICITIATION, NONCOMPETE. Executive shall not during the Term:
i) Solicit Palmera executive employees with the
intent of inducing them to leave Palmera (unless
following a Change in Control).
ii) Engage in a business that is in direct
competition with Palmera without Palmera's prior
written consent, which consent shall not be
unreasonably be withheld.
iii) Serve as an outside director of an entity that
operates a business that is in competition with
Palmera.
10. PROTECTION OF CONFIDENTIAL INFORMATION.
a) Executive shall during the Term and for one year thereafter:
i) Keep secret all confidential Palmera information
that is not otherwise in the public domain.
ii) Disclose such information only to those to whom
disclosure is reasonably necessary or appropriate
in connection with the performance of his duties
for Palmera or in compliance with legal process.
iii) Deliver to Palmera on termination of employment
all memoranda, notes, records, customer lists,
reports and other documents (and all copies
thereof) in his possession that contains
confidential Palmera information that was
obtained while employed at Palmera.
b) Palmera has the right to have such provisions specifically
enforced by a court because a breach or threatened breach of
these provisions will cause irreparable injury to Palmera that
money damages cannot adequately remedy.
11. SUCCESSORS; BINDING AGREEMENT.
a) This agreement is assignable.
b) Palmera will require any successor expressly to assume this
Agreement.
c) This Agreement and all rights of Executive hereunder shall
inure to the benefit of and be enforceable by Executive's
personal or legal representatives, executors, administrators,
successors, heirs, distributes, devisees and legatees, to whom
any amounts payable to Executive hereunder shall be paid in
accordance with the terms of this Agreement.
d) This Agreement may be executed in one or more counterparts and
by facsimile signature each of which shall be deemed to be an
original but all of which together will constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as set forth below.
PALMERA HOLDINGS, INC. XX. XXXXXXXX XXXXX
By: /s/ M. Xxxxx Xxxxx III By: /s/ Xx. Xxxxxxxx Xxxxx
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M. Xxxxx Xxxxx III Xx. Xxxxxxxx Xxxxx
Dated: Dated:
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