AGREEMENT
THIS AGREEMENT is made and entered into effective as of May 15, 2009
(the "Effective Date"), by and between Merge II, Incorporated, a Nevada
corporation, ("Merge II") and Xxxxxx X. Xxxxxx, an individual
("Xxxxxx").
1. Term.
(a) This Agreement shall continue for a period of one (1) year from
the Effective Date and shall continue thereafter for as long as Xxxxxx
is elected as Director of Merge II.
(b) Notwithstanding the foregoing and provided that Xxxxxx has
neither voluntarily resigned nor been terminated for "cause" as defined
in Section 3(b) of this Agreement, Merge II agrees to use its best
efforts to reelect Xxxxxx to the Board of Directors for a period of
three (3) years at the annual meetings of the shareholders.
2. Position and Responsibilities.
(a) Position. Merge II hereby retains Xxxxxx to serve as Vice
President in charge of corporate development. Xxxxxx shall perform
such duties and responsibilities as are normally related to such
position in accordance with Merge II's bylaws and applicable law,
including those services described on Exhibit A, (the "Services"), and
Xxxxxx hereby agrees to use his best efforts to provide the Services.
Xxxxxx shall not allow any other person or entity to perform any of the
Services for or instead of Xxxxxx. Xxxxxx shall comply with the
statutes, rules, regulations and orders of any governmental or quasi-
governmental authority, which are applicable to the performance of the
Services, and Merge II's rules, regulations, and practices as they may
from time-to-time be adopted or modified.
(b) Other Activities. Xxxxxx may be employed by another company, may
serve on other Boards of Directors or Advisory Boards, and may engage
in any other business activity (whether or not pursued for pecuniary
advantage), as long as such outside activities do not violate Xxxxxx'
obligations under this Agreement or Xxxxxx' fiduciary obligations to
the shareholders, except as set forth in Exhibit B. The ownership of
less than a 5% interest in an entity, by itself, shall not constitute a
violation of this duty. Except as set forth in Exhibit B, Xxxxxx
represents that, to the best of his knowledge, Xxxxxx has no
outstanding agreement or obligation that is in conflict with any of the
provisions of this Agreement, and Xxxxxx agrees to use his best efforts
to avoid or minimize any such conflict and agrees not to enter into any
agreement or obligation that could create such a conflict, without the
approval of the Chief Executive Officer or a majority of the Board of
Directors. If, at any time, Xxxxxx is required to make any disclosure
or take any action that may conflict with any of the provisions of this
Agreement, Xxxxxx will promptly notify the Chief Executive Officer or
the Board of such obligation, prior to making such disclosure or taking
such action.
(c) No Conflict. Except as set forth in Section 2(b) and Exhibit B,
Xxxxxx will not engage in any activity that creates an actual conflict
of interest with Merge II, regardless of whether such activity is
prohibited by Merge II's conflict of interest guidelines or this
Agreement, and Xxxxxx agrees to notify the Board of Directors before
engaging in any activity that creates a potential conflict of interest
with Merge II. Specifically and except as set forth in Section 2(b)
and Exhibit B of this Agreement, Xxxxxx shall not engage in any
activity that is in direct competition with Merge II or serve in any
capacity (including, but not limited to, as an employee, consultant,
advisor or Xxxxxx) in any Merge II or entity that competes directly
with Merge II, as reasonably determined by a majority of Merge II's
disinterested board members, without the approval of the Chief
Executive Officer.
3. Compensation and Benefits.
(a) Common Shares. In consideration of the services to be rendered
under this Agreement, Merge II shall issue Xxxxxx 1,000,000 common
shares upon the signing of this agreement.
(b) Additional Compensation. During the term of this Agreement, Xxxxxx
may be granted additional stock options, equity rights, and/or cash
consideration as determined by Merge II's Compensation Committee, in
its sole discretion.
(c) Benefits. Xxxxxx shall also be eligible to participate in any
benefits made generally available by Merge II to its senior executives,
to the extent allowed by the benefit plans established by Merge II,
which may be amended or terminated at any time in Merge II's sole
discretion; except that Xxxxxx shall not be entitled to any paid
vacation leave.
(d) Expenses. Merge II shall reimburse Xxxxxx for all reasonable
business expenses incurred in the performance of his duties hereunder
in accordance with Merge II's expense reimbursement guidelines.
(e) Indemnification. Merge II will indemnify and defend Xxxxxx
against any liability incurred in the performance of the Services to
the fullest extent authorized in Merge II's Certificate of
Incorporation, as amended, bylaws, as amended, and applicable law.
Merge II has purchased Xxxxxx' and Officer's liability insurance, and
Xxxxxx shall be entitled to the protection of any insurance policies
Merge II maintains for the benefit of its Directors and officers
against all costs, charges and expenses in connection with any action,
suit or proceeding to which he may be made a party by reason of his
affiliation with Merge II, its subsidiaries, or affiliates.
(f) Records. Xxxxxx shall have reasonable access to books and records
of Merge II, as necessary to enable Xxxxxx to fulfill his obligations
as a Xxxxxx of Merge II.
4. Termination.
(a) Right to Terminate. At any time, Xxxxxx may be removed as Vice
President as provided in Merge II's Certificate of Incorporation,
bylaws, and applicable law. Xxxxxx may resign as Vice President as
provided in Merge II's Certificate of Incorporation, bylaws and
applicable law. Notwithstanding anything to the contrary contained in
or arising from this Agreement or any statements, policies, or
practices of Merge II, neither Xxxxxx nor Merge II shall be required to
provide any advance notice or any reason or cause for termination of
Xxxxxx' status as Vice President, except as provided in Merge II's
Certificate of Incorporation, Merge II's bylaws and applicable law.
(b) Effect of Termination as Vice President. Upon a termination of
Xxxxxx' status as Vice President, in which Xxxxxx remains a Director,
this Agreement will terminate, and Merge II and Xxxxxx will sign Merge
II's standard Director's Agreement, in effect at the time of the
termination, subject to any modifications to which both parties
mutually agree; provided, however, following such termination and for
as long as Xxxxxx continues to serve as a Director of Merge II, Merge
II will continue to provide Xxxxxx with any benefits provided by
Section 3(c) and will pay all premiums for coverage of Xxxxxx and his
family, including his domestic partner under Merge II's benefit plans
(if any) as provided in Section 3(c) to the extent allowed under
applicable law. Except as provided herein, Merge II shall pay to
Xxxxxx all compensation and benefits to which Xxxxxx is entitled up
through the date of termination, and thereafter, all of Merge II's
obligations under this Agreement shall cease, except as provided in
Sections 1(b), 3(b), 3(d), 3(e), and 5.
Upon a termination of Xxxxxx' status as Vice President, in which Xxxxxx
does not remain a Director, this Agreement will terminate; Merge II
shall pay to Xxxxxx all compensation and benefits to which Xxxxxx is
entitled up through the date of termination; and Xxxxxx shall be
entitled to his rights under COBRA, HIPPA, and any other applicable
law. Thereafter, all of Merge II's obligations under this Agreement
shall cease, except as provided in Sections 1(b), 3(b), 3(d), 3(e) and
5.
5. Termination Obligations.
(a) Xxxxxx agrees that all property, including, without limitation,
all equipment, tangible proprietary information, documents, records,
notes, contracts, and computer-generated materials provided to or
prepared by Xxxxxx incident to his services belong to Merge II and
shall be promptly returned at the request of Merge II.
(b) Upon termination of this Agreement, Xxxxxx shall be deemed to have
resigned from all offices then held with Merge II by virtue of his
position as Vice President, except that Xxxxxx shall continue to serve
as a Director if elected as a Director by the shareholders of Merge II
as provided in Merge II's Certificate of Incorporation,, Merge II's
bylaws and applicable law. Xxxxxx agrees that following any
termination of this Agreement, he shall cooperate with Merge II in the
winding up or transferring to other officers of any pending work and
shall also cooperate with Merge II (to the extent allowed by law, and
at Merge II's expense) in the defense of any action brought by any
third party against Merge II that relates to the Services.
(c) Merge II and Xxxxxx agree that their obligations under this
Section, as well as Sections 1(b), 3(b), 3(d), 3(e), 4(b), 4(c) and 7,
shall survive the termination of this Agreement.
6. Nondisclosure Obligations. Xxxxxx shall maintain in confidence and
shall not, directly or indirectly, disclose or use, either during or
after the term of this Agreement, any Proprietary Information (as
defined below), confidential information, or trade secrets belonging to
Merge II, whether or not it is in written or permanent form, except to
the extent necessary to perform the Services, as required by a lawful
government order or subpoena, or as authorized in writing by Merge II.
These nondisclosure obligations also apply to Proprietary Information
belonging to customers and suppliers of Merge II, and other third
parties, learned by Xxxxxx as a result of performing the Services.
"Proprietary Information" means all information pertaining in any
manner to the business of Merge II, unless (i) the information is or
becomes publicly known through lawful means; (ii) the information was
part of Xxxxxx' general knowledge prior to his relationship with Merge
II; or (iii) the information is disclosed to Xxxxxx without restriction
by a third party who rightfully possesses the information and did not
learn of it from Merge II.
7. Dispute Resolution.
(a) Jurisdiction and Venue. The parties agree that any suit, action,
or proceeding between Xxxxxx (and his attorneys, successors, and
assigns) and Merge II (and its affiliates, shareholders, Directors,
officers, employees, members, agents, successors, attorneys, and
assigns) relating to the Services or the termination of those Services
shall be brought in either the United States District Court of Arizona
and that the parties shall submit to the jurisdiction of such court.
The parties irrevocably waive, to the fullest extent permitted by law,
any objection the party may have to the laying of venue for any such
suit, action or proceeding brought in such court. If any one or more
provisions of this Section shall for any reason be held invalid or
unenforceable, it is the specific intent of the parties that such
provisions shall be modified to the minimum extent necessary to make it
or its application valid and enforceable.
(b) Attorneys' Fees. Should any litigation, arbitration or other
proceeding be commenced between the parties concerning the rights or
obligations of the parties under this Agreement, the party prevailing
in such proceeding shall be entitled, in addition to such other relief
as may be granted, to a reasonable sum as and for its attorneys' fees
in such proceeding. This amount shall be determined by the court in
such proceeding or in a separate action brought for that purpose. In
addition to any amount received as attorneys' fees, the prevailing
party also shall be entitled to receive from the party held to be
liable, an amount equal to the attorneys' fees and costs incurred in
enforcing any judgment against such party. This Section is severable
from the other provisions of this Agreement and survives any judgment
and is not deemed merged into any judgment.
8. Entire Agreement. This Agreement is intended to be the final,
complete, and exclusive statement of the terms of Xxxxxx' relationship
solely with respect to his position as Vice President with Merge II.
This Agreement entirely supercedes and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements
pertaining to Xxxxxx' relationship as Vice President or Director.
Agreements related to Xxxxxx' ownership of the Securities, if any, are
not affected by this Agreement.
9. Amendments; Waivers. This Agreement may not be amended except by a
writing signed by Xxxxxx and by a duly authorized representative of
Merge II other than Xxxxxx. Failure to exercise any right under this
Agreement shall not constitute a waiver of such right.
10. Assignment. Xxxxxx agrees that Xxxxxx will not assign any rights
or obligations under this Agreement, with the exception of Xxxxxx'
ability to assign rights with respect to the Securities. Nothing in
this Agreement shall prevent the consolidation, merger or sale of Merge
II or a sale of all or substantially all of its assets.
11. Severability. If any provision of this Agreement shall be held by
a court or arbitrator to be invalid, unenforceable, or void, such
provision shall be enforced to fullest extent permitted by law, and the
remainder of this Agreement shall remain in full force and effect. In
the event that the time period or scope of any provision is declared by
a court or arbitrator of competent jurisdiction to exceed the maximum
time period or scope that such court or arbitrator deems enforceable,
then such court or arbitrator shall reduce the time period or scope to
the maximum time period or scope permitted by law.
12. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona.
13. Interpretation. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any
party. Captions are used for reference purposes only and should be
ignored in the interpretation of the Agreement.
14. Binding Agreement. Each party represents and warrants to the other
that the person(s) signing this Agreement below has authority to bind
the party to this Agreement and that this Agreement will legally bind
both Merge II and Xxxxxx. This Agreement will be binding upon and
benefit the parties and their heirs, administrators, executors,
successors and permitted assigns. To the extent that the practices,
policies, or procedures of Merge II, now or in the future, are
inconsistent with the terms of this Agreement, the provisions of this
Agreement shall control. Any subsequent change in Xxxxxx' duties or
compensation as Vice President will not affect the validity or scope of
the remainder of this Agreement.
15. Xxxxxx Acknowledgment. Xxxxxx acknowledges Xxxxxx has had the
opportunity to consult legal counsel concerning this Agreement, that
Xxxxxx has read and understands the Agreement, that Xxxxxx is fully
aware of its legal effect, and that Xxxxxx has entered into it freely
based on his own judgment and not on any representations or promises
other than those contained in this Agreement.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
17. Date of Agreement. The parties have duly executed this Agreement
as of the date first written above.
MERGE II: XXXXXX:
Merge II, Incorporated
By: /s/Xxxxxx Xxxxxxxxxxxx /s/Xxxxxx X. Xxxxxx
---------------------- -----------------------
Name: Xxxxxx Xxxxxxxxxxxx Xxxxxx X. Xxxxxx
EXHIBIT A
DESCRIPTION OF SERVICES
Responsibilities as Vice President. Xxxxxx shall have all
responsibilities of a vice president of Merge II imposed by Nevada or
applicable law, the Certificate of Incorporation and the Bylaws of
Merge II. These responsibilities shall include, but shall not be
limited to, the following: Xxxxxx will help make the company's products
and services known to different entities in the worldwide mining
business, and help the company develop xxx.xxxxxxxxxxxxxxxxxxxxxxx.xxx,
the company's social networking based gold mining portal. He will also
focus on helping develop an overall corporate growth plan. It is
anticipated that he will spend approximately 15-20 hours per month on
company business.
EXHIBIT B
AUTHORIZED ACTIVITIES
Universal Communications, Inc.
