EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this “Agreement”), effective as of 1 November 2024 (the “Effective Date”) is by and between Mexedia, Inc. (the “Company”), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Executive”) (individually, each a “Party” and collectively, the “Parties”).
WHEREAS, the Company is in the global business of offering technologies to manage all communication activities between brands and customers.
WHEREAS, in recognition of the Executive’s experience and abilities, the Company desires to assure itself of the employment of the Executive in accordance with the terms and conditions provided herein; and
WHEREAS, the Executive seeks to be employed by the Company and to perform services for the Company in accordance with the terms and conditions provided herein.
1. NOW, THEREFORE, in consideration of the promises and the respective covenants and agreements of the Parties herein contained, and intending to be legally bound hereby, the Parties hereto agree as follows: Employment. The Company hereby agrees to employ the Executive, and the Executive hereby agrees to be employed by the Company, and to perform services for the Company, its subsidiaries and affiliates, on an at will basis, upon the terms and conditions set forth herein (the “Employment”).
2. Term. The Employment shall commence as agreed by the Parties on the Effective Date ( the “Start Date”). The Employment shall not be for any fixed predetermined period of time, and shall continue until terminated by either the Executive or the Company pursuant to Section 7 hereof (the period of the Executive’s engagement by the Company, the “Term”).
3. Position. During the Term, the Executive shall serve as Chief Executive Officer of the Company (the “Position”). Executive shall serve in such capacity at the pleasure of the Board of Directors of the Company (the “Board”). Executive agrees that he is an exempt employee and is therefore not entitled to overtime compensation under the Fair Labor Standards Act.
4. Duties and Reporting Relationship.
(a)Company hereby agrees to employ Executive in an executive capacity to serve and perform such duties at such time and places and in such manner as Company, including its Board of Managers, may from time to time direct including, without limitation, the duties of the Position. Executive agrees that Executive is an exempt employee and is therefore not entitled to overtime compensation under the Fair Labor Standards Act.
(b)Executive agrees to perform faithfully the duties assigned to Executive to the best of Executive’s ability, to devote Executive’s full and undivided time to the transaction of Company’s business, to make to Company prompt, complete and accurate reports of Executive’s work and expenses, to promptly remit to Company all money of Company collected by Executive or coming in Executive’s possession and not to engage or be engaged in or interested in any other business during the existence of this Agreement.
(c)During the Period of Employment, the Executive shall both (i) devote substantially all of the Executive’s business time, energy and skill to the performance of the Executive’s duties for the Company, and (ii) hold no other employment, except to those engagement listed in Appendix A. The Executive’s service on the boards of directors (or similar body) of other business entities is subject to the prior written approval of the Board. The Company shall have the right to require the Executive to resign from any board or similar body on which he may then serve if the Board reasonably determines in writing that the Executive’s service on such board or body interferes with the effective discharge of the Executive’s duties and responsibilities to the Company or that any business related to such service is then in competition with any business of the Company or any of its affiliates, successors or assigns.
(d)Executive shall conduct themselves at all times in a businesslike and professional manner and shall comply with good business and ethical practices. Company shall have the authority to establish from time to time the policies and procedures to be followed by Executive. Executive agrees to comply with the policies and procedures
of Company, as adopted from time to time, so long as they are reasonable and do not violate the law.
5. Place of Performance.
The Parties agree that the Executive shall work based from the Company’s physical office in Miami Beach, Florida, the Executive shall be required to travel on a regular basis to such office, in addition to traveling throughout the United States as needed for purposes of Company business, and periodically to the Company’s headquarters in Florida or Rome, Italy, in each case as deemed appropriate by the Board. Executive understands and agrees that Executive is required to extensive travel in order to fulfill the obligations of Executive’s position. Executive understands and agrees that Executive is not only required to have and/or obtain the necessary documentation to work in the United States, but to possess and/or timely obtain (at executive’s own expense) the necessary visas for all travel related to Executive’s position with the Company.
6. No Breach of Contract.
The Executive hereby represents to the Company that: (i) the execution and delivery of this Agreement by the Executive and the Company and the performance by the Executive of the Executive’s duties hereunder shall not constitute a breach of, or otherwise contravene, the terms of any other agreement or policy to which the Executive is a party or otherwise bound;
(ii) the Executive has no information (including, without limitation, confidential information and trade secrets) relating to any other person or entity which would prevent, or be violated by, the Executive entering into this Agreement or carrying out Executive’s duties hereunder; and (iii) the Executive is not bound by any confidentiality, trade secret or similar agreement (other than this Agreement) with any other person or entity.
7. Limitations on Authority.
Without the express written consent from the Board of Directors, Executive shall have no apparent or implied authority to pledge the credit of Company or any of its other employees or bind Company under any contract, agreement, note, mortgage or otherwise.
8. Compensation and Benefits.
(a) Annual Salary. During the Term, the Executive shall be entitled to compensation of an annual base salary (the “Base Salary”) at a rate of no less than Three Hundred and Fifty Thousand United States Dollars ($350,000), less applicable deductions and withholdings, with such Base Salary to be paid on a prorated basis in conformity with the Company’s payroll policies relating to its employees. Any subsequent changes or change in Executive’s status as an executive, duties or compensation will not affect the validity or scope of this Agreement.
(b) Payment Terms. Of this Annual Salary the Executive shall be paid Two Hundred and Twenty Five Thousand United States Dollar ($225,000) in twelve monthly pro-rated installments and One Hundred Twenty Five Thousand United States Dollar ($125,000) as an annual bonus during the first quarter of every following calendar year. Executive must be present at the time that the Bonus is paid out, or the Executive forfeits Executive's right to such Bonus. For purposes of clarity, the annual bonus does not vest until it is paid.
(c) Equity. Subject to the applicable terms of the employee stock option plan and to the Executive's execution of any and all documents and instruments related to the issuance of stock and grants of equity as may be requested by the Company and Raadr Inc., the Company's parent Company ("Parenf') from time to time (e.g., option and restricted stock agreements in such form and substance as may reasonably be determined by the Parent) (all such documents, collectively, the "Plan"), the Executive shall receive an Option to purchase Ordinary Shares equal to three percent (3 .00%) of the issued and outstanding Ordinary Shares of the Parent (on a fully diluted basis as of the Start Date), with such Ordinary Shares to vest and become exercisable in accordance with the following schedule: (i) twenty-five (25%) percent of the Ordinary Shares covered by the Option shall vest on the first anniversary of the Start Date (the "Equity Grant Date"), and (ii) six and one quarter (6.25%) percent of the remaining Ordinary Shares covered by the option shall vest at the end of each subsequent three (3) month period thereafter over the course of the subsequent three (3) years; provided, that, in each case of (i) and (ii), the Executive remains continuously employed by
Company from the Equity Grant Date through each applicable and subsequent vesting date. The Option shall be subject to accelerated vesting upon a Change of Control (as defined below) and such other accelerated vesting as provided in this Agreement or the Plan).
Given that the Company is currently undergoing operational restructuring, the Parties agree, that the Equity portion will be formally granted no later than the end of the first quarter of the 2025 calendar year.
In the event of the Executive's termination of employment for any reason other than Cause, the Executive shall retain the right to any vested portion of the Option (after taking into account any accelerated vesting) and any portion of the Option that is not then vested (after taking into account such accelerated vesting) shall automatically be immediately forfeited to the Parent, without the payment of any consideration to the Executive. In addition, the Executive shall be eligible to receive additional equity or equity-based awards, including stock options, as determined by the Board (or by the Compensation Committee of the Board) in its sole discretion. For the purposes of this Agreement, "Ordinary Shares" means the restricted ordinary shares under ▇▇▇▇▇▇'s Share Incentive Plan (or any successor or other equity plan then maintained by Parent) (the "Plan").
(1) For purposes of this Agreement, "Change of Control" shall mean the first to occur of any of the following: (i) the sale, transfer, conveyance or other disposition by the Parent, in one or a series of related transactions, whereby an independent third party becomes the beneficial owner of a majority of the voting securities of the Parent; (ii) any merger, consolidation or similar transaction involving the Parent, other than a transaction in which the stockholders of the Company immediately prior to the transaction hold immediately thereafter in the same proportion as immediately prior to the transaction not less than fifty percent (50%) of the combined voting power of the then voting securities with respect to the election of the board of directors of the resulting entity; or (iii) any sale of all or substantially all of the assets of the Parent.
(d) Employee Benefits. The Executive shall be eligible for employee benefits, including but not limited to health insurance with family medical, dental and vision coverage, in each case in accordance with the terms of the applicable Company-sponsored plans, as may be updated from time to time. The Parties agree that this obligation is settled in full with a monthly payment of $2.111.59.
(e) Business Expenses. The Executive shall be entitled to reimbursement for reasonable preapproved business expenses incurred, with the Executive to submit all invoices and receipts for reimbursement in form and in substance in accordance with the Company’s business expense policies and with such expenses to be subject to approval by the Board. All invoices for expense reimbursement shall be submitted by no later than thirty (30) days following the Executive’s incurrence of the relevant expenses, and the Company shall reimburse the Executive for all such approved expenses by no later than thirty (30) days following the Executive’s submission of an approved invoice.
(f) Paid Time Off. During the Term, the Executive shall be eligible to take paid time off for purposes of vacation and/or sick time on a flexible basis in coordination with the Board (the “PTO Days”). Such PTO Days shall not formally accrue, shall not be carried over from one year into the following year, and shall not be paid out upon termination of the Employment.
(g) Holidays. The Executive shall be eligible to take off paid holidays as designated by the Company. Unused holidays shall not be carried over from one year into the following year, and shall not be paid out upon separation from the Company.
(h) Company Equipment. For purposes of the Executive performing the duties of the Position, the Company shall provide the Executive with a laptop, as well as other office equipment (collectively, the “Equipment”), as determined necessary by the Board in its sole discretion. The Equipment shall remain at all times the property of the Company and shall be used by the Executive in accordance with Company guidelines. Upon the termination of the Employment for any reason, or earlier at any time upon the Company’s request, the Executive shall be obligated to immediately return the laptop and/or other technological equipment to the Company.
(i) Section 409A. This Agreement is intended to comply with Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), including the exceptions thereto, and shall be construed and administered in
accordance with such intent. Notwithstanding any other provision of this Agreement, payments provided under this Agreement may only be made upon an event and in a manner that complies with Section 409A or an applicable exemption. Any payments under this Agreement that may be excluded from Section 409A either as separation pay due to an involuntary separation from service, as a short-term deferral, or as a settlement payment pursuant to a bona fide legal dispute shall be excluded from Section 409A to the maximum extent possible. For purposes of Section 409A, any installment payments provided under this Agreement shall each be treated as a separate payment. To the extent required under Section 409A, any payments to be made under this Agreement in connection with a termination of the Employment shall only be made if such termination constitutes a “separation from service” under Section 409A. Notwithstanding the foregoing, the Company makes no representations that the payments and benefits provided under this Agreement comply with Section 409A, and in no event shall the Company be liable for all or any portion of any taxes, penalties, interest, or other expenses that may be incurred by the Executive on account of non-compliance with Section 409A.
9. Termination. The Employment hereunder may be terminated without breach of this Agreement as set forth below:
(a) Death; Disability. The Employment shall automatically terminate upon the Executive’s death or Disability (as hereafter defined). For purposes of this Agreement, “Disability” shall mean the inability of the Executive to perform the Executive’s duties on account of a physical or mental illness for a period of sixty (60) consecutive days, or for a period of ninety (90) days in any six (6) month period. Notwithstanding anything contained herein to the contrary, during any period of Disability, the Company shall not be obligated to pay any compensation or other amounts to the Executive, except as mandated by applicable law.
(b) Cause. The Company may terminate the Employment hereunder at any time without advance notice for Cause (as defined below). Notification of a termination for Cause by the Company shall be given to the Executive pursuant to Section 7(d) below.
(1) For purposes of this Agreement, the Company shall have “Cause” to terminate the Employment hereunder upon the Executive’s:
(i) commission of fraud, embezzlement, gross negligence, malfeasance, an act or acts constituting a felony under the laws of the United States or any state thereof, or a willful or negligent act or omission that results in an assessment of a civil or criminal penalty against the Executive or the Company or its affiliates;
(ii) material violation of the terms of this Agreement, including but not limited to the Non-Disclosure, Assignment of Inventions, Non-Competition and Non-Solicitation Agreement attached to this Agreement as Schedule A (the “NDA”), or failure to perform annual performance written metrics and milestones provided by the Board;
(iii) willful or continued failure to adequately perform the Executive’s duties hereunder; (other than any such failure resulting from the Executive’s incapacity due to physical or mental illness), after written notice has been delivered to the Executive by the Company identifying the manner in which the Executive has not adequately performed the Executive’s duties, and the Executive has failed to cure such deficiencies in performance for a period of thirty (30) days following the Executive’s receipt of such notice from the Company.
(c) Termination without Cause/Resignation. The Employment hereunder may be terminated by the Company without Cause, or by the Executive upon the Executive’s resignation, in either case upon thirty (30) days notice, by one Party to the other Party in accordance with Section 7(d) hereunder (such period of notice, the “Notice Period”).
With respect to the Executive’s termination without Cause, and/or resignation, the Company shall have the right to determine whether or not the Executive shall report to work during the relevant Notice Period.
Executive shall be entitled to all compensation earned for completed projects to the date of termination, consistent with Company’s compensation plan(s), which amounts shall be in full satisfaction of all claims against Company under this Agreement with respect to the employment relationship between the parties. Executive acknowledges
and agrees that upon termination of Executive’s employment and regardless of the reason(s) for termination, or which party terminates the employment relationship, Executive is subject to and bound by the terms of this Agreement.
10. Executive Representations.
(a) The Executive further represents and warrants that the Executive will not engage in additional employment or recreational activities that would in any way pose a conflict of interest with the Employment.
(b) The Executive hereby acknowledges that the signing of the NDA attached hereto as Schedule A constitutes a precondition of the Employment. The Executive further affirms that this Agreement, and its attached Schedules constitute the entire understanding of the Parties with respect to the subject matter hereof and supersede any understanding or agreement, whether oral or written, between the Parties, including, but not limited to, the offer letter dated 9 October 2024.
(c) The Executive hereby confirms that the Executive is not owed any amounts or entitled to any benefits from the Company and/or its affiliates for any period of employment, consulting or services provided to the Company and/or its affiliates by the Executive prior to the Effective Date.
(d) The Executive understands that the Employment and obligations of the Company pursuant to this Agreement are conditioned upon the Executive’s substantiation of the Executive’s authorization to work in the United States.
(e) The Executive acknowledges that the Executive has been advised to obtain independent counsel to evaluate the terms, conditions and covenants herein set forth and the Executive has been afforded ample opportunity to obtain such independent advice and evaluation. The Executive warrants to the Company that the Executive has relied upon such independent counsel and not upon any representation (legal or otherwise), statement or advice said or offered by the Company or the Company’s counsel in connection with this Agreement.
11.Nondisclosure of Confidential Information (Including Trade Secrets), Nonsolicitation, Non-Compete.
Executive shall be bound by the Company’s NONSOLICITATION, NONCOMPETE AND NONDISCLOSURE AGREEMENT, attached hereto as Exhibit A, and incorporated herein as part of this Agreement.
12. Notice of Future Employment.
If Executive seeks employment (as employee, consultant or otherwise) with a competing business, Executive will notify the competing business of this Agreement and Exhibit A, and Executive further agrees that Company may notify the competing business by whom Executive may become employed of the existence of this Agreement.
13. Notices. All notices and other communications under this Agreement shall be in writing and shall be given by fax, email or first class mail, certified or registered with return receipt requested, or in person, and shall be deemed to have been duly given three (3) days after mailing, twenty-four (24) hours after transmission of a fax or email, or immediately upon delivery in person or explicit acknowledgement of receipt.
14. Enforcement. In the event Executive shall breach or threaten to breach this Agreement, Company shall be entitled to a temporary and permanent injunction restraining Executive from breaching this Agreement or any of its terms. The existence of any claim or cause of action that Executive may have against Company, whether predicated upon this Agreement or otherwise, shall not constitute a defense to the enforcement by Company of this Agreement. In addition, Company shall be entitled to such other relief at law or equity as the court may find appropriate. The parties agree that enforcement of this Agreement, or any of its covenants or restrictions, will not negatively affect the public, health, safety or welfare.
15. Dispute Resolution. In the event of a dispute between the Executive and the Company arising out of or related to the Employment (with the exception of disputes arising under the NDA set forth in Schedule A and with respect to disputes for which a party is not permitted to waive its right to adjudicate in a court of law), the Executive and the Company agree to settle such dispute by means of arbitration administered under the Federal Arbitration Act
(“FAA”) by the American Arbitration Association (“AAA”) in the Florida, as the Company’s headquarters location, and conducted in accordance with the AAA’s Employment Arbitration Rules. The Parties mutually agree that all disputes arising out of the Employment shall be resolved only through arbitration by a single arbitrator selected by agreement between the Parties. In such arbitration, the arbitrator shall render a final and binding award within ten (10) business days from the later of (i) closing statements, and (ii) submission of post-hearing briefs by the Parties. The arbitration award shall be final and binding, and any state or federal court shall have jurisdiction to enter a judgment on such award. This requirement to arbitrate disputes means that the Executive and the Company specifically waive any right either Party may have to a trial by jury in a court of law, and applies to all claims and demands (except as provided above), including, without limitation, any rights the Executive may assert under any federal, state, or local laws or regulations applicable to the Employment.
The Parties expressly agree that this agreement to arbitrate involves a transaction in interstate commerce, and shall be construed, interpreted, and its validity and enforceability determined, in accordance with the FAA.
16. Enforceability of this Agreement.
(a) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereunder. If an arbitrator or court of competent jurisdiction determines that any portion of this Agreement is in violation of any law or public policy, then only the portions of this Agreement that violate such law or public policy shall be stricken, and all other portions of this Agreement that do not violate any law or public policy shall continue in full force and effect. Further, if any one or more of the provisions contained in this Agreement is determined by an arbitrator or court of competent jurisdiction in any state to be excessively broad as to duration, scope, activity or subject, or is unreasonable or unenforceable under the laws of such state, such provisions will be construed by limiting, reducing, modifying or amending them so as to be enforceable to the maximum extent permitted by the law of that state. If the Agreement is held unenforceable in any jurisdiction, such holding will not impair the enforceability of the Agreement in any other jurisdiction.
(b) This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
(c) The failure of either Executive or Company, at any time, to require performance of the other of any provision hereof, or to resort to Executive’s or its remedy at law, in equity, or otherwise, shall in no way affect the right of such party to require such full performance or to resort to such remedy at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of any subsequent breach of such provision unless expressly stated in writing. No waiver of any of the provisions hereof shall be effective unless in writing and signed by the party to be charged with such waiver.
(d) The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the Florida without regard to its conflicts of law principles, unless otherwise mutually agreed upon by the Parties.
(e) In connection with any litigation arising out of or in connection with this Agreement, each party will bear its own costs and attorney’s fees incurred in connection in any action brought under this Agreement and in connection therewith, including reasonable attorney’s fees at the trial and all appellate levels.
Third Party Beneficiaries: Any member of Company, parent, subsidiary or affiliate of Company and/or any successor legal entity or assigns shall be a third party beneficiary of this Agreement, with all rights of enforcement of the terms of this Agreement, including the restrictive covenants contained in Exhibit A to this Agreement.
17. Transfer of Agreement and Consent to Assignment.
Executive may not assign this Agreement. Executive agrees, however, that Company may assign this Agreement, and all the covenants and restrictions contained herein, to any of its subsidiaries or affiliates, to a parent entity, to a successor legal entity (by merger or otherwise), to any entity acquiring substantially all of the assets of Company or to a purchaser of the stock of Company. Executive agrees that this Agreement shall be deemed to be automatically transferred and assigned to any successor, whether the successor entity is as a result of a name change, change in the form of the legal entity, successor by merger, purchaser of the stock of Company, or otherwise, and the
Executive expressly consents to this automatic transfer and assignment without the necessity of any further written document. Executive agrees that this Agreement may be assigned to any person or entity acquiring substantially all the assets of the Company. Executive shall continue to be bound by this Agreement after such transfer and assignment whether or not Executive decides to become or to remain employed by such successor or assignee.
18. Agreement and Amendment.
This Agreement constitutes the agreement of the Parties with respect to the specific subject matters which are addressed herein in connection with Executive’s status as an employee of Company and post employment relationship. Any and all previous or contemporaneous understandings not contained within this Agreement, whether written or oral, with the exception of Exhibit A to this Agreement, are hereby either waived or superseded and are of no force and effect. This Agreement may be amended or modified only by mutual written consent signed by authorized representatives of both parties hereto.
19. Applicable Law, Binding Effect, Successors and Assigns and Venue.
This Agreement is made in the State of Florida, shall be governed, construed and regulated under and by the laws of the State of Florida, without regard to its conflict of law provisions. This Agreement shall inure to the benefit of, and be binding upon and enforceable by, the parties hereto and their heirs and personal representatives and as to Company and any successors or assigns. The Parties to this Agreement consent to the personal jurisdiction and venue of such Florida courts and to the service of process by any manner as provided by Florida law or by registered mail sent to Executive’s last know residence.
20. Survival.
Executive agrees the covenants and agreements contained herein shall be fully enforceable irrespective of how long Executive has been in the employment of Company and irrespective of the reason(s) for the termination of Executive’s employment with Company and without regard to which party terminated the employment. The covenants and agreements contained in this Agreement and Exhibit A and continuing through the end of this Agreement shall survive the termination of Executive’s employment hereunder for the periods set forth in the covenants contained herein or as allowed by law and subject to any tolling as set out above.
21. Binding Effect.
It is understood that this Agreement shall be effective on the date set forth above and that the terms of this Agreement shall remain in full force and effect both during the continuation of the employment and after the termination of the employment for the time periods specified, regardless of the reason of termination.
22. Section and Paragraph Headings.
Section and paragraph headings used throughout this Agreement are for reference and convenience only, and in no way define, limit, or describe the scope or intent of this Agreement or affect its provisions.
23. Construction.
Having had the opportunity to obtain the advice of legal counsel to review and comment on this Agreement, Company and Executive agree that this Agreement shall be construed as if the parties jointly prepared it so that any uncertainty or ambiguity shall not be construed against any party in favor of the other.
24. Knowing and Voluntary.
Executive has read and fully understands and agrees with the provisions contained in this Agreement and has been given an opportunity to review this Agreement prior to accepting employment or changing Executive’s position and that Executive is signing the Agreement of Executive’s own free will, without duress or coercion.
IN WITNESS WHEREOF, the Parties have executed this Agreement as set forth below.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇:
Director, Mexedia, Inc.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: November 4th, 2024
Appendix A – Other Employment
The Executive holds no other employments than listed below.
Executive is a consultant for Swarmio inc., a Canadian technology company specializing in gaming and eSports platforms.