DEVELOPMENT AGREEMENT
This DEVELOPMENT AGREEMENT (the "Agreement") is made and entered
into as of the 1st day of August, 2011 (the "Effective Date") by and
among PMX Communities, Inc., a Nevada corporation (hereinafter referred
to as "PMX"), PMX Gold, LLC, a Florida limited liability company
(hereinafter referred to as "PMXG") and Gold Deposit Technologies,
Inc., a Florida corporation (hereinafter referred to as "GDT"). PMX,
PMXG and GDT are hereinafter collectively referred to as the "Parties"
and individually as a "Party". Capitalized terms shall have the meaning
ascribed to them in this Agreement.
WITNESSETH:
WHEREAS, PMXG is a wholly owned subsidiary of PMX; and
WHEREAS, PMX is engaged in developing technology, infrastructure
and products to satisfy retail and institutional demand for gold
investments and gold transactions including the purchase, sale,
trading, dispensing and storage of precious metals via the internet and
fixed based ATM portals (the "Portals"); and
WHEREAS, PMX is engaged in the design, development and
manufacture of the Portals through third party hardware and software
vendors; and
WHEREAS, PMX is developing and offering precious metals accounts
(the "Accounts") for the use of its clients with potential
accessibility via the internet, the Portals and debit cards issued by
the Company (hereinafter referred to as the "Project"); and
WHEREAS, GDT has expertise in the development of proprietary
business methods, hardware, software, internet applications and product
matrixes in the precious metals industry; and
WHEREAS, PMX wishes to engage GDT to assist in the development
and implementation of the Project in accordance with the terms and
conditions of this Agreement; and
WHEREAS, GDT is willing to assist PMX to facilitate the Project
in accordance with the terms and conditions of this Agreement
(hereinafter referred to as the "Services"); and
WHEREAS, GDT is the registrant and owner of a provisional
business method patent (the "Patent") outlining GDT's plans for a
business enterprise similar to the Project which is more fully
described on Exhibit "A" attached hereto; and
WHEREAS, GDT makes no representation or warranty to PMX or PMXG
concerning the operability, sufficiency or efficacy of the Patent; and
WHEREAS, GDT has agreed to make available to PMX and PMXG any
proprietary knowledge and intellectual rights either contained within
or derived from the Patent in accordance with the terms and conditions
of this Agreement.
NOW THEREFORE, in consideration of the mutual premises and the
covenants and promises contained, and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged,
the parties, intending to be legally bound, agree as follows:
1. Recitals. The Parties hereto acknowledge and agree that the
foregoing recitals are true, correct, accurate, in proper form and
fully binding upon them in all respects, which recitals in their
entirety are hereby incorporated in this Agreement in haec verba.
2. Costs, Fees, Anticipated Project Budget. PMX shall satisfy
any and all third party fees, costs and expenses to vendors, suppliers,
developers, manufacturers and consultants relative to the design and
manufacture of the various components of the Project which are
identified and designated by GDT (hereinafter referred to as the
"Development Costs") all of which shall be subject to the written
approval of PMX which consent shall not be unreasonably withheld,
delayed or conditioned.
The parties have designated a preliminary operating and
development budget for PMX and/or PMXG of $1,800,000.00 to
$3,600,000.00 US dollars (hereinafter referred to as the "Budget") to
facilitate the design, development and manufacture of working
prototypes of the Portals and their integration with the Accounts, as
well as to launch retail gold operations and to operate PMX while the
project is developed and implemented. The Budget will potentially be
realized as PMX's financing permits over the next six (6) to twelve
(12) months on a best efforts basis, with the understanding that the
amount of dollars allocated and pace which it is made available to GDT
will dictate the level of success and size and scope of the launch of
the Project.
3. Joint Ownership of Intellectual Property Rights,
The parties agree that that any intellectual property (including but
not limited to business plans, trade secrets, proprietary know how,
devices, methods, mechanisms, etc.) that may be developed in accordance
with the terms and conditions of this Agreement will be jointly owned
by PMX and GDT.
Additionally, PMX will pay for any patent application fees to protect
the joint ownership of any intellectual property contributed to or
developed in connection with the Project by either party, including but
not limited to the Business Plans, Methods and information outlined in
the Provisional Patent attached herein as Exhibit "A" and as further
described in paragraph 3 below.
PMX's share of the Intellectual Property Rights will not be assigned,
vested, transferred and/or awarded to PMX or PMXG until PMX contributes
and/or tenders to GDT the lesser of $800,000.00 in direct funds for the
development of the Detailed Prototype Manufacturing Specifications and
the Initial Prototype Manufacture & Gold ATM /Network Software
Development functional and capable to be integrated into the Accounts.
or an amount which of funding which results in a these tasks being
accomplished. Additionally, PMX must remain current with funds owed GDT
to retain ownership of any Intellectual Property Rights as described
herein.
4. Compensation
EQUITY COMPENSATION. In consideration of GDT's contribution of work and
expertise concerning the development of the Project, PMX shall issue
three million (3,000,000) shares of PMX stock (hereinafter referred to
as the "Shares") to GDT as soon as practicable. The shares of PMX due
GDT shall be deemed fully paid, earned and non-assessable when issued
by PMX. Such shares are to be issued under Regulation S-8.
Additionally, within 90 days of the conclusion of fiscal year 2011 and
2012 GDT shall be paid a fee equal to 3.5% of the issued and
outstanding common stock of PMX. Such shares shall be issued according
to the same guidelines as outlined above and paid xxx X-0 issuance as
well. Thereafter the parties shall reasonably agree on the annual
equity based compensation due GDT based upon its performance, work
product, time expended and contributions to the company.
As to the acquisition of PMX shares, GDT has substantial experience in
evaluating and investing in OTC companies, is aware of the fundamental
risks and possible financial hazards of acquiring the Shares, has such
knowledge and experience in financial and business matters as to be
capable of evaluating the merits and risks of this investment, and
acknowledges that an investment in the Shares should be considered only
by a sophisticated investor financially able to bear the economic risks
of its investment.
CASH COMPENSATION. During years 1-2 PMX will pay GDT a base monthly
fee of $20,000.00. For years 3-5, PMX will pay GDT a base monthly fee
of $25,000.00. Additionally, within 60 days of the conclusion of each
fiscal year, PMX shall pay to GDT an amount equal to the sum of Twenty-
Five and 00/100 Dollars ($25.00) per customer Account maintained by
PMXG, Two Thousand and 00/100 Dollars ($2,000.00) per Gold ATM Portal
which PMXG operates and Five Hundred and 00/100 ($500.00) per
conventional ATM which PMX operates. During the first year of this
agreement such monthly fees shall be due ands payable as cash flow of
PMX and PMXG reasonably permit.
Commencing in year 6 of the Agreement and thereafter, the
parties shall reasonably agree on the monthly compensation due GDT
based upon its performance, work product, time expended and continued
contributions to the company.
5. Exclusive use of Intellectual Property and Proprietary
Information.
PMX shall be afforded rights to license the intellectual property and
proprietary information developed by the parties solely as it relates
to the precious metals industry to the following terms and conditions:
A. The parties agree that PMX will be awarded a perpetual and
exclusive licensing worldwide rights for any technology developed for
the Project as it relates to the precious metals industry. After a
period of two (2) years, PMX will be required to operate a
minimum of fifteen (15) Portals within the United States to maintain
the exclusive licensing rights to the technology. After a period of
five (5) years, PMX will be required to operate a minimum of thirty 30)
Portals within the United States to maintain the exclusive licensing
rights to the technology. In the event that PMX desires to pursue a
licensing agreement or other
B. GDT will own the rights for the usage of the technology for any
other industry not associated with precious metals but PMX will be
afforded a right of first refusal for any contemplated agreement
concerning the usage of the technology beyond the precious metals
industry.
C. This Agreement is terminable by either party with or without
cause following the expiration of two (2) years. Additionally, at any
time that PMX ceases active operations within the precious metals
industry then all rights to utilize the technology, business methods
and intellectual property shall revert to GDT. Additionally, PMX may
not sell, transfer, license or assign any aspect of the GDT technology
without the consent of GDT which consent shall be in the sole, absolute
and unfettered discretion of GDT.
Notwithstanding the foregoing intellectual property rights listed in
items "A", "B" and "C" above:
i) In the event that GDT terminates this agreement after the first
(1st) two (2) years, nothing herein shall limit GDT, its shareholders,
consultants or associates from working within the precious metals
industry or using the technology and methodology developed jointly by
the parties for a competing precious metals business within the United
States, including but not limited to that which is described in
attachments "A" and "B". PMX would be relieved of the obligation to pay
GDT, and would retain the rights to use the technology and methodology
(as described above) on a non- exclusive basis.
ii) In the event PMX terminates the Agreement after the first (1st)
two (2) years, PMX and PMXG (and all affiliated entities/subsidiaries)
would lose all intellectual property rights and be prohibited from
working within the precious metals industry or using the technology and
methodology developed jointly by the parties for a competing precious
metals business within the United States, including but not limited to
that which is described in attachments "A" and "B". However, PMX would
be relieved of making any more payments to GDT.
6. Remedies. The parties agree that in the event of any default
hereunder the non-defaulting party shall have any and all rights provided
by law or equity including rights of specific performance. In connection
with any litigation (including all appeals therefrom) arising out of this
Agreement, the prevailing party shall be entitled to recover all costs
incurred, including reasonable attorneys' fees and interest.
7. Invalidity. The invalidity or unenforceability of any
particular provision or part of a provision hereof, shall not affect the
other provisions or parts hereof, and the Agreement shall be construed in
all respects as if such invalid or unenforceable provisions or part
thereof were omitted.
8. Entire Agreement. This is the entire Agreement between the
Parties covering everything agreed upon or understood in the transaction.
There are no promises, conditions, representations, warranties,
guarantees, understandings, interpretations or terms of any kind as
conditions or inducements to the execution hereby were in effect between
the Parties other than as herein set forth. Any Agreement hereafter made
shall be ineffective to change, modify, discharge or effect an
abandonment of this Agreement, in whole or in part, unless such Agreement
is in writing and signed by the party against whom enforcement of the
change, modification, discharge or abandonment is sought.
Waiver by any party hereto of a breach hereof shall not be deemed a
waiver of any subsequent similar breach or a waiver of any term and
condition hereof. Waiver of any breach of this Agreement shall not
excuse the faithful performance of any other term and condition of this
Agreement. Either party has a right to waive one or more breaches or
failure of conditions of settlement and to consummate this transaction as
if said breach had not occurred.
9. Choice of Laws. This Agreement shall be construed and
interpreted pursuant to the laws of the State of Florida. Exclusive
jurisdiction and venue of any litigation arising out of this Agreement
shall be in Palm Beach County, Florida.
10. Cooperation. The Parties hereby agree to cooperate, execute
and deliver any and all documents reasonably deemed necessary to
effectuate the intent and the terms and conditions of this Agreement.
Each party reciprocally agrees to promptly and duly execute and deliver
to the other such further documents and assurances and take such further
action as may from time to time be reasonably requested in order to more
effectively carry out the intent and purpose of this Agreement and to
establish and protect the rights and remedies created or intended to be
created in favor of the other party hereunder.
11. Counterpart Execution. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
Facsimile signatures shall constitute original signatures.
12. Construction. Each party has reviewed and participated in the
formation of this Agreement and, accordingly, any rule or construction to
the effect that ambiguities be resolved against the drafting party shall
not be employed in the interpretation of this Agreement.
13. Successor Liability. The benefits and obligations of this
Agreement shall inure to and bind the respective heirs, successors,
personal representatives and permitted assigns of the Parties hereto.
Whenever used, the singular shall include the plural and the plural the
singular and the use of any gender shall include all genders.
14. Corporate Authority. Each individual executing this Agreement
on behalf of each party represents and warrants that he is duly
authorized to execute and deliver this Agreement on behalf of said part,
in accordance with a duly adopted resolution of the Board of Directors of
said party or in accordance with the bylaws of said party, and that this
Agreement is binding upon said party in accordance with its terms.
15. Notices. All notices, requests, demands and other
communications (collectively, "Notices") given or made pursuant to this
Agreement shall be in writing and shall be deemed to have been duly
given or made as follows: (a) if sent by registered or certified mail
in the United States return receipt requested, postage and fees
prepaid, two business days after mailing; (b) if sent by reputable
private air courier (such as DHL or Federal Express), two business days
after mailing; (c) if sent by facsimile transmission, with a copy
mailed on the same day in the manner provided in (a) or (b) above, when
transmitted and receipt is confirmed by telephone; (d) when sent by
email, when received in a form readable by the recipient and receipt is
confirmed by telephone; or (e) if otherwise actually personally
delivered, when delivered.
16. Headings. Section headings are not to be considered a part
of this Agreement and are not intended to be a full and accurate
description of the contents hereof.
17. Assignment. Neither Party shall assign any rights under this
Agreement, or delegate the performance of any duties hereunder, without
the prior written consent from the other party.
18. Time. Time is of the absolute essence with respect to the
parties performance of this Agreement.
IN WITNESS WHEREOF the undersigned have executed this Agreement as of
the day and year first written above.
PMX Communities, Inc., a Nevada Corporation
By: /s/Xxxxxxx Xxxxx
----------------------
Xxxxxxx Xxxxx, President and CEO
PMX Gold, LLC, a Florida limited liability company
By: /s/Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Managing Member
Gold Deposit Technologies, Inc., a Florida corporation
By: /s/Xxxxxxx Xxxxx Xxxxx
----------------------
Xxxxxxx Xxxxx Xxxxx, President
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