EXHIBIT 10.1
EMPLOYMENT CONTRACT
THIS AGREEMENT is made and entered into this 5th day of January 1999,
and effective November 10, 1998 for the term set forth herein, by and between
Diverse Capital Corp. (The "Company"), a Florida Corporation and Xxxx X. Xxxx
(hereinafter referred to as the "Executive.")
WHEREAS, the Company wishes to employ Executive, and Executive desires
to be employed by the Company in accordance with the terms set forth below; and
WHEREAS, the Executive has been performing services in the development
of the Company for several months,
NOW, THEREFORE, in consideration of the premises and of the terms,
covenants, and conditions hereinafter contained, the parties hereto agree as
follows:
1. Employment, Duties and Authority
1.1 The Company hereby employs the Executive and the Executive
hereby accepts employment by the Company on the terms,
covenants and conditions herein contained.
1.2 The Company hereby employs the Executive as President and
Chief Executive Officer of the Company. The Executive shall
also serve as Secretary of the Company until a successor has
been appointed and qualifies. The Executive shall have such
duties, responsibilities and authority as the bylaws and the
Board of Directors of the Company shall from time to time
prescribe.
1.3 During the term of this Agreement, the Executive shall devote
his full energies, interest, abilities and productive time to
the performance of his duties and responsibilities under this
Agreement and agrees that he will perform such duties and
responsibilities faithfully and with reasonable care for the
welfare of the Company.
2 Compensation & Benefits
2.1 Basic Salary
2.1.1 The Company shall pay to Executive during the initial
term hereof and each renewal term, a basic salary at
the rate of eight thousand dollars ($8,000) per
month. Such Basic Salary shall be paid by the company
to the Executive bi-monthly in advance, on the first
(1st) and fifteenth (15th) of each month, less
amounts which the Company may be required to withhold
from such payments by applicable federal, state or
local laws or regulations.
2.1.2 The Company agrees that the rate of the basic salary
of the Executive hereunder shall be reviewed
periodically by the Board of Directors of the
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Company, and may not be decreased, but may be
increased at their discretion.
2.2 Health Insurance
Company shall provide Executive Health Care Insurance as soon
as it is available through the Company. During the term of
this Agreement and until health insurance is available through
the Company, the Company shall reimburse Executive for all out
of pocket health insurance cost paid for by the Executive.
2.3 Automobile
Executive will be required to travel extensively on behalf of
the Company, therefore the Company shall provide the executive
at his option, an automobile allowance of $1,000 per month, or
an actual vehicle. If the Executive chooses an actual vehicle,
the monthly cost of the vehicle to the Company shall not
exceed $1,000 per month. This vehicle allowance is in addition
to the cost of fuel, maintenance and or insurance of the
vehicle.
2.4 Miscellaneous Benefits
In addition to the benefits set forth herein, the Executive
shall also be eligible for any other benefits afforded the
Executive management of the Company.
2.5 Options
As additional compensation, the company is issuing
simultaneously with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $1.00 per share. The Option Shares will be exercisable for
a period commencing from the effective date first written
above and terminating on the fifth anniversary of the date
hereof. Additionally, the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $1.50 per share. The Option Shares will be exercisable for
a period commencing from January 15, 1999 and terminating on
January 15, 2004, and the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $2.00 per share. The Option Shares will be exercisable for
a period commencing from January 15, 2000 and terminating on
January 15, 2005, and the Company shall simultaneously issue
to Consultant with the execution and delivery of this
Agreement, options (the "Options") to purchase 125,000 shares
(the "Option
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Shares") of the Company's common stock, par value $0.001 per
share (the "Common Stock"), for an exercise price of $2.50 per
share. The Option Shares will be exercisable for a period
commencing from January 15, 2001 and terminating on January
15, 2006, and the Company shall simultaneously issue to
Consultant with the execution and delivery of this Agreement,
options (the "Options") to purchase 250,000 shares (the
"Option Shares") of the Company's common stock, par value
$0.001 per share (the "Common Stock"), for an exercise price
of $3.00 per share. The Option Shares will be exercisable for
a period commencing from January 15, 2002 and terminating on
January 15, 2007. Further, all of the Option Shares shall
contain cashless exercise and no dilution provisions, as well
as piggyback registration rights.
Example:
EXERCISE DATE SHARES EXERCISE PRICE
------------- ------ --------------
January 5, 1999 125,000 $1.00
January 15, 1999 125,000 $1.50
January 15, 2000 125,000 $2.00
January 15, 2001 125,000 $2.50
January 15, 2002 250,000 $3.00
All stock options shall be accelerated immediately in the
event the Board of Directors of the Company accepts a tender
offer for the outstanding share of the Company during the term
of this Agreement, including any renewal periods.
3. Term
This agreement shall be for a term commencing as of November 10, 1998,
and continuing for a period of five (5) years. This agreement may be
renewed by mutual agreement of the Company and Executive. Mutual
agreement to be reached within thirty days of the expiration of the
initial term.
4. Termination
4.1 This Employment Agreement, the employment of Executive by
Employer, and the remuneration payable to Executive, may be
terminated only as follows:
(a.) Sixty (60) months after the Commencement Date, or
(b.) By the earlier mutual written agreement of the
parties.
4.2 Early Termination of Employment Duties. Subject to the
conditions contained herein, Employer shall have the right and
discretion to terminate the employment duties of Executive.
Nothing contained herein shall relieve Employer of its duty
and obligation to pay and provide to Executive the full amount
of the Base Salary and all Benefits (collectively referred to
as "Remuneration") during the remaining
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Term of this Employment Agreement, unless Executive commits an
act of intentional, gross malfeasance.
The parties hereby acknowledge and expressly agree that,
except in the event of gross malfeasance committed by
Executive, Executive shall continue to receive his or her full
remuneration through the entire Term hereof, regardless of
whether Executive renders any services hereunder, or whether
such services are deemed satisfactory by Employer, and
regardless of any other circumstances, event or act.
4.3 Executive shall be entitled to terminate his employment with
the Company under this Agreement prior to the expiration of
its term upon the occurrence of an event of default with
response to the Company.
4.4 For purposes of this Agreement an event of default with
respect to the Company shall include:
4.4.1 Any failure by the Company to perform its obligations
to executive under this Agreement and such default
continues for a period of no less than ten business
days.
4.4.2 The Company shall:
a) admit in writing its inability to pay its
debts generally as they become due.
b) file a petition for relief under any chapter
of Title 11 of the United States Code or
petition to take advantage of any insolvency
under the laws of the United States of
America or any State thereof,
c) make an assignment for the benefit of its
creditors,
d) consent to the appointment of a receiver of
itself or of the whole or any substantial
part of its property,
e) suffer the entry of an order for relief
under any chapter of Title 11 of the United
States Code, or
f) file a petition or answer seeking
reorganization under the Federal Bankruptcy
Laws or any other applicable law or statute
of the United States of America or any State
hereof.
4.5 In the event of termination of this Agreement and Executive's
employment pursuant to paragraphs 4.1 or 4.3 hereof section
4.2 shall apply.
5. Assignment
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The rights and duties of a party hereunder shall not be assignable by
that party, except that the Company may assign this Agreement and all
rights and obligations hereunder to, and may require the assumption
hereof, by any corporation or any other business entity which succeeds
to all or substantially all the business of the Company through merger,
consolidation or corporate reorganization or by acquisition of all or
substantially all of the assets of the Company.
6. Binding Effect
This Agreement shall be binding upon the Parties hereto and their
respective successors in interest, heirs and personal representatives
and, to the extent permitted herein, the assigns of the Company.
7. Severability
If any provision of this Agreement or any part hereof or application
hereof to any person or circumstance shall be finally determined by a
court of competent jurisdiction to be invalid or unenforceable to any
extent, the remainder of this Agreement, or the remainder of such
provision or the application of such provision to persons or
circumstances other than those as to which it has been held invalid or
unenforceable, shall not be affected thereby and each provision of this
Agreement shall remain in full force and effect to the fullest extent
permitted by law. The parties also agree that, if any portion of this
Agreement, or any part hereof or application hereof, to any person or
circumstance shall be finally determined by a court of competent
jurisdiction to be invalid or unenforceable to any extent, any court
may so modify the objectionable provision so as to make it valid,
reasonable and enforceable.
8. Notice
All notices, or other communications required or permitted to be given
hereunder shall be in writing and shall be delivered personally or
mailed, certified mail, return receipt requested, postage prepaid, to
the parties as follows:
IF TO THE COMPANY: IF TO THE EXECUTIVE:
Diverse Capital Corp. Xxxx X. Xxxx
P.O. Box 172574 000 Xxxxxxxxxx Xxxxxxxx Xxxx
Xxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: President
Any notice mailed in accordance with the terms hereof shall be deemed
received on the third day following the date of mailing. Either party
may change the address to which notices to such party are to be sent.
9. Entire Agreement
This Agreement constitutes the entire Agreement between the parties
hereto with respect to
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the subject matter thereof and supercedes all prior written or oral
negotiations, representations, agreements, commitments, contracts or
understanding with respect thereto and no modification, alteration or
amendment to this Agreement may be made unless the same shall be in
writing and signed by both parties hereto.
10. Waivers
No failure by either party to exercise any such party's right hereunder
or to insist upon strict compliance with respect to any obligation
hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver by either party to demand
exact compliance with the terms hereof. Waiver by either party of any
particular default by the other party shall not affect or impair such
party's rights in respect to any subsequent default of the same or of a
different nature, nor shall any delay or omission of either party to
exercise any rights arising from any default by the other party affect
or impair such party's rights as to such default or any subsequent
default.
11. Governing Law: Jurisdiction
11.1 For purposes of construction, interpretation and enforcement,
this Agreement shall be deemed to have been entered into under
the laws of the State of Florida, and its validity, effect,
performance, interpretation, construction and enforcement
shall be governed by and subject to the laws of the State of
Florida.
11.2 Any and all suits for any and every breach of this Agreement
may be instituted and maintained in any court of competent
jurisdiction in Hillsborough County, in the State of Florida,
, with venue therein, and the service of process by certified
mail to the address for the parties provided for notices
herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
DIVERSE CAPITAL CORP.
SEAL
By:
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Authorized Officer
EXECUTIVE ACCEPTED AND AGREED:
By:
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Xxxx X. Xxxx
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