EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (“Agreement”), dated as of April 1, 2005 (the “Effective
Date”), is made by and between SECURED DIVERSIFIED INVESTMENT, LTD., a Nevada
corporation, located at 0000 Xxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000 and hereafter
referred to as “the Company”, and X.X. Xxxxxx, whose address is 00000 Xxx Xxx,
Xxxxxx Xxxxx, Xx 00000 hereinafter referred to as “Employee”, based upon the
following:
RECITALS
WHEREAS,
the Company wishes to retain the services of Employee, and Employee wishes
to
render services to the Company, as its CEO;
WHEREAS,
the Company and Employee wish to set forth in this Agreement the duties and
responsibilities that Employee has agreed to undertake on behalf of the Company;
WHEREAS,
the Company and Employee intend that this Agreement will supersede and replace
any and all other employment agreements for employment entered into by and
between the Company and Employee, and that upon execution of this Agreement,
any
such employment agreements or arrangements shall have no further force or
effect.
THEREFORE,
in consideration of the foregoing and of the mutual promises contained in this
Agreement, the Company and Employee (who are sometimes individually referred
to
as a “party” and collectively referred to as the “parties”) agree as follows:
AGREEMENT
1. SPECIFIED
TERM.
The
Company hereby employs Employee pursuant to the terms of this Agreement and
Employee hereby accepts employment with the Company pursuant to the terms of
this Agreement for the period beginning on April 1, 2005 and ending on April
1,
2007 (the “Term”).
Subject
to Sections 8, 9, and 10, this Agreement will be renewed for one year after
April 1, 2006, upon review by management, unless either party gives notice
to
the other, at least sixty (60) days prior to the expiration of the specified
period that the party desires to renegotiate this Agreement.
2. GENERAL
DUTIES.
Employee
shall report to the Board of Directors. Employee shall devote his productive
time, ability, and attention to the Company’s business during the term of this
Agreement. In his capacity as CEO, Employee shall be primarily responsible
for
the administration of the business of the Company as directed by the Board
of
Directors. Employee shall do and perform all services, acts, or things necessary
or advisable to discharge his duties under this Agreement, an such other duties
as are commonly performed by an employee of his rank in a publicly traded
corporation
or which may, from time to time, be prescribed by the Company through its
President and Board of Directors. Furthermore, Employee agrees to cooperate
with
and work to the best of his ability with the Company’s management team, which
includes the Board of Directors and the officers and other employees, to
continually improve the Company’s reputation in its industry for quality
products and performance.
3.
COMPENSATION.
(a) Annual
Salary.
During
the Term of this Agreement, the Company shall pay to Employee an annual base
salary in the amounts set forth below (the “Annual Salary”). The Annual Salary
shall be:
(i) 180,000
for the first year and will increase by 8% each following year.
The
Annual Salary shall be paid to Employee in equal installments in accordance
with
the periodic payroll practices of the Company for Employee employees.
If
the
Company is unable to pay a portion or all of the Annual Salary in cash, the
Employee may elect to receive all or any portion of the Annual Salary in shares
of the Company’s common stock. The number of shares of common stock to be issued
to Employee shall be determined on the last clay of each fiscal quarter, and
shall be calculated using the average of the closing bid and ask prices of
the
common stock on that date. If no shares of the Company’s common stock trade on
that date, then the Company shall use the average of the closing bid and ask
prices of the common stock on the last day immediately prior to the last day
of
the fiscal quarter during which the common stock was traded. All such shares
of
Company common stock shall be issued pursuant to the Company’s 2003 Employee
Stock Incentive Plan (the “2003 Plan”) to be adopted by the Board of Directors
and shareholders.
Employee
will be entitled to commissions on all Real Estate Sales and Acquisitions on
behalf of SDI through its subsidiary N.C.B.
In
addition; the Company may offer to Executive the opportunity to serve as an
officer or employee of a subsidiary or affiliated entity of the Company. The
Company and Executive shall agree on a mutually acceptable annual salary for
service in such capacity, and the amount thereof shall be included in the
“Annual Salary.”
(b) Annual
Bonus.
Executive and the Board of Directors shall meet immediately following execution
of this Agreement and, thereafter, at the end of each fiscal year to establish
performance standards and goals to be met by Executive during the next fiscal
year, which standards and goals shall be based upon earnings, cash flows, EBITDA
and other objectives that are mutually agreed to by Executive and the Board
of
Directors. The Company shall pay to Executive no later than ninety (90) days
after the completion of the fiscal year, a cash bonus (the “Annual Bonus”) in an
amount to be recommended by the Board of Directors, for each year in which
the
performance standards and goals are met or exceeded by Executive. Nothing in
this
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section
shall prevent Executive and the Board of Directors from mutually agreeing to
an
alternative computation of the Annual Bonus described herein. The Annual Bonus
shall be subject to any applicable tax withholdings and/or employee deductions.
(c) Participation
in Employee Benefit Plans.
Executive shall have the same rights, privileges, benefits and opportunities
to
participate in any of the Company’s employee benefit plans which may now or
hereafter be in effect on a general basis for executive officers or employees.
The Company may delete benefits and otherwise amend and change the type and
quantity of benefits it provides in its sole discretion. In the event Executive
receives payments from a disability plan maintained by the Company, the Company
shall have the right to offset such payments against the Annual Salary otherwise
payable to Executive during the period for which payments are made by such
disability plan.
(d) Director
and Officer Liability Insurance.
The
Company shall use commercially reasonable efforts to purchase directors and
officers liability insurance and include Executive as an insured thereunder.
(e) Medical
Insurance.
The
Company shall provide the Executive health insurance overage consistent with
the
plan already in effect.
(f) Payment
of Tax Related to the Receipt of Non-Cash Compensation.
If
Executive incurs income tax or any other tax, including payroll taxes, as a
result of the receipt of non-cash compensation during any fiscal year, the
Company shall pay to Executive an amount equal to any and all such tax.
4. REIMBURSEMENT
OF BUSINESS EXPENSES.
The
Company shall promptly reimburse Employee for all reasonable business expenses
incurred by Employee in connection with the business of the Company. However,
each such expenditure shall be reimbursable only if Employee furnishes to the
Company adequate records and other documentary evidence required by federal
and
state statutes and regulations issued by the appropriate taxing authorities
for
the substantiation of each such expenditure as an income tax deduction.
5. ANNUAL
VACATION.
Employee
shall be entitled to three (3) weeks vacation time each year without loss of
compensation.
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6. PERSONAL
CONDUCT.
Employee
agrees promptly and faithfully to comply with all present and future policies,
requirements, directions requests and rules and regulations of the Company
in
connection with the Company’s business.
7.
TERMINATION
BY THE COMPANY FOR CAUSE.
The
Company reserves the right to declare Employee in default of this Agreement
if
(each a “Cause”):
(a) Employee
willfully breaches or habitually neglects the duties which he is required to
perform under the terms of this Agreement, or
(b) Employee
commits such acts of dishonesty, fraud, misrepresentation, gross negligence
or
willful misconduct which results in material harm to the Company or its
business, or
(c) Employee
violates any law, rule or regulation applicable to the Company or Employee
relating to the business operations of the Company that may have a material
adverse effect upon the Company’s business, operations, or condition (financial
or otherwise).
The
Company may terminate this Agreement for Cause immediately upon written notice
of termination to Employee; provided, however, if the Company terminates this
Agreement due to Employee’s willful breach or habitual neglect of the duties he
is required to perform, then Employee shall be entitled to a period of thirty
(30) days from the date of the written notice of termination to cure said
breach. Except as otherwise set forth in this Section 8, upon any termination
for Cause, the obligations of Employee and the Company under this Agreement
shall immediately cease. Such termination shall be without prejudice to any
other remedy to which the Company may be entitled either at law, in equity,
or
under this Agreement. If Employee’s employment is terminated pursuant to this
Section 8, the Company shall pay to Employee (1) Employee’s accrued but unpaid
Annual Salary and vacation pay through the effective date of the
termination;(ii) Employee’s accrued but unpaid Annual Bonus, if any; and (iii)
business expenses incurred prior to the effective date of termination and shall
transfer to Employee any stock earned but unissued pursuant to Section 3(e).
Employee shall not be entitled to continue to participate in any employee
benefit plans except to the extent provided in such plans for terminated
participants, or as may be required by applicable law.
8. TERMINATION
BY THE COMPANY WITHOUT CAUSE.
(a) Death.
Employee’s employment shall terminate upon the death of Employee. Upon such
termination, the obligations of Employee and the Company under this Agreement
shall immediately cease. Upon such termination the obligations of Employee
and
the Company under this Agreement shall immediately cease.
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(b) Disability.
The
Company reserves the right
to
terminate Employee’s employment upon ten (10) days written notice if, for a
period of ninety (90) days, Employee is prevented from discharging his duties
under this Agreement due to any physical or mental disability unless agreed
by
the Company. Except as otherwise set forth in Section 11 below, upon such
termination the obligations of Employee and the Company under this Agreement
shall immediately cease.
(c) Election
by the Company.
The
Company may terminate Employee’s employment upon not less than ninety (90) days
written notice by the Company to Employee. Upon such termination the obligations
of Employee and the Company under this Agreement shall immediately cease. The
Company is not bound for and the employee is not entitled to severance of more
than 6 months salary.
9. TERMINATION
BY EMPLOYEE.
(a) Election
by Employee.
Employee’s employment may be terminated at any time by Employee upon not less
than thirty (30) days written notice by Employee to the Board. Except as
otherwise set forth in this paragraph (a), upon such termination the obligations
of Employee and the Company under this Agreement shall immediately cease. In
the
event of a termination pursuant to this paragraph, the Company shall pay to
Employee (i) Employee’s accrued but unpaid Annual Salary and vacation pay
through the effective date of the termination; (ii) Employee’s accrued but
unpaid Annual Bonus, if any; and (iii) business expenses incurred prior to
the
effective date of termination and shall transfer to Employee any stock earned
but unissued pursuant to Section 3(e). Employee shall not be entitled to
continue to participate in any employee benefit plans except to the extent
provided in such plans for terminated participants, or as may be required by
applicable law.
(b) Termination
by Employee for Good Reason.
Employee may terminate this Agreement immediately based on his reasonable
determination that one of the following events has occurred:
(i) The
Company intentionally and continually breaches or wrongfully fails to fulfill
or
perform (A) its material obligations, promises or covenants under this
Agreement; or (B) any material warranties, obligations, promises or covenants
in
any agreement (other than this Agreement) entered into between the Company
and
Employee, without cure, if any, as provided in such agreement;
(ii) the
Company intentionally requires Employee to commit or participate in any felony
or other serious crime; and/or
(iii) the
Company engages in other conduct constituting legal cause for termination.
Upon
such
termination the obligations of Employee and the Company under this Agreement
shall immediately cease.
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10. EFFECT
OF TERMINATION ATTRIBUTABLE TO DEATH OR DISABILITY.
In
the
event Employee’s employment is terminated due to Employee’s death or disability,
then:
(a) The
Company shall pay Employee’s accrued but unpaid Annual Salary and vacation time
through the effective date of the termination.
(b) The
Company shall reimburse Employee for any business expenses incurred prior to
the
effective date of the termination;
11. INDEMNIFICATION
OF LOSEES.
So
long
as Executive’s actions were taken in good faith and furtherance of the Company’s
business and within the scope of Executive’s duties and authority, the Company
shall indemnify and hold Executive harmless to the hill extent of the law from
any and all claims, losses and expenses sustained by Executive as a result
of
any action taken by him to discharge his duties under this Agreement, and the
Company shall defend Executive, at the Company’s expense, in connection with any
and all claims by stockholders or third parties which are based upon actions
taken by Executive to discharge his duties under this Agreement.
12. MISCELLANEOUS.
(a) Preparation
of Agreement.
It is
acknowledged by each party that such party either had separate and independent
advice of counsel or the opportunity to avail itself or himself of the same.
In
light of these facts it is acknowledged that no party shall be construed to
be
solely responsible for the drafting hereof and therefore any ambiguity shall
not
be construed against any party as the alleged draftsman of this Agreement.
(b) Cooperation.
Each
party agrees, without further consideration, to cooperate and diligently perform
any further acts, deeds and things and to execute and deliver any documents
that
may from time to time be reasonably necessary or otherwise reasonably required
to consummate, evidence, confirm and/or carry out the intent and provisions
of
this Agreement, all without undue delay or expense.
(c) Interpretation.
(i) Entire
Agreement/No Collateral Representations.
Each
party expressly acknowledges and agrees that this Agreement, including all
exhibits attached hereto: (1) is the final, complete and exclusive statement
of
the agreement of the parties with respect to the subject matter hereof; (2)
supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms
of
any kind, oral or written (collectively
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and
severally, the “Prior Agreements”), and that any such prior agreements are of no
force or effect except as expressly set forth herein; and (3) may not be varied,
supplemented or contradicted by evidence of Prior Agreements, or by evidence
of
subsequent oral agreements. Any agreement hereafter made shall be ineffective
to
modify’, supplement or discharge the terms of this Agreement, in whole or in
part, unless such agreement is in writing and signed by the party against whom
enforcement of the modification or supplement is sought.
(i) Waiver.
No
breach of any agreement or provision herein contained, or of any obligation
under this Agreement, may be waived, nor shall any extension of time for
performance of any obligations or acts be deemed an extension of time for
performance of any other obligations or acts contained herein, except by written
instrument signed by the party to be charged or as otherwise expressly
authorized herein. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or a waiver or relinquishment of any other agreement or provision
or
right or power herein contained.
(ii) Remedies
Cumulative.
The
remedies of each party under this Agreement are cumulative and shall not exclude
any other remedies to which such party may be lawfully entitled.
(iii) Severability.
If any
term or provision of this Agreement or the application thereof to any person
or
circumstance shall, to any extent, be determined to be invalid, illegal, or
unenforceable under present or future laws effective during the term of this
Agreement, then and, in that event: (A) the performance of the offending term
or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused provision as may be
possible and legal, valid and enforceable, and (B) the remaining part of this
Agreement (including the application of the offending term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby and shall continue
in
full force and effect to the fullest extent provided by law.
(iv) No
Third Party Beneficiary.
Notwithstanding anything else herein to the contrary, the parties specifically
disavow any desire or intention to create any third party beneficiary
obligations, and specifically declare that no person or entity, other than
as
set forth in this Agreement, shall have any rights hereunder or any right of
enforcement hereof.
(v) Heading;
References: Incorporation; Gender.
The
headings used in this Agreement are for convenience and reference purposes
only,
and shall not be used in construing or interpreting the scope or intent of
this
Agreement or any provision hereof. References to this Agreement shall include
all amendments or renewals thereof. Any exhibit referenced in this Agreement
shall be deemed to include the other gender, including neutral genders or
genders appropriate for entities, if applicable, and the singular shall be
deemed to include the plural, and vice versa, as the context requires.
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(d) Enforcement.
(i) Applicable
Law.
This
Agreement and the rights and remedies of each party arising out of or relating
to this Agreement (including, without limitation, equitable remedies) shall
be
solely governed by, interpreted under, and construed and enforced in accordance
with the laws (without regard to the conflicts of law principles thereof) of
the
State of California, as if this agreement were made, and as if its obligations
are to be performed, wholly within the State of California.
(ii) Consent
to Jurisdiction; Service of Process.
Any
action or proceeding arising out of or relating to this Agreement shall be
filed
in and heard and litigated solely before the state courts of California located
within the County of Orange.
(e) No
Assignment of Rights or Delegation of Duties by Employee.
Employee’s rights and benefits under this Agreement are personal to him and
therefore (i) no such right or benefit shall be subject to voluntary or
involuntary alienation, assignment or transfer; and (ii) Employee may not
delegate his duties or obligations hereunder.
(f) Notices.
Unless
otherwise specifically provided in this Agreement, all notices, demands,
requests, consents, approvals or other communications (collectively and
severally called “Notices”) required or permitted to be given hereunder, or
which are given with respect to this Agreement, shall be in writing, and shall
be given by: (A) personal delivery (which form of Notice shall be deemed to
have
been given upon delivery), (B) by telegraph or by private airborne/overnight
delivery service (which forms of Notice shall be deemed to have been given
upon
confirmed delivery by the delivery agency), (C) by electronic or facsimile
or
telephonic transmission, provided the receiving party has a compatible device
or
confirms receipt thereof (which forms of Notice shall be deemed delivered upon
confirmed transmission or confirmation of receipt), or (D) by mailing in the
United States mail by registered or certified mail, return receipt requested,
postage prepaid (which forms of Notice shall be deemed to have been given upon
the fifth (5th)
business
day following the date mailed). Each party, and their respective counsel, hereby
agrees that if Notice is to be given hereunder by such party’s counsel, such
counsel may communicate directly with all principals, as required to comply
with
the foregoing notice provisions. Notices shall be addressed to the address
hereinabove set forth in the introductory paragraph of this Agreement, or to
such other address as the receiving party shall have specified most recently
by
like Notice, with a copy to the other parties hereto. Any Notice given to the
estate of a party shall be sufficient if addressed to the party as provided
in
this subparagraph.
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(g) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto. Any signature page of this Agreement
may be detached from any form hereto by having attached to it one or more
additional signature pages.
(h) Execution
by All Parties Required to be Binding; Electronically Transmitted
Documents.
This
Agreement shall
not
be construed to be an offer and shall have no force and effect until this
Agreement is frilly executed by all parties hereto. If a copy or counterpart
of
this Agreement is originally executed and such copy or counterpart is thereafter
transmitted electronically by facsimile or similar device, such facsimile
document shall for all purposes be treated as if manually signed by the party
whose facsimile signature appears.
In
witness hereof, the parties execute this Employment Agreement as of the date
first written above.
SECURED
DIVERSIFIED INVESTMENT, LTD.
By:/s/
Xxx
Xxxxxxx
Xxx
Xxxxxxx
Title:
President
EMPLOYEE
By:/s/
Xxxxxxxx X.
Xxxxxx
Xxxxxxxx X. Xxxxxx
Title:
CEO
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