Exhibit 10.2
EMPLOYMENT AGREEMENT
This Agreement, made and is effective as of the 16th day of August 1991
by and between Diamond Entertainment Corporation, formerly ATI Xxxx V Products,
Inc., ("Employer"), and Xxxxxxx X. Xxxxxxxx ("Employee").
RECITAL
WHEREAS, Employer desires to secure the services of Employee as Vice
President, to make use of Employee's knowledge in the international business,
business and political connection both domestic and international, and to be
benefited from the potential business to be brought in by Employee;
WHEREAS, Employee has agreed to serve as Vice President of Employer on
the terms and conditions set forth herein;
NOW THEREFORE in consideration of the mutual promises and agreements
contained herein, it is agreed as follows:
1. Employment
Employer agrees to employ Employee to serve in the capacity of
Vice President at the direction of the Board of Directors and the Chief
Executive Officer of Employer and Employee agrees to accept such employment
shall commence on August 16, 1991, and shall be valid until December 31, 2000
unless terminated in accordance with paragraph 4 herein. This agreement may be
extended on yearly basis so long as such extension is agreed to in writing by
both parties.
2. Exclusivity
Employee warrants that there are no agreements or
arrangements, whether written or oral, in effect which would prevent Employee
from rendering exclusive services to the Employer during the term of this
Agreement hereof, and Employee warrants that he has not made and will not make
any commitment or do any act in conflict with this Agreement.
3. Compensation
As full compensation for all services to be rendered by
Employee to Employer during the first year of the term of this Agreement,
Employer shall: (a) pay Employee a salary of Ninety Thousand Dollars
($90,000.00) per annum ("Salary"); (b) pay a bonus as set forth on Schedule A
hereto; (c) procure term life insurance on behalf of Employee in an amount of
Five Hundred Thousand Dollars ($500,000) for the duration of Employee's
employment with Employer; (d) procure a term life insurance for Employee the
beneficiary to be designated by the Employee; (e) provide medical insurance for
Employee; (f) provide an allowance of Twelve Hundred Dollars ($1,200.00) per
month for expenses associated with automobile use and maintenance; and (g) grant
Employee options to purchase stock in Diamond Entertainment Corporation as set
forth in the Stock Option Agreement attached hereto marked Schedule B. The
Salary shall be increased every year in accordance with the increase of the
Consumer Price Index for All Urban Customers (base year 1967 = 100) for Los
Angeles-Long Beach-Anaheim, California, published by the United States
Department of Labor, Bureau of Labor Statistics.
4. Vacation
In addition to the regular employee benefit policy of
Employer, Employee shall be entitled to Four (4) weeks paid vacation during each
year of employment for the first Five (5) years, and Six (6) weeks each year for
each year of employment after Five (5) years.
5. Termination
This Agreement shall terminate on the earlier of:
(a) December 31st, 2000, unless renewed per the conditions of
paragraph 1 hereof;
(b) The death or retirement of Employee;
(c) Upon thirty (30) day written notice to Employee, if Employer
shall cease conducting its business, take any action looking
toward its dissolution or liquidation, or be subject of any
state insolvency proceeding;
(d) Upon thirty (30) day written notice to Employee upon the
disability of Employee, whereby Employee is unable to perform
his duties hereunder for a period of six consecutive weeks.
Any determination of such inability to perform shall be made
only by the Board of Directors of Employer with such
professional advice as it may deem appropriate. Any
determination of disability made by the Employer's Board of
Directors shall be final and conclusive;
(e) The discharge of Employee for good cause, upon thirty (30) day
written notice to Employee by Employer, including but not
limited to, chronic inattention to duties, dishonesty, the
commission of a willful act or omission intended to injure the
business of Employer, or other breach of this Agreement by the
Employee.
(f) Upon thirty (30) day written notice from Employee to Employer
for any reason.
6. Assignment
This Agreement shall not be assignable by either party hereto
without the prior written consent of the other party.
7. Confidentiality
Any information acquired by Employee during his performance of
this Agreement shall be regarded as confidential and solely for the benefit of
Employer. Employee shall not use or disclose such information either directly or
indirectly during the term of the Agreement or at any time thereafter. All
documents prepared by Employee and confidential information given to Employee in
the course of his Employment hereunder shall be the exclusive property of
Employer.
8. Non-Competition
Employee agrees that for a period of three years after
termination of employment hereunder, Employee will not, on behalf of himself or
on behalf of any other person, firm or corporation, solicit or divert customers
of Employer. However, this section shall not apply to the
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situation where a customer comes to Employee by his or her own will and without
Employee's direct or indirect solicitation or encouragement.
9. Entire Agreement
This Agreement supersedes all prior agreements between the
parties concerning the subject matter hereof and this Agreement constitutes the
entire agreement between the parties. This Agreement may be amended only with a
written instrument duly executed by each party. No waiver by any party of any
breach of this Agreement shall be deemed to be a waiver of any preceding or
succeeding breach.
10. Notices
Any notice, request, demand or other communication hereunder
shall be in writing and shall be deemed to be duly given when personally
delivered to Employer or Employee or when delivered by first class postage
prepaid mail to the home address of Employee and Chairman of the Board of
Directors of Employer.
11. Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
12. Arbitration
In the event that a dispute arises concerning any term or
condition of this Agreement, the matter shall be resolved by arbitration and
such arbitration shall be governed by the provisions of the California
Arbitration Act, Sections 1280 through 1294.2 of the Code of Civil Procedure. If
a dispute should arise under this Agreement, either party may within ten (10)
days make a demand for arbitration by filing a demand in writing with the other.
The parties may agree upon one arbitrator, but in the event that they cannot
agree, there shall be three, one named in writing by each of the parties within
ten (10) days after demand for arbitration is given and a third chosen by the
two appointed. Should either party refuse or neglect to join in the appointment
of the arbitrator(s) or to furnish the arbitrator(s) with any papers or
information demanded, the arbitrator(s) are empowered by both parties to proceed
ex parte. Arbitration shall take place in the City of Los Angeles, County of Los
Angeles, State of California, and the hearing before the arbitrator(s) of the
matter to be arbitrated shall be at the time and place within said city as is
selected by the arbitrator(s). The arbitrator(s) shall select such time and
place promptly after his (or her) appointment and shall give written notice
thereof to each party at least twenty (20) days prior to the date so fixed. At
the hearing any relevant evidence may be presented by either party, and the
formal rules of evidence applicable to judicial proceedings shall not govern.
Evidence may be admitted or excluded in the sole discretion of the
arbitrator(s). Said arbitrator(s) shall hear and determine the matter and shall
execute and acknowledge their award in writing and cause a copy thereof to be
delivered to each of the parties. If there is only one arbitrator, his decision
shall be final, binding and conclusive upon all the parties, and if there are
three arbitrators the decision of any two shall be binding and conclusive. The
submission of a dispute to the arbitrator(s) may be rendered by any Superior
Court having jurisdiction; or such Court may vacate, modify, or correct the xxxx
in accordance with the prevailing sections of the California Arbitration Act. If
three arbitrators are selected under the foregoing procedure but two of the
three fail to reach an agreement in the determination of the matter in question,
the matter shall be decided by three new arbitrators who shall
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be appointed and shall proceed in the same manner, and the process shall be
repeated until a decision is finally reached by two of the three arbitrators
selected. The costs of such arbitration shall be borne equally by the parties or
in such proportions as the arbitrator(s) shall determine.
13. Severability
If any provision of this Agreement is declared or found to be
illegal, unenforceable or void by any administrative agency, regulatory body, or
court of competent jurisdiction, such finding shall not affect the remaining
provisions of this Agreement, and all other provisions hereof shall remain in
full force and effect.
14. Attorney's Fees
Should action be filed to enforce any or all of the terms of
this Agreement, or to declare any rights, duties and obligations hereunder, the
prevailing party shall be awarded his costs of suit including reasonable
attorney's fees to be fixed by the Court.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands on August 16, 1991.
EMPLOYER: EMPLOYEE:
By: /s Xxxxx X.X. Xx By: /s Xxxxxxx X. Xxxxxxxx
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Title: CEO Xxxxxxx X. Xxxxxxxx
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AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This Amendment No. 1 dated as of September 1, 1997 to that certain
Employment Agreement (this "Agreement"), dated as of August 16, 1991, by and
between DIAMOND ENTERTAINMENT CORPORATION (f/k/a ATI XXXX V PRODUCTS, INC.) a
California corporation (the "Corporation"), and XXXXXXX X. XXXXXXXX (the
"Employee").
WITNESSETH
WHEREAS, the Corporation and the Employee entered into that certain
Employment Agreement dated as of August 16, 1991 (the "Agreement"); and
WHEREAS, the Corporation and the Employee desire to amend the Agreement
to effect the changes provided for herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Effective as of the date hereof, the Agreement is hereby
amended for the year 1997 only by deleting the portion (a) of
Section 3 and replacing it with the following:
(a) as consideration for Employee's agreement to defer
90% of his 1997 salary, until further notice, the
latest being March 31, 1998, the Company hereby
agrees to grant to the Employee (i) 750,000 shares of
Company common stock, which shall vest in equally on
a quarterly basis during the fiscal year 1997; and
(ii) 750,000 warrants to purchase 750,000 shares of
Company common stock at a purchase price of $.10 per
share, exercisable over a two year period beginning
on the vesting date, which shall be the last day of
fiscal year 1997;
2. This Amendment shall be governed by and construed in
accordance with the laws of the State of California, without
regard to principals of conflicts of law.
3. Except as otherwise specifically set forth herein, all of the
terms and provisions of the Existing Agreement shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
DIAMOND ENTERTAINMENT CORPORATION
By: /s Xxxxx X.X. Xx
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Name: Xxxxx Xx
Title: President
/s Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
