Exhibit 10.1
EMPLOYMENT AGREEMENT
This Agreement, made and is effective as of the 1st day of January,
1991, by and between ATI XXXX V PRODUCTS, INC., a California corporation
("Employer"), and XXXXX XX ("Employee").
RECITAL
WHEREAS, Employer desires to secure the services of Employee as
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 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
President and Chief Executive Officer at the direction of the Board of Directors
of Employer and Employee agrees to accept such employment. Such employment shall
commence on January 1, 1991, and shall conclude ten (10) years from such date
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 One Hundred Fifty Thousand Dollars ($150,000) 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 One Million Five
Hundred Thousand Dollars ($1,500,000.00) 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 Fifteen Hundred Dollars ($1,500) per month
for expenses associated with automobile use and maintenance; and (g) grant
Employee options to purchase stock in ATI Xxxx V Products, Inc. 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) Ten (10) years, 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 (6) 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 situation where a customer comes to
Employee by his or her own will and without Employee's direct or indirect
solicitation or encouragement.
2
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 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 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.
3
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 the 23rd of June, 1989.
EMPLOYER: EMPLOYEE:
ATI XXXX V PRODUCTS, INC.
By: /s/ By: /s Xxxxx X.X. Xx
------------------------- ----------------
Title: Secretary Xxxxx X.X. Xx
4
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 January 1, 1991, by and
between DIAMOND ENTERTAINMENT CORPORATION (f/k/a ATI XXXX V PRODUCTS, INC.) a
California corporation (the "Company"), and XXXXX XX (the "Employee").
WITNESSETH
WHEREAS, the Corporation and the Employee entered into that certain
Employment Agreement dated as of January 1, 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 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
salary of $150,000 per annum, until further notice, the latest
being March 31, 1998, the Company hereby agrees to grant to
the Employee (i) 3,000,000 shares of Company common stock,
which shall vest in equally on a quarterly basis during the
fiscal year 1997; and (ii) 3,000,000 warrants to purchase
3,000,000 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 Xxxxxx Xxxx
--------------
Name: Xxxxxx Xxxx
Title: Treasurer
/s Xxxxx X.X. Xx
----------------
Xxxxx Xx
