AMENDED AND RESTATED EMPLOYMENT AGREEMENT
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EXHIBIT
10.1
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AMENDED AND
RESTATED
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”) is made by and between
Diamond I, Inc., a duly organized Delaware corporation (“Employer”), and Xxxxx
Xxxxxx, a resident of the State of Louisiana (“Employee”).
W I T N E S S E T H:
WHEREAS,
Employer has been employed by Employer as President, since June 2003; and
WHEREAS,
Employer desires to change Employee’s position with Employer, in anticipation of
an acquisition transaction and Employee is willing to accept such new position;
and
WHEREAS,
Employee is, throughout the term of this Agreement, willing to be employed by
Employer, and Employer is willing to employ Employee, on the terms, covenants
and conditions hereinafter set forth; and
NOW,
THEREFORE, in consideration of such employment and other valuable consideration,
the receipt and adequacy of which is hereby acknowledged, Employer and Employee
hereby agree as follows:
SECTION I.
EMPLOYMENT OF EMPLOYEE
Employer
hereby employs, engages and hires Employee as Executive Vice
President of Employer, and Employee hereby accepts and agrees to such
hiring, engagement and employment, subject to the direct supervision of the
president of Employer and the general supervision of the Board of Directors of
Employer. Employee shall perform duties as are customarily performed by one
holding such position in other, same or similar businesses or enterprises as
that engaged in by Employer, and shall also additionally render such other and
unrelated services and duties as may be reasonably assigned to him from time to
time by Employer. Employee shall devote all necessary efforts to the performance
of his duties as Executive Vice
President of Employer.
SECTION II.
EMPLOYEE’S PERFORMANCE
Employee
hereby agrees that he will, at all times, faithfully, industriously and to the
best of his ability, experience and talents, perform all of the duties that may
be required of and from him pursuant to the express and implicit terms hereof,
to the reasonable satisfaction of Employer.
SECTION III.
COMPENSATION OF EMPLOYEE
Employer
shall pay Employee, and Employee shall accept from Employer, in full payment for
Employee’s services hereunder, compensation as follows:
A. Salary.
Employee shall be paid as and for a salary the sum of $10,000 per calendar
month, which salary shall be payable on the 1st day of each calendar month, in
advance, subject to deduction of lawful and required withholding; provided,
however, that, for the first month of the initial term of this Agreement,
Employee shall be paid the sum of $50,000 and that, for the second month of the
initial term of this Agreement, Employee shall be paid the sum of $15,000.
Employer and Employee agree
that Employee’s unpaid salary shall accrue.
Escrow of Proceeds. Employer
and Employee specifically agree that, until such time as Employer shall have
obtained a total of $800,000 in proceeds, net of selling commissions and/or
finder’s fees, from sales of its securities, 50% of any such proceeds shall be
deposited in an escrow account (the “Escrow Account”) established with an
attorney selected by Employer, which account shall be subject to an escrow
agreement substantially in the form of Exhibit “A” attached hereto.
B. Expenses.
Employee agrees that he shall be responsible for all expenses incurred in his
performance hereunder, unless Employer shall have agreed, in advance and in
writing, to reimburse Employee for any such expenses.
C. Vacations.
During the term of this Agreement, Employee shall be entitled to three (3) weeks
of vacation.
SECTION IV.
INDEMNIFICATION OF EMPLOYEE
Employer
and Employee specifically agree that the existing Indemnity Agreement, Agreement
Not to Compete and Confidentiality Agreement, each dated September 5, 2004,
shall remain of full force and effect, to survive the expiration of this
Agreement.
SECTION V.
COMPANY POLICIES
Employee
agrees to abide by the policies, rules, regulations or usages applicable to
Employee as established by Employer from time to time and provided to Employee
in writing.
SECTION VI.
TERM AND TERMINATION
A. Term.
The initial term of this Agreement shall be a period of 28 months, commencing on
the date of closing under that certain Plan and Agreement of Merger (the “Merger
Transaction”) by and among Employer, UB Acquisition Corp. and ubroadcast,
Inc.
If, on the sixth-month
anniversary of the closing of the Merger Transaction, Employer shall not have
deposited the sum of $325,000 into the Escrow Account, the term of this
Agreement shall be extended for an additional two (2) months. It is specifically
agreed by Employer and Employee that, for the first of such additional months,
Employee shall be paid a salary in the amount of $15,000 and that, for the
second of such additional months, Employee shall be paid a salary in the amount
of $10,000.
If, on the nine-month
anniversary of the closing of the Merger Transaction, Employer shall not have
deposited the sum of $350,000 into the Escrow Account, the term of this
Agreement shall be extended for an additional two (2) months. It is specifically
agreed by Employer and Employee that, for the first of such additional months,
Employee shall be paid a salary in the amount of $15,000 and that, for the
second of such additional months, Employee shall be paid a salary in the amount
of $10,000.
B. Termination.
Employer agrees not to terminate this Agreement except for “just cause”. For
purposes of this Agreement, “just cause” shall mean (1) the willful failure or
refusal of Employee to implement or follow the written policies or directions of
Employer’s Board of Directors, provided that Employee’s failure or refusal is
not based upon Employee’s belief in good faith, as expressed to Employer in
writing, that the implementation thereof would be unlawful; (2) conduct which is
inconsistent with Employee’s position with Employer and which results in a
material adverse effect (financial or otherwise) or misappropriation of assets
of Employer; (3) conduct which violates the provisions contained in the existing
Confidentiality Agreement or the Non-Competition Agreement between Employer and
Employee; (4) the intentional causing of material damage to Employer’s physical
property; and (5) any act involving personal dishonesty or criminal conduct
against Employer.
Although Employer retains the
right to terminate Employee for any reason not specified above, Employer agrees
that if it discharges Employee for any reason other than just cause, as is
solely defined above, Employee will be entitled to full compensation hereunder.
If Employee should cease his employment hereunder voluntarily for any reason, or
is terminated for just cause, all future compensation and benefits payable to
Employee shall thereupon, without any further writing or act, cease, lapse and
be terminated. However, all salary and reimbursements which accrued prior to
Employee’s ceasing employment or termination will become immediately due and
payable and shall be payable to Employee’s estate should his employment cease
due to death.
SECTION VII.
COMPLETE AGREEMENT
This
Agreement contains the complete agreement concerning the employment arrangement
between the parties hereto and shall, as of the effective date hereof, supersede
all other agreements between the parties, including all other employment
agreements. The parties hereto stipulate that neither of them has made any
representation with respect to the subject matter of this Agreement or any
representations including the execution and delivery hereof, except such
representations as are specifically set forth herein and each of the parties
hereto acknowledges that he or it has relied on his or its own judgment in
entering into this Agreement. The parties hereto further acknowledge that any
payments or representations that may have heretofore been made by either of them
to the other are of no effect and that neither of them has relied thereon in
connection with his or its dealings with the other.
SECTION VIII.
WAIVER; MODIFICATION
The
waiver by either party of a breach or violation of any provision of this
Agreement shall not operate as, or be construed to be, a waiver of any
subsequent breach hereof. No waiver or modification of this Agreement or of any
covenant, condition or limitation herein contained shall be valid unless in
writing and duly executed by the party to be charged therewith and no evidence
of any waiver or modification shall be offered or received in evidence of any
proceeding or litigation between the parties hereto arising out of, or
affecting, this Agreement, or the rights or obligations of the parties
hereunder, unless such waiver or modification is in writing, duly executed as
aforesaid, and the parties further agree that the provisions of this Section
VIII may not be waived except as herein set forth.
SECTION IX.
SEVERABILITY
All
agreements and covenants contained herein are severable, and in the event any
one of them, with the exception of those contained in Sections I, III, IV and V
hereof, shall be held to be invalid in any proceeding or litigation between the
parties, this Agreement shall be interpreted as if such invalid agreements or
covenants were not contained herein.
SECTION X.
NOTICES
Any
and all notices will be sufficient if furnished in writing, sent by registered
mail to his last known residence, in case of Employee, or, in case of Employer,
to its principal office address.
SECTION XI.
REPRESENTATIONS OF EMPLOYER
The
execution of this Agreement by Employer has been approved by the Board of
Directors of Employer.
SECTION XII.
REPRESENTATIONS OF EMPLOYEE
Employee
hereby represents to Employer that he is under no legal disability with respect
to his entering into this Agreement.
SECTION XIII.
COUNTERPARTS
This
Agreement may be executed in duplicate counterparts, each of which shall be
deemed an original and, together, shall constitute one and the same agreement,
with one counterpart being delivered to each party hereto.
SECTION XIV.
BENEFIT
The
provisions of this Agreement shall extend to the successors, surviving
corporations and assigns of Employer and to any purchaser of substantially all
of the assets and business of Employer. The term “Employer” shall be deemed to
include Employer, any joint venture, partnership, limited liability company,
corporation or other juridical entity, in which Employer shall have an interest,
financial or otherwise.
SECTION XV.
ARBITRATION
The
parties agree that any dispute arising between them related to this Agreement or
the performance hereof shall be submitted for resolution to the American
Arbitration Association for arbitration in the Dallas, Texas, office of the
Association under the then-current rules of arbitration. The Arbitrator or
Arbitrators shall have the authority to award to the prevailing party its
reasonable costs and attorneys fees. Any award of the Arbitrators may be entered
as a judgment in any court competent jurisdiction.
Notwithstanding
the provisions contained in the foregoing paragraph, the parties hereto agree
that Employer may, at its election, seek injunctive or other equitable relief
from a court of competent jurisdiction for a violation or violations by Employee
of the existing Confidentiality Agreement or the Non-Competition
Agreement.
SECTION XVI.
LEGAL REPRESENTATION
Employer
and Employee both acknowledge that each has utilized separate legal counsel with
respect to this Agreement. Specifically, Employee acknowledges that the law firm
of Xxxxxx & Xxxxxx has drafted this Agreement on behalf of Employer.
EMPLOYEE IS ADMONISHED TO SEEK HIS OWN LEGAL COUNSEL.
SECTION XVII.
GOVERNING LAW
It
is the intention of the parties hereto that this Agreement and the performance
hereunder and all suits and special proceedings hereunder be construed in
accordance with and under and pursuant to the laws of the State of Delaware, and
that, in any action, special proceeding or other proceeding that may be brought
arising out of, in connection with or by reason of this Agreement, the laws of
the State of Delaware shall be applicable and shall govern to the exclusion of
the law of any other forum, without regard to the jurisdiction in which any such
action or special proceeding may be instituted.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the 26th
day of January, 2009.
By:
/s/ XXXXXXX X. XXXXXX
Xxxxxxx
X. Xxxxxx
Executive
Vice President
/s/
XXXXX XXXXXX
Xxxxx
Xxxxxx, individually
Address
of Employee:
_______________________________
_______________________________
_______________________________
Exhibit
“A”
Form of Escrow
Agreement
ESCROW
AGREEMENT
THIS
ESCROW AGREEMENT (the “Agreement”) is made and entered into as of the ____ day
of _________, 2009, by and among Diamond I, Inc. (“DMOI”), Xxxxx Xxxxxx
(“Xxxxxx”) and ____________ (“Escrow Agent”).
WHEREAS,
DMOI and Xxxxxx are parties to that certain Amended and Restated Employment
Agreement, dated as of __________, 2009 (the “Employment Agreement”), a copy of
which is attached hereto as Annex I, relating to Loflin’s employment with DMOI;
and
WHEREAS,
the Employment Agreement requires DMOI to deposit certain monies with Escrow
Agent to be held and disbursed in accordance with the terms of this Agreement;
and
WHEREAS,
Escrow Agent has agreed to administer and distribute the funds in accordance
with the terms of this Agreement; and
NOW,
THEREFORE, in consideration of the promises and agreements herein contained, the
parties hereto agree as follows:
1. Escrow
Agent. DMOI and Xxxxxx hereby appoint ______________, as Escrow Agent, to hold
the Deposit (as defined in Section 2 below), in escrow and to disburse and
deliver such Deposit according to the terms of this Agreement.
2. Deposit.
Pursuant to the Employment Agreement, DMOI is obligated to deposit certain
monies in escrow (such monies, including any income earned thereon, is
hereinafter referred to as the “Deposit”), which shall be held in accordance
with the terms of this Agreement.
3. Investment
of Deposit. Escrow Agent shall retain the Deposit subject to the terms and
conditions hereof, and may invest the Deposit as directed, jointly in writing by
DMOI and Xxxxxx, in bank certificates of deposit, United States government
obligations or placed in an interest-bearing savings account. Income earned on
the Deposit shall be deemed as part of the Deposit.
4. Disbursement.
Escrow Agent is hereby authorized and directed to disburse the Deposit as
follows:
A. On
the first day of each month during the term of the Employment Agreement, Escrow
Agent shall deliver to Xxxxxx the amounts set forth below, subject to deduction
of lawful and required withholding:
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Month
1. . . . . . $50,000.00
Month
2. . . . . . $15,000.00
Month
3. . . . . . $10,000.00
Month
4. . . . . . $10,000.00
Month
5. . . . . . $10,000.00
Month
6. . . . . . $10,000.00
Month
7. . . . . . $10,000.00
Month
8. . . . . . $10,000.00
Month
9. . . . . . $10,000.00
Month
10. . . . . $10,000.00
Month
11. . . . . $10,000.00
Month
12. . . . . $10,000.00
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Month
13. . . . . $10,000.00
Month
14. . . . . $10,000.00
Month
15. . . . . $10,000.00
Month
16. . . . . $10,000.00
Month
17. . . . . $10,000.00
Month
18. . . . . $10,000.00
Month
19. . . . . $10,000.00
Month
20. . . . . $10,000.00
Month
21. . . . . $10,000.00
Month
22. . . . . $10,000.00
Month
23. . . . . $10,000.00
Month
24. . . . . $10,000.00
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Month
25. . . . . $10,000.00
Month
26. . . . . $10,000.00
Month
27. . . . . $10,000.00
Month
28. . . . . $10,000.00
Month
29. . . . $15,000.00*
Month
30. . . . $10,000.00*
Month
31. . . . $15,000.00*
Month
32. . . . $10,000.00*
* if the
term of the Employment Agreement is extended.
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If,
on the first day of any month during the term of the Agreement, the Deposit
shall not be sufficient to make the payment required pursuant to the foregoing,
such amount shall be paid on the next succeeding day on which the Deposit shall
be sufficient to do so.
B. Upon
receipt by Escrow Agent of written notice from DMOI that Loflin’s employment has
been terminated “for cause”, as that term is defined in the Employment
Agreement, all unpaid amounts owed to Xxxxxx shall be paid to Xxxxxx on the next
succeeding day on which the Deposit shall be sufficient to do so. The balance of
the Deposit shall be held by Escrow Agent, until receipt of the final written
decision of an arbitrator. Escrow Agent shall disburse the remaining Deposit in
accordance with the arbitrator’s final written decision.
5.
Resignation. Escrow
Agent may resign from its duties hereunder at any time by giving notices of such
resignation to DMOI and Xxxxxx, specifying a date (not less than thirty days
after the giving of such notice), when such resignation shall take effect.
Promptly after such notice, a successor escrow agent shall be appointed by
Xxxxxx. Escrow Agent shall continue to serve until its successor agrees to and
accepts its duties and responsibilities under this Agreement and receives the
Deposit.
6. Liability
and Indemnification of Escrow Agent. Escrow Agent undertakes to perform only
such duties as are specifically set forth herein. Escrow Agent shall not be
liable for any mistake of fact or error in judgment by it or for any acts or
omissions by it of any kind unless caused by willful misconduct or gross
negligence and shall be entitled to rely conclusively upon any written notice,
instrument or signature believed by it to be genuine and to have been signed and
presented by the proper party or parties duly authorized to do so. DMOI shall
indemnify Escrow Agent and hold it harmless from and against any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any
other expenses, fees or charges of any character or nature, which Escrow Agent
may incur or with which it may be threatened by reason of its serving as Escrow
Agent and against any and all expenses, including attorney fees and the cost of
defending any action, suit or proceeding or resisting any claim arising with
respect to its serving as Escrow Agent hereunder.
7. Discharge
of Escrow Agent. DMOI and Xxxxxx may, by mutual agreement at any time, remove
Escrow Agent as Escrow Agent hereunder, and substitute any bank or trust company
therefor. Upon receipt of written notice thereof, Escrow Agent shall account for
and deliver to such substituted escrow agent the Deposit held by it.
8. Term.
This Agreement shall terminate upon the transfer of the entire Deposit by Escrow
Agent pursuant hereto.
9. Severability.
If any provision of this Agreement is determined by a court to be invalid or
unenforceable, such determination shall not effect any other provision, each of
which shall be construed and enforced as if such invalid or unenforceable
portion were not contained herein. Such invalidity or unenforceability shall not
effect any valid and unenforceable application thereof, and each such provision
shall be deemed to be effective, in the matter and to the fullest extent
permitted by law.
10. Applicable
Law. This Agreement shall be construed, and the rights and duties of the parties
hereto determined, in accordance with the laws of the State of
Delaware.
11. Counterparts.
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.
12. Amendments
and Waivers. No amendment, supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by all of the parties hereto. No
waiver of any other provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provisions hereof, nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
13. Binding
Effect. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, any rights, remedies, obligations or
liabilities.
14. Fees
and Expenses. DMOI shall pay the Escrow Agent’s a fee of $______, payable when
the first funds are disbursed under Paragraph 4 hereof. DMOI shall reimburse
Escrow Agent for any and all reasonable expenses incurred by it in connection
with this Agreement and the Deposit, including, without limitation, the actual
costs of reasonable attorney fees.
IN
WITNESS WHEREOF, the parties hereto have signed this ESCROW AGREEMENT as the
date first above written.
“DMOI”: “XXXXXX”:
By:
_______________________
_______________________
Xxxxx
Xxxxxx, individually
Its:
_______________________
“ESCROW AGENT”:
__________________________
By:
_______________________
Its:
_______________________
