EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered
into this 1 day of November, 1999, by and between XXXXXX XXXXXXX
of 0000 XX 000 xxxxxx, Xxxxx Xxxxxxx, XX. (hereinafter
"Employee"), and DIAMOND POWERSPORTS, Inc. having it's principal
offices at 00000 XX 00 Xx., Xxxxxxx, XX. (hereinafter
"Employer") W I T N E S S E T H This Agreement is made and entered
into under the following circumstances:
(1) Whereas, Employer is engaged in the business of the sale of
motorcycle parts and accessories; and (2) Whereas, Employer
desires, on the terms and conditions stated herein, to employ
the Employee as a President; and (3) Whereas, the Employee
desires, on the terms and conditions stated herein, to be
employed by the Employer. NOW THEREFORE, in consideration of the
foregoing recitals, and of the promises, covenants, terms and
conditions contained herein, which is hereby acknowledged by the
parties hereto, it is agreed as follows:
1.Employment and Term. a) Subject to earlier termination as
provided for in this Section 1 and in Section 2 hereof, the
Employer hereby employs Employee, and Employee hereby accepts
employment with the employer, as President for a period of one
(1) year (hereinafter the "Term of Employment") commencing the1
day of November, 1999 ("hereinafter the "Effective Date")
through the 1day of November 2000. The Term of Employment shall
be renewed or renegotiated upon the mutual agreement of Employee
and Employer. This agreement and Employee's employment may be
terminated at the Employer's discretion during the Term of
Employment, provided that Employer shall pay to Employee an
amount of Employee's base salary for the remaining period of the
Term of Employment. b) Employee may terminate this Agreement at
Employee's discretion by providing at least thirty (30) days
prior written notice to Employer. In the event of termination by
Employee pursuant to this subsection, Employer may immediately
relieve Employee of all duties and immediately terminate this
Agreement, provided that Employer shall pay Employee at the then
applicable base salary rate to the termination date included in
Employee's original termination notice.
2. Employment Termination. Subject to earlier termination
as provided for in this Section, the Employer hereby employs
Employee, and Employee hereby accepts employment with the
employer pursuant to the terms of this agreement, which empowers
Employer to terminate employee at any time with cause. Cause
shall be defined as: i) failure of Employee to perform the
duties in a manner satisfactory to Employer, in its sole
discretion; provided, however, that the Employment shall not be
terminated pursuant to this subparagraph (i) unless Employer
first gives Employee a written notice ("Notice of Deficiency").
The Notice of Deficiency shall specify the deficiencies in
Employee's performance of his duties. Employee shall have a
period of thirty (30) days, commencing on receipt of the Notice
of Deficiency, in which to cure the deficiencies contained in
the Notice of Deficiency. In the event, Employee does not cure
the deficiencies to the satisfaction of Employer, in its sole
discretion, within such thirty- (30) day period; the Employer
shall have the right to immediately terminate the Employee's
Employment. The provisions of this subparagraph (i) may be
invoked by Employer any number of times and cure of deficiencies
contained in any Notice of Deficiency shall not be construed as
a waiver of this subparagraph (i) nor prevent the Employer from
issuing any subsequent Notices of Deficiency; ii) any dishonesty
by Employee in dealings with the Employer, the commission of
fraud by Employee, or negligence or willful neglect in the
performance of the duties of Employee; iii) the arrest or
conviction (or plea of guilty or no lo contendere) of Employee
of any felony or other crime involving dishonesty or moral
turpitude; iv) any violation of any provision contained in this
agreement; v) unlawful use of narcotics or other controlled
substances, or use of alcohol or other drugs in a manner the
Employer reasonably determines to be adverse to the best
interest of the Employer; vi) Failure of Employee to attend
training programs required for competency in his duties (job
description) as an Employee; vii) if, due to any act or omission
of Employee, liability insurance cannot be reasonably obtained
or maintained, or if, due to any act or omission of Employee,
liability insurance is canceled, terminated or revoked; or, For
all purposes of this Agreement, termination for "cause" shall be
deemed to have occurred in the event of Employee's resignation
when, because of existing facts and circumstances, subsequent
termination for "cause" can be reasonably foreseen. In the event
of termination pursuant to this subsection, Employee shall be
paid only at the then applicable base salary rate up to and
including the date of termination. Employee shall not be paid
any incentive salary payments or other compensation, prorated or
otherwise.
3. Duties and Responsibilities. Employee shall: (a) engage
full-time services, on behalf of Employer, at locations directed
by Employer, as Employer may designate; (b) perform all
managerial duties necessary; (c) perform such other duties as
may from time to time be reasonably assigned to the Employee by
Employer; (d) cooperate with Employer, to the fullest ethical
extent, to promote Employer's business and to continue and
expand the products provided by Employer, and to further the
best interests of the Employer; and (e) perform all services in
a professional manner using the full knowledge and skill of
Employee which services shall be performed in accordance with
standards and procedures established by Employer. Employee shall
(i) devote Employee's entire business time, attention and
energies exclusively to the Employer; and (ii) faithfully and
competently perform the duties hereunder using Employee's full
professional skill and knowledge; and (iii) not engage in any
other professional or business activity.
4. Compensation. Employee shall be paid compensation during
this Agreement as follows: a) A base salary of $ 65,000.00 per
year, payable in installments according to the Employer's
regular payroll schedule. b) An incentive salary equal to one
half of one (1/2%) percent of the adjusted net profits
(hereinafter defined) of the Employer beginning with the
Employer's year end 2000 and each fiscal year thereafter during
the term of this Agreement. "Adjusted net profit" shall be the
net profit of the Employer before federal and state income
taxes, determined in accordance with generally accepted
accounting practices by the Employer's independent accounting
firm and adjusted to exclude: (i) any incentive salary payments
paid pursuant to this Agreement; (ii) any contributions to
pension and/or profit sharing plans; (iii) any extraordinary
gains or losses (including, but not limited to, gains or losses
on disposition of assets); (iv) any refund or deficiency of
federal and state income taxes paid in a prior year; and (v) any
provision for federal or state income taxes made in prior years
which is subsequently determined to be unnecessary. The
determination of the adjusted net profits made by the
independent accounting firm employed by the Employer shall be
final and binding upon the Employee and Employer. The incentive
salary payment shall be made within thirty (30) days after the
Employer's independent accounting firm has concluded its audit.
If the final audit is not prepared within ninety (90) days after
the end of the fiscal year, then Employer shall make preliminary
payment equal to fifty percent (50%) of the amount due based
upon the adjusted net profits preliminarily determined by the
independent accounting firm, subject to payment of the balance,
if any, promptly following completion of the audit by the
Employer's independent accounting firm.
5. Benefits. a) Vacation/Personal Time. Employer shall be
entitled to an aggregate of seven (7) working days paid vacation
during each full year during the Term of Employment. In
addition, personal time will be provided, this will be
reevaluated during the Term of Employment and recalculated after
one year. b) Holidays. Employee shall be entitled to paid
holidays each calendar year. Employer shall notify Employee on
or about the beginning of each calendar year with respect to the
holiday schedule for the coming year. Personal holidays, if any,
will be scheduled in advance subject to requirements of
Employer. Such holidays must be taken during the calendar year
and cannot be carried forward into the next year. c) Sick Leave.
Employee shall be entitled to sick leave and emergency leave,
which shall be liberally granted upon reasonable notice. d)
Medical Insurance. Employer agrees to include Employee and
family in the group medical and hospital plan of Employer. e)
Pension and Profit Sharing Plans. Employee shall be entitled to
participate in any pension or profit sharing plan or other type
adopted by the Employer for the benefit of its officers and/or
regular employees. g) Expense Reimbursement. Employee shall be
entitled to reimbursement for all reasonable expenses, including
travel and entertainment, incurred by Employee in the
performance of Employee's duties. Employee shall maintain
records and written receipts as required by the Employer and
reasonably requested by the board of directors to substantiate
such expenses.
6. Non-Competition. During the Term of Employment and for a
continuous period of two (2) years commencing upon termination
of employment, Employee shall not, individually or jointly with
others, own or hold any ownership or voting interest in any
person or entity engaged in a business the same as or similar to
any business of the employer or which competes in any manner
whatsoever with the business of Employer, and which is located
or intended to be located in the United States; and Employee
shall not act as an officer, director, employee, partner,
independent contractor, consultant, principal, agent,
proprietor, or in any other capacity for, not lend any
assistance (financial, managerial, professional or otherwise) or
cooperation to, nor perform any services for, any such person or
entity; and during the Term of Employment Employee shall be
prohibited from the foregoing activities and relationships with
any person or entity which competes with Employer, regardless of
the geographic location of such person or entity.
7. Non-Disclosure; Non-Solicitation. Except in the
performance of servicing customers of Employer, at no time
during the Term of Employment or at anytime thereafter shall
Employee, individually or jointly with others, for the benefit
of Employee or any third party, publish, disclose, use or
authorize anyone else to publish, disclose or use, any secret or
confidential material or information regarding the business
methods, business policies, procedures, techniques or trade
secrets, or other knowledge or processes of or developed by
Employer (and/or any other Employee or agent of Employer), any
affiliate of the employer, any entity in which the Employer has
an interest, including, without limitation, any secret or
confidential information relating to the business, customers,
financial position, trade or industrial practices, trade
secrets, technology or know-how of the Employer. Furthermore,
for a period of two (2) years commencing upon termination of
Employee's employment, Employee shall not solicit or contact, or
cause any other person or entity to solicit or contact, any
current customer of Employer at the time of termination.
8. Reasonableness of Restrictions: Reformation:
Enforcement. The parties hereto recognize and acknowledge that
the geographical and time limitations contained in Section 6 and
7 hereof (hereinafter "Restrictive Covenants") are reasonably
necessary to protect the Employer's legitimate business
interests and properly required for the adequate protection of
such business interests of Employer. Employee acknowledges that
the Employer will provide to Employee confidential information
concerning the Employer's business methods and operating
practices in reliance on the covenants contained in the
Restricted Covenants. It is agreed by the parties hereto that if
any portion of the restrictions contained in the Restrictive
Covenants. It is agreed by the parties hereto that if any
portion of the restrictions contained in the Restrictive
Covenants are held to be unreasonable, arbitrary, or against
public policy, then the restrictions shall be considered
divisible, both as to the time and to the geographical area,
with each month of the specified period being deemed a separate
period of time and each radius mile of the restricted territory
being deemed a separate geographic area, so that the lesser
period of time or geographical area shall remain effective so
long as the same is not unreasonable, arbitrary, or against
public policy. The parties hereto agree that in the event any
court of competent jurisdiction determines the specified period
or the specified geographical area of the restricted territory
to be unreasonable, arbitrary, or against public policy, a
lesser time period or geographical area which is determined to
be reasonable, non arbitrary, and not against public policy may
be enforced against Employee. If Employee shall violate any of
the covenants contained herein and if any court action is
instituted by the Employer to prevent or enjoin such violation,
then the period of time during which the Employer's business
activities shall be restricted, as provided in this Agreement,
shall be lengthened by a period of time equal to the period
between the date of the Employee's breach of the terms or
covenants contained in this Agreement and the date on which the
decree of the court disposing of the issued upon the merits
shall become final and not subject to further appeal.
9. No Remedy At Law. Employee agrees that the remedy at law
for any breach by Employee of the covenants contained in
Sections 6 and 7 will be inadequate and would be difficult to
ascertain and therefore, in the event of the breach or
threatened breach of any such covenants, the Employer, in
addition to any and all other remedies, shall have the right to
enjoin Employee from any threatened or actual activities in
violation thereof; and Employee hereby consents and agrees that
temporary and permanent injunctive relief may be granted in any
proceedings which might be brought to enforce any such covenants
without the necessity of proof of actual damages.
10. Representations of Employee. Employee hereby makes the
following representations to Employer, each of which is material
and is being relied on by Employer and shall be true as of the
date hereof and throughout the Term of Employment: a) Employment
Qualifications. Employee shall (i) use Employee's best efforts
to maintain qualifications as a president, (ii) is experienced
in administrative procedure, (iii) agrees to participate and
shall participate in a continuing education and/or training
programs, (iv) use Employee's best efforts as a president. b)
Factual Information. Any and all factual information furnished
by Employee to Employer is true and accurate in every material
respect as of the date on which such information was furnished.
c) Professional Conduct. Employee has and will continue to
conduct all activities in accordance and compliance with any and
all laws, regulations and ethical standards. d) Authority.
Employee has full power and authority to enter into this
Agreement and perform all obligations hereunder. The execution
and performance of this Agreement by Employee will not
constitute a breach or violation of any covenant, agreement or
contract to which Employee is a party or by which Employee is
bound.
11. Books, Office Equipment, Etc. a) Employee's Ownership.
All books, office equipment and other property furnished by
Employee shall remain Employee's property. b) Employer's
Ownership. All instruments, equipment, furniture, furnishings,
supplies, products, samples, forms, charts, logs, brochures,
client records, procedures, contracts and any other property,
materials or information furnished by Employer are and shall
remain the sole property of Employer. Upon termination of this
Agreement, Employee shall return all such property to Employer.
12. Assignability. This Agreement and the rights and duties
created hereunder shall not be assignable or delegable by
Employee. Employer may, at Employer's option and without consent
of Employee, assign its rights and duties hereunder to any
success or entity or transferee of Employer's assets.
13. Notices. All notices or other communications provided
for herein to be given or sent to a party by the other party
shall be deemed validly given or sent if in writing and mailed,
postage prepaid, by registered or certified United States mail,
addressed to the parties at their addresses herein above set
forth. Any party may give notice to the other parties at any
time, by the method specified above, of a change in the address
at which, or the person to whom, notice is to be addressed.
14. Severability. Each section, subsection and lesser
section of this Agreement constitutes a separate and distinct
undertaking, covenant or provision hereof. In the event that any
provision of this Agreement shall be determined to be invalid or
unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary
to render the same valid and enforceable provision shall be
deemed severed from this Agreement, but every other provision of
this Agreement shall remain in full force and effect.
15. Effect of Termination. The termination of this
Agreement, for whatever reason, shall not extinguish those
obligations of Employee specified in the Restrictive Covenants,
nor shall the same extinguish the right of either party to bring
an action, either in law or in equity, for breach of this
Agreement by the other party.
16. Waiver. The failure of a party to enforce any term,
provision or condition of this Agreement at any time or times
shall not be deemed a waiver of that term, provision or
condition for the future, nor shall any specific waiver of a
term, provision or condition at one time be deemed a waiver of
such term, provision or condition for any future time or times.
17. Parties. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their
heirs, personal representative, legal representative and proper
successors and assigns, as the case may be.
18. Governing Law. The laws of the State of Florida,
without giving effect to the principles of comity or conflicts
of laws thereof shall govern the validity, interpretation and
performance of this Agreement.
19. Captions. The captions of this Agreement have been
assigned thereto for convenience only, and shall not be
construed to the limit, define or modify the substantive terms
hereof.
20. Entire Agreement; Counterparts. This Agreement
constitutes the entire agreement between the parties hereto
concerning the subject matter hereof, and supersedes all prior
agreements, memoranda, correspondence, conversations and
negotiations. This Agreement may be executed in several
counterparts that together shall constitute but one and the same
Agreement.
21. Costs of Enforcement. In the event it is necessary for
any party to retain the services of an attorney or to initiate
legal proceedings to enforce the terms of this Agreement, the
prevailing party shall be entitled to recover from the non-
prevailing party, in addition to all other remedies, all costs
of such enforcement, including reasonable attorneys' fees and
including trial and appellate proceedings.
22. Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and
any other gender, masculine, feminine or neuter, as the context
indicates is appropriate. IN WITNESS WHEREOF, the undersigned
have hereunto set their hands on the date first above written.
Signed in the presence of: Employee:
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As to Employer Xxxxxx Xxxxxxx
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As to Employee
Signed in the presence of:
ATTEST: Employer:
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Secretary By: Director for Diamond
Powersports, Inc.
