SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.3
SECOND 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,
this Second Amended and Restated Employment Agreement is intended to replace al
prior agreements between Employer and Employee; 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. Prior
Agreement. Under Employer’s prior agreement with Employee, Employer would owe
Employee approximately $325,000 on terms that have been determined by the board
of directors of Employer to be an impediment to Employer’s securing capital.
Employee has advised Employer that he is amenable to entering into this
Agreement, in order to assist Employer in its attempts to secure capital. In
consideration of Employee’s changing his legal position and entering into this
Agreement, Employer shall issue to Employee 7,000,000 restricted shares of
Employer’s common stock.
B. Salary.
Employee shall be paid as and for a salary the sum of $11,000 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.
C. Cellular
Phone. Employer shall provide Employee with a cellular phone for his use in
performing his responsibilities with Employer. In the alternative, Employer
shall pay Employee’s cellular phone expense.
D. Automobile.
Employer shall provide Employer with an automobile for Employee’s use in
performing his responsibilities with Employer.
E. Insurance
and Other Benefits. As further consideration for his covenants contained herein,
Employer will add Employee, including Employee's family, with such health,
dental and vision insurance as it offers other employees and other benefits,
including a 401(k) plan, as may be established by Employer from time to time
with respect to its employees in accordance with Employer's established
procedures. Employee shall be entitled to Directors' and Officers'
indemnification insurance coverage to the same extent as is provided to other
persons employed as officers of Employer.
F. Other
Compensation Plans. Employee shall be entitled to participate, to the same
extent as is provided to other persons employed by Employer, in any future stock
bonus plan, stock option plan or employee stock ownership plan of
Employer.
G. Other
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.
H. 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 three years, commencing
on April 15, 2009. This Agreement shall renew for an additional three-year
period, provided neither party hereto submits a written notice of termination
within ninety (90) days prior to the termination of the initial term
hereof.
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 14th
day of April, 2009.
By:
/s/ XXXX X. XXXXXXXXXXX
Xxxx
X. Xxxxxxxxxxx
President
/s/
XXXXX XXXXXX
Xxxxx
Xxxxxx, individually
Address
of Employee:
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