Exhibit 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this 1 day
of January, 2002 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 (2) year (hereinafter the "Term of Employment") commencing the1
day of January, 2002 ("hereinafter the "Effective Date") through the 1day of
January, 2004. 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 $78,650.00 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 2004 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 (21) 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.
