AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (“Agreement”)
is made by and between Diamond I, Inc., a duly organized Delaware
corporation (“Employer”), and David Loflin, 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
provisio
