EMPLOYMENT
AGREEMENT
This
EMPLOYMENT
AGREEMENT
(“Agreement”), dated as of April 1. 2005 (the “Effective Date”), is made by and
between SECURED DIVERSIFIED INVESTMENT, LTD., a Nevada corporation, located
at
4940 Campus Drive, Newport Beach, CA 92660 and hereafter referred to as “the
Company”, and Gernot
Trolf,
whose
address is 809 ½ El Carmel Place, San Diego, CA 92109 hereinafter referred to as
“Employee”, based upon the following:
RECITALS
WHEREAS,
the
Company wishes to retain the services of Employee, and Employee wishes to render
services to the Company, as its Director of Operations;
WHEREAS,
the
Company and Employee wish to set forth in this Agreement the duties and
responsibilities that Employee has agreed to undertake on behalf of the
Company;
WHEREAS,
the
Company and Employee intend that this Agreement will supersede and replace
any
and all other employment agreements for employment entered into by and between
the Company and Employee, and that upon execution of this Agreement, any such
employment agreements or arrangements shall have no further force or
effect.
THEREFORE,
in
consideration of the foregoing and of the mutual promises contained in this
Agreement, the Company and Employee (who are sometimes individually referred
to
as a “party” and collectively referred to as the “parties”) agree as
follows:
AGREEMENT
The
Company hereby employs Employee pursuant to the terms of this Agreement and
Employee hereby accepts employment with the Company pursuant to the terms of
this Agreement for the period beginning on April 1, 2005 and ending on April
1,
2007 (the “Term”).
Subject
to Sections 8, 9, and 10, this Agreement will be renewed for one year after
April 1, 2006, upon review by mangement, unless either party gives notice to
the
other, at least sixty (60) days prior to the expiration of the specified period
that the party desires to renegotiate this Agreement.
Employee
shall report to the Company’s CEO, President, and Board of Directors. Employee
shall devote his entire productive time, ability, and attention to the Company’s
business during the term of this Agreement. In his capacity as Director of
Operations, Employee shall be primarily responsible for the day to day
operations and administration of the business of the Company as directed by
the
President. Employee shall do and perform all services, acts, or things necessary
or advisable to discharge his duties under this Agreement, an
such
other duties as are commonly performed by an employee of his rank in a publicly
traded corporation or which may, from time to time, be prescribed by the Company
through its President and Board of Directors. Furthermore, Employee agrees
to
cooperate with and work to the best of his ability with the Company’s management
team, which includes the Board of Directors and the officers and other
employees, to continually improve the Company’s reputation in its industry for
quality products and performance.
(a) Annual
Salary.
During
the Term of this Agreement, the Company shall pay to Employee an annual base
salary in the amounts set forth below (the “Annual Salary”). The Annual Salary
shall be:
(i) $72,000.00
for the first year.
(ii) $77,760.00
for the second year.
The
Annual Salary shall be paid to Employee in equal installments in accordance
with
the periodic payroll practices of the Company for Employee
employees.
If
the
Company is unable to pay a portion or all of the Annual Salary in cash, the
Employee may elect to receive all or any portion of the Annual Salary in shares
of the Company’s common stock. The number of shares of common stock to be issued
to Employee shall be determined on the last day of each fiscal quarter, and
shall be calculated using the average of the closing bid and ask prices of
the
common stock on that date. If no shares of the Company’s common stock trade on
that date, then the Company shall use the average of the closing bid and ask
prices of the common stock on the last day immediately prior to the last day
of
the fiscal quarter during which the common stock was traded. All such shares
of
Company common stock shall be issued pursuant to the Company’s 2003 Employee
Stock Incentive Plan (the “2003 Plan”) to be adopted by the Board of Directors
and shareholders.
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REIMBURSEMENT
OF BUSINESS EXPENSES.
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The
Company shall promptly reimburse Employee for all reasonable business expenses
incurred by Employee in connection with the business of the Company. However,
each such expenditure shall be reimbursable only if Employee furnishes to the
Company adequate records and other documentary evidence required by federal
and
state statutes and regulations issued by the appropriate taxing authorities
for
the substantiation of each such expenditure as an income tax
deduction.
Employee
shall be entitled to three (3) weeks vacation time each year without loss of
compensation.
Employee
agrees promptly and faithfully to comply with all present and future policies,
requirements, directions requests and rules and regulations of the Company
in
connection with the Company’s business.
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TERMINATION
BY THE COMPANY FOR CAUSE.
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The
Company reserves the right to declare Employee in default of this Agreement
if
(each a “Cause”):
(a) Employee
willfully breaches or habitually neglects the duties which he is required to
perform under the terms of this Agreement, or
(b) Employee
commits such acts of dishonesty, fraud, misrepresentation, gross negligence
or
willful misconduct which results in material harm to the Company or its
business, or
(c) Employee
violates any law, rule or regulation applicable to the Company or Employee
relating to the business operations of the Company that may have a material
adverse effect upon the Company’s business, operations, or condition (financial
or otherwise).
The
Company may terminate this Agreement for Cause immediately upon written notice
of termination to Employee; provided, however, if the Company terminates this
Agreement due to Employee’s willful breach or habitual neglect of the duties he
is required to perform, then Employee shall be entitled to a period of thirty
(30) days from the date of the written notice of termination to cure said
breach. Except as otherwise set forth in this Section 8, upon any termination
for Cause, the obligations of Employee and the Company under this Agreement
shall immediately cease. Such termination shall be without prejudice to any
other remedy to which the Company may be entitled either at law, in equity,
or
under this Agreement. If Employee’s employment is terminated pursuant to this
Section 8, the Company shall pay to Employee (i) Employee’s accrued but unpaid
Annual Salary and vacation pay through the effective date of the
termination;(ii) Employee’s accrued but unpaid Annual Bonus, if any; and (iii)
business expenses incurred prior to the effective date of termination and shall
transfer to Employee any stock earned but unissued pursuant to Section 3(e).
Employee shall not be entitled to continue to participate in any employee
benefit plans except to the extent provided in such plans for terminated
participants, or as may be required by applicable law.
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TERMINATION
BY THE COMPANY WITHOUT CAUSE.
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(a) Death.
Employee’s employment shall terminate upon the death of Employee. Upon such
termination, the obligations of Employee and the Company under this Agreement
shall immediately cease. Upon such termination the obligations of Employee
and
the Company under this Agreement shall immediately cease.
(b) Disability.
The
Company reserves the right to terminate Employee’s employment upon ten (10) days
written notice if, for a period of ninety (90) days, Employee is prevented
from
discharging his duties under this Agreement due to any physical or mental
disability unless agreed by the Company. Except as otherwise set forth in
Section 11 below, upon such termination the obligations of Employee and the
Company under this Agreement shall immediately cease.
(c) Election
By the Company.
The
Company may terminate Employee’s employment upon not less than thirty (30) days
written notice by the Company to Employee. Upon such termination the obligations
of Employee and the Company under this Agreement shall immediately cease. The
Company is not bound for and the employee is not entitled to severance of more
than 6 months salary.
| 9. |
TERMINATION
BY EMPLOYEE.
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(a) Election
By Employee.
Employee’s employment may be terminated at any time by Employee upon not less
than thirty (30) days written notice by Employee to the Board. Except as
otherwise set forth in this paragraph (a), upon such termination the obligations
of Employee and the Company under this Agreement shall immediately cease. In
the
event of a termination pursuant to this paragraph, the Company shall pay to
Employee (i) Employee’s accrued but unpaid Annual Salary and vacation pay
through the effective date of the termination; (ii) Employee’s accrued but
unpaid Annual Bonus, if any; and (iii) business expenses incurred prior to
the
effective date of termination and shall transfer to Employee any stock earned
but unissued pursuant to Section 3(e). Employee shall not be entitled to
continue to participate in any employee benefit plans except to the extent
provided in such plans for terminated participants, or as may be required by
applicable law.
(b) Termination
By Employee For Good Reason.
Employee may terminate this Agreement immediately based on his reasonable
determination that one of the following events has occurred:
(i) The
Company intentionally and continually breaches or wrongfully fails to fulfill
or
perform (A) its material obligations, promises or covenants under this
Agreement; or (B) any material warranties, obligations, promises or covenants
in
any agreement (other than this Agreement) entered into between the Company
and
Employee, without cure, if any, as provided in such agreement;
(ii) the
Company intentionally requires Employee to commit or participate in any felony
or other serious crime; and/or
(iii) the
Company engages in other conduct constituting legal cause for
termination.
Upon
such
termination the obligations of Employee and the Company under this Agreement
shall immediately cease.
| 10. |
EFFECT
OF TERMINATION ATTRIBUTABLE TO DEATH OR
DISABILITY.
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In
the
event Employee’s employment is terminated due to Employee’s death or disability,
then:
(a) The
Company shall pay Employee’s accrued but unpaid Annual Salary and vacation time
through the effective date of the termination.
(b) The
Company shall reimburse Employee for any business expenses incurred prior to
the
effective date of the termination;
(a) Preparation
of Agreement.
It is
acknowledged by each party that such party either had separate and independent
advice of counsel or the opportunity to avail itself or himself of the same.
In
light of these facts it is acknowledged that no party shall be construed to
be
solely responsible for the drafting hereof, and therefore any ambiguity shall
not be construed against any party as the alleged draftsman of this
Agreement.
(b) Cooperation.
Each
party agrees, without further consideration, to cooperate and diligently perform
any further acts, deeds and things and to execute and deliver any documents
that
may from time to time be reasonably necessary or otherwise reasonably required
to consummate, evidence, confirm and/or carry out the intent and provisions
of
this Agreement, all without undue delay or expense.
(c) Interpretation.
(i)
Entire
Agreement/No Collateral Representations.
Each
party expressly acknowledges and agrees that this Agreement, including all
exhibits attached hereto: (1) is the final, complete and exclusive statement
of
the agreement of the parties with respect to the subject matter hereof; (2)
supersedes any prior or contemporaneous agreements, promises, assurances,
guarantees, representations, understandings, conduct, proposals, conditions,
commitments, acts, course of dealing, warranties, interpretations or terms
of
any kind, oral or written (collectively and severally, the “Prior Agreements”),
and that any such prior agreements are of no force or effect except as expressly
set forth herein; and (3) may not be varied, supplemented or contradicted by
evidence of Prior Agreements, or by evidence of subsequent oral agreements.
Any
agreement hereafter made shall be ineffective to modify, supplement or discharge
the terms of this Agreement, in whole or in part, unless such agreement is
in
writing and signed by the party against whom enforcement of the modification
or
supplement is sought.
(i) Waiver.
No
breach of any agreement or provision herein contained, or of any obligation
under this Agreement, may be waived, nor shall any extension of time for
performance of any obligations or acts be deemed an extension of time for
performance of any other obligations or acts contained herein, except by written
instrument signed by the party to be charged or as otherwise expressly
authorized herein. No waiver of any breach of any agreement or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach
thereof, or a waiver or relinquishment of any other agreement or provision
or
right or power herein contained.
(ii) Remedies
Cumulative.
The
remedies of each party under this Agreement are cumulative and shall not exclude
any other remedies to which such party may be lawfully entitled.
(iii) Severability.
If any
term or provision of this Agreement or the application thereof to any person
or
circumstance shall, to any extent, be determined to be invalid, illegal, or
unenforceable under present or future laws effective during the term of this
Agreement, then and, in that event: (A) the performance of the offending term
or
provision (but only to the extent its application is invalid, illegal or
unenforceable) shall be excused as if it had never been incorporated into this
Agreement, and, in lieu of such excused provision, there shall be added a
provision as similar in terms and amount to such excused provision as may be
possible and legal, valid and enforceable, and (B) the remaining part of this
Agreement (including the application of the offending term or provision to
persons or circumstances other than those as to which it is held invalid,
illegal or unenforceable) shall not be affected thereby and shall continue
in
full force and effect to the fullest extent provided by law.
(iv) No
Third Party Beneficiary.
Notwithstanding anything else herein to the contrary, the parties specifically
disavow any desire or intention to create any third party beneficiary
obligations, and specifically declare that no person or entity, other than
as
set forth in this Agreement, shall have any rights hereunder or any right of
enforcement hereof.
(v) Heading;
References; Incorporation; Gender.
The
headings used in this Agreement are for convenience and reference purposes
only,
and shall not be used in construing or interpreting the scope or intent of
this
Agreement or any provision hereof. References to this Agreement shall include
all amendments or renewals thereof. Any exhibit referenced in this Agreement
shall be deemed to include the other gender, including neutral genders or
genders appropriate for entities, if applicable, and the singular shall be
deemed to include the plural, and vice versa, as the context
requires.
(d) Enforcement.
(i) Applicable
Law.
This
Agreement and the rights and remedies of each party arising out of or relating
to this Agreement (including, without limitation, equitable remedies) shall
be
solely governed by, interpreted under, and construed and enforced in
accordance
with the laws (without regard to the conflicts of law principles thereof) of
the
State of California, as if this agreement were made, and as if its obligations
are to be performed, wholly within the State of California.
(ii) Consent
to Jurisdiction; Service of Process.
Any
action or proceeding arising out of or relating to this Agreement shall be
filed
in and heard and litigated solely before the state courts of California located
within the County of Orange.
(e) No
Assignment of Rights or Delegation of Duties by
Employee.
Employee’s rights and benefits under this Agreement are personal to him and
therefore (i) no such right or benefit shall be subject to voluntary or
involuntary alienation, assignment or transfer; and (ii) Employee may not
delegate his duties or obligations hereunder.
(f) Notices.
Unless
otherwise specifically provided in this Agreement, all notices, demands,
requests, consents, approvals or other communications (collectively and
severally called “Notices”) required or permitted to be given hereunder, or
which are given with respect to this Agreement, shall be in writing, and shall
be given by: (A) personal delivery (which form of Notice shall be deemed to
have
been given upon delivery), (B) by telegraph or by private airborne/overnight
delivery service (which forms of Notice shall be deemed to have been given
upon
confirmed delivery by the delivery agency), (C) by electronic or facsimile
or
telephonic transmission, provided the receiving party has a compatible device
or
confirms receipt thereof (which forms of Notice shall be deemed delivered upon
confirmed transmission or confirmation of receipt), or (D) by mailing in the
United States mail by registered or certified mail, return receipt requested,
postage prepaid (which forms of Notice shall be deemed to have been given upon
the fifth (5th)
business day following the date mailed). Each party, and their respective
counsel, hereby agrees that if Notice is to be given hereunder by such party’s
counsel, such counsel may communicate directly with all principals, as required
to comply with the foregoing notice provisions. Notices shall be addressed
to
the address hereinabove set forth in the introductory paragraph of this
Agreement, or to such other address as the receiving party shall have specified
most recently by like Notice, with a copy to the other parties hereto. Any
Notice given to the estate of a party shall be sufficient if addressed to the
party as provided in this subparagraph.
(g) Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument, binding on all parties hereto. Any signature page of this Agreement
may be detached from any form hereto by having attached to it one or more
additional signature pages.
(h) Execution
by All Parties Required to be Binding; Electronically Transmitted
Documents.
This
Agreement shall not be construed to be an offer and shall have no force and
effect until this Agreement is fully executed by all parties hereto. If a copy
or counterpart of this Agreement is originally executed and such copy or
counterpart is thereafter transmitted electronically by facsimile or similar
device, such facsimile document shall for all purposes be treated as if manually
signed by the party whose facsimile signature appears.
In
witness hereof, the parties execute this Employment Agreement as of the date
first written above.
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SECURED
DIVERSIFIED INVESTMENT, LTD.
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EMPLOYEE
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By:/s/
Clifford L.
Strand
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By:
/s/ Gernot
Trolf
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Clifford L. Strand
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Gernot Trolf
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Title:
President
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June
29/ 2005 |
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