FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
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THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT has been executed this 31st
day of September, 2001, by and between CARL E. DILLEY, an individual, residing
at 279 Atlantic Avenue, Sunny Isles Beach, Florida 33160 ("Employee") and E-REX,
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INC., a Nevada corporation, having its principal place of business at 11645
Biscayne Boulevard, Suite 210, Miami, Florida 33181 ("Company").
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R E C I T A L S:
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A. Employee and Company executed that certain Employment Agreement (the
"Employment Agreement") dated April 1, 2000, whereunder Company agreed to employ
Employee as its President and Chief Executive Officer, and Employee accepted
such employment, subject and pursuant to the terms, conditions and provisions
thereof.
B. Employee and Company now desire to amend the Employment Agreement as
provided herein.
T E R M S:
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NOW THEREFORE, in consideration of the premises contained herein and other
good and valuable consideration, the receipt, adequacy and sufficiency of which
are hereby acknowledged, Employee and Company agree as follows:
1. Term. The term of the Employment Agreement shall be extended for an
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additional two year period, such that the Employment Agreement shall now expire
at the end of the day on May 30, 2004.
2. Compensation and Benefits. Effective as of the date hereof, in
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addition to any compensation due Employee under the Employment Agreement or
otherwise and except as otherwise provided herein, Employee shall be entitled to
the following compensation and benefits:
A. Employee's salary shall increase by 15% over the prior year's
salary, effective April 1, 2002 and each April 1 thereafter.
B. Company shall provide to Employee, without cost, or reimburse
Employee 100% of the cost, of health insurance, effective April 1, 2002.
C. Employee shall be entitled to an annual bonus to be determined by
the board of Directors, which bonus may be paid either in cash or common
stock registered on Form S-8.
D. The amount of Employee's vacation shall increase by one (1) week
for each year of completed service, effective April 1, 2002 and each
April 1 thereafter, up to a maximum of six (6) weeks of paid vacation.
E. Employee shall be entitled to participate in any bonus, profit
sharing or 401(K) program sponsored by Company and in any other benefit or
perquisite that Company may offer to its employees.
Except as modified by this Section 2, the terms of compensation and benefits
provided Employee under the Employment Agreement shall continue in full force
and effect and be unchanged.
3. Issuances of Additional Shares.
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A. Promptly upon the full execution of this Amendment, Company shall
issue to Employee warrants to purchase a number of shares of its common
stock having an aggregate market value based on the bid price at the time
of exercise of $128,700.00 to supplement the depreciation of the stock
compensation previously paid to Employee (as provided by the Employment
Agreement) and as additional compensation in order to cover the tax
liabilities generated by the payment in stock rather than cash required by
Company. The warrants shall have a two year term and be exercisable upon
written notice to Company setting forth an exercise effective date, at a
price that is 50% of the average closing bid price for the five trading
days immediately preceding the exercise effective date (the fifth day in
the average calculation being one day prior to the exercise date).
B. Promptly upon the full execution of this Amendment, Company shall
issue to Employee 90,000 shares of its common stock as additional
compensation in order to account for the dilution of Employee's original
stock position (as contemplated by the Employment Agreement).
C. The foregoing shares of stock shall be immediately, or shall have
been prior to delivery, registered with the Securities and Exchange
Commission on Form S-8 or otherwise, so that such shares shall be
immediately free trading and able to be sold on the open market upon
receipt.
4. Share Adjustment in the Event of Devaluation. To the extent not
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otherwise addressed in the Employment Agreement, in the event the aggregate
market value of any shares issued pursuant to the Employment Agreement, as
amended by this Amendment, declines after issuance, then Company shall from
time-to-time as reasonably appropriate (but in no event less frequently than is
necessary to provide periodic payments equal to the salary and other sums then
due) issue to Employee additional shares of its common stock, registered or to
be registered on Form S-8 as provided above, to compensate Employee for any lost
value.
5. Miscellaneous.
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A. The Employment Agreement, as amended by this Amendment contains
that entire agreement and understanding between the parties and supersedes
any other proposals, negotiations, oral or written agreements and
understandings related to the subject matter hereof. Except as amended
hereby, the Employment Agreement, and all of its terms, conditions and
provisions, are unchanged and continue in full force and effect.
B. This Amendment may be executed in one or more counterparts, each
of which shall be deemed an original and together shall constitute one and
the same instrument.
C. In the event it becomes necessary for either party to employ the
services of an attorney or submit this Agreement to litigation in order to
enforce the terms hereof, the prevailing party shall be entitled to
reimbursement for all reasonable costs related thereto, including
reasonable attorneys' fees and costs.
D. Neither this Agreement, nor any obligation hereunder, may be
assigned, transferred or delegated by either party without the prior
written consent of the non-assigning/non-delegating party.
E. The interpretation and enforcement of this Amendment shall be
construed in accordance with, and governed under, Florida law, and any
action taken with respect hereto shall be filed in a court of competent
jurisdiction in Dade County, Florida.
[SIGNATURES ON THE FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year first above written.
EMPLOYEE:
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/s/ Carl E. Dilley
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Carl E. Dilley
COMPANY:
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E-REX, INC.,
a Nevada corporation
/s/ Donald A. Mitchell
By: ___________________________________
Donald A. Mitchell, Chairman