EXHIBIT 10.11
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is entered into effective
as of October 8, 2003 (the "Effective Date"), by and between ORIGEN FINANCIAL,
INC., a Delaware corporation ("Parent"), ORIGEN FINANCIAL L.L.C., a Delaware
limited liability company (the "Company") and J. XXXXX XXXXXXX (the
"Executive").
W I T N E S S E T H:
WHEREAS, Company desires to employ the Executive, and the Executive
desires to be employed by Company, on the terms and subject to the conditions
set forth below.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Agreement, the parties agree as follows:
1. Employment.
(a) Company agrees to employ the Executive and the
Executive accepts the employment, on the terms and subject to the conditions set
forth below. During the term of employment hereunder, the Executive shall serve
as the Head of Operations and President of Company, and shall do and perform
diligently all such services, acts and things as are customarily done and
performed by the Head of Operations and President of companies in similar
business and in size to Company, together with such other duties as may
reasonably be requested from time to time by the Board of Managers of Company
(the "Board"), which duties shall be consistent with the Executive's positions
as set forth above. Executive shall also serve as the Head of Operations and
President of Parent without additional compensation therefor.
(b) For service as an officer and employee of Company,
the Executive shall be entitled to the full protection of the applicable
indemnification provisions of the Certificate of Organization and Operating
Agreement of Company, as they may be amended from time to time. Company agrees
that the Executive will be named as an additional insured under Company's and/or
Parent's Directors' and Officers' Errors and Omissions Insurance during his
employment hereunder.
2. Term of Employment.
Subject to the provisions for termination provided below, the
term of the Executive's employment under this Agreement shall commence on the
date of this Agreement and shall continue thereafter for a period of three
years; provided however, that the term of this Agreement shall be automatically
extended for successive terms of one year each, unless either party notifies the
other party in writing of its desire to terminate this Agreement at least 180
days before the end of the term then in effect. The date that this Agreement is
scheduled to expire in accordance with the foregoing sentence is referred to as
the "Contract Term Date."
3. Devotion to Company's Business.
The Executive shall devote his entire productive time, ability
and attention to the business of Company and Parent during the term of this
Agreement; however, the expenditure of reasonable amounts of time to various
charitable and other community activities, or to the Executive's own personal
investments and projects, provided the amount of time so devoted does not
materially impair, detract or adversely affect the performance of the
Executive's duties under this Agreement, shall not be deemed a breach of this
Agreement.
4. Compensation.
(a) During the term of this Agreement, Company shall pay
or provide, as the case may be, to the Executive the compensation and other
benefits and rights set forth in Sections 4, 5 and 6 of this Agreement.
(b) Base Compensation. As compensation for the services
to be performed hereafter, Company shall pay to the Executive, during his
employment hereunder, a base salary (the "Base Salary") payable in accordance
with Company's usual pay practices (and in any event no less frequently than
monthly) at the rate of:
(i) Two Hundred Five Thousand Dollars ($205,000) for
the first year;
(ii) Two Hundred Fifteen Thousand Dollars ($215,000)
for the second year; and
(iii) Two Hundred Twenty-five Thousand Dollars
($225,000) thereafter.
(c) Incentive Compensation. Executive shall be eligible
to receive an award under any bonus plan adopted by the Board of Parent which
may be established for the payment of an annual incentive bonus to the Executive
on the terms and conditions set forth therein and shall also be eligible to
receive such other bonus as determined by Parent's Board or compensation
committee (collectively, "Incentive Compensation"). Employee's opportunity for
Incentive Compensation hereunder shall be up to 100% of his Base Salary.
(d) Disability. During any period that the Executive
fails to perform his duties hereunder as a result of incapacity due to physical
or mental illness (the "Disability Period"), the Executive shall continue to
receive his full Base Salary, bonuses and other benefits at the rate in effect
for such period until his employment is terminated by Company pursuant to
Section 7(a)(iii) hereof; provided, however, that payments so made to the
Executive during the Disability Period shall be reduced by the sum of the
amounts, if any, which were paid to the Executive at or prior to the time of any
such payment under disability benefit plans of Company.
2
5. Benefits.
(a) Insurance. Company shall provide to the Executive
life, disability, medical, hospitalization and dental insurance for himself, his
spouse and eligible family members as may be determined by the Board to be
consistent with industry standards.
(b) Benefit Plans. The Executive, at his election, may
participate, during his employment hereunder, in all retirement plans, 401(K)
plans and other benefit plans of Company generally available from time to time
to other executive employees of Company, Parent or their subsidiaries (the
"Subsidiaries") and for which the Executive qualifies under the terms of the
plans (and nothing in this Agreement shall or shall be deemed to in any way
affect the Executive's right and benefits under any such plan except as
expressly provided herein). The Executive shall also be entitled to participate
in any equity, stock option or other employee benefit plan that is generally
available to senior executives, as distinguished from general management, of
Company, Parent or the Subsidiaries. The Executive's participation in and
benefits under any such plan shall be on the terms and subject to the conditions
specified in the governing document of the particular plan.
(c) Annual Vacation. The Executive shall be entitled to
four weeks vacation time each year without loss of compensation. The Executive
may be absent from his employment for vacation on dates to be mutually agreed
upon by Company and the Executive, and approval of Company shall not be
unreasonably withheld. In the event that the Executive is unable for any reason
to take the total amount of vacation time authorized herein during any year, he
may accrue such unused time and add it to the vacation time for any following
year. Upon any termination of this Agreement for any reason whatsoever, accrued
and unused vacation time shall be paid to the Executive within ten days of such
termination based on the Base Salary in effect on the date of such termination;
provided, however, that no more than 20 days of accrued vacation time may be
carried over at any time.
6. Reimbursement of Business Expenses.
Company shall reimburse the Executive or provide him with an
expense allowance during the term of this Agreement for travel, entertainment,
business development and other expenses reasonably and necessarily incurred by
the Executive in connection with Company's business. The Executive shall furnish
such documentation with respect to reimbursement to be paid hereunder as Company
shall reasonably request.
7. Termination of Employment.
(a) The Executive's employment under this Agreement may
be terminated:
(i) by either the Executive or Company at any time
for any reason whatsoever or for no reason upon not less than 60 days
written notice;
3
(ii) by Company at any time for "cause" as defined
below, without prior notice;
(iii) by Company upon the Executive's "permanent
disability" (as defined below) upon not less than 30 days written
notice; and
(iv) upon the Executive's death.
(b) For purposes hereof, for "cause" shall mean the
material breach of any provision of this Agreement by the Executive which
breach, if curable, continues uncured for a period of 20 days after the
Executive's receipt of written notice of such breach from Company, or any action
of the Executive (or the Executive's failure to act), which, in the reasonable
determination of the Board of Parent or the Board of Company, involves fraud, or
moral turpitude, or which, if generally known, would have a material adverse
effect on Company, Parent and/or either of its reputation.
(c) For purposes hereof, the Executive's "permanent
disability" shall be deemed to have occurred after 120 consecutive days during
which the Executive, by reason of his physical or mental disability or illness,
shall have been unable to discharge his duties under this Agreement. The date of
permanent disability shall be such 121st day. In the event either Company or the
Executive, after receipt of notice of the Executive's permanent disability from
the other, disputes that the Executive's permanent disability shall have
occurred, the Executive shall promptly submit to a physical examination by the
chief of medicine of any major accredited hospital in Michigan and, unless such
physician shall issue his written statement to the effect that in his opinion,
based on his diagnosis, the Executive is capable of resuming his employment and
devoting his full time and energy to discharging his duties within 30 days after
the date of such statement, such permanent disability shall be deemed to have
occurred.
8. Compensation Upon Termination or Disability.
(a) If Company terminates the Executive's employment
under this Agreement without "cause" pursuant to paragraph 7(a)(i) hereof or if
Executive voluntarily terminates this Agreement for Good Reason (as defined
below), or if the Company notifies the Executive of its desire to terminate this
Agreement pursuant to paragraph 2 hereof, the Executive shall be entitled to any
unpaid Base Salary, Incentive Compensation and benefits accrued and earned by
him hereunder up to and including the effective date of such termination, which
shall be paid by Company to the Executive within 30 days of the effective date
of such termination, and, if the Executive fully complies with paragraph 10 of
this Agreement, Company shall pay the Executive during each of the 12 months
following the effective date of termination (i) an amount equal to a pro rata
portion of the annual Base Salary that would otherwise be payable during such
month (the "Severance Payment"), and (ii) the Executive's premium for medical
insurance benefits in effect on the date of termination (provided that such
12-month period counts against, and is not in addition to, the 18-month
statutory COBRA period). For purposes hereof, "Good Reason" means the occurrence
of the following events: (y) a substantial adverse change, not consented to by
Executive, in the nature or scope of Executive's responsibilities, authority or
duties hereunder, or (z) the requirement that Executive relocate to another
location of the Company
4
outside a sixty (60) mile radius from the location of Executive's office as of
the date hereof for a period of greater than 30 days. Notwithstanding the
foregoing, Company, in its sole discretion, may elect to make the Severance
Payment to the Executive in one lump sum due within 30 days of the Executive's
termination of employment.
(b) In the event of termination of the Executive's
employment under this Agreement for "cause" or if the Executive voluntarily
terminates his employment hereunder, the Executive shall be entitled to no
further compensation or other benefits under this Agreement, except only as to
any unpaid Base Salary, Incentive Compensation and benefits accrued and earned
by him hereunder up to and including the effective date of such termination.
(c) In the event of termination of the Executive's
employment under this Agreement due to the Executive's permanent disability or
death, the Executive (or his successors and assigns in the event of his death)
shall be entitled to any unpaid Base Salary, Incentive Compensation and benefits
accrued and earned by him hereunder up to and including the effective date of
such termination, which shall be paid by Company to the Executive or his
successors and assigns, as appropriate, within 30 days of the effective date of
such termination, and Company shall pay the Executive monthly an amount equal to
one-twelfth of the Base Salary that would otherwise be payable under this
Agreement for a period of 12 months if the Executive fully complies with
paragraph 10 of this Agreement (the "Disability Payment"); provided, however,
that payments so made to the Executive shall be reduced by the sum of the
amounts, if any, which: (i) were paid to the Executive at or prior to the time
of any such payment under disability benefit plans of Company, and (ii) did not
previously reduce the Base Salary, Incentive Compensation and other benefits due
the Executive under paragraph 4(d) of this Agreement. Notwithstanding the
foregoing, Company, in its sole discretion, may elect to make the Disability
Payment to the Executive in one lump sum due within 30 days of the Executive's
termination of employment.
(d) Regardless of the reason for termination of the
Executive's employment hereunder, Incentive Compensation and benefits shall be
prorated and paid for any period of employment not covering an entire year of
employment.
(e) Notwithstanding anything to the contrary in this
paragraph 8, Company's obligation to pay, and the Executive's right to receive,
any compensation under this paragraph 8, including, without limitation, the
Severance Payment and the Disability Payment, shall terminate upon the
Executive's breach of any provision of paragraph 10 hereof. In addition, the
Executive shall promptly forfeit any compensation received from Company under
this paragraph 8, including, without limitation, the Severance Payment and the
Disability Payment, upon the Executive's breach of any provision of paragraph 10
hereof.
(f) Notwithstanding anything to the contrary in this
paragraph 8, all Severance Payments are contingent on Executive signing a
release of claims, substantially in the form attached hereto as Exhibit A.
9. Stock Options. In the event of termination of the Executive's
employment under this Agreement for "cause", all stock options in Parent or
other stock-based compensation awarded to the Executive shall lapse and be of no
further force or effect whatsoever. In the event
5
that the Company terminates the Executive's employment under this Agreement
without "cause", a stock option or award may be exercised within 90 days
following termination, but only to the extent it was otherwise exercisable at
the time of termination.
10. Covenant Not To Compete and Confidentiality.
(a) The Executive acknowledges Company's and Parent's
reliance and expectation of the Executive's continued commitment to performance
of his duties and responsibilities under this Agreement. In light of such
reliance and expectation on the part of Company and Parent, the Executive agrees
to the provisions set forth below:
(i) Executive shall not compete with the Company or
Parent as defined in this paragraph 10(a)(i), for a period commencing
on the Effective Date and ending upon:
(A) if this Agreement terminates on the
Contract Term Date having run its full course, the
first anniversary of the termination date,
(B) if this Agreement is terminated by the
Company under paragraph 7(a)(ii) or by Executive
under paragraph 7(a)(i), the later to occur of (I)
the Contract Term Date or (II) one year from the date
of termination, or
(C) The Company terminates this Agreement
under paragraph 7(a)(i), the first anniversary of the
termination date.
The phrase "shall not compete with the Company or
Parent" means that Executive shall not, directly or indirectly, engage
in, or have an interest in or be associated with (whether as an
officer, director, stockholder, partner, associate, employee,
consultant, owner or otherwise) any corporation, firm or enterprise
which is engaged in the manufactured home finance business or any other
business activity of the Company or Parent in which Executive has any
involvement during the term of this Agreement anywhere within the
continental United States or Canada (the "Business"); provided,
however, that Executive shall be permitted to make passive investments
in real estate and technology, active investments in real estate and
technology that do not interfere or conflict with the performance of
Executive's duties or directly compete with the Business, and passive
investments in the stock of any publicly traded business (including a
competitive business), so long as the stock investment in any
competitive business does not rise above one percent (1%) of the
outstanding shares of such business.
(ii) the Executive will not at any time, for so long
as any Confidential Information (as defined below) shall remain
confidential or otherwise remain wholly or partially protectable,
either during the term of this Agreement or thereafter, use or
disclose, directly or indirectly, to any person outside of Company,
Parent or any Affiliate any Confidential Information;
6
(iii) promptly upon the termination of this Agreement
for any reason, the Executive (or in the event of the Executive's
death, his personal representative) shall return to Company any and all
copies (whether prepared by or at the direction of Company or
Executive) of all records, drawings, materials, memoranda and other
data constituting or pertaining to Confidential Information;
(iv) for a period commencing on the date of this
Agreement and ending upon the expiration of 12 months from the
termination of this Agreement for any reason, or in the event that the
Executive is terminated without "cause", then for such period as the
Executive is covered by the Severance Payment, the Executive shall not,
either directly or indirectly, divert, or by aid to others, do anything
which would tend to divert, from Company, Parent or any Affiliate any
trade or business with any customer or supplier with whom the Executive
had any contact or association during the term of the Executive's
employment with Company or with any party whose identity or potential
as a customer or supplier was confidential or learned by the Executive
during his employment by Company; and
(v) for a period commencing on the date of this
Agreement and ending upon the expiration of 12 months from the
termination of this Agreement for any reason, or in the event that the
Executive is terminated without "cause", then for such period as the
Executive is covered by the Severance Payment, the Executive shall not,
either directly or indirectly, solicit for employment any person with
whom the Executive was acquainted while in Company's employ.
As used in this Agreement, the term "Confidential Information" shall
mean all business information of any nature and in any form which at the time or
times concerned is not generally known to those persons engaged in business
similar to that conducted or contemplated by Company, Parent or any Affiliate
(other than by the act or acts of an employee not authorized by Company to
disclose such information) and which relates to any one or more of the aspects
of the present or past business of Company, Parent or any of the Affiliates or
any of their respective predecessors, including, without limitation, patents and
patent applications, inventions and improvements (whether or not patentable),
development projects, policies, processes, formulas, techniques, know-how, and
other facts relating to sales, advertising, promotions, financial matters,
customers, customer lists, customer purchases or requirements, and other trade
secrets.
(b) The Executive agrees and understands that the remedy
at law for any breach by him of this paragraph 10 will be inadequate and that
the damages flowing from such breach are not readily susceptible to being
measured in monetary terms. Accordingly, it is acknowledged that, upon adequate
proof of the Executive's violation of any legally enforceable provision of this
paragraph 10, Company shall be entitled to immediate injunctive relief and may
obtain a temporary order restraining any threatened or further breach. Nothing
in this paragraph 10 shall be deemed to limit Company's remedies at law or in
equity for any breach by the Executive of any of the provisions of this
paragraph 10 which may be pursued or availed of by Company.
7
(c) The parties acknowledge and agree that the covenants
set forth in this Section 10 above are reasonable and valid in geographical and
temporal scope and in all other respects. If any court determines that any
covenant set forth in this Section 10, or any portion of any such covenant, is
invalid or unenforceable, the remainder of the covenants set forth in this
Section 10 shall not be affected and shall be given full force and effect,
without regard to the invalid covenant or the invalid portion. If any court
determines that any covenant set forth in this Section 10, or any portion of any
such covenant, is unenforceable because of its duration or geographic scope,
such court shall have the power to reduce such duration or scope, as the case
may be, and to enforce such covenant or portion in such reduced form.
11. No Conflicting Agreements. The Executive represents and
warrants that other than his position as an executive of Parent, he is not a
party to any agreements, contracts, understandings or arrangements, whether
written or oral, in effect which would prevent him from rendering exclusive
services to Company during the term hereof, and that he has not made and will
not make any commitment to do any act in conflict with this Agreement.
12. Arbitration. Any dispute or controversy arising out of or
relating to this Agreement shall be settled finally and exclusively by
arbitration in the State of Michigan in accordance with the rules of the
American Arbitration Association then in effect. Such arbitration shall be
conducted by an arbitrator(s) appointed by the American Arbitration Association
in accordance with its rules and any finding by such arbitrator(s) shall be
final and binding upon the parties. Judgment upon any award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof, and the
parties consent to the jurisdiction of the Oakland County, Michigan Circuit
Court for this purpose. Nothing contained in this Section 12 shall be construed
to preclude Company from obtaining injunctive or other equitable relief to
secure specific performance or to otherwise prevent a breach or contemplated
breach of this Agreement by the Executive as provided in Section 10 hereof.
13. Notice. All notices, requests, consents and other
communications, required or permitted to be given hereunder to be given under
this Agreement shall be personally delivered in writing or shall have been
deemed duly given when received after it is posted in the United States mail,
postage prepaid, registered or certified, return receipt requested addressed as
follows:
If to Company:
Origen Financial L.L.C.
00000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
8
If to Parent:
Origen Financial, Inc.
00000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
If to the Executive:
J. Xxxxx Xxxxxxx
___________________________
___________________________
In all events, with a copy to:
Jaffe, Raitt, Heuer & Xxxxx,
Professional Corporation
Xxx Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Sugar
14. Miscellaneous.
(a) The provisions of this Agreement are severable and if
any one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions and any partially
unenforceable provision to the extent enforceable in any jurisdiction
nevertheless shall be binding and enforceable.
(b) The rights and obligations of Company under this
Agreement shall inure to the benefit of, and shall be binding on, Company and
its successors and assigns, and the rights and obligations (other than
obligations to perform services) of the Executive under this Agreement shall
inure to the benefit of, and shall be binding upon, the Executive and his heirs,
personal representatives and assigns. This Agreement is personal to Executive
and he may not assign his obligations under this Agreement in any manner
whatsoever.
(c) The failure of any party to enforce any provision or
protections of this Agreement shall not in any way be construed as a waiver of
any such provision or provisions as to any future violations thereof, nor
prevent that party thereafter from enforcing each and every other provision of
this Agreement. The rights granted the parties herein are cumulative and the
waiver of any single remedy shall not constitute a waiver of such party's right
to assert all other legal remedies available to it under the circumstances.
(d) This Agreement supersedes all agreements and
understandings between the parties and may not be modified or terminated orally.
No modification, termination or attempted waiver shall be valid unless in
writing and signed by the party against whom the same is sought to be enforced.
(e) This Agreement shall be governed by and construed
according to the laws of the State of Michigan.
9
(f) Captions and section headings used herein are for
convenience and are not a part of this Agreement and shall not be used in
construing it.
(g) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
[Signatures on following page]
10
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
effective as of the date first written above.
EXECUTIVE: COMPANY:
ORIGEN FINANCIAL L.L.C.,
a Delaware limited liability company
/s/ J. Xxxxx Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------------------- ------------------------------
J. Xxxxx Xxxxxxx Its: CEO
-----------------------------
PARENT:
ORIGEN FINANCIAL, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Its: CEO
-----------------------------
11
