AGREEMENT OF EMPLOYMENT
EXHIBIT
10.3
THIS
AGREEMENT OF EMPLOYMENT (“Agreement”) is made and entered into in duplicate this
11th_ day of July 2007, by and between PERFORMANCE CAPITAL MANAGEMENT, LLC,
a
Limited Liability Company (“Employer”), and Xxxxx X. Xxxxxxxx
(“Executive”).
RECITALS
A. Employer
is a Limited Liability Company duly organized and validly existing pursuant
to
the laws of the State of California.
B. Employer
is in the business of acquiring, processing, servicing and collecting commercial
and consumer indebtedness.
C. Employer
desires to employ Executive, subject to the terms and conditions specified
in
this Agreement.
D. Executive
hereby accepts employment with Employer as Chief Operations Officer of Employer,
subject to the terms and conditions specified in this Agreement.
NOW,
THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE DEEMED
TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS, PROMISES,
UNDERTAKINGS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES SPECIFIED IN THIS
AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY
OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED LEGALLY AND
EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT AND WARRANT
AS FOLLOWS:
ARTICLE
I
TERM
OF EMPLOYMENT
Section1.1
Specified Term. Employer hereby employs Executive and
Executive hereby accepts employment with Employer for a period of five (5)
years
commencing on the date of execution and delivery of this Agreement.
ARTICLE
II
DUTIES
AND OBLIGATIONS OF EXECUTIVE
Section
2.1 General Duties. Executive shall serve as Chief
Operations Officer of PERFORMANCE CAPITAL MANAGEMENT, LLC, a California Limited
Liability Company. In Executive’s capacity as the chief Operations
Officer of Employer, Executive shall do and perform all services, acts, or
things necessary or appropriate to manage and conduct the financial and fiscal
affairs of Employer, subject at all times to the policies, directives and rules
established by the Board of Directors of Employer (“Board”), and to the consent
of the Board when required. The duties to be performed by Executive
shall be determined from time to time by the Board.
Section
2.2 Devotion to Employer’s Business.
A.
Exclusive Services. During his employment by the Employer, the Executive shall
not, without the express prior written consent of the Board of Directors, engage
directly or indirectly in any outside employment or consulting of any kind,
whether or not the Executive receives remuneration for such services, or in
any
other activity that relates to any line of business in which the Employer is
at
that time engaged or plans to engage in, or that would otherwise conflict with
the Executive’s employment obligations, contractual duties, or fiduciary
obligations to the Employer
Section
2.3 Competitive Activities. During the term of
this Agreement Executive shall not, directly or indirectly, whether as an
employee, employer, consultant, agent, principal, partner, stockholder,
corporate officer, director, or in any other individual or representative
capacity, engage or participate in any business that is in competition in any
manner whatsoever with the business of Employer. This provision
is intended by the Parties to be interpreted broadly and includes the array
of
activities carried out in the debt buying and collection industries, including
collecting as a third-party agency.
ARTICLE
III
OBLIGATIONS
OF EMPLOYER
Section
3.1 General Description. Employer shall provide
Executive with the compensation, incentives and benefits specified elsewhere
in
this Agreement.
Section
3.2 Office and Staff. Employer shall provide
Executive with equipment, supplies, facilities and services, suitable to
Executive’s position and adequate for the performance of Executive’s duties
created by the provisions of this Agreement.
Section
3.3 Reimbursement of Business Expenses. Executive
is authorized to incur reasonable business expenses for promoting the business
of Employer, including expenditures for entertainment, and travel in accordance
with the policies and practices of Employer then in
effect. Reimbursement shall be paid within two weeks of presentation
of expense statements or vouchers and such other supporting information as
Employer may reasonably require.
Section
3.4 Indemnification. Employer shall indemnify
Executive, if Executive is made a party to or threatened to be made a party
to,
or otherwise involved in, any proceeding commenced during the employment
term,
or after the employment term, because Executive is or was an employee or
agent
of Employer. The indemnification contemplated by the provisions of
this Section 3.4 shall include any and all expenses, judgments, fines,
penalties, settlements, and other amounts, actually and reasonably incurred
by
Executive in connection with the defense or settlement of any such proceeding;
provided, however, Executive shall have acted in good faith and in a manner
that
Executive reasonably believed to be in the best interests of
Employer. In the event the dispute involves a claim of criminal
activity, Executive must have had no reasonable cause to believe that
Executive’s conduct was unlawful. It is agreed and understood that a
conflict of interest may arise between the parties. It is agreed that
the Employer is entitled to participate in good faith in the selection of
Executive’s separate legal counsel, which Employer will pay for, if it is
determined that Executive is entitled to indemnification pursuant to this
section. Executive agrees to cooperate with Employer in all strategy
and settlement decisions. Any dispute arising under this section,
including the settlement of any action either jointly or severally shall
be
subject to the arbitration provisions of Section 8.1.
Section
3.5 Advances of Expenses. Any and all expenses,
including, but not limited to, filing fees, costs of investigation, attorney’s
fees, messenger and delivery expenses, postage, court reporters’ fees and
similar fees and expenses, incurred by Executive in any proceeding for which
Executive is reasonably entitled to indemnification shall be advanced by
Employer prior to the final disposition of such proceeding. The
obligation to advance such expenses at the written request of Executive is
subject to considerations of reasonableness, Prior to any payments Executive
shall agree to repay such advances unless and to the extent that it is
ultimately determined that Executive is entitled to
indemnification.
Section
3.6 Indemnification Not Exclusive. The
indemnification contemplated by the provisions of this Agreement shall not
be
deemed exclusive of any other rights to which Executive may be entitled pursuant
to the provisions of the Articles of Incorporation or Bylaws of Employer, or
any
agreement, vote of shareholders, or disinterested directors, the General
Corporation Law of the State of California, or otherwise as to action in his
official capacities as an employee or agent of Employer. The
indemnification contemplated by the provisions of this Agreement shall continue
as to the Executive although he may have ceased to be an employee or agent
of
Employer and shall inure to the benefit of the heirs and personal
representatives of Executive, including the estate of Executive.
ARTICLE
IV
COMPENSATION
OF EXECUTIVE
Section
4.1 Annual Salary. As compensation for the
services to be rendered by Executive pursuant to provisions of this Agreement,
Employer shall pay Executive or cause Executive to be paid (by an affiliate
of
Employer) an annual salary in the amount of Two Hundred Twenty
Thousand dollars ($220,000.00), payable in equal semi-monthly installments
of
Nine Thousand One Hundred Sixty-six dollars and Sixty-seven cents
($9,166.67). Executive salary increases during the term of this
agreement maybe made at the discretion of the Employer’s Board of
Directors. Any such changes shall be incorporated as Addenda to this
agreement.
Section
4.2 Profit Bonuses. Executive profit bonuses, if
any, shall be at the discretion of the Employer’s Board of
Directors. The Board of Directors may in its discretion set up a
specific bonus program for a predetermined length of time. Any such
program will be communicated to the Executive in writing prior to the
commencement of the program.
Section
4.3 Equity Participation. If during the term of this contract the
Board takes action to bring liquidity to all PCM unit holders (as, for example,
by selling or taking the company public), the Board intends to compensate the
Executives, provided they remain in the employ of the company at the time.
They
will have the option of receiving 1) a sum equal to the total of their annual
salaries divided by the total number of Executives employed by employer at
the
time of the action; or 2) 10% of the payment in kind actually distributed to
the
unit holders divided by the total number of Executives employed by Employer
at
the time of the action.
Section
4.4 Tax Withholding. Employer shall have the
right to deduct or withhold from the compensation due and payable to Executive
pursuant to the provisions of this Agreement any and all amounts required for
federal income and Social Security taxes and all state or local taxes now
applicable or which may be enacted and may become applicable in the
future.
ARTICLE
V.
EXECUTIVE
BENEFITS
Section
5.1 Annual Vacation. During the employment
term, Executive shall be entitled to an annual vacation leave, of three weeks
without loss of compensation. Executive may take his vacation from
time to time unless specifically requested not to do so by
Employer. In the event that Executive is unable for any reason to
take the total amount of vacation time authorized herein during any year, except
at the specific request of the Employer, Executive at his option, may elect
to
be paid out up to one week’s vacation or carry it over into the first quarter up
to one week’s vacation. Any additional vacation benefit will be forfeited. Other
than one carryover week that must be used within the first quarter of the
succeeding year, there will be no accrual of vacation time. The three weeks
of
vacation pay will vest on January 1 of each calendar year such that Executive
will be entitled to take up to three weeks off with pay during that
year. In the event this employment relationship is terminated,
executive will be entitled to be compensated only for the prorated portion
of
vacation, including reimbursing Employer for used but unearned
vacation. Proration will be based on the assumption that a week
of vacation is earned as of February 15, June 15 and October 15 of each
year.
Section
5.2 Paid Holidays. During the employment term, Executive
shall be entitled to a holiday with full pay on each New Year’s Day, President’s
Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas
Day during the term of this Agreement, and such other days as Employer currently
provides other employees.
Section
5.3 Health Care Benefits. During the employment term,
Employer shall include Executive and his dependents in the hospital, surgical,
medical and dental benefit plan adopted and maintained by Employer for senior
executives. Executive shall be entitled to sick days/personal days as Employer
currently provides other employees.
Section
5.4 Other Benefits. During the employment term, Employer
shall provide the Executive such other benefits as Employer, in its sole and
absolute discretion, may determine to be necessary or appropriate.
ARTICLE
VI
TERMINATION
OF EMPLOYMENT
Section
6.1 Termination. Either party shall have the right to
terminate this Agreement with or without Cause before the expiration of the
Term
or any Renewal Term, as provided below. Whatever the circumstances of
the termination may be, the Executive shall continue to be bound after
termination by Articles 7 and 8 of this Agreement.
Section
6.2 Termination for Cause.
A. Employer
reserves the right to terminate this Agreement if Executive willfully breaches
or habitually neglects the duties which he is required to perform pursuant
to
the provisions of this Agreement; or commits such acts of dishonesty, fraud,
misrepresentation or other acts of moral turpitude as would prevent the
effective performance of his duties.
B. Employer,
at its option, may terminate this Agreement for the reasons stated in this
section by giving written notice of termination to Executive without prejudice
to any other remedy to which Employer may be entitled either at law, in equity,
or pursuant to the provisions of this Agreement.
C. The
notice of termination required by this section shall specify the ground for
the
termination and shall be supported by a statement of relevant
facts.
D. Termination
pursuant to this section shall be considered “for cause” for the purposes of
this Agreement.
E. If
the Employer terminates the Executive’s employment for Cause, the Employer shall
pay to the Executive any compensation due under Article 4 of this Agreement,
including any unused vacation, prorated through the date of termination, and
the
Employer shall have an option to purchase all the ownership interest of the
Executive, if any, in accordance with the agreement creating such interest,
at
fair market value, to be determined by the Board. The Executive shall have
no
right to receive any further compensation or benefits otherwise payable under
any other provision of this Agreement.
F. Termination
by Executive. Executive may terminate his obligations pursuant to
this Agreement by giving Employer at least thirty (30) days written
notice. The time shall run from the date the notice is received by
the Chair or Co-Chairs of the Board of Directors. In the event
Executive terminates his obligations said termination shall be treated as for
cause.
Section
6.3 Termination Without Cause.
A. This
Agreement shall be terminated upon the death of Executive.
B. Employer
reserves the right to terminate this Agreement not less than three (3) months
after Executive suffers any physical or mental disability that would prevent
the
performance of his essential duties with or without reasonable accommodation,
pursuant to the provisions this Agreement. Such a termination shall
be effected by giving thirty (30) days’ written notice of termination to
Executive. Executive agrees to submit to and cooperate fully with an
independent medical examination by medical professionals selected by
Employer.
C. Termination
pursuant to this section shall not be considered “for cause” for the purposes of
this Agreement.
D. Payment
upon Termination. Notwithstanding any provision of this
Agreement, if Employer terminates this Agreement without cause, it shall pay
Executive an amount equal to six (6) months salary. However, in the event
Executive accepts employment with another Debt Buyer, Employer’s obligation to
continue to pay severance shall terminate. All other provisions of
this agreement shall remain in full force and effect including the provisions
of
Article VII relating to protection of Employer’s confidential information and
non-solicitation.
Section
6.4 Effect of Merger, Transfer of Assets, or Dissolution.
A. This
Agreement shall not be terminated by any voluntary or involuntary dissolution
of
Employer resulting from either a merger or consolidation in which Employer
is
not the consolidated or surviving corporation, or a transfer of all or
substantially all of the assets of Employer.
B. In
the event of any such merger or consolidation or transfer of assets, Employer’s
rights, benefits, and obligations hereunder may be assigned to the surviving
or
resulting corporation or the transferee of Employer’s assets.
C. In
the event any such merger or consolidation or transfer of assets results in
Executive’s termination, such termination shall be considered without
cause.
ARTICLE
VII
CONFIDENTIALITY
AND NON-SOLICITATION
Section
7.1 Nondisclosure. The executive acknowledges that in the
course of employment with the Employer, the Executive will have access to
confidential information. Confidential information includes, but is
not limited to, information about either the Employer’s clients, the terms and
conditions under which the Employer or its affiliates deals with clients,
pricing information for the purchase or sale of assets, customer lists, research
materials, manuals, computer programs, formulas for analyzing asset portfolios,
techniques, data, marketing plans, and tactics, technical information, lists
of
asset sources, the processes and practices of the Employer, all information
contained in electronic or computer files, all financial information, salary
and
wage information, and any other information that is designated by the Employer
or its affiliates as confidential or that the executive knows or should know
is
confidential, information provided by third parties that the Employer or
its
affiliates are obligated to keep confidential, and all other proprietary
information of the Employer or its affiliates. The executive acknowledges
all
confidential information is and shall continue to be the exclusive property
of
the Employer or its affiliates, whether or not prepared in whole or in part
by
the Executive and whether or not disclosed to or entrusted to the Executive
in
connection with employment by the Employer. The Executive agrees not
to disclose confidential information, directly or indirectly, under any
circumstances or by any means, to any third persons without the prior written
consent of the Employer. The Executive agrees that he will not copy,
transmit, reproduce, summarize, quote, or make any commercial or other use
whatsoever of confidential information, except as may be necessary to perform
work done by the Executive for the Employer. The executive agrees to
exercise the highest degree of care in safeguarding confidential information
against loss, theft or other inadvertent disclosure and agrees generally
to take
all steps necessary or requested by the Employer to ensure maintenance of
the
confidentiality of the confidential information.
Section
7.2 Exclusions. Section 7.1 shall not apply to
the following information:
(a) information
now and hereafter voluntarily disseminated by the Employer to the public or
which otherwise becomes part of the public domain through lawful
means; (b) information already known to the Executive as documented
by written records which predate the Executive’s employment with the Employer;
(c) information subsequently and rightfully received from third parties and
not
subject to any obligation of confidentiality; and (d) information independently
developed by the Executive after termination of his employment. In
relation to part (b) of this section, the date of Executive’s employment shall
be considered to be the date on which Executive was first employed with
Employer, including Employer’s predecessors in interest. That
operative date is January 15, 1998.
Section
7.3 Subpoenas; Cooperation in Defense of the
Employer. If the Executive, during employment or thereafter,
is served with any subpoena or other compulsory judicial or administrative
process calling for production of confidential information or if the Executive
is otherwise required by law or regulation to disclose confidential information,
the Executive will immediately, before making any such production or disclosure,
notify the Employer and provide it with such information as may be necessary
for
the Employer to take such action as the Employer deems necessary to protect
its
interests. The Executive agrees to cooperate reasonably with the
Employer, whether during employment or thereafter, in the prosecution or defense
of all threatened claims or actual litigation in which the Employer is or may
become a party, whether now pending or hereafter brought, in which the Executive
has knowledge or relevant facts or issues. The Executive shall be
reimbursed for his reasonable expenses for travel time due to cooperating with
the prosecution or defense of any litigation for the Employer.
Section
7.4 No Unfair Competition. The Executive hereby
acknowledges that the sale or unauthorized use or disclosure of any of the
Employer’s confidential material obtained by the Executive by any means
whatsoever, at any time before, during, or after the Term or any Renewal term,
shall constitute unfair competition. The Executive shall not engage
in any unfair competition with the Employer or its affiliates either during
the
Term, any Renewal Term, or at any time thereafter.
Section
7.5 Non-Solicitation of Employees. During the
period of six (6) months following the Termination Date, the Executive shall
not
directly or indirectly solicit for employment or for independent contractor
work
any employee of the Employer, and shall not encourage any such employee to
leave
the employment of the Employer.
Section
7.6 Non-Solicitation of Customers. During the
period of six months following the Termination Date, the Executive shall not
directly or indirectly (a) solicit for business any customers of the Employer,
(b) encourage any such customers to stop using the facilities or services of
the
Employer, or (c) encourage any such customers to use the facilities or services
of any competitor of the Employer. For the purposes of this section,
“customers” include; original creditors, debt brokers, business partners and
other individuals from whom Employer has purchased debt portfolios.
ARTICLE
VIII
GENERAL
PROVISIONS
Section
8.1 Arbitration. Any controversy, dispute or
claim (“Claim”) whatsoever between Executive on the one hand, and the Employer,
or any of its employees, officers, and agents (collectively “Employer Parties”)
on the other hand, arising out of this Agreement or in any way connected with
Executive’s employment or the termination of his employment shall be settled by
binding arbitration at the request of either party. The parties shall
agree on an arbitrator and, if no agreement is reached, either party may
petition to the Superior Court for the selection of an
arbitrator. The arbitrator shall apply California substantive law and
the California Evidence Code to the proceeding unless otherwise
agreed. The demand for arbitration must be in writing and must be
made by the aggrieved party within the applicable statute of limitations
period. The arbitration shall take place in Orange County,
California. The parties shall be entitled to conduct reasonable
discovery, including conducting depositions, propounding interrogatories, and
requesting documents. The arbitrator shall have the authority to
determine what constitutes reasonable discovery and may, among other things,
limit the number of depositions a party may take, the number of interrogatories
a party may propound, and the number and nature of documents a party may
request. The arbitrator shall prepare in writing and provide to the
parties a decision and award which includes factual findings and the reasons
upon which the decision is based. The decision of the arbitrator
shall be binding and conclusive on the parties and not reviewable for error
of
law or legal reasoning other than abuse of discretion by the arbitrator, the
arbitrator’s failure to disclose relevant relationships past or present, or the
grant of a remedy outside the general authority of an
arbitrator. Judgment upon the award rendered by the arbitrator may be
entered in any court having proper jurisdiction. The fees for the
arbitrator shall be paid by the Employer. Each party shall bear its own
attorney’s fees, and the arbitrator may award reasonable attorney’s fees and
costs to the prevailing party pursuant to California law. Both the
Employer and the Executive understand and agree that by using arbitration to
resolve any Claims between the Executive and the Employer or any or
all of
the Employer Parties, they are giving up any right that they may have to have
the dispute resolved through the process of a civil trial with regard to those
Claims.
Section
8.2 Governmental Rules and Regulations. The
provisions of this Agreement are subject to any and all present and future
orders, rules and regulations of any duly constituted authority having
jurisdiction of the relationship and transactions contemplated by the provisions
of this Agreement.
Section
8.3 Notices. All notices, requests, demands or
other communications pursuant to this Agreement shall be in writing, by telex
or
facsimile transmission or courier and shall be deemed to have been duly given
(i) on the date of service if delivered in person or by telex or facsimile
transmission (with the telex or facsimile confirmation of transmission receipt
acting as confirmation of service when sent and provide telexed or telecopied
notices are also mailed by first class, certified or registered mail, postage
prepaid); or (ii) seventy-two (72) hours after mailing by first class,
registered or certified mail, postage prepaid, and properly addressed as
follows:
|
If
to Executive:
|
Xxxxx
X. Xxxxxxxx
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00000
Xxxxxx Xxxxx, #000
|
|||
|
Xxxxxx,
Xxxxxxxxxx 00000
|
|||
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If
to Employer:
|
Performance
Capital Management, LLC
|
||
|
0000
Xxxxxxx Xxxxx, Xxxxx 000
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|||
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Xxxxx
Xxxx, Xxxxxxxxxx 00000
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or
at
such other address as the party affected by designate in a written notice to
such other party in compliance with this section.
Section
8.4 Entire Agreement. This Agreement is the final
written expression and the complete and exclusive statement of all the
agreements, conditions, promises, representations, warranties, and covenants
between the parties with respect to the subject matter of this Agreement, and
this Agreement supersedes all prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and discussions by and
between and among the parties, their respective representatives, and any other
person with respect to the subject matter specified in this
Agreement. This Agreement may be amended only by an instrument in
writing which expressly refers to this Agreement and specifically states that
such instrument is intended to amend this Agreement and is signed by each of
the
parties. Each of the parties represents, warrants and covenants that
in executing this Agreement that such party has (i) relied solely on the terms,
conditions and provisions specified in this Agreement and (ii) placed no
reliance whatsoever on any statement, representation, warranty, covenant or
promise of any other party, or any other person, not specified expressly in
this
Agreement, or upon the failure of any party or any other person to make any
statement, representation, warranty, covenant or disclosure of any nature
whatsoever. The parties have included this section to preclude (i)
any claim that any party was in any manner whatsoever induced fraudulently
to
enter into, execute and deliver this Agreement, and (ii) the introduction of
parol evidence to vary, interpret, supplement or contradict the terms,
conditions and provisions of this Agreement.
Section
8.5 Severability. In the event any part of the
Agreement, for any reason, is declared to be invalid, such decision shall not
affect the validity of any remaining portion of
this
Agreement, which remaining portion shall remain in complete force and effect
as
if this Agreement had been executed with the invalid portion of the Agreement
eliminated, and it is hereby declared the intention of the parties that the
parties would have executed the remaining portion of this Agreement without
including any such part, parts or portion which, for any reason, hereafter
may
be declared invalid.
Section
8.6 Captions and Interpretation. Captions
of the sections of this Agreement are for convenience and reference only, and
the words contained in those captions shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or meaning of the
provisions of this Agreement. The language in all parts to this
Agreement, in all cases, shall be construed in accordance with the fair meaning
of that language was prepared by all parties and not strictly for or against
any
party.
Section
8.7 Further Assurances. Each party shall take any
and all action necessary, appropriate or advisable to execute and discharge
such
party’s responsibilities and obligations created by the provisions of this
Agreement and to further effectuate and carry out the intents and purposes
of
this Agreement and the relationship contemplated by the provisions of this
Agreement.
Section
8.8 Number and Gender. Whenever the singular
number is used in this Agreement, and when required by the context, the same
shall include the plural, and vice versa; the masculine gender shall include
the
feminine and the neuter genders, and vice versa; and the word “person” shall
include corporation, firm, trust, estate, municipality, governmental agency,
sole proprietorship, political subdivision, fraternal order, club, league,
society, organization, joint stock company, association partnership or other
form of entity.
Section
8.9 Successors and Assigns. This Agreement shall
inure to the benefit of and obligate the undersigned parties and their
respective successors and assigns. Whenever, in this Agreement, a
reference to any party is made, such reference shall be deemed to include a
reference to the successors and assigns of such party. The provisions
of this section notwithstanding, no provision of this section shall be construed
or interpreted as consent to the assignment or delegation by any party of such
party’s respective rights and obligation created by the provisions of this
Agreement.
Section
8.10 Reservation of Rights. The failure of any
party at any time hereafter to require strict performance by the other party
of
any of the warranties, representations, covenants, terms, conditions and
provisions specified in this Agreement shall not waive, affect or diminish
any
right of such party failing to require strict performance to demand strict
compliance and performance therewith and with respect to any other provisions,
warranties, terms and conditions specified in this Agreement, and any waiver
of
any default shall not waive or affect any other default, whether prior or
subsequent thereto, and whether the same or of a different type. None
of the representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act
or
knowledge of either party or such party’s agents, officers or employees, and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to the non-waiving party specifying such
waiver. Each party reserves such party’s rights to insist upon strict
compliance with the provisions of this Agreement at all times.
Section
8.11 No Breach of Existing Agreements. Each party hereby
represents, warrants and covenants, upon the execution of this Agreement, such
party is not a party to any oral or written agreement which may be breached
by
such party’s execution of this Agreement.
Section
8.12 Concurrent Remedies. No right or remedy
specified in this Agreement conferred on or reserved to the parties is exclusive
of any other right or remedy specified in this Agreement or by law or equity
provided or permitted; but each such right and remedy shall be cumulative of,
and in addition to, every other right and remedy specified in this Agreement
or
now or hereafter existing at law or in equity or by statute or otherwise, and
may be enforced concurrently therewith or from time to time. The
termination of this Agreement for any reason whatsoever shall not prejudice
any
right or remedy which either party may have, either at law, in equity or
pursuant to the provisions of this Agreement.
Section
8.13 Time. Time is of the essence of this
Agreement and each and all of the provisions of this Agreement.
Section
8.14 Choice of Law and Consent to
Jurisdiction. This Agreement shall be deemed to have been
entered into in the County of Orange, State of California, and all questions
concerning the validity, interpretation or performance of any of the terms,
conditions and provisions of this Agreement or of any of the rights or
obligations of the parties, shall be governed by, and resolved in accordance
with, the laws of the State of California. Any and all actions or
proceedings, at law or in equity, to enforce or interpret the provisions of
this
Agreement shall be litigated in courts having situs within the County of Orange,
State of California, and each party hereby consents to the jurisdiction of
any
local, state or federal court located within the County of Orange, State of
California and consents any service of process in such action or proceeding
may
be made by personal service upon such party wherever such party may be then
located, or by certified or registered mail directed to such party at such
party’s last known address.
Section
8.15 Assignability. Neither party shall sell,
assign, transfer, convey or encumber this Agreement or any right or interest
in
this Agreement or pursuant to this Agreement, or suffer or permit any such
sale,
assignment, transfer or encumbrance to occur by operation of law without the
prior written consent of the other party. In the event of any sale,
assignment, transfer or encumbrance consented to by such other party, the
transferee or such transferee’s legal representative shall agree with such other
party in writing to assume personally, perform and be obligated by the
covenants, obligations, terms, conditions, and provisions specified in this
Agreement.
Section
8.16 Consent to Agreement. By executing this
Agreement, each party, for himself, represents such party has read or caused
to
be read this Agreement in all particulars, and consents to the rights,
conditions, duties and responsibilities imposed upon such party as specified
in
this Agreement.
IN
WITNESS WHEREOF the parties have executed this Agreement of Employment in
duplicate, each of which shall have the force and effect of an original, on
the
date specified in the preamble of this Agreement.
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“EMPLOYER’
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“Executive”
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PERFORMANCE
CAPITAL MANAGEMENT, LLC
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A
California Limited Liability Company
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By:
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/s/
Xxxxxx Xxxxxx
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/s/
Xxxxx X. Xxxxxxxx
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Xxxxxx
Xxxxxx
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Its:
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Co-Chair
Person of the Board
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By:
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/s/
Xxxxxx Xxxx
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Xxxxx
X. Xxxxxxxx
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Xxxxxx
Xxxx
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Its:
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Co-Chair
Person of the Board
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