Exhibit 10.6
EMPLOYMENT AND COMPENSATION AGREEMENT
This Employment and Compensation Agreement (the "Agreement") is entered
into in Contra Costa County, California, as of the 1st day of November, 2000, by
and between, XxXxx.xxx, Inc., a Delaware corporation ("FiNet" or "Employer") and
Xxxxxxx X. Xxxxxx, an individual ("Employee"), who agree as follows:
This Agreement is made with reference to the following facts:
X. XxXxx, is a provider of both traditional and e-commerce home
financing services.
B. Employee desires to perform services for Employer and Employer
desires to engage Employee to perform services in accordance with the terms and
conditions set forth in this Agreement.
Now therefore, in consideration of the foregoing and of the covenants,
representations and promises set forth in this Agreement, the parties hereto,
agree as follows:
1. EMPLOYMENT.
a. Employer hereby offers Employee employment with Employer, and
Employee hereby accepts employment, commencing on November 1, 2000 on the terms
and conditions contained in this Agreement.
b. Employee shall serve as Executive Vice President and Chief Financial
Officer for FiNet, reporting directly to Xxxx Xxxxxxx, Chief Executive Officer
("CEO") or his designee. In that capacity, Employee shall faithfully and
diligently carry out such duties and have such responsibilities as are customary
among persons employed in substantially similar capacities for similar
companies, provided that Employee shall at all times be subject to the direction
of the CEO of FiNet. Employee agrees to the best of his ability and experience
to perform loyally and conscientiously all of the duties and responsibilities
required of him, either expressly or implicitly, by the terms of this Agreement.
c. Location of Employee's employment shall be as determined by
Employer.
2. TERM OF EMPLOYMENT. Employee's Term of Employment in accordance with
the terms of this Agreement, shall commence as of November 1, 2000 and shall
terminate upon the earlier of October 31, 2001 or as is otherwise specified in
this Agreement (the "Term of Employment").
3. COMMITMENT. Except as is otherwise provided herein, during the Term of
Employment Employee shall devote one hundred (100%) percent of his entire
productive time, ability, and attention to the business of the Employer. Except
as is otherwise provided herein, Employee shall not render any services of a
commercial or professional nature to any other person or organization, whether
for compensation or otherwise, without the prior written consent of the CEO of
FiNet. However, the expenditure of reasonable amounts of time for educational,
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charitable, or professional activities shall not be deemed a breach of this
Agreement if those activities do not materially interfere with the services
required under this Agreement and shall not require the prior written consent of
the CEO of FiNet. Notwithstanding the foregoing, this Agreement shall not be
interpreted to prohibit Employee from making passive personal investments or
conducting private business affairs if those activities do not materially
interfere with the services required under this Agreement.
4. COMPETITIVE ACTIVITIES.
a. During the Term of Employment, Employee shall not, directly or
indirectly, own an interest in, operate, join, control, or participate in, or be
connected as an officer, employee, agent, independent contractor, partner,
shareholder or principal of any corporation, partnership, proprietorship, firm,
association, person, or other entity producing, designing, providing, soliciting
orders for, selling, distributing, or marketing products, goods, equipment, or
services that compete directly or indirectly with Employer's products and
services or Employer's business, without first obtaining the written approval of
Employer. Such approval may be rescinded by Employer if and when, in the opinion
of Employer, such activities materially inhibit Employee's performance under
this Agreement or place Employer at risk.
b. For one year following his termination as an Employee of, or
consultant to, Employer, whichever occurs later ("Posttermination Period"),
Employee shall not be prohibited from employment in the mortgage industry
involving activities similar to those engaged in prior to becoming an Employee
of or consultant to Employer, except, however, Employee shall not undertake any
employment or activity competitive with Employer's business in which the loyal
and complete fulfillment of the duties of the competitive employment or activity
would call on Employee to reveal or otherwise to use any confidential business
information or trade secrets of Employer's business to which Employee had access
by reason of his prior engagement by Employer.
c. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly, either for himself or for any other
person, firm, or corporation, divert or take away or attempt to divert or take
away (and during the Posttermination Period, call on or solicit or attempt to
call on or solicit) any of Employer's customers or patrons, including but not
limited to those on whom Employee called or whom he solicited or to whom he
catered or with whom Employee became acquainted during his engagement by
Employer. Nothing herein shall limit Employee's right during the Posttermination
Period, to call on or solicit or attempt to call on or solicit any of Employee's
customers or patrons on whom Employee called or whom he solicited or to whom he
catered or with whom he became acquainted during the period prior to Employee's
engagement by Employer.
d. During the Term of Employment, Employee shall not undertake planning
for or organization of any business activity competitive with Employer's
business or combine or join with other employees or representatives of
Employer's business for the purpose of organizing any such competitive business
activity.
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e. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly or by action in concert with others,
induce or influence (or seek to induce or influence) any person who is engaged
(as an employee, agent, independent contractor, or otherwise) by Employer to
terminate his or her employment or engagement.
5. COMPENSATION. As compensation for the services to be rendered by
Employee hereunder during the Term of Employment, Employer shall pay Employee a
Base Salary and additional compensation based upon the performance of Employee,
as is more specifically set forth in Addendum A to this Agreement. Employee's
compensation shall be payable in accordance with Employer's standard payroll
practices.
6. BENEFITS. In addition to the compensation described herein above,
during the Term of Employment, Employee shall be eligible to receive the
following benefits:
a. Such health insurance and other benefits that Employer may, from
time to time, make available to Employer's employees.
b. Vacation time, sick leave, holidays and personal time in accordance
with Employer's vacation and absence policies, which Employer may, from time to
time, maintain for employees at Employee's level of employment.
c. Reimbursement of allowed business expenses, upon submission of
documentation in accordance with Employer's regular expense reimbursement
policies, for reasonable business expenses incurred on behalf of Employer by
Employee.
d. Participation in any savings plan, 401(k) plan, profit sharing plan
or pension plan, which Employer may, from time to time, maintain for employees
at Employee's level of employment, subject to plan eligibility.
7. CONFIDENTIAL INFORMATION.
a. Employee recognizes that, during the course of his employment with
Employer, he will be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to Employer.
Such confidential information includes but is not limited to Employer's
investment plans or strategies, trade secrets, sources of supply, customer
lists, lists of potential customers, customer or consultant contracts and the
details thereof, pricing policies, operational methods, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, unannounced products and services, research and development
activities, processes, formulas, methods, techniques, technical data, know-how,
inventions, designs, financial or accounting data, inventory reports, production
schedules, cost and sales data, strategies, forecasts, and all other information
that is not publicly available pertaining to the business of Employer or any of
its affiliates. Such confidential information is hereinafter referred to as
"Confidential Information".
b. Confidential Information shall not include (i) any information which
is or becomes publicly available other than through breach of this Agreement, or
(ii) any information
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which is or becomes known or available to Employee on a non-confidential basis
and not in contravention of applicable law from a source which is entitled to
disclose such information to Employee.
c. Employee agrees that he will not, while employed by Employer,
divulge Confidential Information to any person, directly or indirectly, except
to Employer or its officers and agents, or as reasonably required in connection
with Employee's duties on behalf of the Employer, except as is required by law
or court order. Employee further agrees not to use, except on behalf of the
Employer, any Confidential Information acquired by Employee during the Term of
Employment. Employee agrees that he will not at any time after his employment
with Employer has ended, divulge to any person, directly or indirectly, any
Confidential Information, except as is required by law or court order. Employee
further agrees that, if his relationship with the Employer is terminated for any
reason, Employee shall not take with him but will leave with Employer all
records, papers, and computer software and data, and any copies thereof relating
to the Confidential Information (or if such papers, records, computer software
and data, or copies are not on the premises of Employer, Employee agrees to
return such papers, records, and computer software and data immediately upon his
termination). Employee acknowledges that all such papers, records, computer
software and data, or copies thereof are and remain the property of Employer.
8. VOICE MAIL AND ELECTRONIC MAIL. All voice mail and electronic mail on
Employer's telephone or computer systems are the property of Employer and shall
be non-personal, non-private and non-privileged to Employee, and Employee shall
disclose to Employer all codes or passwords necessary for Employer to access
such voice mail or electronic mail.
9. COOPERATION. As a condition of his employment with Employer, Employee
agrees that he will not disrupt, damage, impair, or interfere with the business
of the Employer, such as by interfering with the duties of the Employer's
employees, disrupting relationships with Employer's customers, agents,
representatives, or vendors, or otherwise.
10. TERMINATION.
a. Employee may terminate this Agreement for any reason or for no
reason upon providing Employer with sixty (60) days prior written notice of his
intention to terminate.
b. Employer may terminate this Agreement upon written notice to
Employee prior to its expiration date for just cause or due to the Employee's
death or substantial physical impairment which prevents Employee from performing
his duties and responsibilities as set forth herein. For purposes of this
Section, "just cause" is defined as the failure of Employee to perform his
duties and responsibilities as set forth herein and as may be established by
Employer to the satisfaction of Employer; a violation of Section(s) 1, 3, 4, 7,
8, or 9 of this Agreement; fraud; misappropriation of funds; breach of fiduciary
duty; embezzlement; theft; physical assault or threatened assault on another
person; drunkenness on the job; possession or use of narcotics on Employer's
property; willful and material damage to Employer's property; conviction of a
felony; violation of any state or federal law applicable to Employer's business
or property; including, but not limited to, violations of state or federal
mortgage lending regulatory
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provisions; or repeated or material violations of Employer's policies, including
but not limited to those policies prohibiting unlawful employment discrimination
and harassment.
c. In the event Employee's employment is terminated, whether by
Employer for "just cause", as is defined herein or due to the Employee's death
or substantial physical or mental impairment preventing Employee from performing
the essential functions of his job, or by Employee as provided herein, Employer
shall have no further obligation to pay any compensation to or benefits on
behalf of Employee, however all compensation accrued as of the date of
termination shall be paid to Employee upon termination.
d. Upon termination of his employment, Employee agrees to deliver
promptly to Employer all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all copies
thereof, and any and all materials relating to Employer's Confidential
Information that is in Employee's possession or control. At the time of
termination, Employee will have an exit interview with Employer wherein Employee
will certify that Employee has returned to Employer all tangible Confidential
Information disclosed to him, and disclose Inventions conceived or developed by
him during the Term of Employment.
e. Sections 4, 7, 9, 10, 11, 12, 13, 14, 15, and 16, hereof, shall
survive termination of this Agreement.
11. ASSIGNMENT. The rights and liabilities of the parties hereto shall
bind and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Employer has specifically
contracted for Employee's services, Employee may not assign or delegate his
duties and responsibilities under this Agreement either in whole or part without
the prior written consent of Employer. Employer may assign its rights and
obligations to a successor in interest to Employer, provided such successor
assumes all obligations and liabilities thereunder.
12. SEVERABILITY OF PROVISIONS. In the event any provision of this
Agreement is held to be illegal, invalid, or unenforceable under any present or
future law, (a) such provision will be fully severable, (b) this Agreement will
be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected by
the illegal, invalid, or unenforceable provision or by its severance herefrom,
and (d) in lieu of such illegal, invalid, or unenforceable provision, there will
be added automatically as a part of this Agreement a legal, valid, and
enforceable provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible.
13. MEDIATION AND ARBITRATION. Initially all claims and controversies of
any kind relating to this Agreement shall be submitted to mediation pursuant to
the services of JAMS/Endispute Mediation Service ("JAMS") with the venue of the
mediation being San Francisco, CA. In the event the matter cannot be disposed of
by mediation, all claims and controversies of any kind relating to this
Agreement shall be finally settled by binding arbitration before a single JAMS
arbitrator in San Francisco, CA, in accordance with rules of the JAMS/Endispute
Rules and Procedures for Mediation/Arbitration of Employment Disputes or the
Rules of the American
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Arbitration Association ("AAA"). The parties to this Agreement shall be bound by
the decisions in any such arbitration, and judgment upon such arbitration may be
entered by any court of proper jurisdiction. Notwithstanding the applicable
rules of JAMS/Endispute or AAA in accordance with California Code of Civil
Procedure Section 1283.1 (b), the parties agree that depositions may be taken
and discovery obtained in any arbitration proceeding relating to this Agreement
in accordance with California Code of Civil Procedure Section 1283.05.
Attorney's fees and costs shall be allocated by agreement in mediation or by the
arbitrator in arbitration.
14. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, or mailed by certified mail (postage
prepaid and return receipt requested), or sent by reputable overnight courier
service, to the recipient at the address below indicated:
To Employee: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxxxx Xxx, XX 00000
To Employer: XxXxx.xxx, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxxxx
,or such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. Any
notice under this Agreement will be deemed to have been given when so delivered
or if mailed, five (5) days after deposit in a U.S. Postal facility.
15. ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement contains the
sole, complete, final, exclusive and entire agreement between the parties
pertaining to the employment of Employee by Employer and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission or
waiver of this Agreement shall be binding unless executed in writing by the
parties. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a continuing waiver unless otherwise expressly provided. The
parties expressly acknowledge that they have not relied upon any prior
agreements, understandings, negotiations or discussions, whether oral or
written.
16. CHOICE OF LAW. The rights and duties of the parties will be governed
by the law of the State of California, excluding any choice-of-law rules that
would require the application of laws of any other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPLOYER EMPLOYEE
By: ____________________________ By: ____________________________
Xxxx Xxxxxxx Xxxxxxx X. Xxxxxx
Chief Executive Officer
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ADDENDUM A
TO
EMPLOYMENT AND COMPENSATION AGREEMENT
XXXXXXX X. XXXXXX
This Addendum by and between XxXxx.xxx, Inc. ("FiNet" or "Employer")
and Xxxxxxx X. Xxxxxx ("Employee") shall define the terms of Compensation.
1. SALARY. Employee shall receive a Base Salary of $160,000.00 per annum.
2. BONUS. In addition to Base Salary, Employee shall be eligible to receive
an annual incentive bonus of up to $75,000.00, payable annually, based
upon FiNet's achievement of its business plan and financial profitability.
The percentage of Bonus received by Employee shall be determined in
accordance with the proposed provisions of FiNet's Bonus Plan For
Executive Level Employees, which is to be implemented within sixty (60)
days of Employee's employment.
3. EQUITY INCENTIVES. Employee shall be granted options to purchase 300,000
shares of FiNet common stock, at a price to be determined at the close of
business on November 1, 2000, vesting 75,000 shares on November 1, 2000,
75,000 shares on November 1, 2001, 75,000 shares on November 1, 2002, with
the remaining 75,000 shares vesting on November 1, 2003, conditioned upon
Employee's continued employment by Employer ("Vested Options"). The terms
and conditions of the Options shall remain subject to and interpreted in
conformity with the FiNet Holdings Corporation 1998 Stock Option Plan, as
may be amended from time to time.
4. HOUSING ALLOWANCE. Employee shall be provided a temporary housing allowance
for actual expenses incurred up to $1,000 per month for a period not to
exceed twelve (12) months, payable semi-monthly in accordance with
Employer's normal payroll practices.
5. PAYMENT OF EMPLOYMENT FEE. Employer shall pay to Verra Associates,
Executive Search Consultants, a recruiting fee in the amount of $40,000.00.
6. CHANGE OF CONTROL. In the event FiNet is subject to a Change of Control,
all of the Employee's Options, granted in accordance with Paragraph 3
above, shall fully vest. For purposes of this Agreement, a "Change of
Control" is defined as a merger, consolidation or other reorganization of
FiNet in which FiNet does not survive. All of Employee's vested Options
must be exercised within 90 days of the date of termination
Agreed to:
Dated: November ___, 2000
EMPLOYER EMPLOYEE
By: ________________________ By: ________________________
Xxxx Xxxxxxx Xxxxxxx X. Xxxxxx
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