EMPLOYMENT AGREEMENT
Exhibit
10.5
EMPLOYMENT
AGREEMENT dated as of September 29, 2005, by and between Opteum
Financial Services, LLC with its principal place of business at W. 000 Xxxxxxx
Xxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the “Company”), and Xxxxx Xxxxxx, residing at
the address set forth on the signature page hereof (the
“Executive”).
WHEREAS,
Bimini Mortgage Management, Inc. a Maryland corporation (the “Parent”) is
concurrently herewith entering into an Agreement and Plan of Merger and
Reorganization with the Company, among others, pursuant to which a subsidiary
of
Parent will be merged with and into the Company (the "Acquisition Agreement"),
and in connection therewith, the Executive is to receive the consideration
set
forth in the Acquisition Agreement at the times and subject to the terms
and
conditions of the Acquisition Agreement;
WHEREAS,
the Parent would not be willing to enter into the Acquisition Agreement in
the
absence of this Agreement; and
WHEREAS,
the Company wishes to employ the Executive, and the Executive wishes to accept
such offer, on the terms set forth below:
Accordingly,
the parties hereto agree as follows:
1. Term.
The
Company hereby employs the Executive, and the Executive hereby accepts such
employment, for an initial term commencing as of the “Effective Time” (as
defined in the Acquisition Agreement) and continuing for a three-year period,
unless sooner terminated in accordance with the provisions of Section 4 or
Section 5; with such employment to continue for successive one-year periods
in
accordance with the terms of this Agreement (subject to termination as
aforesaid) unless either party notifies the other party of non-renewal in
writing prior to three months before the expiration of the initial term and
each
annual renewal, as applicable (the period during which the Executive is employed
hereunder being hereinafter referred to as the “Term”). Notwithstanding anything
herein to the contrary, if the Effective Time does not occur, and the
Acquisition Agreement is terminated, this Agreement (except this sentence)
shall
be null and void ab
initio
and of
no force or effect.
2. Duties.
During
the Term, the Executive shall be employed by the Company as President, and
Chief
Executive Officer of the Company, and the Executive also agrees, for no
compensation in addition to that set forth herein, to serve as Senior Executive
Vice President of the Parent, and, as such, the Executive shall faithfully
perform for the Company and the Parent the duties of said offices and shall
perform such other duties of an executive, managerial or administrative nature
consistent with such positions as shall be specified and designated from
time to
time by the Chief Executive Officer of the Parent (“Parent CEO”) and, as to his
duties for the Parent, the Board of Directors of the Parent. Unless otherwise
consented to by the parties hereto, in the event of the termination of
employment with the Company or the Parent at a time when the Company and
the
Parent are affiliates, employment with the other shall also thereupon
automatically be terminated. The Executive may work in any of the Company’s
offices anywhere in the United States. In addition, the Company acknowledges
that the Executive maintains a home office in Boca Raton, Florida, and agrees
that the Executive may work therein from time to time at the discretion of
the
Executive. The Parent is expressly acknowledged as and agreed to be a
third-party beneficiary hereof with respect to, without limitation, the
Executive’s services therefor. The Executive also agrees that he shall devote
substantially all of his business time and effort to the performance of his
duties hereunder;
provided that in no event shall this sentence prohibit the Executive from
performing personal, investment and charitable activities, pre-existing business
interests, and any other business interests as may be approved by the Parent
CEO. It is expressly acknowledged and understood that the Executive may continue
to own his membership interest in SouthStar Partners (as defined in Section
6.1(a)) and may act in accordance with Section 6.1(a).
3. Compensation.
3.1 Salary.
The
Company shall pay the Executive during the Term a salary at the rate of $750,000
per annum (the “Annual Salary”), in accordance with the customary payroll
practices of the Company applicable to senior executives.
3.2 Bonus.
During
the Term, in addition to the Annual Salary, for each annual period ending
during
the Term, the Executive shall receive an annual nondiscretionary cash bonus
of
$750,000 to be paid in four equal quarterly installments (the “Nondiscretionary
Bonus”).
3.3 Benefits
- In General.
Except
with respect to benefits of a type otherwise provided for under Section 3.4,
the
Executive shall be permitted during the Term to participate in any group
life,
hospitalization or disability insurance plans, health programs, retirement
plans, fringe benefit programs and similar benefits that may be available
to
other senior executives of the Company generally, on the same terms as such
other executives, in each case to the extent that the Executive is eligible
under the terms of such plans or programs.
3.4 Specific
Benefits.
Without
limiting the generality of Section 3.3, the Executive shall be entitled to
vacation of 25 days per year. Employee shall accrue sick leave in accordance
with the Employer’s standard practices as are in effect from time to time.
3.5 Expenses
- In General.
The
Company shall pay or reimburse the Executive for all ordinary and reasonable
out-of-pocket expenses actually incurred (and, in the case of reimbursement,
paid) by the Executive during the Term in the performance of the Executive’s
services under this Agreement;
provided that the Executive submits proof of such expenses, in accordance
with
such procedures as may be prescribed from time to time by the Company.
3.6 Automobile.
During
the term, the Company shall reimburse the Executive for the amount of the
monthly payments on his current automobile lease until such lease expires.
Following the expiration of the Executive’s current automobile lease and during
the remainder of the Term, the Executive shall be permitted the use of an
automobile reasonably commensurate with the Executive's positions with the
Company and Parent, which in no event will be of a class of automobile superior
to that made available to other senior executives of the Company or Parent.
4. Termination
upon Death or Disability.
If the
Executive dies during the Term, the Term shall terminate as of the date of
death, and the obligations of the Company and the Parent to or with respect
to
the Executive shall terminate in their entirety upon such date except as
otherwise provided under this Section 4. If the Executive by virtue of ill
health or other disability is unable to perform substantially and continuously
the duties assigned to him for more than 180 consecutive or non-consecutive
days
out of any consecutive 12-month period, the Company and the Parent shall
have
the right, to the extent permitted by law, to terminate the employment of
the
Executive upon notice in writing to the Executive. Upon termination of
employment due to death or disability, (i) the Executive (or the Executive’s
estate or beneficiaries in the case of the death of the Executive) shall
be
entitled to receive any Annual Salary, Nondiscretionary Bonus and other benefits
earned and accrued under this Agreement prior to the date of termination
(and
reimbursement under this Agreement for expenses incurred prior to the date
of
termination), (ii) subject to Section 5.2(c), for a 30-month period after
termination of employment, the Executive (if applicable), and in the event
of
his death, his spouse (or life partner) and his dependents, shall receive
such
continuing coverage under the group health plans they would have received
under
this Agreement (but at such costs no higher than as in effect immediately
preceding such termination) as would have applied in the absence of such
termination; and (iii) the Executive (or, in the case of his death, his estate
and beneficiaries) shall have no further rights to any other compensation
or
benefits hereunder on or after the termination of employment, or any other
rights hereunder (but,
for
the avoidance of doubt, the Executive shall receive such disability and death
benefits as may be provided under the Company’s plans and arrangements in
accordance with their terms).
5. Certain
Terminations of Employment.
5.1 Termination
by the Company for Cause; Termination by the Executive without Good
Reason.
(a)
For
purposes of this Agreement, “Cause” shall mean the Executive’s:
(i)
conviction
of (or pleading nolo contendere to) a felony (but in no event including a
traffic or similar violation), a crime of moral turpitude, dishonesty, breach
of
trust or unethical business conduct, or
any
crime involving the Company or Parent;
(ii)
engagement in the performance of his duties hereunder, in willful
misconduct, willful or gross neglect, fraud, misappropriation or
embezzlement;
(iii)
repeated failure to adhere to the directions of the Parent CEO, to adhere
to the Company’s or Parent’s policies and practices or to devote his business
time and efforts to the Company and Parent as required by Section 2;
(iv)
willful and continued failure to substantially perform his duties properly
assigned to him (other
than any such failure resulting from his Disability) after demand for
substantial performance is delivered by the Company specifically identifying
the
manner in which the Company believes the Executive has not substantially
performed such duties;
(v)
material breach of any of the provisions of Section 6;
or
(vi)
breach in any material respect of the terms and provisions of this
Agreement and failure to cure such breach within 21 days following written
notice from the Company or Parent specifying such breach;
provided
that the Company shall not be permitted to terminate the Executive for Cause
except on written notice given to the Executive at any time following the
occurrence of any of the events described in clauses (i), (ii) or (v) above
and
on written notice given to the Executive at any time not more than 30 days
following the occurrence of any of the events described in clause (iii),
(iv) or
(vi) above (or, if later, the Company’s knowledge thereof).
No
termination for Cause shall be effective unless the Board makes a Cause
determination after notice to the Executive and the Executive has been provided
with the opportunity (with counsel of his choice) to contest the determination
at a meeting of the Board.
(b)
The
Company and the Parent may terminate the Executive’s employment hereunder for
Cause, and the Executive may terminate his employment on at least 30 days’ and
not more than 120 days’ written notice given to the Company. If the Company
terminates the Executive for Cause, or the Executive terminates his employment
and the termination by the Executive is not covered by Section 5.2, (i) the
Executive shall receive Annual Salary, Nondiscretionary Bonus and other benefits
(but, in all events, and without increasing the Executive’s rights under any
other provision hereof, excluding any bonuses, other than the Nondiscretionary
Bonus, not yet paid) earned and accrued under this Agreement prior to the
termination of employment (and reimbursement under this Agreement for expenses
incurred prior to the termination of employment); and (ii) the Executive
shall
have no further rights to any other compensation or benefits hereunder on
or
after the termination of employment, or any other rights hereunder.
5.2 Termination
by the Company without Cause; Termination by the Executive for Good
Reason.
(a)
For
purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented
to by the Executive,
(i)
the
material reduction of the Executive’s authority, duties and responsibilities, or
the assignment to the Executive of duties materially inconsistent with the
Executive’s position or positions with the Company or Parent;
(ii)
the
Company’s failure to pay the Executive any amounts otherwise due hereunder or
under any plan, policy, program, agreement, arrangement or other commitment
of
the Company, including, without limitation, the Annual Salary and the
Nondiscretionary Bonus;
(iii)
the
Company’s material and willful breach of this Agreement;
(iv)
the
Company’s material breach of its obligations to pay the Contingent Amount (as
defined in the Acquisition Agreement) at the times set forth in Section 1.15
of
the Acquisition Agreement; or
(v)
the
Company’s material breach of its obligations pursuant to Section 5.1(a)(i) or
Section 5.1(a)(v) of the Acquisition Agreement.
Notwithstanding
the foregoing, (i)(A) Good Reason shall not be deemed to exist pursuant to
Section 5.2(a)(i), (ii) or (iii) unless notice of termination on account
thereof
(specifying a termination date no later than 30 days from the date of such
notice) is given no later than 30 days after the time at which the event
or
condition purportedly giving rise to Good Reason first occurs or arises;
and (B)
if there exists (without regard to this clause (B)) an event or condition
that
constitutes Good Reason, the Company shall have ten days from the date notice
of
such a termination is given to cure such event or condition and, if the Company
does so, such event or condition shall not constitute Good Reason hereunder;
and
(ii) Good
Reason shall not be deemed to exist pursuant to Section 5.2(a)(iv) or (v)
unless
the provisions of this paragraph have been followed. The Executive shall
give
the Company written notice of a material breach of either Section 5.2(a)(iv)
or
(v) promptly after the time at which the event or condition purportedly giving
rise to such breach first occurs or arises. The Company shall have 60 days
from
the date the initial notice of breach is given by the Executive to cure such
event or condition. If the Company fails to cure such material breach within
such 60-day period, the Executive shall give the Company a second written
notice
of such material breach and the Company shall have 15 days from the date
the
second notice of breach is given to cure such event or condition. If the
Company
fails to cure such breach within such 15-day period, the Executive may terminate
this agreement for Good Reason by providing a written notice of termination
to
the Company within 30 days of the expiration of the 15-day period and specifying
an effective date for such termination that is no later than 60 days after
the
expiration of the 15-day cure period. If the Executive does not give such
notice
of termination to the Company within such 30-day period, the Executive shall
no
longer ever be entitled to terminate this Agreement on account of such event
or
condition. For
purposes of clarification, the Company shall not be deemed to be in material
breach of its obligations to pay the Contingent Amount at the times set forth
in
Section 1.15, 5.1(a)(i) or 5.1(a)(v) of the Acquisition Agreement until such
time that the notice and cure periods available to the Company pursuant to
the
provisions of the Acquisition Agreement have expired, and the notice and
cure
periods set forth herein shall be in addition to (and not in lieu of) any
notice
and cure periods available to the Company pursuant to the provisions of the
Acquisition Agreement.
(b) The
Company may terminate the Executive’s employment at any time for any reason or
no reason and the Executive may terminate the Executive’s employment with the
Company for Good Reason. If the Company and the Parent terminate the Executive’s
employment and the termination is not covered by Section 4 or 5.1, (i) the
Executive shall receive Annual Salary, Nondiscretionary Bonus and other benefits
earned and accrued under this Agreement prior to the termination of employment
(and reimbursement under this Agreement for expenses incurred prior to the
termination of employment); (ii) if (and only if) the Executive provides
a
general release substantially in the form attached hereto as Exhibit A, which
is
or has become irrevocable, the Executive shall receive (A) a cash payment
equal
to 250% of the sum of (x) the Executive’s Annual Salary (as in effect for the
Company’s fiscal year immediately before such termination) and (y) the
Nondiscretionary Bonus (as in effect for the Company’s fiscal year immediately
before such termination), payable monthly over the 30-month period commencing
with the month to follow termination, (B) for a period of 30 months after
termination of employment, such
continuing coverage under the group health plans the Executive would have
received under this Agreement (but at such costs (if any) to the Executive
no
higher than as in effect immediately preceding such termination) as would
have
applied in the absence of such termination
(but not
taking into account any post-termination increases in Annual Salary that
may
otherwise have occurred without regard to such termination and that may have
favorably affected such benefits) and (C) at
the
Company’s cost (not to exceed $7,500), outplacement services reasonably selected
by the Company; and
(iii)
the Executive shall have no further rights to any other compensation or benefits
hereunder on or after the termination of employment, or any other rights
hereunder.
(c) Notwithstanding
clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein
shall restrict the ability of the Company to amend or terminate with general
application the plans and programs referred to in such clause (ii)(B) from
time
to time in its sole discretion, and (ii) the Company shall in no event be
required to provide any benefits otherwise required by such clause (ii)(B)
after
such time as the Executive becomes entitled to receive benefits of the same
type
from another employer or recipient of the Executive’s services (upon which time
the Executive shall give the Company notice thereof).
6. Covenants
of the Executive.
6.1 Covenant
Against Competition; Other Covenants.
The
Executive acknowledges that (i) the principal business of the Company (which
expressly includes for purposes of this Section 6 (and any related enforcement
provisions hereof), its successors and assigns, all of which are expressly
acknowledged and agreed as third-party beneficiaries of, without limitation,
this Section 6 (and such related provisions)) is providing loan products
and
solutions through retail, wholesale and conduit channels (such business herein
being referred to as the “Business”); (ii) the Company is one of the limited
number of persons who have developed such a business; (iii) the Business
is, in
part, national in scope; (iv) the Executive’s work for the Company has given and
will continue to give him access to the confidential affairs and proprietary
information of the Company; (v) the covenants and agreements of the Executive
contained in this Section 6 are essential to the business and goodwill of
the
Company; (vi) as an executive officer and principal shareholder of the Company,
the Executive will enjoy significant economic benefits as a result of the
acquisition of the Company by the Parent; and (vii) the Company would not
have
entered into this Agreement and the Parent would not have entered into the
Acquisition Agreement but for the covenants and agreements set forth in this
Section 6. Accordingly, the Executive covenants and agrees that:
(a) By
and in
consideration of the salary and benefits to be provided by the Company
hereunder, including
the severance arrangements set forth herein, and
further in consideration for payment under the Acquisition Agreement as
described in the recitals hereof, and further as an inducement for the Company
to enter into the Acquisition Agreement, and further in consideration of
the
Executive’s exposure to the proprietary information of the Company, the
Executive covenants and agrees that, during the period commencing as of the
Effective Time and ending two years following the date upon which the Executive
shall cease to be an employee of the Company and its affiliates (for the
avoidance of doubt, including, but not limited to, the expiration of the
Term
where there has not been a renewal) (the “Restricted Period”), he shall not in
the United States, directly or indirectly, except with the prior approval
of the
Parent CEO, (i) engage in any element of the Business (other than for the
Company or its affiliates) or otherwise compete with the Company or its
affiliates, (ii) render any services to any person, corporation,
partnership or other entity (other than the Company or its affiliates) engaged
in any element of the Business, or (iii) become interested in any person,
corporation, partnership or other entity (other than the Company or its
affiliates) engaged in the elements of the Business as a partner, shareholder,
principal, agent, employee, consultant or in any other relationship or capacity;
provided, however, that, notwithstanding the foregoing, the Executive may
invest
in securities of any entity, solely for investment purposes and without
participating in the business thereof, if (A) such securities are traded
on any
national securities exchange or the National Association of Securities Dealers,
Inc. Automated Quotation System, (B) the Executive is not a controlling
person of, or a member of a group which controls, such entity and (C) the
Executive does not, directly or indirectly, own 1% or more of any class of
securities of a mortgage REIT or mortgage banking business; provided, however,
that the Executive may continue to maintain his interest in SouthStar Partners,
LLC or any other entity organized for the purpose of holding interests in
or
conducting the business currently conducted by SouthStar Funding LLC (the
foregoing, collectively, “SouthStar Partners”) so long as the Executive is not a
SouthStar Partners or SouthStar Funding LLC officer, director or manager
and has
no right to appoint SouthStar Partners or SouthStar Funding LLC officers,
directors or managers (except that the Executive shall expressly have the
right
to appoint (a) two managers to the board of managers of SouthStar Funding
LLC so
long as such managers are not members of the Executive’s family or employees of
the Company (other than Xxxxxx Xxxxxx) and (b) appoint one manager to the
board
of managers of SouthStar Partners so long as such manager is not a member
of the
Executive’s family or an employee of the Company (other than Xxxxxx Xxxxxx)) or
to direct SouthStar Partners or SouthStar Funding LLC policies or management
(with the exception of casting votes consistent with his percentage of permitted
ownership interest). The Executive further covenants and agrees not to trigger
any buy-sell rights granted to the Executive pursuant to the provisions of
the
limited liability company agreement of SouthStar Partners.
(b) During
and after the Restricted Period, the Executive shall keep secret and retain
in
strictest confidence, and shall not use for his benefit or the benefit of
others, except in connection with the business and affairs of the Company
and
its affiliates, all confidential matters relating to the Company’s Business and
the business of any of its affiliates and to the Company and any of its
affiliates, learned by the Executive heretofore or hereafter directly or
indirectly from the Company or any of its affiliates (the “Confidential Company
Information”); and shall not disclose such Confidential Company Information to
anyone outside of the Company except with the Company’s express written consent
and except for Confidential Company Information which is at the time of receipt
or thereafter becomes publicly known through no wrongful act of the Executive
or
is received from a third party not under an obligation to keep such information
confidential and without breach of this Agreement.
(c) During
the Restricted Period, the Executive shall not, without the Company’s prior
written consent, directly or indirectly (i) solicit or encourage to leave
the
employment or other service of the Company, or any of its affiliates, any
employee or independent contractor thereof or (ii) hire (on behalf of the
Executive or any other person or entity) any employee or independent contractor
who has left the employment or other service of the Company or any of its
affiliates within the one-year period which follows the termination of such
employee’s or independent contractor’s employment or other service with the
Company and its affiliates. During the Restricted Period, the Executive shall
not, whether for his own account or for the account of any other person,
firm,
corporation or other business organization, intentionally interfere with
the
Company’s or any of its affiliates’ relationship with, or endeavor to entice
away from the Company or any of its affiliates, any person who during the
Term
is or was a customer or client of the Company or any of its affiliates. While
the Executive’s non-compete obligations under Section 6.1(a) are in effect, the
Executive shall not publish any statement or make any statement under
circumstances reasonably likely to become public that is critical of the
Company
or any of its affiliates, or in any way adversely affecting or otherwise
maligning the Business or reputation of the Company or any of its affiliates.
Notwithstanding the foregoing, the Executive shall not be subject to the
restrictions of this Section 6(c) with respect to members of the Executive’s
family.
(d) All
memoranda, notes, lists, records, property and any other tangible product
and
documents (and all copies thereof), whether visually perceptible,
machine-readable or otherwise, made, produced or compiled by the Executive
or
made available to the Executive concerning the business of the Company or
its
affiliates, (i) shall at all times be the property of the Company (and, as
applicable, any affiliates) and shall be delivered to the Company at any
time
upon its request, and (ii) upon the Executive’s termination of employment, shall
be immediately returned to the Company (except that in all events the Executive
may retain a copy of his contacts list).
6.2 Rights
and Remedies upon Breach.
The
Executive acknowledges and agrees that any breach by him of any of the
provisions of Section 6.1 (the “Restrictive Covenants”) would result in
irreparable injury and damage for which money damages would not provide an
adequate remedy. Therefore, if the Executive breaches, or threatens to commit
a
breach of, any of the provisions of Section 6.1, the Company and its affiliates,
in addition to, and not in lieu of, any other rights and remedies available
to
the Company and its affiliates under law or in equity (including, without
limitation, the recovery of damages), shall have the right and remedy to
have
the Restrictive Covenants specifically enforced by any court having equity
jurisdiction, including, without limitation, the right to an entry against
the
Executive of restraining orders and injunctions (preliminary, mandatory,
temporary and permanent) against violations, threatened or actual, and whether
or not then continuing, of such covenants.
7. Other
Provisions.
7.1 Severability.
The
Executive acknowledges and agrees that (i) he has had an opportunity to
seek advice of counsel in connection with this Agreement and (ii) the
Restrictive Covenants are reasonable in geographical and temporal scope and
in
all other respects. If it is determined that any of the provisions of this
Agreement, including, without limitation, any of the Restrictive Covenants,
or
any part thereof, is invalid or unenforceable, the remainder of the provisions
of this Agreement shall not thereby be affected and shall be given full effect,
without regard to the invalid portions.
7.2 Duration
and Scope of Covenants.
If any
court or other decision-maker of competent jurisdiction determines that any
of
the Executive’s covenants contained in this Agreement, including, without
limitation, any of the Restrictive Covenants, or any part thereof, is
unenforceable because of the duration or geographical scope of such provision,
then, after such determination has become final and unappealable, the duration
or scope of such provision, as the case may be, shall be reduced so that
such
provision becomes enforceable and, in its reduced form, such provision shall
then be enforceable and shall be enforced.
7.3 Enforceability;
Jurisdiction; Arbitration.
(a)
The
Company and the Executive intend to and hereby confer jurisdiction to enforce
the Restrictive Covenants set forth in Section 6 upon the courts of any
jurisdiction within the geographical scope of the Restrictive Covenants.
If the
courts of any one or more of such jurisdictions hold the Restrictive Covenants
wholly unenforceable by reason of breadth of scope or otherwise it is the
intention of the Company and the Executive that such determination not bar
or in
any way affect the Company’s right, or the right of any of its affiliates, to
the relief provided above in the courts of any other jurisdiction within
the
geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdiction’s being, for this purpose,
severable, diverse and independent covenants, subject, where appropriate,
to the
doctrine of res judicata.
(b)
Any
controversy or claim arising out of or relating to this Agreement or the
breach
of this Agreement (other than a controversy or claim arising under Section
6, to
the extent necessary for the Company (or its affiliates, where applicable)
to
avail itself of the rights and remedies referred to in Section 6.2) that
is not
resolved by the Executive and the Company (or its affiliates, where applicable)
shall be submitted to arbitration in Vero Beach or Palm Beach, Florida in
accordance with Florida law and the procedures of the American Arbitration
Association. The determination of the arbitrator(s) shall be conclusive and
binding on the Company (or its affiliates, where applicable) and the Executive
and judgment may be entered on the arbitrator(s)’ award in any court having
jurisdiction. In any action in which the Executive is the prevailing party,
the
Company shall pay the Executive’s legal fees.
7.4 Indemnification
and Insurance.
The Company agrees to indemnify (in addition to any other indemnification
provided to the Executive under any separate agreement or the by-laws of
the
Company) the Executive to the fullest extent permitted by applicable law,
as the
same exists and may hereafter be amended, from and against any and all losses,
damages, claims, liabilities and expenses asserted against, or incurred or
suffered by, the Executive (including the costs and expenses of legal counsel
retained by the Company to defend the Executive and judgments, fines and
amounts
paid in settlement actually and reasonably incurred by or imposed on such
indemnified party) with respect to any action, suit or proceeding, whether
civil, criminal, administrative or investigative in which the Executive is
made
a party or threatened to be made a party, either with regard to his entering
into this Agreement or in his capacity as an officer or director, or former
officer or director, of the Company or any affiliate thereof for which he
may
serve in such capacity. Such indemnification shall continue after the
Executive is no longer employed by the Company and shall inure to the benefit
of
his heirs, executors, and administrators. The Company also agrees to
attempt to secure and maintain reasonable officers and directors liability
insurance at reasonable rates, within a reasonable time after the date hereof,
providing coverage for Executive, which coverage would continue after
termination of employment for a reasonable time (but in no event for a shorter
time than is applicable to any other senior executive of the
Company).
7.5 Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission or sent by certified, registered or express mail,
postage
prepaid. Any such notice shall be deemed given when so delivered personally,
telegraphed, telexed or sent by facsimile transmission or, if mailed, five
days
after the date of deposit in the United States mails as follows:
(i) If
to the
Company, to:
Opteum
Financial Services, LLC
W.
000
Xxxxxxx Xxxx
Xxxxxxx,
Xxx Xxxxxx 00000
Attention:
Xxxxxx Xxxxxx
with
a
copy to:
Xxxxxxxx
Chance US LLP
00
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attention:
Xxxxxx
X.
Xxxx, Xx.
(ii) If
to the
Executive, to the address set forth on the signature page hereof.
Any
such
person may by notice given in accordance with this Section 7.5 to the other
parties hereto designate another address or person for receipt by such person
of
notices hereunder.
7.6 Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect
to the
subject matter hereof and supersedes all prior agreements, written or oral,
with
respect thereto, including, without limitation, that certain Employment
Agreement by and between the Company and the Executive, dated as of December
1,
2004.
7.7 Waivers
and Amendments.
This
Agreement may be amended, superseded, canceled, renewed or extended, and
the
terms hereof may be waived, only by a written instrument signed by the parties
or, in the case of a waiver, by the party waiving compliance. No delay on
the
part of any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof, nor shall any waiver on the part of any party
of
any such right, power or privilege nor any single or partial exercise of
any
such right, power or privilege, preclude any other or further exercise thereof
or the exercise of any other such right, power or privilege.
7.8 GOVERNING
LAW.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE
STATE OF FLORIDA WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAW WHICH
COULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE
OF FLORIDA.
7.9 Assignment.
This
Agreement, and the Executive’s rights and obligations hereunder, may not be
assigned by the Executive; any purported assignment by the Executive in
violation hereof shall be null and void. In the event of any sale, transfer
or
other disposition of all or substantially all of the Company’s assets or
business, whether by merger, consolidation or otherwise, the Company may
assign
this Agreement and its rights hereunder.
7.10 Withholding.
The
Company shall be entitled to withhold from any payments or deemed payments
any
amount of tax withholding it determines to be required by law.
7.11 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, permitted assigns, heirs, executors and legal
representatives.
7.12 Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts,
each
of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same instrument. Each
counterpart may consist of two copies hereof each signed by one of the parties
hereto.
7.13 Survival.
Anything contained in this Agreement to the contrary notwithstanding, the
provisions of Sections 6, 7.3, 7.4 and 7.10, and the other provisions of
this
Section 7 (to the extent necessary to effectuate the survival of Sections
6,
7.3, 7.4 and 7.10), shall survive termination of this Agreement and any
termination of the Executive’s employment hereunder.
7.14 Existing
Agreements.
The
Executive represents to the Company that he is not subject or a party to
any
employment or consulting agreement, non-competition covenant or other agreement,
covenant or understanding which might prohibit him from executing this Agreement
or limit his ability to fulfill his responsibilities hereunder.
7.15 Headings.
The
headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have signed their names as of the day
and
year first above written.
OPTEUM
FINANCIAL SERVICES, LLC
By: _/s/
Xxxxxx X. Xxxxx __________
Name:
Xxxxxx X. Xxxxxx
Title:
Executive Vice President
_/s/
Xxxxx Norden____________
Xxxxx
Xxxxxx
000
Xxxxx
Xxxxx Xxxxxxxxx, XX-0
Xxxx
Xxxxx, Xxxxxxx 00000
NYA
752349.2