EXHIBIT 10.54
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made and entered into as of
January 1, 2002 by and between Xxxxxxx-Xxxxxx International, a California
corporation, having an address of 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx
Xxxxx, Xxxxxxxxxx 00000 ("Company"), and Xxxx X. Xxxxx having an address of 000
X. Xxxxxxx Xxx. Xxx Xxxxxxx, XX 00000 ("Employee"), with reference to the
following facts and circumstances:
R E C I T A L S:
A. Company is diversified real estate marketing and investment firm whose
businesses include the management, marketing, development and acquisition of
real estate and real estate related assets, such as secured promissory notes,
real estate brokerage and marketing programs for all types of properties and
financial instruments. Employee is experienced in real estate transactions and
financial instruments.
B. Company desires to employ Employee and Employee desires to be employed
by Company for the purposes and on the terms and conditions set forth in this
Agreement.
C. This Agreement replaces and supersedes in their entirety any and all
prior agreements, express or implied, written or oral, performed or unperformed,
pertaining to the employment of Employee and the compensation to be paid to her
therefor, and all such prior agreements and understandings are hereby terminated
and shall be of no further force or effect.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Company and Employee agree as follows:
1. Employment. Company hereby employs Employee and Employee hereby
accepts employment to perform the duties described in Section 2 below, on the
terms, conditions and covenants set forth in this Agreement.
2. Services Provided to the Company. Subject to the policy guidelines and
directives of the Company which are provided to her by Company from time to time
during the term of this Agreement, Employee shall serve as President of and be
responsible for the operation of Xxxxxxx-Xxxxxx West Coast Commercial Group, be
responsible for the Notes Division,
and to advance the business and welfare of Xxxxxxx-Xxxxxx as determined by the
Company from time to time, and have such powers and duties as may from time to
time be prescribed by the Chairman and Chief Executive Officer of the Company,
which duties may, in the Company's reasonable discretion, be changed in any
legal manner from time to time. Additionally, employee is presently serving, and
shall continue to serve for the remainder of the term hereof at the request of
and in the discretion of the Company, as a Director of the Company. Employee
shall have no authority to bind or obligate Company to the purchase or sale of
any real property, or to any other financial commitment, including without
limitation the borrowing of any monies on a secured or unsecured basis, without
obtaining the prior written authorization of Company as to the specific
transaction. Employee's duties also shall include such other matters or
responsibilities as Company and Employee may jointly agree upon from time to
time during the term of this Agreement.
Employee's employment is on a full-time and "best efforts" basis
meaning that during the term of this Agreement, Employee shall not accept any
full or part-time employment, including without limitation as an Independent
Consultant, after working hours or otherwise, without the prior written consent
of Company, which may be given, withheld or conditioned in Company's sole and
absolute discretion. Employee shall devote her full energies, interests,
abilities, and productive time to the performance of her duties and
responsibilities under this Agreement. During the term of this Agreement,
Employee shall not, directly or indirectly, whether as a partner, employee,
creditor, shareholder or otherwise, promote, participate or engage in any
activity or other business competitive with Company's businesses.
Notwithstanding the foregoing, Company acknowledges that Employee has made and
will continue to make personal investments that will require Employee's periodic
attention. Employee may participate in such personal investments to the full
extent desired by Employee so long as such personal investment activity does not
detract from Employee's ability to devote her full energies and productive
interests to the performance of her duties and responsibilities under this
Agreement.
3. Term of Employment. Employee shall be employed by the Company pursuant
to this Agreement for a term (the "Term") beginning on January 1, 2002, and
continuing through to, and terminating at the close of business on December 31,
2003 (unless earlier terminated pursuant to Section 12).
4. Commitment to the Company.
(a) During the Term, Employee shall not be involved, individually or
as an Employee, principal, officer, general partner, director or shareholder, in
the marketing and/ or sale of any real estate properties or any real estate
activities that are not proprietary to Xxxxxxx-Xxxxxx, Inc. without first
obtaining the consent and approval of a majority of the Company's Board of
Directors. The limitation contained in this Section 4 shall not apply, however,
to the ownership of not more than one percent (1%) of the outstanding shares of
any class of securities of a publicly-held issuer subject to the public
reporting requirements of the Securities and Exchange Act of 1934, as amended,
or any limited partner interest in a limited partnership or similar passive
investment interest so long as the nature of such investment prevents, pursuant
to applicable law, Employee's control of the management of the issuer of such
investment interests. For purposes of this Section 4, Employee shall be deemed
the owner of any interests held by Employee, Employee's spouse, or any other
unemancipated minor member of the Employee's family.
(b) Employee shall, at all times during the Term, strictly adhere to
and comply with all of Company's policies, rules and procedures as they
currently exist and as they may be changed by the Company. Employee agrees that
to the best of her ability and experience she will at all times loyally and
conscientiously perform all of the duties and obligations required of him
expressly or by implication by the terms of this Agreement.
5. Compensation.
(a) Salary: Company shall pay a basic salary to Employee at the rate
of $25,000.00 per month ($300,000.00 annualized) for the term of this Agreement,
payable in bi-monthly equal installments, $25,000.00 per month total, subject to
such deductions and withholdings as Company may from time to time be required to
make pursuant to applicable law, governmental regulation or order.
(b) Bonus:
(i) Note Division: Based on Net Profits of the Note Division,
Employee will receive a bonus as follows:
Net Profits Bonus
------------------ -----
$0 - $1.0MM 15%
$1.0MM - Above 20%
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"Net Profits" shall mean the gross revenue realized during the applicable fiscal
year less any Bonuses paid to the President or other employees of the Note
Division, less all costs and expenses charged to such gross revenue according to
generally acceptable accounting principles as determined in the commercially
reasonable judgment of Company's Chief Financial Officer.
(ii) West Coast Commercial Group: Based on Net Profits of the
West Coast Commercial Group, Employee will receive a bonus as follows:
Net Profits Bonus
------------------ -----
$0 - 1.0MM 15%
$1.0MM - Above 20%
"Net Profits" shall mean the gross revenue realized during the applicable fiscal
year less any Bonuses paid to employees of the West Coast Commercial Group, less
all costs and expenses, charged to such gross revenue according to generally
acceptable accounting principles as determined in the commercially reasonable
judgment of Company's Chief Financial Officer.
Employee acknowledges that Company has not provided Employee with any
projections or estimates of Bonus that might be received by Employee under the
terms of this Agreement as an inducement to Employee to accept employment with
Company.
6. Stock Options: Company shall grant to Employee under KWI's 1992
Incentive and Nonstatutory Stock Option Plan non-transferable incentive and
nonstatutory options to purchase an aggregate of 30,000 shares of common stock
at an exercise price equal to the price of the common stock on the date hereof
on such terms and conditions as are set forth in the Stock Option Agreement
between KWI and the Employee.
7. Other Benefits. During the Term of her employment and subject to
applicable eligibility requirements of position, tenure, salary, age, health and
other qualifications as may be set forth in the Company's Employment Handbook,
or pursuant to the terms of the applicable benefit provider, Employee shall
participate in such benefit plans or programs as are available to the Company's
other employees, including without limitation medical, dental, disability, life
insurance, deferred compensation plan and, 401K Plan.
Employee will be eligible to invest in the principal investments
at an investment percentage consistent with others who have a
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similar level of responsibility at KWI.
8. Business Expenses. Employee will be required to incur ordinary and
necessary travel and other business expenses in connection with the performance
of her duties hereunder, and Employee shall be entitled to reimbursement from
Company for such expenses in accordance with Company's policies and procedures.
9. Non-Competition. For all periods that Employee is employed pursuant to
this Agreement and for a period of six (6) months thereafter, unless Company has
terminated Employee without cause, or if Company has not renewed Employee's
employment in Company's sole and absolute discretion, Employee shall not
directly or indirectly:
(a) Engage in any business in the State of California which engages
in the same businesses or similar businesses engaged in by the Company during
the Term, without the consent of the Board of Directors of the Company, or which
would result in using or revealing any trade secrets or confidential information
of the Company, including but not limited to activities, whether direct or
indirect, as proprietor, partner, shareholder, principal, agent, or employee;
and
(b) In any manner induce, attempt to induce, or assist others to
induce or attempt to induce any employee, partner, joint venturer, independent
contractor, agent or customer of the Company to terminate its, his or her
association with the Company, or do anything to interfere with the relationship
between the Company and such person or entity or other persons or entities
dealing with the Company.
(c) The parties hereto intend that the covenants and agreements
contained in this Section 9 shall be deemed to be a series of separate covenants
and agreements, one for each and every country, county, state, city and other
jurisdiction in the world with respect to which the Company's business has been
or is hereafter carried on. If any of the foregoing is determined by any court
of competent jurisdiction to be invalid or unenforceable by reason of such
agreement extending for too great a period of time or over too great a
geographical area, or by reason of its being too extensive in any other respect,
such agreement shall be interpreted to extend only over the maximum period of
time and geographical area and to the maximum extend enforceable, all as
determined by such court in such action. Any determination that any provision
hereof is invalid or unenforceable, in whole or in part, shall have no effect on
the validity or enforceability of any remaining provision hereof.
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(d) Notwithstanding the foregoing, nothing herein shall prevent
Employee, following the termination of her employment or the end of the Term,
whichever is later, from being associated with any person or entity engaged in
any real estate activities or matters other than real estate auction activities
or other activities which constitute a primary line of business of the Company
at the time of such termination. Employee represents and warrants that she is
not restricted or prohibited in any way from entering into this Agreement or
performing services hereunder at any time, whether by non-competition, covenant,
or otherwise, and shall indemnify, defend and hold the Company harmless from and
against any damages, claims, costs (including attorney's fees) or liabilities as
a result of the incorrectness of such representation and warranty.
10. Trade Secrets. Employee has not disclosed to Company, and Employee has
been advised that Company will not accept at any time during the course of
Employee's employment at Company, the disclosure of any trade secret (as that
term is defined in California Civil Code Section 3426 et. Seq.) the disclosure
or misappropriation of which by Employee would constitute a breach by Employee
of any obligation to any third party, including any former employers. Employee
represents and warrants she has informed Company of the existence of any and all
agreements, including covenants not to compete, between Employee and third
parties which may in any way relate to, impact, or prevent Employee's employment
at Company. Employee represents and warrants she has not taken any act prior to
signing this Agreement that constitutes a breach of any agreement which may in
any way relate to, impact, or prevent Employee's employment at Company.
11. Confidential and Proprietary Information. Employee recognizes that she
will occupy a position of trust with respect to business information of a
confidential or proprietary nature which is the property of the Company and
which has been and will be imparted to her from time to time in the course of
the performance of her duties under this Agreement. All agreements, documents,
studies, analyses, comparables, data, statistics, marketing materials, leads and
lead lists developed or prepared by Employee or others in Company's employ
during the term of this Agreement shall be and remain confidential and shall be
the sole property of Company. Employee hereby acknowledges that Company develops
and utilizes valuable procedures, confidential information and copyrighted
materials, including but not limited to names of property owners who may wish to
sell their property by auction or other means, names of potential purchasers,
leads and lead lists, studies and analyses, methods of obtaining prospects,
marketing and auction procedures and various brochures and other printed
materials, all of which constitute a valuable part of Company's assets built up
by Company's
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ingenuity, time, labor and expense over a period of many years and all of which
constitute Company trade secrets. Employee agrees that:
(a) She shall not at any time, whether during the Term or thereafter,
use, divulge or disclose directly or indirectly any confidential or proprietary
information of the Companies to any person, except that she may use and disclose
to other Company personnel such confidential and proprietary information in the
course of the performance of her duties hereunder or when legally required to do
so in connection with any pending litigation or administrative inquiry; and
(b) She shall return promptly upon the termination of this Agreement
or otherwise upon the request of the Company any and all copies of any
documentation or materials containing any confidential or proprietary
information of the Company.
For purposes of this Agreement, the term "Confidential or Proprietary
Information" of the Company shall include all information which is owned by the
Companies and which is not at the time publicly available or generally known to
persons engaged in businesses similar to that of the Company, including
practices, procedures and methods and other facts relating to the business of
the Companies; practices, procedures and methods and other facts related to
sales, marketing, advertising, promotions, financial matters, clients, client
lists of the Company and similar information of a confidential and proprietary
nature. Employee agrees that her breach of this Section 10 will cause
irreparable harm to the Company. Employee agrees that the remedy at law for any
breach by him of this Section 11 will be inadequate and, in addition to any
other remedy available to the Company, the Company shall be entitled to
injunctive relief for any actual or threatened breach of this Section 11 without
proof that any actual damages have been caused by such breach, and without any
need to post bond or similar security.
12. Termination.
(a) Termination. (Employment At Will) Either Company or Employee may
terminate this Agreement at any time during the Twenty four (24) month Term,
with or without cause, by delivering written notice of its election to the
other. The written notice of termination for cause from Company to Employee
shall include a reasonably detailed description of Employee's acts or omissions,
which constitute cause for termination. The term "cause" shall mean: (I) the
breach of any provision of this Agreement; (ii) misconduct, neglect or
negligence in the performance of Employee's duties and obligations as set forth
in this Agreement; (iii) disloyal, dishonest or illegal conduct or moral
turpitude of Employee; (iv) such material
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carelessness or inefficiency in the performance of her duties that Employee, in
the reasonable discretion of Company, is deemed unfit to continue in the service
of Company; and (v) the material and persistent failure of Employee to comply
with the policies or directives of Company and/or failure to take direction from
Company management.
(b) Employee's employment with Company shall cease upon the date of
her death or physical or mental disability to the extent that Employee becomes
disabled for more than thirty (30) consecutive days or sixty (60) days in the
aggregate in any 12-month period to perform her duties on a full-time basis.
Upon termination for physical or mental disability, Employee shall be entitled
to receive the compensation described in Section 5(a)-(b) and Section 7 to the
date of termination. Upon termination for death, Employee shall be entitled to
receive the compensation described in Section 5(a)-(b) and Section 7 to the date
of termination, and such compensation will be payable to the Xxxx Xxxxx
revocable Trust dated February 7, 2000.
(c) If the term of the Agreement is terminated by Company without
cause, then Company shall continue to pay Employee the salary and other benefits
described in Sections 5(a)-(b) for the remainder of the Term of the Agreement,
together with such other compensation as Employee may be entitled to under the
provisions of Sections 7, Benefits (or if such benefits cannot be provided
pursuant to the terms of the applicable plans, comparable benefits due hereunder
and remaining to be paid during the Term in the ordinary course, provided that
the payment of fringe or comparable benefits shall be subject to the
availability of such benefits following Employee's termination of employment at
no additional cost above what was previously paid by the Company).
(d) If Employee terminates this Agreement, then Employee shall be
entitled to receive only the compensation described in Section 5 above earned to
the date of termination. Company shall not pay Employee the salary and other
benefits which Employee would have been entitled to for the remainder of the
term of the Agreement under Sections 5(a)-(b) and Section 7 above.
(e) If the Term of Employee's employment is terminated for cause,
then Employee shall be entitled to receive only the compensation described in
Section 5 above earned to the date of termination.
(f) This Agreement may be terminated by Employee at any time,
provided such termination shall have the effect set forth as follows:
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Termination of this Agreement pursuant to this Section 12 shall not relieve
Employee of her obligations to comply with Sections 10 and 11 hereof, which
provisions shall survive the termination of this Agreement. If and only if,
Employee resigns due to the Company's material breach of this Agreement which is
not corrected within ten (10) days after the Employee's written notice of the
breach to the Company, then Employee shall be relieved of her obligations under
Section 10 hereof.
13. Alternative Dispute Resolution. The parties to this Agreement
specifically desire an early resolution of any dispute between them, which
arises out of this Agreement. It is therefore, agreed that any controversy
arising out of this Agreement, whether dealing with breach, interpretation or
otherwise, shall be heard by a reference ("Referee") pursuant to the provisions
of the applicable sections of the Code of Civil Procedure and in accordance with
the provisions described below; provided, however, that if injunctive relief is
sought, the complaining party may seek such relief from the California Superior
Court without the use of a Referee.
(a) Enforcement of Agreement. This reference provision may be
enforced by the filing of a complaint or petition or motion seeking specific
enforcement. Service of such motion on the opposing party shall constitute the
"Claim Date" for purposes of this provision.
(b) Selection of Referee. The Referee shall be a retired Judge of the
Court selected by mutual agreement of the parties. If the parties cannot agree
then a Referee shall be appointed by the California Superior Court in accordance
with the appropriate Section of the Code of Civil Procedure. Each party shall be
entitled to only one disqualification pursuant to the appropriate Section of the
Code of Civil Procedure. The parties hereby waive their right to a trial by jury
and agree that their dispute shall be tried by the Referee so selected.
(c) Decisional Rules. The trial shall be conducted and the issues
determined in compliance with all judicial rules and all statutory and
decisional law of the Sate of California as if the matter were formally
litigated in Superior Court. The Referee shall conduct and decide all pre-trial
and post-trial procedures as if the matter were formally litigated in the
Superior Court. All rules of evidence as set forth in the California Evidence
Code; other statutory and decisional law of California State and all-relevant
California County Superior Court Rules and News York Rules of Court shall be
applicable to any proceeding before the Referee.
(d) Discovery. The parties to this Agreement expressly waive their
right to engage in any discovery with the exception of
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depositions and requests for the inspection, production and copying of
documents. Interrogatories, requests for admissions and depositions upon written
interrogatories shall not be permitted. The Referee shall be authorized to issue
subpoenas requiring attendance at hearings and/or trial. All discovery permitted
by this Agreement shall be completed no later than fifteen (15) days before the
first hearing date established by the Referee. The Referee may extend such
period in the event of a party's refusal to provide requested discovery for any
reason whatsoever, including legal objections raised to such discovery or
unavailability of a witness due to absence or illness. No party shall be
entitled to "priority" in conducting discovery. Depositions may be taken by
either party upon seven (7) days written notice. Request for production or
inspection of documents shall be responded to within ten (10) days after
service. All disputes relating to discovery shall be submitted to the Referee
whose decision shall be final and binding upon the parties.
(e) Hearings and Trial. Except as set forth in this Agreement, the
Referee shall determine the manner in which the proceeding is conducted
including the time and place of all hearings, the order or presentation of
evidence, and all other questions that arise with respect to the course of the
proceeding. All proceedings and hearings conducted before the Referee, except
for trial, shall be conducted without a court reporter unless one is requested
by a party. The party making the request shall have the obligation to arrange
and pay for the court reporter. The costs of the court reporter at the trial
shall be borne equally by the parties. The trial shall be conducted without a
jury on consecutive dates, as opposed to being conducted piecemeal on various
dates separated by postponements or adjournments. The trial shall be conducted
in a courtroom or in surroundings with formality as close to a courtroom as
possible. The Referee shall set the matter for hearing within sixty (60) days
after the Claim Date and try all issues of law or fact and report a statement of
decision upon them, if possible, within ninety (90) days of the Claim Date.
(f) Decision of Referee. The Referee shall be empowered to enter
equitable as well as legal relief, to provide all temporary and/or provisional
remedies and to enter equitable orders that will be binding upon the parties.
The Referee shall issue a single judgment at the close of the proceeding that
shall dispose of all of the claims of the parties that are the subject of the
reference. Any decision rendered by the Referee shall be final, binding and
conclusive and judgment shall be entered pursuant to the appropriate Section of
the Code of Civil Procedure in any court in the State of California having
jurisdiction.
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(g) Attorneys' Fees. The prevailing party shall be entitled to costs
and reasonable attorney's fees, including without limitation costs and fees
incurred upon any appeal, as awarded by the court.
(h) Appeal. The judgment entered upon the decision of the Referee
shall be subject to all post-trial procedures and to appeal in the same manner
as an appeal from any order or judgment in a civil action.
14. Miscellaneous.
(a) Assignment. This Agreement is for the unique personal services of
Employee and may not be assigned by Employee without the express written consent
of Company and its affiliates. Except as so provided, this Agreement shall be
binding upon and inure to the benefit of the respective heirs, personal
representatives, successors and assigns of the parties hereto,
(b) License. Employee hereby agrees to obtain / maintain any
professional license in the State of California and in any other jurisdiction
that may be required to do business. During any period that Employee does not
have such a license in good standing, she will not be required to perform acts
within a given jurisdiction for which a license is required in such
jurisdiction, and Employee hereby agrees not to take any such actions for which
a license is required until she has obtained the requisite license for such
jurisdiction.
(c) Severability. Each provision, sub-provision or term of this
Agreement is intended to be severable and shall continue in full force and
effect although other provisions herein may be determined invalid or void for
any reason.
(d) Attorneys' Fees. Subject to Section 8 hereof, in the event suit
is brought to enforce the terms of this Agreement, the prevailing party shall be
entitled to costs and reasonable attorneys fees, including without limitation
those costs and fees incurred upon any appeal, as awarded by the court.
(e) Entire Agreement; Amendments. This Agreement contains the entire
agreement of the parties with respect to the subject matter covered hereby and
may be amended, waived or terminated only by an instrument in writing signed by
the parties hereto. This Agreement shall
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be interpreted according to its fair meaning and not for or against the party
which drafted same.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
COMPANY: EMPLOYEE:
XXXXXXX-XXXXXX INTERNATIONAL,
a California corporation
By: /s/ Xxxxxxx X. XxXxxxxx /s/ Xxxx X. Xxxxx
--------------------------------------- --------------------------
Name: Xxxxxxx X. XxXxxxxx Xxxx X. Xxxxx
Title: Chairman
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