EMPLOYMENT AGREEMENT ALEXANDER GORDON JARDIN
XXXXXXXXX
XXXXXX JARDIN
This
EMPLOYMENT AGREEMENT (“Agreement”), entered into on April 26, 2006, but
effective as of the 1st day March, 2006, by and between Franklin Credit
Management Corporation (“FCMC”) and Xxxxxxxxx Xxxxxx Jardin
(“Employee”).
RECITALS
A.
FCMC is a Corporation organized under the laws of the State of
Delaware.
B.
FCMC desires to employ Employee, and Employee desires to accept employment
from
FCMC.
C.
The parties desire to record the arrangements made for such
employment.
AGREEMENT
IT
IS,
THEREFORE, AGREED:
1.
Definitions: For the purposes of this Agreement, the following capitalized
terms
shall have the following meanings:
a.
Company
shall
mean Franklin Credit Management Corporation and its subsidiaries from time
to
time.
b.
Employee
shall
mean Xxxxxxxxx Xxxxxx Jardin.
c.
Competitor
shall
mean any person, company, firm or corporation which: (1) actually competes
with
the Company or its affiliates in the acquisition, origination, servicing and
resolution of performing, sub-performing, and nonperforming residential mortgage
loan and residential real estate; (2) is engaged in a business in which the
Company or its affiliates are principally engaged; or (3) is engaged in a
business which the Company or its affiliates have at the date of Employee’s
termination of employment reasonably certain plans to principally engage within
twelve months of the Employee’s termination (collectively, “Business of the
Company”).
d.
Change
in Control
shall
mean the occurrence of one or more of the following events:
(1)
If (i) any “person”(as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as
defined in Rule 13d-3 under said Act), directly or indirectly, of securities
of
FCMC representing twenty percent (20%) or more of the total voting power
represented by FCMC’s then outstanding voting securities who is not already such
as of the date of this Agreement, and (ii) Xxxxxx X. Xxxx, members of Mr. Axon’s
family, and entities in which Mr. Axon has an interest (“TIA”) shall have
beneficial ownership of less than twenty percent (20%) or more of the total
voting power represented by FCMC’s then outstanding voting
securities;
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(2)
The consummation of a tender or exchange offer; one or more contested elections
related to the election of directors of the FCMC; a reorganization, merger
or
consolidation, or the acquisition of assets of another corporation, or any
combination of the foregoing transactions (each, a “Business Combination”),
which results in a change in the composition of the Board of FCMC (the “Board”),
as a result of which fewer than fifty percent (50%)
of the
directors are Incumbent Directors.
(3)
FCMC’s shares shall cease to be registered under Section 12(b) or 12(g) under
the Securities Exchange Act of 1934, as amended.; or,
(4)
A sale or other disposition of all or substantially all of the assets of the
FCMC.
Notwithstanding
the foregoing, a “Change of Control” shall not be deemed to have occurred if the
Company files for bankruptcy protection, or if a petition for involuntary relief
is filed against the Company.
e.
Incumbent
Directors
shall
mean directors who either (A) are directors of the Company as of the date hereof
or (B) are elected, or nominated for election, to the Board with the affirmative
votes of at least a majority of those directors, or if such determination is
being made by a committee of the Board of directors, a majority of the directors
on such committee, whose election or nomination was not in connection with
any
transaction described in subsections (1) or (2) of Section 1(e) or in connection
with an actual or threatened proxy contest relating to the election of directors
of the Company.
f.
Board
of Directors
shall
mean the Board of Directors of the Company or any committee of the Board of
Directors that is then charged with making compensation decisions with respect
to the Employee.
2.
Employment/Term.
Effective March 1, 2006, FCMC hereby employs Employee. The Employee shall be
appointed Chief Executive Officer by the Board of Directors effective promptly
on or after April 26, 2006. The term of employment shall be for the period
of
five (5) years commencing March 1, 2006, unless terminated sooner pursuant
to
the provision of Section 11 of this Agreement.
a.
Place of Employment.
During
the term of employment, Employee shall be based at FCMC’s principal executive
offices, which shall be in the New York City metropolitan area (including the
surrounding area of New Jersey) (NYC), subject to reasonable travel required
in
the performance of Employee’s duties.
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3.
Duties
and Authority.
The
responsibilities of Employee shall include management, control, administration,
and operation of the following aspects of the business and affairs of the
Company:
a.
Employee’s duties shall include those duties normally customarily associated
with the position of CEO. Without limitation, Employee shall be responsible
for
the general and active management of the affairs of the Company, including
but
not limited to (i) supervision and evaluation of the Company and its staff;
(ii)
developing, implementing and reviewing strategic plans for each business
segment; (iii) developing operating budgets for each business segment; (iv)
review and oversight of regulatory issues and compliance; (v) oversight of
information technology including management information systems; (vi)
responsibility for management reporting and financial reporting
packages.
b.
Employee shall report directly to the Board and the Chairman. All employees
of
the Company, other than the President and the Chairman of the Board shall report
directly or indirectly to the Employee; and,
c.
Employee shall submit to the Board of Directors from time to time such
recommendations and information concerning any phase of Company policy or
administration as may seem necessary to Employee to be in the best interests
of
the Company.
4.
Compensation.
FCMC
shall pay to Employee the following
compensation:
a.
Salary.
Employee shall receive an initial annual salary of $325,000, payable on a
semimonthly basis, which annual salary may be adjusted upward (but not downward)
by the Board of Directors.
b.
Bonuses.
In
addition to the salary set forth above, Employee shall receive an annual
bonus. For the year ending December 31, 2006, the targeted bonus shall be
2.5% of net income. Notwithstanding the forgoing, the actual bonus for the
year ending December 31, 2006 shall be subject to the reasonable discretion
of
the Board of Directors. The Employee’s bonus for each year will be determined
and paid on or before May 1 of the following calendar year.
(1)
In the event Employee’s employment with FCMC ends on any date other than
December 31 of a fiscal year, Employee’s bonus for such fiscal year shall be
determined in a manner consistent with the prior paragraph, subject however
to
prorating the number of months (full and partial) he was employed during such
fiscal year.
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(2) Employee
shall receive a signing bonus of Twenty-five Thousand ($25,000) dollars on
execution of this Agreement.
c.
Stock.
After
approval at our 2006 annual meeting of a plan in which restricted stock may
be
granted and registration of the shares under such plan under the Securities
Act
of 1933 as additional compensation for services provided under this agreement,
Employee shall be granted (the date of such grant being the “Grant Date”)
100,000 shares of restricted common stock of the FCMC (the “Restricted Award”)
pursuant to a Restricted Stock Grant Agreement under such plan. On the Grant
Date, none of the Restricted Award shall be vested. The Restricted Award shall
vest on the following schedule:
10,000
shares on the Grant Date
5,000
shares on each of July 1; October 1 2006; January 1; April 1, 2007;
5,000
shares on each of July 1; October 1, 2007; January 1; April 1,
2008;
6,250
shares on each of July 1; October 1, 2008; January 1; April 1,
2009;
6,250 shares
on
each of July 1; October 1, 2009; January 1; April 1, 2010.
(1)
Employee acknowledges that the shares subject to the Restricted Award shall
be
restricted stock and subject to restrictions imposed by Federal and/or State
securities laws.
(2)
The Restricted Award is subject to forfeiture to the extent that it has not
become vested and nonforfeitable in accordance with the vesting schedule set
forth above. Except as provided in subsection (c)(3) of this Section or Section
13, in the event that Employee’s employment by FCMC terminates prior to any of
the vesting dates set forth in this subsection, any portion of the Restricted
Award that has not become vested and nonforfeitable on or prior to the date
of
such termination shall be forfeited.
(3)
In the event of a Change of Control, during the term hereof, the entire
Restricted Award shall immediately become fully vested and
nonforfeitable.
(4)
Employee will make an election under Section 83(b) of the Internal Revenue
Code
of 1986, as amended, with regard to the shares subject to the Restricted Award.
FCMC shall reimburse Employee on a grossed up basis for any taxes resulting
from
Employee having made such election at Employee’s incremental tax rate (covering
Social Security, and all applicable state, local, and federal
taxes).
(5)
Employee shall have registration rights with respect to the Restricted Award
as
set forth in the Registration Rights Agreement that is made effective, as of
the
Grant Date.
(6)
Purchase
of Shares.
FCMC
will grant Employee an option to purchase up to 20,000 shares of common stock
of
FCMC at a per share price equal to the market price of such shares at the date
of the grant, which option shall expire on April 1, 2007. Such option will
be
fully vested at the date of grant.
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5.
Certain
Benefits.
a.
Vacation
and other benefits.
During
each twelve-month period that Employee is employed by FCMC, Employee shall
be
entitled to four weeks (i.e., twenty days) of paid vacation plus regular
personal days and holidays in accordance with the policies of FCMC. Up to five
(5)
unused
vacation days can be accrued or aggregated from one twelve-month period to
the
next. In addition, Employee shall be entitled to participate in all present
and
future benefit plans and/or fringe benefits provided by FCMC to its other
executive officers.
b.
Car
Allowance.
Throughout the term of employment, Employee shall receive a car allowance of
$1,000 per month to cover purchase or lease expense of vehicle, gas,
maintenance, insurance and parking. Employee shall also receive a paid parking
space in the vicinity of the Company’s offices.
c.
Expense
Reimbursements.
Employee is authorized to incur reasonable, ordinary and necessary expenses
in
carrying out his duties and responsibilities under this Agreement, including,
without limitation, annual professional dues, expenses for travel, business
entertainment and similar items related to such duties and responsibilities.
FCMC will reimburse Employee for all such expenses upon presentation by Employee
from time to time of appropriately itemized and documented accounts of such
expenditures, consistent with the FCMC’s policy.
d.
Legal
Reimbursement.
FCMC
shall reimburse Employee for his legal costs incurred in connection with this
Agreement and related matters.
6.
Moving
Expenses.
a.
FCMC shall provide Employee temporary housing in the New York City metropolitan
area (NYC) for up to 90 days from date of employment. FCMC will manage the
process of finding suitable housing.
b.
FCMC shall reimburse Employee for two house hunting trips to NYC for Xxxxxxxx
Xxxxxx, utilizing cost-effective airfare and ground transportation.
c.
FCMC shall reimburse Employee for bi-monthly trips to Kansas City during the
90
day interim housing period, utilizing cost-effective airfare and ground
transportation.
d.
FCMC shall pay the initial costs associated with renting an apartment in the
NYC
metropolitan area; including, but not limited broker fees, legal costs to review
a lease and similar items; but excluding rental payments, security deposit,
tenant improvements and similar items.
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e.
FCMC shall pay for the movement and temporary storage (for up to 60 days) of
the
household goods of Employee and members of his household.
f. FCMC
shall pay for the travel expenses to move Employee and members of his household
to NYC.
g.
FCMC shall reimburse Employee for reasonable other moving expenses upon
submission of an itemized list.
h.
FCMC shall reimburse Employee for costs associated with the closing of the
sale
of the residence in Kansas City. That includes broker fees paid and other
reasonable costs to be submitted to FCMC. This assumes a house sale price of
approximately $1,000,000.
i.
FCMC
shall pay Employee an amount necessary to gross up the non-deductible moving
expenses at Employee’s incremental tax rate (covering Social Security, and all
applicable State, Local, and Federal Taxes).
7.
Acknowledgments.
The
Company conducts its Business in both the New York City metropolitan area and
on
a national basis. Employee acknowledges that:
a.
The Company’s services are highly specialized;
b.
The Company has a proprietary interest in its methods and processes;
and,
c.
Documents and other information regarding The Company’s methods, pricing, costs,
suppliers, customers, and other proprietary business information are highly
confidential and constitute trade secrets.
8.
Trade
secrets and confidential information.
During
the term of this Agreement, Employee may have access to, and become familiar
with, various trade secrets and confidential information belonging to FCMC,
its
subsidiaries or affiliates. Employee acknowledges that such confidential
information and trade secrets are owned and shall continue to be owned solely
by
FCMC, its subsidiaries or affiliates. During the term of his employment and
thereafter, regardless of whether termination is initiated by FCMC or Employee,
Employee agrees not to use, communicate, reveal or otherwise make available
such
information for any purpose whatsoever, or to divulge such information to any
person, partnership, corporation or entity other than the Company or persons
expressly designated by the Company, unless Employee is compelled to disclose
it
by judicial process.
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9.
Restrictive
covenants.
a.
Full-time
Employment.
During
the period of his employment, Employee shall not, directly or indirectly, alone
or as a member of any partnership, or as an officer, director, shareholder,
or
employee of any corporation, engage in or be concerned with any other paid
employment, except as otherwise authorized in writing by FCMC. Notwithstanding
the foregoing, nothing herein shall preclude Employee from participating in
charitable, educational, religious and community affairs and organizations,
from
serving as a member of the board of directors of a corporation (so long as
such
corporation does not compete directly or indirectly with the Company and is
not
otherwise involved in the purchase and/or sell of sub-prime loans), from
managing personal investments made by him, and leasing and managing any
investment property including his principal residence.
b.
Non-competition.
Employee agrees that:
(1)
During the period of Employee’s employment by FCMC, Employee will not accept
employment with, or act as a consultant, contractor, advisor, or in any other
capacity for, a Competitor, or enter into competition with the Company, its
subsidiaries or affiliates, with regard to the Business of Company either by
himself or through any entity owned or managed in whole or in part by Employee,
and Employee shall not make any preparations to compete with the Company with
regard to the Business of Company.
(2)
During the term of this Agreement and for a period of nine (9) months after
termination of Employee’s employment by FCMC for any reason, regardless of
whether the termination is initiated by FCMC or Employee, Employee shall not
solicit or make, or cause to make, any offer of employment to any employee
of
the Company, it subsidiaries or affiliates, for the purpose of inducing such
employee to terminate his or her employment with the Company, or its
subsidiaries or affiliates.
(3)
For a period of twelve (12) months after termination of Employee’s employment
for any reason, regardless of whether the termination is initiated by FCMC
or
Employee, or for a period of time equal to the length of
Employee’s employment with FCMC if such tenure is less than twelve (12) months,
Employee will not, directly or indirectly, solicit for the purchase or sale
of
financial assets any person, company, firm, or corporation from whom the Company
purchased financial assets or to whom the Company sold assets originated by
the
Company during the last twelve (12) months of Employee’s employment or during
the period of Employee’s employment with FCMC if such tenure is less than twelve
(12) months. Employee agrees not to so solicit such customers on behalf of
himself or any other person, firm, company, or corporation, if such solicitation
is for the purchase or sale of the same or similar types of financial assets
purchased or sold by the Company.
c.
The parties have attempted to limit Employee’s right to compete only to the
extent necessary to protect the Company from unfair competition. The parties
recognize, however, that reasonable people may differ in making such a
determination. Consequently, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way disputed at any time,
a
court or other trier of fact may modify and enforce the covenant to the extent
that it believes the covenant is reasonable under the circumstances existing
at
that time.
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d.
Employee further acknowledges that each of the covenants set forth in this
Section is reasonable and necessary for the protection of FCMC business
interests, that irreparably injury will result to FCMC if Employee breaches
any
of the terms of said covenants, and that in the event of Employee’s actual or
threatened breach of any such covenants, FCMC will have no adequate remedy
at
law.
10.
Remedies.
Employee acknowledges that: (1) compliance with Sections 8 and 9 herein is
necessary to protect FCMC’s business and good will; (2) a breach of those
Sections will irreparably and continually damage FCMC; and (3) an award of
money
damages will not be adequate to remedy such harm. Consequently, Employee agrees
that, in the event he breaches or threatens to breach any of these covenants,
FCMC shall be entitled to both: (1) a preliminary or permanent injunction in
order to prevent the continuation of such harm; and (2) money damages, insofar
as they can be determined, including, without limitation, all reasonable costs
and attorneys’ fees incurred by the
FCMC
in
enforcing the provisions of this Agreement if FCMC is successful in establishing
Employee’s breach of these covenants. Nothing in this Agreement, however, shall
prohibit FCMC from also pursuing any other remedy.
11.
Termination.
a.
Termination
by Either Party.
Either
party may terminate Employee’s employment “without cause” by giving thirty (30)
days prior written notice to the other.
b.
Termination
by FCMC.
Employee’s employment may be terminated by the Company “for cause” if
he:
(1)
continually fails or refuses to perform one or more of his material assigned
duties to the Company;
(2)
continually fails or refuses to comply with one or more policies of the
Company;
(3)
breaches any of the material terms of this Agreement; or,
(4)
commits any criminal, fraudulent or dishonest act related to his employment
(other than a dispute relating to the unintentional erroneous reporting of
an
immaterial amount as an expense) relating to FCMC or any of its assets or
opportunities;
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Notwithstanding
the forgoing, FCMC shall not be entitled to terminate Employee for cause under
subsections (1), (2) or (3) of this subsection unless: (i) Employee has been
given written notice describing in reasonable detail the alleged breaches and
stating that such breaches are grounds for termination for cause under this
Section, and (ii) Employee fails to cure such breaches within ten (10) days
after receipt of such notice.
In
the
event that FCMC terminates Employee for cause pursuant to the provisions of
this
subsection and it is later determined by a court of competent jurisdiction
that
such cause did not exist, Employee’s termination shall be deemed to be a
termination by the Company without cause. In such event: (I) Employee shall
be
entitled to receive Severance pursuant to the terms of this Agreement as if
the
termination was made by FCMC without cause, and (2) the entire Restricted Award
shall become fully vested and nonforfeitable.
c.
Termination
by Employee.
Employee shall have the right to terminate his employment for “good reason.” For
the purposes of this Agreement, good reason shall be limited to the
following:
(1)
FCMC transfers the place of Employee’s employment in violation of Section 2 (a)
of this Agreement;
(2)
FCMC breaches any of the material terms of Sections 2, 4, 5
or
6 of
this Agreement or the Company knowingly misrepresented or failed to disclose
to
Employee a material financial, regulatory or legal matter of, or involving,
the
Company prior to the execution of this Agreement of which Employee did not
have
knowledge;
(3)
Any material diminution by FCMC of Employee’s duties or responsibilities, except
in connection with the termination of Employee’s employment by FCMC, as a result
of permanent disability, or as a result of Employee’s death;
(4)
Employee is requested by FCMC to act in an unethical or illegal manner
or
(5)
Employee is removed as CEO, President or Director of the Company.
Notwithstanding
the forgoing, Employee shall not be entitled to terminate his employment for
good reason under subsection (4) of this subsection: (i) unless Employee has
given FCMC reasonable written notice of the act, or failure to act, which
Employee contends is unethical or illegal, or (ii) if FCMC has obtained an
opinion of counsel opining that Employee has not been requested to act or fail
to act in an unethical or illegal manner, or (iii) if FCMC fails to cure such
breach within ten (10) days.
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d.
Termination
Due to Incapacity.
In the
event Employee is unable to perform his material duties because of illness
or
disability for a continuous period of 120 days in any twelve month period,
FCMC
may terminate this Agreement without further notice.
e.
Termination
Due to Death.
This
Agreement shall terminate upon the death of Employee, subject to the rights
and
obligations of each party contained herein.
12.
Severance.
a.
Conditions
under which Severance is Paid.
(1)
Termination
for Cause.
In the
event that FCMC terminates Employee’s employment for cause, the Employee shall
receive nothing other than any accrued salary, payment for accrued but unused
vacation time, and reimbursement of expenses already incurred under Sections
5
and/or
6
hereof. Any portion of the Restricted Award that has not become vested and
nonforfeitable on or prior to the date of such termination shall be
forfeited.
(2)
Termination
Without Cause.
In the
event that FCMC terminates Employee’s employment without cause, the Employee
shall receive the severance pay provided in subsection (b) of this Section
in
addition to any accrued salary, accrued bonus, payment for accrued but unused
vacation time, and reimbursement of expenses already incurred under Sections
5.
and/or
6
hereof. Any portion of the Restricted Award that has not become
vested and nonforfeitable on or prior to the date of such termination shall
be
forfeited.
(3)
Termination
by Employee.
In the
event Employee
terminates
his employment without good reason, the Employee shall receive nothing other
than any accrued salary, accrued bonus, payment for accrued but unused
vacation
time,
and
reimbursement of expenses already incurred under Sections 5
and/or
6
hereof. Any portion of the Restricted Award that has not become vested and
nonforfeitable on or prior to the date of such termination shall be
forfeited.
(4)
Termination
by Employee for Good Reason.
In the
event Employee terminates his employment with good reason, Employee shall
receive the
severance
pay provided in subsection (b) of this Section in addition to any accrued
salary, accrued bonus, payment for accrued but unused vacation time, and
reimbursement of expenses already incurred under Section 5 and/or
6
hereof.
(5)
Termination
following Change in Control.
In the
event Employee’s employment is terminated (either by the Company or .
by
Employee) following a Change in Control, Employee shall receive the severance
pay provided in subsection (b) of this Section. Notwithstanding the forgoing,
this subsection shall not apply to a termination of Employee for cause,
following a Change in Control.
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(6)
Death
or Disability.
In the
event of Employee’s death or disability under Section 11 above, Employee or his
estate shall receive the severance pay provided in subsection (b) of this
Section in addition to any accrued salary, accrued bonus, payment for accrued
but unused vacation time and reimbursement of expenses already incurred under
Section 5 and/or 6 hereof. In addition, in the event of Employee’s death or
disability under Section 11 above, the entire Restricted Award shall immediately
become fully vested and nonforfeitable.
b.
Amount
of Severance.
To the
extent severance is payable to Employee pursuant to subsection (a) of this
Section, Employee shall be entitled to receive the severance payments provided
for in subparts (1), (2) and (3) of this subsection:
(1)
Vacation;
Bonus.
Employee shall be paid by FCMC in a lump sum in respect of all accrued and
unused vacation within ten days after termination of employment in an amount
based on Employee’s current base salary.
(2)
Employee
shall be
paid a prorated bonus determined by, or consistent with Section 4 hereof. Such
bonus shall be paid at the later of six months after termination of the
Agreement or the date provided under the date of Section 4.
(3)
Additional
Lump Sum Payment.
Employee shall be entitled to receive payment, in a lump sum payable six months
after the termination of the Agreement, in the following amounts:
(i)
if the termination occurs prior to January 1, 2007
$225,000;
(ii)
if the termination occurs on or after January 1, 2007 —
$225,000
plus $13,542 for each month (or partial month) of employment with FCMC after
December 31, 2006. However, in no event shall the amount paid pursuant to this
subsection exceed Employee’s salary as of the date of such termination plus an
amount equal to the value of Employee’s total benefits for the prior twelve (12)
month period, as of the date of such termination.
c.
Effect
of Severance Payments.
The
severance payments set forth in this Section are payments made as liquidated
damages and not as a penalty. In the event Employee’s employment is terminated
and Employee is not entitled to severance in accordance with subsection (a)
of
this Section, Employee shall be entitled to no further compensation or payments
from FCMC, except as set forth above.
d.
Cooperation.
On
termination of employment with FCMC, Employee shall provide FCMC a written
resignation from all positions with the Company, its subsidiaries and
affiliates, and any other documents that the Company may need to effectuate
severance of the relationship and to forfeit any unvested portion of the
Restricted Award.
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13.
Effect
of Termination.
Notwithstanding any other provision of this Agreement (including but not limited
to Section 12(a)(6), related to Death and Disability, and Section 4(c)(3),
related to Change in Control), in the event Employee’s employment is terminated
pursuant to Section 11 of this Agreement by Employee for good reason, then
any
unvested portion of the Restricted Award under Section 4(c) shall immediately
vest and become nonforfeitable.
14.
Return
of the Company Property.
On
termination of employment, Employee shall return to FCMC all keys,
correspondence, contracts, reports, price lists, manuals, forms, mailing lists,
customer lists, advertising materials, ledgers, supplies, equipment, checks,
xxxxx cash and all documents of any form relating to the Business of the Company
or its subsidiaries or affiliates in his possession or control.
15.
Notice.
Any
notice required to be given hereunder shall be in writing sent by registered
mail, return receipt requested, to FCMC at 000 Xxxxxx Xxxxxx, Xxxxxx Xxxx,
Xxx
Xxxxxx 00000, Attention Xxxxxx X. Xxxx, and to Employee at the address contained
in the personal records of FCMC or to such changed address as a party may
designate by like notice to the other party. The effective date of such notice
shall be its mailing date.
16.
Entire
Agreement.
This
Agreement supersedes all agreements previously made by the parties relating
to
its subject matter. There are no other understandings or agreements between
the
parties relating to the subject matter of this Agreement.
17.
No
Violation or Default.
Employee hereby represents and warrants that the execution of this Agreement
by
him will not violate the provisions of or constitute a default under any other
agreement or arrangement to which—Employee is party or otherwise
bound.
18.
Indemnification.
FCMC
shall indemnify Employee in Employee’s capacity as an officer and director, if
and as applicably, under the terms and conditions of the agreement in place
between the Company and its other Officers and Directors (including but not
limited to the FCMC’s Certificate of Incorporation), which may be revised from
time to time.
19.
Non-Waiver.
No
delay or failure by either party to exercise any right under this Agreement,
and
no partial or single exercise under it, shall constitute a waiver of that or
any
other right.
20.
Headings.
Headings in this Agreement are for convenience only and shall not be used to
interpret or construe its provisions.
21.
Governing
Law.
This
Agreement shall be construed in accordance with and governed by the laws of
the
State of New York.
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22.
Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
23.
Binding
Effect.
The
provisions of this Agreement shall be binding upon and inure to the benefits
of
each of the parties and theft respective successors and assigns.
24.
Tax
Gross Up.
Employee shall receive any series of tax “gross up” payments necessary in order
to fully defray any and all federal, state, and local taxes, from whatsoever
jurisdictions, that Employee may recognize or incur as a result of the payments,
benefits, or other income items referenced in Sections 4(c)(4) and 6(i), and
to
defray all such taxes on such payments themselves, so as to equalize such taxes
and avoid Employee having to be out-of-pocket or otherwise bear such taxes
himself. Both parties agree to negotiate in good faith any changes to this
Agreement as may be reasonably necessary to avoid any of the compensation of
the
Employee being determined to be deferred compensation and thereby subjecting
any
of the parties to excise taxes or other penalties under the American Jobs
Creation Act of 2004, and any regulations promulgated thereunder.
25.
Survival.
All
rights of either party hereunder that by their terms are intended to survive
termination of employment, (including without limitation Employee’s rights to
severance compensation, continuing benefits, indemnification, tax gross up,
and
for reimbursement for expenses validly incurred prior to termination), shall
survive the termination or non-renewal of Employee’s employment
hereunder.
IN
WITNESS WHEREOF, the parties hereto have signed this Agreement on April 26,
2006, effective as of March 1, 2006.
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EMPLOYEE:
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________________________________
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Xxxxxxxxx
Xxxxxx Jardin
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FCMC:
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Franklin
Credit Management Corporation
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By:______________________________
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Name:
Xxxxxx X. Xxxx
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Title:
Chairman
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