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EXHIBIT 10.48
EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of this 1st day January, 1997 by and
between WASHINGTON MORTGAGE FINANCIAL GROUP, LTD., a Delaware corporation, (the
"Employer") and Xxxxx X. Xxxxxxx (the "Executive").
WHEREAS, the Employer desires to obtain the services and employment of the
Executive, and the Executive desires to secure employment from the Employer,
upon the terms and conditions hereinafter set forth, the parties hereto agree as
follows:
1. TERM OF EMPLOYMENT. The Employer agrees to employ the Executive,
and the Executive accepts employment exclusively with the Employer, for the
period of five (5) years, commencing on January 1, 1997 and ending at the close
of business on December 31, 2001 unless sooner terminated as provided in this
Agreement. For the purposes of this Agreement, the period commencing on January
1, 1997 and ending at the close of business on December 31, 2001 shall be
referred to as the "Employment Period."
2. COMPENSATION.
(a) BASE SALARY. The Executive shall receive a base salary at the
annual rate of $105,000.00 (the "Base Salary"), subject to adjustment from time
to time by the Employer. The compensation provided for in this Section shall be
in addition to any bonuses or other additional compensation specified in this
Agreement or provided at the option of the Employer.
(b) SALARY PAYMENT. All Base Salary due under this Section shall
be paid in accordance with the salary payment schedule for executives of the
Employer as, from time to time, may be adopted by the Employer in its sole
discretion.
(c) BONUS AND COMMISSIONS. In addition to the Base Salary, the
Executive shall be entitled to additional, incentive compensation in the form of
a bonus or commission income, commencing as to calendar year 1997, as provided
in the Bonus and Commission Plan attached hereto as EXHIBIT A.
3. PERFORMANCE APPRAISAL AND DISCRETIONARY BASE SALARY ADJUSTMENTS.
The Executive's work performance shall be reviewed in March of each year
beginning in 1997. As part of this annual performance appraisal review, the
Base Salary shall be reviewed and may be adjusted to reflect the Executive's
performance. The Base Salary may not be reduced without the prior written
consent of the Executive.
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4. CAPACITIES AND DUTIES. During the term of this Agreement, the
Executive shall work full-time for the Employer and shall be employed in the
capacity, and shall have the responsibilities and duties, as specified in the
position description attached hereto as EXHIBIT B. The Executive shall also
perform such additional duties as may be designated from time to time by the
Employer to the extent that such additional duties do not materially interfere
with the Executive's duties as described in Exhibit B. The Executive agrees to
perform and discharge well and faithfully all duties assigned to him and to
devote his full, best and most diligent efforts towards the performance of his
duties for the Employer and the furtherance of its business. The Employer will
furnish the Executive office space, equipment, supplies, and such other
facilities and personnel as the Employer deems necessary or appropriate for the
performance of the Executive's duties under this Agreement. Nothing in this
Agreement shall be construed to prohibit the Executive from engaging in business
activities other than those described in Exhibit B, provided that such other
business activities may not be competitive with the Employer and may not
interfere with the obligation of the Executive to provide full-time services to
the Employer under this Agreement.
5. OTHER BENEFITS. In addition to the foregoing, the Employer shall
provide the Executive the following in benefits:
(a) VACATION. The Executive shall be entitled to four (4) weeks
of paid vacation per year.
(b) EXPENSES. The Employer shall pay and reimburse the Executive
for all reasonable and necessary expenses incurred or paid by the Executive in
the discharge of his duties hereunder, provided (i) such expenses have been
previously authorized by the Employer, and (ii) the Executive submits adequate
proof of said expenses to the Employer.
(c) EMPLOYEE BENEFITS. The Executive shall be eligible to
participate in any and all employee benefit plans and programs, including but
not limited to, health insurance and retirement programs, which are available to
all full-time employees of the Employer.
6. TERMINATION; RESIGNATION.
(a) TERMINATION BY EMPLOYER WITHOUT CAUSE. The Employer may
terminate the Executive's services and this Agreement at any time and for any
reason or no reason whatsoever by giving thirty (30) days' prior written notice
to the Executive. In the event the Executive is terminated by the Employer for
any reason other than for Cause, as defined below, the Executive shall (i) be
entitled to a severance payment in an amount equal to twelve (12) months' Base
Salary (the "Severance Payment"), and (ii) notwithstanding the terms and
provisions of Section 7(c) of this Agreement, be subject to the terms and
provisions of said Section 7(c) only for a period of one (1) year following the
date of termination, provided,
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however, that the Executive shall not be subject to the terms and provisions of
said Section 7(c) any time after the Executive waives in writing his right to
receive the Severance Payment.
(b) TERMINATION BY EMPLOYER FOR CAUSE; RESIGNATION OF EXECUTIVE.
The Executive shall not be entitled to any Severance Payment (i) in the event
that he is terminated by the Employer for Cause, or (ii) in the event that he
resigns and terminates his employment with the Employer and the Employer is not
in material breach of this Agreement. In either event, he shall also be subject
to the terms and provisions of Section 7(c) of this Agreement for that period of
time which is equal to (i) the time from the date of termination to the end of
the Employment Period (the "Remainder of the Employment Period"), PLUS (ii) one
(1) year.
For the purposes of this Agreement, "Cause" is hereby defined to mean: (i)
the engaging by the Executive in any act of dishonesty in connection with the
performance of his employment duties and responsibilities, including but not
limited to the appropriation (or attempted appropriation) of a material business
opportunity of the Employer, including attempting to secure or securing any
personal profit in connection with any transaction entered into on behalf of the
Employer or the misappropriation (or attempted misappropriation) of any of the
Employer's funds or property; (ii) with respect to the Executive, the conviction
of, the indictment for (or its procedural equivalent), or the entering of a
guilty plea or plea of no contest with respect to, a felony, the equivalent
thereof, or any other crime with respect to which imprisonment is a possible
punishment, (iii) the Executive's breach of this Agreement, including the
failure of the Executive, after notice by and consultation with the Employer, to
perform his duties or responsibilities under this Agreement, or (iv) the
inability of the Executive to perform his duties or responsibilities for a
period of more than one hundred twenty (120) consecutive days due to his own
physical or mental illness or incapacity or due to the death or the physical or
mental illness or incapacity of a member of his family, provided, however, that
if the Executive is terminated pursuant to this paragraph (b)(iv), he shall be
entitled to resume his employment with the Employer within ninety (90) days of
his termination, subject to the terms and provisions of this Agreement and at
the Base Salary which was payable to the Executive at the time of his
termination for Cause pursuant to this paragraph (b)(iv). If the Executive
elects so to resume his employment with the Employer and is at any time
thereafter terminated for Cause pursuant to this paragraph (b)(iv), then such
subsequent termination for Cause shall not be subject to or conditioned upon any
rights of the Executive to resume employment with the Employer.
(c) BREACH OF AGREEMENT BY EMPLOYER AND RESIGNATION BY EXECUTIVE.
In the event that the Employer materially breaches this Agreement and pursuant
to such breach the Executive resigns and terminates his employment with the
Employer, and the Executive is not in material breach of this Agreement, then
the Executive shall (i) be entitled to the Severance Payment, and (ii)
notwithstanding the terms and provisions of Section 7(c) of this Agreement, be
subject to the terms and provisions of said Section 7(c) only for a period of
one (1) year following the date of termination, provided, however, that the
Executive shall not be subject to
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the terms and provisions of said Section 7(c) any time after the Executive
waives in writing his right to receive the Severance Payment.
(d) PAYMENT OF SEVERANCE. Any Severance Payments due under this
Agreement shall be paid, in equal monthly installments, over a period of twelve
(12) months after the termination of employment of the Executive.
(e) SURVIVAL. The provisions of this Section 6 shall survive the
termination of this Agreement for the term necessary to complete any severance
payments required to be paid to the Executive hereunder.
7. CONFIDENTIAL INFORMATION; NON-COMPETITION.
(a) INTRODUCTION. The Executive and the Employer recognize that
due to the nature of their relationship, the Executive has had access to and
will have access to confidential and proprietary information relating to the
business and operations of the Employer. The Executive acknowledges that all
such information has been and will continue to be of critical importance to the
Employer and that disclosure of it to, or its use by, others could cause
substantial injury to the Employer.
(b) CONFIDENTIALITY. The Executive shall keep confidential any
confidential information of the Employer which is now known to him or which
hereafter becomes known to him as a result of his employment by the Employer,
and shall not at any time directly or indirectly disclose any such information
to any person or firm or use the same in any way other than in connection with
the business of the Employer during, and at all times after termination of, the
employment by the Employer of the Executive. The Executive further agrees that
he will, upon termination of his employment by or with the Employer, return to
the Employer, all confidential information in the Executive's possession,
including all books, records, lists and other written, typed or computer printed
materials or data, and all copies thereof and excerpts therefrom, whether
furnished by the Employer or an affiliate of the Employer or prepared by the
Executive, which contain any information relating to the Employer's business,
and the Executive agrees that he will neither make nor retain any copies of such
materials after termination of his employment. The Executive recognizes that
should a dispute or controversy arising from or relating to this Agreement be
submitted for adjudication to any court, arbitration panel, or other third
party, the preservation of the secrecy of confidential information may be
jeopardized. All pleadings, documents, testimony, and records relating to any
such adjudication will be maintained in secrecy (except as must be made public
in accordance with court rules and procedures) and will be available for
inspection by the Employer, the Executive, and their respective attorneys and
experts, who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in writing.
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For the purposes of this Agreement, "confidential information" shall
mean, to the extent that such information is not generally known or available to
the public, any and all: (a) trade secrets concerning the business and affairs
of the Employer, data in all media and formats, processes, designs, sketches,
photographs, graphs, drawings and inventions, past, current, and planned
research and development, current and planned marketing or distribution methods
and processes, customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software and programs
(including object code and source code), computer software and database
technologies, systems, structures, and architectures, and any other information,
however documented, that is a trade secret generally within the meaning of law;
and (b) information concerning the business and affairs of the Employer (which
includes historical financial statements, financial projections and budgets,
historical and projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and techniques and
materials, however documented; and (c) notes, analysis, compilations, studies,
summaries, and other material prepared by or for the Employer containing or
based, in whole or in part, on any information included in the foregoing. For
the purposes of this Agreement, customer lists shall not include any list
prepared by the Executive after the termination of his employment or of this
Agreement which are compiled by the Executive without referring to any
confidential information.
(c) NON-COMPETITION; NON-SOLICITATION. During the Employment
Period and for a period of one (1) year thereafter, the Executive will not,
directly or indirectly, either individually or as owner, director, partner,
agent, employee, ,independent contractor, consultant or otherwise, except for
the account of and on behalf of the Employer (i) engage in any manner in the
multi-family or commercial mortgage banking, brokering or servicing business
with, or (ii) solicit, or otherwise attempt to establish for the Executive, or
any other person or firm, any business relationships competitive with the
Employer with:
(I) Any Investor which at any time within the twelve (12)
months prior to January 1, 1997 was a party to a mortgage servicing agreement or
to a mortgage purchase and sale agreement with the Executive, with Xxxxxxx &
Associates of Michigan, Inc. or with any of the latter's subsidiaries;
(II) Any Investor which at any time within the twelve (12)
months prior to January 1, 1997 was a party to a correspondent agreement with
the Executive, with Xxxxxxx & Associates of Michigan, Inc. or with any of the
latter's subsidiaries;
(III) Any Investor with or for whom at any time within the
twelve (12) months prior to January 1, 1997 either the Executive, Xxxxxxx &
Associates of Michigan, Inc. or any of the latter's subsidiaries brokered,
placed, sold or serviced multi-family or commercial mortgage loans in the
aggregate initial principal amount of at least $15 Million;
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(IV) Any Investor who, during the Employment Period and for a
period of one (1) year thereafter, employs any personnel (A) who were previously
employed by any of the Investors described in (I), (II) and (III) above, and (B)
with whom the Executive had a direct business relationship while the personnel
was so employed by any of the Investors described in (I), (II) and (III) above
and the Executive's relationship with such personnel is responsible for the
Executive's business relationship with the Investor described in this
subparagraph (IV); or
(V) Any Investor with whom the Employer, during the
Employment Period, has a business relationship as described in (I), (II) and
(III), and with whom the Executive has a direct business relationship at any
time during his employment by the Employer.
For purposes of this Agreement, Investor means any business association,
partnership, joint venture, corporation of any type, or natural person, whether
public or private, which or who purchases, whether for its own account or for
others, or brokers to others multi-family or commercial mortgage loans.
(d) COMPLIANCE. Compliance with this Section 7 is a condition
precedent to the Employer's obligation to make any payments of any nature to the
Executive.
(e) EMPLOYER'S REMEDIES. It is recognized that damages in the
event of a breach or threatened breach of this Section 7 by the Executive would
be difficult, if not impossible, to ascertain or determine, and it is therefore
agreed that the Employer, in addition to and without limiting any other remedies
or rights it may have, shall have the right to an injunction or other equitable
relief in a court of competent jurisdiction enjoining any such breach or
threatened beach, and the Executive hereby waives any and all defenses he may
have on the grounds of lack of jurisdiction or competence of the court to grant
such an injunction or other equitable relief. In the event that the Executive
breaches or threatens to breach his obligations under this Section 7 and the
Employer institutes legal action to enforce the Executive's obligations under
this Section 7, the Executive shall reimburse the Employer for reasonable
attorneys' fees and costs incurred by the Employer.
(f) SURVIVAL. The provisions of this Section 7 shall survive the
termination of this Agreement and the Executive's employment by the Employer.
8. EXECUTIVE REPRESENTATION. The Executive hereby represents and
warrants that he is free to enter into this Agreement and that by so doing he is
not violating any other agreement, undertaking, obligation, court order or
decree which would or may interfere with the performance by the Executive of his
obligations hereunder.
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9. MISCELLANEOUS.
(a) NOTICES. Any notice required or permitted under this
Agreement shall be sufficient if in writing and if sent by certified or
registered mail, or personally delivered, to the parties hereto at the addresses
listed below:
Employer: Washington Mortgage Financial Group, Ltd.
0000 Xxxxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Executive: Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
(b) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement concerning the subject matter hereof between the parties, and replaces
in toto and fully supersedes any and all prior or existing agreements, including
but not limited to stock option agreements, whether written or verbal, between
the Employer and the Executive.
(c) GOVERNING LAW. This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Virginia.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all such counterparts shall be deemed to constitute one and the
same instrument, and each counterpart shall be deemed an original hereof.
(e) MODIFICATION. No change or modification of this Agreement
shall be valid unless the same is in writing and signed by the Executive and a
duly authorized officer of the Employer.
(f) WAIVER. Failure of any party to exercise, any right or option
arising out of a breach of this Agreement shall not be deemed a waiver of any
right or option with respect to any subsequent or different breach, or the
continuance of any existing breach.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of the respective successors and assigns of each party
hereto, including any Successor.
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(h) CAPTIONS. Captions used herein are for convenience only and
are not part of this Agreement and shall not be deemed to limit or alter any
provisions hereof and shall not be deemed relevant in construing this Agreement.
(i) SEVERABILITY. If any term or provision of this Agreement
shall be held to be invalid, unenforceable or void, the remainder of this
Agreement shall remain in full force and effect.
(j) RETURN OF PROPERTY. The Executive authorizes the Employer to
withhold any amounts due to him upon termination of his Employment until all
property of the Employer entrusted to him or in his possession at any time
during his employment by the Employer or an affiliate of the Employer has been
returned to the Employer. The Executive authorizes the Employer to deduct from
any amounts due to him upon termination of his employment, an amount equal to
any outstanding advances by the Employer to him or on his behalf and any amounts
otherwise owed by him to the Employer.
IN WITNESS WHEREOF, the Employer and the Executive have executed this
Agreement as of the day and year first above written.
EMPLOYER:
WASHINGTON MORTGAGE FINANCIAL
GROUP, LTD.
By:
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Witness
EXECUTIVE:
By:
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Witness
Exhibit A: Bonus and Commission Plan
Exhibit B: Position Description
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