EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), dated as of February 6,
2004 (the "Commencement Date"), by and between Sunset Financial Resources, Inc.,
a Maryland real estate investment trust (the "Company"), and Xxxxxxx X. Xxxxxx,
an individual (the "Executive").
WHEREAS, the Executive and the Company deem it in their respective best
interests to enter into an employment agreement for the Executive to serve as
the Executive Vice President - Chief Marketing Officer of the Company on the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following definitions:
(a) "Business" shall mean the acquisition and management of
portfolios of residential and commercial mortgage loans in the United States.
(b) "Cause" shall mean any one or more of the following:
(i) the continued and intentional failure by the Executive to
substantially perform his duties with the Company, other than any such
failure resulting from the Executive's Disability; provided, however,
that no termination of the Executive's employment shall be for Cause as
set forth in this clause (i) until (x) there shall have been delivered
to the Executive written notice setting forth that the Executive
committed the conduct set forth in this clause (i) and specifying the
particulars thereof in reasonable detail and (y) the Executive shall
have been provided an opportunity to present his position to the Board
of Directors of the Company (the "Board"), either in writing or in
person;
(ii) a breach by the Executive of his fiduciary duties as an
officer of the Company, or a material breach by the Executive of any
written rule, regulation, policy or procedure of the Company;
(iii) the Executive's excessive absenteeism not related to
illness;
(iv) the Executive's conviction of or plea of nolo contendere
to a felony or final non-appealable conviction of any other crime that
incarcerates the Executive for a period of one year or longer; or
(v) the Executive's commission of a fraudulent act,
embezzlement, theft or felony, in any case, whether or not involving
the Company or the Executive's performance of his duties under this
Agreement, that, in the reasonable opinion of the Board, renders the
Executive's continued employment harmful to the Company.
Notwithstanding the foregoing, no failure to perform by the Executive
after a Notice of Termination is given by the Executive shall constitute Cause
for purposes of this Agreement.
(c) "Change of Control" shall mean any one or more of the following:
(i) at any time during any 12-month period, the Board of
Directors of the Company in office at the beginning of such period
shall have ceased to constitute a majority of the Board without the
approval of the nomination of such directors by a majority of the Board
consisting of directors who were serving at the beginning of such
period;
(ii) any person (as defined in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) (other than the Company, any of its
subsidiaries or any trustee, fiduciary or other person holding
securities under any employee share ownership plan or any other
employee benefit plan of the Company or any of its subsidiaries),
together with its affiliates and associates (as such terms are defined
in Rule 12b-2 under the Exchange Act) shall have become the beneficial
owner (as defined in Rule 13d-3 of the Exchange Act) of securities
representing 25% or more of the combined voting power of the Voting
Shares;
(iii) the Company shall have filed a schedule, report or proxy
statement with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing that a change in control of the Company has
occurred;
(iv) a merger or consolidation of the Company shall have been
consummated, other than (x) a merger or consolidation that would result
in the Voting Shares outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 50% of the
combined voting power of the voting securities of the surviving entity
or (y) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
person acquires more than 50% of the Voting Shares;
(v) any person, other than a subsidiary of the Company, shall
have acquired more than 50% of the combined assets of the Company and
its subsidiaries; or
(vi) the shareholders of the Company shall have approved the
complete liquidation or dissolution of the Company.
(d) "Confidential Information" shall mean all confidential
information of the Company and/or its subsidiaries, excluding any information
that is available in the public domain, and including trade secrets and, by way
of illustration, whether or not labeled or otherwise identified as
"confidential," the Company's:
(i) acquisition, expansion, marketing, financial and other
business strategies, information and plans;
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(ii) compilations of data;
(iii) computer programs and/or records;
(iv) confidential information developed by consultants and
contractors;
(v) employee information; and
(vi) manuals, memoranda, projections and minutes.
(e) "Disability" shall mean the physical or mental incapacity of the
Executive that, even with reasonable accommodation, has prevented the execution
of the duties of his office, as outlined in Section 2, for three consecutive
months or for more than 180 business days in the aggregate in any 18-month
period and that, in either case, in the determination of the Board after
consultation with a medical doctor licensed to practice medicine in the State of
Florida appointed by the Board and the Executive, may be expected to prevent the
Executive for any period of time thereafter from devoting substantial time and
energies to the duties of his office, as outlined in Section 2. The Executive
agrees to submit to reasonable requests for medical examinations to determine
whether a Disability exists.
(f) "Employee Benefits" shall mean the perquisites, benefits and
service credit for benefits as provided under any and all employee retirement
income and welfare benefit policies, plans, programs or arrangements in which
the Executive is entitled to participate, including, without limitation, any
share option, share purchase, share appreciation, dividend equivalent rights,
savings, pension, supplemental executive retirement or other retirement income
or welfare benefit, deferred compensation, incentive compensation, group or
other life, health, medical/hospital or other insurance (whether funded by
actual insurance or self-insured by the Company), disability, salary
continuation, expense reimbursement, and other employee benefit policies, plans,
programs or arrangements that may now exist or any equivalent successor
policies, plans, programs or arrangements that may be adopted hereafter by the
Company, providing perquisites, benefits and service credit for benefits at
least as great in the aggregate as are payable thereunder prior to a Termination
Date or Change of Control Date, as the case may be.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
(h) "Good Reason" shall mean any one or more of the following:
(i) a reduction by the Company without the Executive's consent
in the Executive's position, duties, responsibilities or status with
the Company that represents a substantial adverse change from his
position, duties, responsibilities or status, or a removal of the
Executive from or any failure to reelect the Executive to any of the
positions referred to in Section 2, but specifically excluding any
action in connection with the termination of the Executive's employment
for death, Disability, Cause or as a result of a Change of Control or
by the Executive for normal retirement;
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(ii) a reduction by the Company without the Executive's
consent of the Base Salary;
(iii) a relocation of the Executive by the Company without the
Executive's consent to a location more than 25 miles from the
Jacksonville, Florida metropolitan area, other than for travel
reasonably required in the performance of the Executive's
responsibilities;
(iv) any material breach by the Company of any provision of
this Agreement or any other agreement between the Company or any of its
subsidiaries and the Executive that, in any case, is not cured within
14 days of written notice to the Company of such breach;
(v) the insolvency of or the filing (by any party, including
the Company, but excluding the Executive) of a petition for bankruptcy
of the Company, which petition is not dismissed within 60 days; or
(vi) the failure by the Company to obtain the assumption of
this Agreement by any successor or assign of the Company.
(i) "Severance Period" shall mean the period of time commencing on
the Change of Control Date or the Termination Date, as the case may be, and
ending on the first anniversary thereof.
(j) "Termination Date" shall mean (i) in the case of the Executive's
death, his date of death; (ii) in the case of a termination by the Executive for
Good Reason, the last day of his employment; and (iii) in all other cases, the
date specified in the Notice of Termination (as defined below) or, if no Notice
of Termination is sent, the last day of his employment; provided, however, that
if the Executive's employment is terminated by the Company due to Disability,
the date specified in the Notice of Termination shall be the 30th day after
receipt of the Notice of Termination by the Executive, provided that the
Executive shall not have returned to the full-time performance of his duties
within 30 days after such receipt.
(k) "Voting Shares" shall mean the securities of the Company
entitled to vote generally in the election of directors of the Company.
2. Employment and Duties.
(a) Employment. Pursuant to the terms and subject to the conditions
of this Agreement, the Company agrees to employ the Executive during the
Employment Term (as defined below) as Executive Vice President - Chief Marketing
Officer of the Company, and the Executive accepts such employment.
(b) Duties. During the Employment Term, the Executive will perform
the executive and managerial duties customarily associated with the office set
forth in Section 2(a) under the control and at the direction of the Board and
other such executive and managerial
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duties as may, from time to time, reasonably be assigned to him by the Board
that are consistent with such position. During the Employment Term, the
Executive may also be required to perform services for one or more affiliates of
the Company. During the Employment Term, the Executive shall be located in or
about Jacksonville, Florida and shall travel to such geographical locations as
may be appropriate from time to time to carry out the duties of the office as
outlined in this Section 2.
(c) Scope of Employment. During the Employment Term, the Executive
will devote such time, energy, skill and knowledge to the performance of his
duties for the Company and for the benefit of the Company as may be necessary or
required for the effective conduct and operation of the Business. Furthermore,
the Executive shall exercise due diligence and care in the performance of his
duties to the Company under this Agreement. Notwithstanding the foregoing,
during the Employment Term, the Executive may serve on civic or charitable
boards and may serve as an officer, director, shareholder, or limited partner in
any business venture so long as such activities do not interfere with the
performance of the Executive's duties under this Agreement and do not compete
with the Business.
3. Employment Term. The term of employment shall begin on the
Commencement Date. Unless earlier terminated pursuant to Section 4, this
Agreement will expire on February 6, 2007 (the "Expiration Date"); provided,
however, that on the Expiration Date and each subsequent anniversary of the
Expiration Date, the Expiration Date shall automatically be extended by one
additional year unless either the Executive or the Company shall have given
written notice of expiration of this Agreement to the other party at least 180
days prior to the date of automatic renewal of this Agreement. The Commencement
Date through and including the Expiration Date (as so extended) is hereinafter
referred to as the "Employment Term."
4. Termination.
(a) Death. The Executive's employment will terminate automatically
upon the Executive's death.
(b) Disability. Upon the good faith determination by the Company
that the Disability of the Executive has occurred, the Company may terminate the
Executive's employment under this Agreement by notice pursuant to Section 4(e).
During the period of incapacitation, the salary otherwise payable to the
Executive may, at the absolute discretion of the Board, be reduced by the amount
of any disability benefits or payments received by the Executive, excluding
health insurance benefits or other reimbursement of medical expenses for the
Executive.
(c) By the Company. The Company may terminate the Executive's
employment under this Agreement for Cause, or without Cause, by notice pursuant
to Section 4(e), subject to the severance obligations set forth in Section 8.
(d) By the Executive. The Executive may terminate his employment
under this Agreement for Good Reason, or without Good Reason, by notice pursuant
to Section 4(e).
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(e) Notice of Termination. Any termination of the Executive's
employment by the Company or by the Executive (other than a termination upon the
Executive's death, which does not require notice) must be communicated by
written notice (the "Notice of Termination") to the other party given in
accordance with the notice provisions of this Agreement. The Notice of
Termination must (i) indicate the specific termination provision of this
Agreement relied upon; (ii) set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provisions so indicated; and (iii) if the Termination Date
is other than the date of receipt of such Notice of Termination, specify the
Termination Date (which date shall be not more than 30 days after the date of
giving of such Notice of Termination). The failure by the Company or the
Executive to set forth in the Notice of Termination any fact or circumstance
that contributes to a showing of the basis for termination will not waive any
right of such party hereunder or preclude such party from asserting such fact or
circumstance in enforcing his or its rights hereunder.
5. Compensation. During the Employment Term, for all services rendered
by the Executive to the Company, the Company shall pay to the Executive:
(a) Base Salary. For services rendered, the Company shall pay the
Executive a salary of $250,000 per calendar year (such annual salary, as
adjusted from time to time pursuant to this Section 5(a), the "Base Salary"),
payable in accordance with the Company's normal payroll practices. The Board
shall conduct an annual review of the Executive's Base Salary. The Executive
shall be entitled to receive increases in the Base Salary, if any, that may be
determined by the Board or an authorized committee thereof in its sole
discretion. Any increases to the Base Salary shall be effective January 1 for
each calendar year of the Employment Term. In no event shall the Executive's
Base Salary be reduced without the Executive's consent, except as provided in
Section 4(c).
(b) Annual Incentive Compensation. In further consideration of the
Executive's service, the Executive shall be eligible to receive annual incentive
compensation awards ("Annual Incentive Compensation") as determined by the Board
or an authorized committee thereof in its sole discretion.
(c) Taxes. All compensation paid to the Executive shall be subject
to applicable employment, payroll and withholding taxes, including taxes
resulting from a determination that any portion of any benefits supplied to the
Executive may be reimbursing personal as well as business expenses.
6. Employee Benefits.
(a) Benefits. The Executive shall receive group health/dental
insurance, life insurance, disability insurance and other similar benefits
available to the Company's executive officers. Benefits may be changed, modified
or revoked at the sole discretion of the Company. The Executive shall not be
deemed to have a vested interest in any of the Company's plans or programs. The
Executive may receive benefits not generally provided to Company employees from
time to time at the sole discretion of the Board or an authorized committee
thereof.
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(b) Vacation. The Executive is entitled to receive 20 business days
paid vacation annually for each calendar year of the Employment Term. Such
vacation shall be taken at such times that are consistent with the reasonable
business needs of the Company. All vacation shall be subject to the policies and
procedures of the Company.
(c) Fringe Benefits. The Executive shall receive fringe benefits as
such benefits may exist from time to time at the sole discretion of the Board or
any committee thereof.
7. Business Expenses. The Executive is authorized to incur reasonable,
ordinary and necessary business expenses in the performance of the duties
outlined above during the Employment Term in accordance with policies
established by the Company. The Executive shall account to the Company for all
such expenses. The Company shall reimburse the Executive or pay the expenses in
accordance with the policies established by the Company.
8. Compensation Upon Termination or Change of Control. In all events,
the Company will pay to the Executive all Base Salary and benefits accrued to
the Executive through and including the Termination Date.
(a) Termination Without Cause, For Good Reason or Upon a Change of
Control. Upon (i) the occurrence of the first event constituting a Change of
Control (the "Change of Control Date") and the termination or non-renewal of
Executive's employment during the Severance Period (other than for Cause) or
(ii) if the Executive's employment is terminated (x) by the Company without
Cause, (y) by reason of Disability or (z) by the Executive for Good Reason (any
event specified in the foregoing clauses (i) or (ii), a "Severance Event"), the
Company shall pay or provide to the Executive the following:
(i) The Company shall pay to the Executive as severance pay
and in lieu of any further compensation for periods subsequent to the
Termination Date or the Change of Control Date, as the case may be, an
amount in cash (the "Severance Benefit") equal to the sum of: (A) the
product of 2.99 times the amount of the Base Salary; and (B) the full
amount of any Annual Incentive Compensation that Executive was eligible
to receive for the year during which the termination or non-renewal of
this Agreement occurs.
(ii) During the Severance Period, the Company will provide or
arrange to provide the Executive with Employee Benefits that are
welfare benefits (but not share options, share purchase, share
appreciation, dividend equivalent rights or similar compensatory
benefits) substantially similar to those that the Executive was
receiving or entitled to receive immediately prior to the Change of
Control Date or the Termination Date, as the case may be. The Severance
Period will be considered service with the Company for the purpose of
determining service credits and benefits due and payable to the
Executive under the Company's retirement income, supplemental executive
retirement, and other benefit plans applicable to the Executive, the
Executive's dependents or the Executive's beneficiaries immediately
prior to the Change of Control Date or the Termination Date, as the
case may be. If and to the extent that any benefit described in the
immediately preceding sentence is not or cannot be paid or provided
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under any policy, plan, program or arrangement of the Company, then the
Company will itself pay or provide for the payment of such Employee
Benefits to the Executive, and, if applicable, the Executive's
dependents and beneficiaries. Employee Benefits otherwise receivable by
the Executive pursuant to this Section 8(a)(ii) will be reduced to the
extent comparable welfare benefits are actually received by the
Executive from another employer during the Severance Period.
(iii) Vesting of benefits shall be treated as described in
Section 8(d)(i).
(b) Termination By Reason of Disability. If the Employment Term is
terminated by reason of Disability, the Company shall pay to the Executive as
severance pay and in lieu of any further compensation for periods subsequent to
the Termination Date an amount in cash equal to the Severance Benefit. Vesting
of benefits shall be treated as described in Section 8(d)(i). The Executive
shall continue to receive, so long as the Disability continues, all benefits
provided under any long-term disability program(s) of the Company in effect at
the time of such termination, subject to the terms and conditions of any such
program(s), as may be amended, changed, modified or terminated for all employees
of the Company.
(c) Payment of the Severance Benefit. The Company shall pay the
Severance Benefit to the Executive in a single lump sum in immediately available
funds, in United States Dollars, within five business days after the Change of
Control Date or the Termination Date, as applicable.
(d) Treatment of Award Grants.
(i) Vesting of Benefits. Notwithstanding any other provision
of this Agreement, the Company's employee benefit plans, any agreement
entered into under such plans, or any retirement, pension, profit
sharing or other similar plan (collectively, the "Plans"), upon the
occurrence of a Severance Event, all deferred or unvested portions of
any award made to the Executive under any of the Plans shall
automatically become fully vested as of the Termination Date or the
Change of Control Date, as the case may be, and shall be in effect and
redeemable by or payable to the Executive, or the Executive's
designated beneficiary or estate, on the same conditions (other than
vesting) as would have applied had the Severance Event not occurred.
(ii) Clarification Regarding Treatment of Award Grants. The
Plans may contain language regarding the effects of certain changes of
control of the Company or certain terminations of the Executive's
employment. Notwithstanding such language in the Plans, for so long as
this Agreement is in effect, the Company will be obligated, if the
terms of this Agreement are more favorable in this regard than the
terms of the Plans, to take the actions required under Section 8(d)(i)
upon the happening of the circumstances described therein.
Notwithstanding the definition of "Change of Control," "Cause" or any
other term relating to the vesting or exercise of awards made under any
Plan that may appear in such Plan, for so long as this Agreement is in
effect, the definitions and other provisions set forth in this
Agreement relating thereto shall control and be binding on the Company
and its affiliates.
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(e) Additional Payments.
(i) Notwithstanding anything in this Agreement to the contrary,
in the event it is determined (as hereafter provided) that any right or
interest that vests in the Executive, or any payment or distribution
made by the Company to or for the benefit of the Executive, whether
paid or payable or distributed or distributable pursuant to the terms
of this Agreement or otherwise pursuant to or by reason of any other
agreement, policy, Plan, program or arrangement, including without
limitation any share option, share appreciation right, dividend
equivalent right, restricted shares of similar right, the lapse or
termination of any restriction on or the vesting or exerciseability of
any of the foregoing (any such right, interest, payment or
distribution, a "Payment"), would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended (the
"Code") (or any successor provision thereto), by reason of being
considered an "excess parachute payment," within the meaning of Section
280G of the Code (or any successor provision thereto) or to any similar
tax imposed by state or local law, or any interest or penalties with
respect to such tax (such tax or taxes, together with any such interest
and penalties, being hereafter collectively referred to as the "Excise
Tax"), then the Executive will be entitled to receive an additional
payment or payments from the Company (collectively, a "Gross-Up
Payment"). The Gross-Up Payment will be in an amount such that, after
payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including any Excise Tax
imposed upon the Gross-Up Payment, the Executive will have received an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payment.
(ii) Subject to the provisions of Section 8(e)(vi), all
determinations required to be made under this Section 8(e), including
whether an Excise Tax is payable by the Executive and the amount of
such Excise Tax and whether a Gross-Up Payment is required to be paid
by the Company to the Executive and the amount of such Gross-Up
Payment, if any, will be made by a nationally recognized accounting
firm (the "Accounting Firm") selected by the mutual written agreement
of the Executive and the Company. The parties hereto will direct the
Accounting Firm to submit its determination and detailed supporting
calculations to both the Company and the Executive within 30 calendar
days after the Executive's termination date, and any such other time or
times as may be requested by the Company or the Executive. If the
Accounting Firm determines that any Excise Tax is payable by the
Executive, the Company will pay the required Gross-Up Payment to the
Executive within five business days after receipt of such determination
and calculations with respect to any payment to the Executive. If the
Accounting Firm determines that no Excise Tax is payable by the
Executive, it will, at the same time as it makes such determination,
furnish the Company and the Executive an opinion that the Executive has
substantial authority not to report any Excise Tax on the Executive's
federal, state or local income or other tax return. As a result of the
uncertainty in the application of Section 4999 of the Code (or any
successor provision thereto) and the possibility of similar uncertainty
regarding applicable state or local tax law at the time of any
determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should
have been
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made (an "Underpayment"), consistent with the calculations required to
be made hereunder. In the event that the Company exhausts or fails to
pursue its remedies pursuant to Section 8(e)(vi) and the Executive
thereafter is required to make a payment of any Excise Tax, the parties
will direct the Accounting Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and
detailed supporting calculations to both the Company and the Executive
as promptly as possible. Any such Underpayment will be promptly paid by
the Company to, or for the benefit of, the Executive within five
business days after receipt of such determination and calculations.
(iii) The Company and the Executive will each provide the
Accounting Firm access to and copies of any books, records and
documents in the possession of the Company or the Executive, as the
case may be, reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the preparation
of and issuance of the determinations and calculations contemplated by
Section 8(e)(ii). Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment will be binding upon the Company and the
Executive.
(iv) The federal, state and local income or other tax returns
filed by the Executive will be prepared and filed on a consistent basis
with the determination of the Accounting Firm with respect to the
Excise Tax payable by the Executive. The Executive will make proper
payment of the amount of any Excise Payment and, at the request of the
Company, provide to the Company true and correct copies (with any
amendments) of the Executive's federal tax return as filed with the
Internal Revenue Service and corresponding state and local tax returns,
if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company evidencing such
payment. If, prior to the filing of the Executive's federal income tax
return, or corresponding state or local tax return, if relevant, the
Accounting Firm determines that the amount of the Gross-Up Payment
should be reduced, the Executive will within five business days pay to
the Company the amount of such reduction.
(v) The fees and expenses of the Accounting Firm for its
services in connection with the determinations and calculations
contemplated herein will be borne by the Company. If such fees and
expenses are initially paid by the Executive, the Company will
reimburse the Executive the full amount of such fees and expenses
within five business days after receipt from the Executive of a
statement therefor and reasonable evidence of the Executive's payment
thereof.
(vi) The Executive will notify the Company in writing of any
claim by the Internal Revenue Service or any other taxing authority
that, if successful, would require the payment by the Company of a
Gross-Up Payment. Such notification will be given as promptly as
practicable but no later than 10 business days after the Executive
actually receives notice of such claim and the Executive will further
apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid (in each case, to the extent known
by the Executive). The Executive will not pay such claim
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prior to the earlier of (x) the expiration of the 30-calendar day
period following the date on which the Executive gives such notice to
the Company and (y) the date that any payment of amount with respect to
such claim is due. If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such
claim, the Executive will:
(A) provide the Company with any written records or
documents in the Executive's possession relating to
such claim reasonably requested by the Company;
(B) take such action in connection with contesting such
claim as the Company may reasonably request in
writing from time to time, including without
limitation accepting legal representation with
respect to such claim by an attorney competent in
respect of the subject matter and reasonably selected
by the Company;
(C) cooperate with the Company in good faith in order
effectively to contest such claim; and
(D) permit the Company to participate in any proceedings
relating to such claims;
provided, however, that the Company will bear and pay directly all
costs and expenses (including interest and penalties) incurred in connection
with such contest and will indemnify and hold harmless the Executive, on an
after-tax basis, from and against any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limiting the foregoing
provisions of this Section 8(e), the Company will control all proceedings taken
in connection with the contest of any claim contemplated by this Section
8(e)(vi) and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim (provided, however, that the Executive may
participate therein at the Executive's own cost and expense) and may, at its
option, either direct the Executive to pay the tax claimed and xxx for a refund
or contest the claim in any permissible manner, and the Executive will prosecute
such contest to a determination before any administrative tribunal, in a court
of initial jurisdiction, and in one or more appellate courts, as the Company may
determine; provided, however, that if the Company directs the Executive to pay
the tax claimed and xxx for a refund, the Company will advance the amount of
such payment to the Executive on an interest-free basis and will indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income or other tax, including interest or penalties with respect thereto,
imposed with respect to such advance; provided, further, that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Executive with respect to which the contested amount if claimed to be due is
limited solely to such contested amount. The Company's control of any such
contested claim will be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive will be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
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(vii) If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(e)(vi), the Executive
receives any refund with respect to such claim, the Executive will
(subject to the Company's complying with the requirements of Section
8(e)(vi)) pay to the Company the amount of such refund (together with
any interest paid or credited thereon after taxes applicable thereto)
within 30 calendar days after such receipt and the Company's
satisfaction of all accrued obligations under this Agreement. If, after
the receipt by the Executive of any amount advanced by the Company
pursuant to Section 8(e)(vi), a determination is made that the
Executive will not be entitled to any refund with respect to such claim
and the Company does not notify the Executive in writing of its intent
to contest such determination prior to the expiration of 30 calendar
days after such determination, then such advance will be forgiven and
will not be required to be repaid and the amount of any such advance
will offset, to the extent thereof, the amount of Gross-Up Payment
required to be paid by the Company to the Executive pursuant to this
Section 8(e).
(viii) Notwithstanding any other provision of this Agreement,
the Company shall pay to the Executive an amount equal to the Base
Salary upon the occurrence of: (x) the Expiration Date; and (y) any
failure for any reason of the Expiration Date to be automatically
extended by one additional year as prescribed by Section 3 of this
Agreement.
(f) Nature of Payments. The amounts due under this Section 8 are in
the nature of severance payments considered to be reasonable by the Company and
are not in the nature of a penalty. Such amounts are in full satisfaction of all
claims that the Executive may have in respect of his employment by the Company
or its affiliates and are provided as the sole and exclusive benefits to be
provided to the Executive in respect of his termination of Employment from the
Company. Notwithstanding any other provisions herein, it shall be a condition
precedent to the Company making any payments pursuant to this Section 8 that the
Executive has executed and delivered to the Company the release contemplated
pursuant to Section 12.
(g) No Mitigation or Set-Off. The Executive will not be required to
mitigate the amount of any payment provided for in this Agreement by seeking
other employment. There will be no right of set-off or counterclaim in respect
of any claim, debt of obligation against any payment to or benefit for the
Executive provided for in this Agreement, except as expressly provided herein.
9. Confidentiality and Non-Competition.
(a) Confidentiality.
(i) During the Employment Term the Company agrees to provide
the Executive with access to Confidential Information.
(ii) The Executive acknowledges that the Confidential
Information is valuable and proprietary to the Company or to third
parties that have entrusted the
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Company and/or its subsidiaries with such Confidential Information. The
Executive agrees, except as required for the Executive to fulfill his
duties hereunder, that the Executive shall not use, publish,
disseminate or otherwise disclose any Confidential Information, no
matter when learned or accessed, without the prior written consent of
the Company.
(iii) All Confidential Information shall be the exclusive
property of the Company and the Executive shall have no rights in or to
the Confidential Information upon any termination of this Agreement or
his employment with the Company. Upon the termination of the
Executive's employment, the Executive shall immediately deliver to the
Company all plans, designs, drawings, specifications, listings,
manuals, records, notebooks and similar repositories of or documents
containing Confidential Information, including all copies, then in the
Executive's possession or control, whether prepared by the Executive or
others. Upon such termination the Executive shall retain no copies of
any such documents.
(iv) The provisions of this Section 9(a) shall survive the
termination of this Agreement indefinitely.
(b) Restriction on Competitive Employment.
(i) In consideration of the numerous mutual promises contained
in this Agreement, including, without limitation, those involving the
Confidential Information, compensation, termination and arbitration,
and in order to protect the Confidential Information and to reduce the
likelihood of irreparable damage that would occur in the event such
information is provided to or used by a competitor of the Company,
during the Employment Term and, for a period of six months following
the Termination Date in the case of a (x) termination by the Company
for Cause, (y) a termination due to Disability or (z) a termination by
the Executive other than for Good Reason (the "Non-Competition
Period"), absent the Company's prior written approval, the Executive
shall not, as an owner, part-owner, shareholder, partner, director,
trust manager, trustee, principal, agent, employee, consultant, member,
contractor or otherwise, within the United States, directly or
indirectly engage or participate in activities relating to, or render
services to or invest in any firm or business engaged or about to
become engaged in, the Business.
(ii) Notwithstanding the foregoing, the Executive may make
passive investments in an enterprise engaged in the Business, the
shares of ownership of which are publicly traded, if the Executive's
investment constitutes less than 2% of the total equity of such
enterprise.
(iii) If, during any period within the Non-Competition Period,
the Executive is not in compliance with the terms of this Section 9(b),
the Company shall be entitled to, among other remedies, compliance by
the Executive with the terms of this Section 9(b) for an additional
period equal to the period of such noncompliance. For purposes of this
Agreement, the term "Non-Competition Period" shall also include this
additional period. The Executive hereby acknowledges that the
geographic boundaries,
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scope of prohibited activities and the time duration of the provisions
of this Section 9(b) are reasonable and are no broader than are
necessary to protect the legitimate business interests of the Company.
(iv) The provisions of this Section 9(b) shall survive the
termination of the Executive's employment for the duration of the
Non-Competition Period.
(v) The Company and the Executive agree and stipulate that the
agreements and covenants not to compete contained in this Section 9(b)
are fair and reasonable in light of all of the facts and circumstances
of the relationship between the Executive and the Company; however, the
Executive and the Company are aware that in certain circumstances
courts have refused to enforce certain terms of agreements not to
compete. Therefore, in furtherance of, and not in derogation of the
provisions of this Section 9(b), the Company and the Executive agree
that in the event a court should decline to enforce any provision of
this Section 9(b), that this Section 9(b) shall be deemed to be
modified or reformed to restrict the Executive's competition with the
Company or its affiliates to the maximum extent, as to time, geography
and business scope, that the court shall find enforceable; provided,
however, in no event shall the provisions of this Section 9(b) be
deemed to be more restrictive to the Executive than those contained
herein.
(c) Inducement/Enticement. In order to prevent the Executive from
violating the provisions of Section 9(b), during the Employment Term and, in the
case of (x) a termination by the Company for Cause, (y) a termination due to
Disability or (z) a termination by the Executive other than for Good Reason,
during the Non-Competition Period, the Executive shall not, directly or
indirectly:
(i) induce, or attempt to induce, any employees or agents of,
or consultants of or to, the Company or any subsidiary of the Company
to do anything from which the Executive is restricted by reason of
Sections 9(a) or (b); or
(ii) offer or aid others to offer employment to or recruit or
solicit anyone who is an employee or agent of, or consultant of or to,
the Company or a subsidiary of the Company at the time of termination
of the Executive, unless such person's employment was terminated by the
Company or any such subsidiary.
In the case of (x) a termination by the Company for Cause, (y) a
termination due to Disability or (z) a termination by the Executive other than
for Good Reason, the provisions of this Section 9(c) shall survive the
termination of the Executive's employment for the duration of the
Non-Competition Period.
(d) Injunctive Relief. The Executive acknowledges that a breach of
any of the agreements contained in this Section 9 will give rise to irreparable
injury to the Company, inadequately compensable in damages. Accordingly, the
Company shall be entitled to injunctive relief to prevent or cure breaches or
threatened breaches of the provisions of this Section 9 and to enforce specific
performance of the terms and provisions hereof in any court of competent
14
jurisdiction, in addition to any other legal or equitable remedies that may be
available. The Executive further acknowledges and agrees that in the event of
the termination of this Agreement, his experience and capabilities are such that
he can obtain employment in business activities that are of a different or
noncompeting nature with his activities as an employee of the Company and that
the enforcement of a remedy hereunder by way of injunction shall not prevent the
Executive from earning a reasonable livelihood. The Executive further
acknowledges and agrees that the covenants contained herein are necessary for
the protection of the Company's legitimate business interests and are reasonable
in scope and content. The Executive also acknowledges that the Company would not
enter into this Agreement or agree to provide him with access to its
Confidential Information without the Executive's promises contained in this
Section 9.
10. Remedies for the Company. The termination of this Agreement by the
Company for Cause shall not be deemed to be a waiver by the Company of any
breach by the Executive of this Agreement or any other obligation owed the
Company, and, notwithstanding such a termination, the Executive shall be liable
for all damages attributable to such a breach.
11. Remedies for the Executive.
(a) The termination of this Agreement by the Executive for Good
Reason shall not be deemed to be a waiver by the Executive of any breach by the
Company of this Agreement or any other obligation owed the Executive, and,
notwithstanding such a termination, the Company shall be liable for all damages
attributable to such a breach.
(b) In the event that the Executive is terminated for Cause and it
is ultimately determined that the Company lacked Cause, (i) the termination
shall be treated as a termination other than for Cause; (ii) the Executive shall
have the right to seek remedy for a breach of this Agreement by the Company,
including, but not limited to, any other such damages as may be suffered and/or
incurred by the Executive, the Executive's costs incurred during the dispute and
reasonable attorneys' fees in connection with such dispute; and (iii) the
Executive shall receive all Severance Benefits.
12. Full Satisfaction; Waiver and Release. As a condition to receiving
the payments and benefits described in Section 8, the Executive and the Company
shall execute a document in form reasonably acceptable to them, releasing and
waiving any and all claims, causes of actions and the like against the other
party and its respective successors, subsidiaries, affiliates, shareholders,
officers, directors, managers, agents and employees, regarding all matters
relating to the Executive's service as an employee of the Company, its
subsidiaries or any of their affiliates and the termination of such
relationship. Such claims include, without limitation, any claims arising under
the Age Discrimination in Employment Act of 1967, as amended; Title VII of the
Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991, as amended;
the Equal Pay Act of 1962; the Americans with Disabilities Act of 1990; the
Family and Medical Leave Act, as amended; the Employee Retirement Income
Security Act of 1974, as amended; or any other federal, state or local statute
or ordinance, but exclude any claims that arise out of an asserted breach of the
terms of this Agreement and any benefits payable to the Executive under the
Company's benefit plans, practices and programs in which he participates.
15
13. No Waiver. No waiver or non-action by either party with respect to
any breach by the other party of any provision of this Agreement, nor the waiver
or non-action with respect to the provisions of any similar agreement with other
employees or the breach thereof, shall be deemed or construed to be a waiver of
any succeeding breach of such provision, or as a waiver of the provision itself.
14. Invalid Provisions. Should any portion of this Agreement be
adjusted or held invalid, unenforceable or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the
parties hereby agree that the portion so held invalid, unenforceable, or void
shall, if possible, be deemed amended or reduced in scope, or otherwise be
stricken from this Agreement, to the extent required for the purposes of
validity and enforcement thereof.
15. Successor and Assigns. Neither the Executive nor the Company may
assign its rights, duties, or obligations hereunder without consent of the
other.
16. Survival. The provisions of Sections 9 and 22 of this Agreement
shall survive the Executive's termination of employment. Other provisions of
this Agreement shall survive any termination of the Executive's employment to
the extent necessary to ensure the preservation of each party's respective
rights and obligations.
17. Prior Agreements. This Agreement incorporates the entire agreement
between both parties with respect to the subject matter hereof and supersedes
all other prior agreements (oral or written), documents or other instruments
with respect to the matters covered herein.
18. Governing Law. This Agreement shall be governed by, and interpreted
in accordance with the internal substantive laws of the State of Florida,
without giving effect to the principles of conflicts of law. Each party hereto
hereby irrevocably submits itself to the exclusive personal jurisdiction of the
Federal and State courts sitting in the State of Florida, and hereby waives any
claims it may have as to inconvenient forum.
19. No Oral Modifications. This Agreement may not be changed or
terminated orally, and no change, termination or waiver of this Agreement or of
any of the provisions herein contained shall be binding unless made in writing
and signed by both parties, and, in the case of the Company, by a person
designated by the Board or any committee thereof. Without limiting the
foregoing, any change or changes, from time to time, in the Executive's salary
or duties or both shall not be, nor be deemed to be, a change, termination or
waiver of this Agreement or of any of the provisions herein contained.
20. Notices. All notices and other communications required or permitted
hereunder shall be made in writing, and shall be deemed properly given if
delivered personally, mailed by certified mail, postage prepaid and return
receipt requested, sent by facsimile, or sent by Express Mail or Federal Express
or other nationally recognized express delivery service, as follows:
16
If to the Company:
Sunset Financial Resources, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
If to the Executive:
Xxxxxxx X. Xxxxxx
Sunset Financial Resources, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Notice given by hand, Express Mail, Federal Express, or other such
express delivery service shall be effective upon actual receipt. Notice given by
facsimile transmission shall be effective upon actual receipt during the
recipient's customary business hours, or at the beginning of the recipient's
next business day after receipt if not received during the recipient's customary
business hours. All notices sent by facsimile transmission shall be confirmed
promptly after transmission in writing by certified mail or personal delivery.
Any party may change any address to which notice shall be given to
it by giving notice as provided above of such change in address.
21. Executive's Representation and Warranties. The Executive represents
and warrants that he is legally free to make and perform this Agreement, that he
has no obligation to any other person or entity that would affect or conflict
with any of his obligations hereunder, and that the complete performance of his
obligations hereunder will not violate any law, regulation, order, or decree of
any governmental or jurisdictional body or contract by which he is bound.
22. Entire Agreement. The parties expressly agree that this Agreement
is contractual in nature and not a mere recital, and that it contains all the
terms and conditions of the agreement between the parties with respect to the
matters set forth herein. All prior negotiations, agreements, arrangements,
understandings and statements between the parties relating to the matters set
forth herein that have occurred at any time or contemporaneously with the
execution of this Agreement are superseded and merged into this completely
integrated Agreement. The Recitals set forth above shall be deemed to be part of
this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE COMPANY:
SUNSET FINANCIAL RESOURCES, INC.,
a Maryland corporation
By: /s/ XXXX XXXX XXXXXX
-------------------------------------
Xxxx Xxxx Xxxxxx
President and Chief Executive Officer
THE EXECUTIVE:
XXXXXXX X. XXXXXX
/s/ XXXXXXX X. XXXXXX
-----------------------------------------
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