Exhibit 10.38
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of January 14, 2002 (this
"Agreement"), is by and between America Home Mortgage, Inc., a New York
corporation having a place of business at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX
(the "Company"), and Xxxxxxx Xxxxxx, 0 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, XX (the
"Executive").
WHEREAS, the Company wishes to assure itself of the services of the
Executive, and the Executive desires to be employed by the Company, upon the
terms and conditions hereinafter set forth.
NOW, THEREFORE, the Company and the Executive hereby agree as
follows:
1. Definitions. Unless defined elsewhere in this Agreement,
capitalized terms contained herein shall have the meanings set forth or
incorporated by reference in Section 12.
2. Employment. The Company agrees to employ the Executive, and the
Executive hereby accepts such employment by the Company during the term set
forth in Section 3 and on the other terms and conditions of this Agreement.
3. Term. The term of this Agreement shall commence on January 14,
2002, and shall end on January 13, 2005 unless terminated earlier pursuant to
Section 7 herein. If the Executive remains in the employ of the Company after
January 13, 2005, employment will be at will, and not subject to the terms of
this Agreement, until and unless an extension of this Agreement or a new,
successor agreement is successfully negotiated and set forth in writing.
4. Position, Duties and Responsibilities; Rights.
(a) During the term of this Agreement, the Executive shall serve as,
and be elected to and hold the office and title of Controller of the Company. As
such, the Executive shall have all of the powers and duties usually incident to
the office of Controller of the Company, and shall have powers to perform such
other reasonable additional duties as may from time to time be lawfully assigned
to the Executive by the Chief Executive Officer of the Company and, if so
directed by the Chief Executive Officer, the Chief Financial Officer of the
Company.
(b) During the term of this Agreement, the Executive agrees to
devote substantially all the Executive's time, efforts and skills to the affairs
of the Company during the Company's normal business hours, except for vacations,
illness and incapacity, but nothing in this Agreement shall preclude the
Executive from devoting reasonable periods to (i) manage the Executive's
personal investments, (ii) participate in professional, educational, public
interest, charitable, civic or community activities, including activities
sponsored by trade organizations, and (iii) serve as a director or member of an
advisory committee of any corporation not in competition with the Company or any
of its subsidiaries, or as an officer, trustee or director of any charitable,
educational, philanthropic, civic, social or industry organizations, or as a
speaker or arbitrator; provided, however, that the performance of the
Executive's duties or
responsibilities in any of such capacities does not materially interfere with
the regular performance of the Executive's duties and responsibilities
hereunder.
5. Place of Performance. In connection with the Executive's
employment by the Company, the Executive shall be based at the Company's
principal executive offices, and shall not be required to be absent therefrom on
travel status or otherwise for more than a reasonable time each year as
necessary or appropriate for the performance of the Executive's duties
hereunder.
6. Compensation.
(a) During the term of this Agreement, the Company shall pay the
Executive, and the Executive agrees to accept a base salary at the rate of not
less than $205,000.00 per year (the annual base salary as increased from time to
time during the term of this Agreement being hereinafter referred to as the
"Base Salary"). The Base Salary shall be paid in installments no less frequently
than monthly. Any increase in Base Salary or other compensation shall not limit
or reduce any other obligation of the Company hereunder, and once established at
an increased specified rate, the Executive's Base Salary hereunder shall not
thereafter be reduced.
(b) During the term of this Agreement, the Executive shall be
entitled to fringe benefits, including, without limitation, health insurance, in
each case at least equal to, and on the same terms and conditions as, those
attached to the Executive's office on the date hereof, as the same may be
improved from time to time during the term of this Agreement, as well as to
reimbursement, upon proper accounting, of all reasonable expenses and
disbursements incurred by the Executive in the course of the Executive's duties.
7. Termination of Employment. The Company may discharge the
Executive and thereby terminate this Agreement prior to January 13, 2005 for
cause or in the event of the Executive's disability or death. In such event, the
Executive will not be entitled to severance.
The Company may discharge the Executive for "Cause" only:
(A) if the Executive willfully and repeatedly fails to
substantially perform the Executive's duties hereunder, other than
by reason of a disability;
(B) if the Executive is grossly negligent or engages in gross
misconduct in the performance of the Executive's duties hereunder;
(C) if the Executive knowingly engages in an act of
dishonesty, an act of fraud or embezzlement, or any conduct
resulting in a felony conviction;
(D) if the Executive fails to perform reasonably assigned
duties in a manner that is congruent with and supportive of the
Company's goals; however, discharge for cause will occur, pursuant
to this Paragraph D, only if the Executive is given notice in
accordance with Section 10 hereof, of the areas of performance
failure and a ninety-day period in which to cure such performance
failures.
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The Company may discharge the Executive due to the Executive's disability only
if the Executive has suffered an accident or physical or mental illness that
prevents the Executive from substantially performing the Executive's duties
hereunder for three consecutive months. In such event, discharge will be without
prejudice to any payments due to the Executive in respect of disability under
any plan or practice of the Company.
The Company may also discharge the Executive and thereby terminate
this Agreement prior to January 13, 2005 without cause, and for reasons other
than the Executive's disability or death. In such event, the Company shall pay
the Executive severance equal to twelve months' compensation, unless termination
occurs after January 13, 2004, in which case, severance shall be equal to the
product of the number of days from termination to January 13, 2005 divided by
365 and twelve months' compensation, but in no event less than six months'
compensation.
The Executive may resign and thereby terminate this Agreement prior
to January 13, 2005 without good reason. In such event, the Executive shall not
be entitled to severance.
The Executive may also resign and thereby terminate this Agreement
prior to January 13, 2005 for good reason. In such event, the Company shall pay
the Executive severance equal to twelve months' compensation unless termination
occurs after January 13, 2004, in which case, severance shall be equal to the
product of the number of days from termination to January 13, 2005 divided by
365 and twelve months' compensation, but in no event less than six months'
compensation.
The Executive may resign for good reason only if the Company (i)
reduces the Executive's rate of compensation, or (ii) fails to obtain the
assumption of, and the agreement to perform, this Agreement by any successor.
If the Company discharges the Executive, it will deliver a notice
letter of discharge pursuant to the notice provisions of Section 10, indicating
if the discharge is for cause or due to the Executive's disability or death, or
is without cause, and not due to the Executive's disability or death. If the
Executive chooses to resign, the Executive will deliver a notice letter of
resignation pursuant to the notice provisions of Section 10, indicating if the
resignation is for or without good reason.
8. Entire Agreement; Amendment. This Agreement contains the entire
understanding of the parties with respect to the subject matter hereof and
supersedes any and all other agreements between the parties with respect to the
subject matter hereof. Any amendment of this Agreement shall not be binding
unless in writing and signed by both (i) an officer or director of the Company
duly authorized to do so and (ii) the Executive.
9. Enforceability. In the event that any provision of this Agreement
is determined to be invalid or unenforceable, the remaining terms and conditions
of this Agreement shall be unaffected and shall remain in full force and effect,
and any such determination of invalidity or enforceability shall not affect the
validity or enforceability of any other provision of this Agreement.
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10. Notices. All notices which may be necessary or proper for either
the Company or the Executive to give to the other shall be in writing and shall
be sent by hand delivery, registered or certified mail, return receipt requested
or overnight courier, if to the Executive, to him at 0 Xxxxxxxxxx Xxxxx,
Xxxxxxxxx, XX 00000, and, if to the Company, to it at its principal executive
offices at 000 Xxxxxxxxxxx Xxxx, Xxxxxxxx, XX 00000, Attention: Human Resources
Officer, with a copy to Cadwalader, Xxxxxxxxxx & Xxxx, 000 Xxxxxx Xxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxxxxxxx, Esq., and shall be deemed
given when sent. Either party may by like notice to the other party change the
address at which it is to receive notices hereunder.
11. Governing Law. THIS AGREEMENT IS EXECUTED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY, AND BE ENFORCEABLE IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
American Home Mortgage, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President and Chief
Executive Officer
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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