EXHIBIT 10.2
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement") is made and entered into at El
Segundo, California effective as of August 29, 2000, by and between Western
Pacific Housing Development, L.P., a California limited partnership (the
"COMPANY"), and Xxxxx X. Manchester ("EXECUTIVE").
RECITALS
A. The Company desires to secure the services of Executive as an
employee of the Company for the period provided in this Agreement.
B, Executive is willing to enter into this Agreement for such period on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the provisions hereinafter
described, Company and Executive agree as follows:
1. DUTIES OF EXECUTIVE
The Company hereby employs Executive as its President and Chief
Operating Officer, and Executive shall have such powers and duties as may be
reasonably consistent with that title, in addition to such other powers and
duties as may be prescribed by the Partners of the Company (the "PARTNERS" or
the "PARTNERSHIP") or the organizational and governance documents of the Company
from time to time. Executive hereby accepts said employment and agrees to devote
his entire working time and attention and best talents and abilities exclusively
to the services of the Company m the Partnership may direct during the term
hereof; provided, that Executive may engage in and devote time to other
non-competitive activities to the extent that such time spent is immaterial and
does not interfere with Executive's obligations hereunder.
2. TERM OF AGREEMENT
Unless terminated sooner in accordance with the provisions of this
Agreement, the Company shall employ Executive and Executive accepts such
employment under the conditions set forth herein for a term (the "TERM")
beginning on the effective date of this Agreement and ending upon the close of
business on March 31, 2003 (the "EXPIRATION DATE"). Notwithstanding the
foregoing, if this Agreement is not otherwise terminated in accordance with the
provisions herein, at the end of the Fiscal Year (as defined below in PARAGRAPH
3) ending March 31, 2002 the Term shall be extended such that the Expiration
Date shall be March 31, 2004, and at the end of each successive Fiscal Year the
Term shall again be extended such that the Expiration Date is extended another
full year unless, at least ninety (90) days prior to the end of any Fiscal Year,
either Executive or the Company gives the other party written notice of its
intent to terminate the Agreement at the end of the then-applicable Tenn. For
purposes of this Agreement, any reference to "INITIAL TERM" shall mean the Term
of this Agreement ending March 31, 2003, as stated in the first sentence of this
PARAGRAPH 2.
3. DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings set forth in this PARAGRAPH 3:
"ANNUAL BASE SALARY" or "BASE SALARY" shall mean the annual base salary
rate in effect for Executive from time to time during the Term of this Agreement
in accordance with the provisions of PARAGRAPH 4(a) of this Agreement.
"ANNUAL BONUS" or "BONUS" shall mean a cash payment available annually
(or as otherwise provided for in this document) to Executive in addition to Base
Salary as determined in accordance with PARAGRAPH 4(b) of this Agreement.
"CAUSE" shall mean (i) material breach of any term or condition of this
Agreement which breach is not cured within 30 days of receipt by Executive of
written notice from the Company specifying the breach; (ii) conduct by Executive
which is materially injurious to the Company; (iii) Executive's fraud, breach of
trust, dishonesty, misappropriation or similar activity; (iv) Executive's
material insubordination or violation of a Company rule or policy; (v)
Executive's neglect of employment duties, which continues for a period of at
least 30 days after receipt by Executive of a written notice from the Company
specifying the nature of the neglect; or (vi) Executive's conviction of any
felony or of any other crime involving moral turpitude.
"CHANGE OF CONTROL" shall mean any of the following events (whether in
one or a series of related transactions): (i) the Company consolidates with, or
merges with or into, another entity or sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of the Company's assets
to any entity, or any entity consolidates with, or merges with or into, the
Company and the Company is not the surviving entity; (ii) the shareholders of
the Company approve any plan or proposal for the liquidation or dissolution of
the Company; (iii) during any consecutive two year period, individuals who at
the beginning of such period constituted the members of the Partnership
(together with any new Partners whose election by such members of the
Partnership or whose nomination for election by such members of the Partnership
was approved by a vote of at least two-thirds of the members of the Partnership
then still in office who were members of the Partnership at the beginning of
such period) cease for any reason to constitute a majority of the Partners then
in office; or (iv) any person or group (as such terms are defined in Section
13(d) and 14(d) under the Securities Exchange Act of 1934 (the "Exchange Act"))
is or becomes the beneficial owner (as defined in Rules 13(d)-3 and 13(d)-5
under the Exchange Act, except that a person will be deemed to have beneficial
ownership of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time)
directly or indirectly of more than 30% of the total voting power. Anything to
the contrary notwithstanding, a Change of Control shall be deemed not to have
occurred if either (A) the new party or entity in control is either Xxxxxx
Xxxxxxxxx or Apollo Real Estate Investment Fund, L.P. or any of their affiliated
entities, or (B) the Company enters into a Xxxxxxx Transaction.
"COMPENSATION COMMITTEE" means the Compensation Committee of the
Company.
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"CONSTRUCTIVE TERMINATION" shall mean either (i) Executive's
Termination of Service by the Company without Cause in anticipation of or
otherwise in connection with a Change of Control or within six (6) months of the
effective date of a Change of Control, (ii) Executive's Termination of Service
by the Company without Cause during the Initial Term, (iii) Executive's
voluntary Termination of Service within thirty (30) days following a Change of
Control, or (iv) Executive's voluntary Termination of Service within ninety (90)
days following the occurrence of one or more of the following events, except if
such event is approved in writing by Executive prior to its occurrence:
(i) A failure by the Company to abide by any part of this
Agreement that is not remedied within thirty (30) business days after
receiving written notification by Executive of such failure;
(ii) A material reduction in Executive's title or material
change in the scope of his duties or responsibilities; or
(iii) Relocation of Executive's primary place of work to an
area other than the location of the Company's principal executive office in
the California counties of Riverside, San Diego, Orange or Los Angeles.
"DISABILITY" shall be deemed to have occurred if Executive makes
application for or is otherwise eligible for disability benefits under any
Company-sponsored long-term disability program covering Executive, and Executive
qualifies for such benefits for at least a period of 365 consecutive days. In
the absence of a Company-sponsored long-term disability program covering
Executive, Executive shall be presumed to be totally and permanently disabled if
so determined by the Partnership, and such determination is confirmed by the
written opinion of two practicing medical doctors licensed by and in good
standing in the State of California (one chosen by the Company and the other by
the Executive) each of whom certify that Executive will be permanently unable to
perform his normal business duties hereunder as a result of a physical or mental
condition,
"ENTERPRISE" shall mean any joint venture, business pursuant to a joint
operating agreement, or other alliance or affiliated business of the Company.
"FISCAL YEAR" shall mean the twelve-month period beginning April 1,
unless the Company, with the approval of any government or regulatory entities
from whom approval is necessary, shall establish a different fiscal year;
PROVIDED, HOWEVER, that the Company's establishment of a different fiscal year
shall not negatively or positively affect the amount of any Annual Bonus or
severance payment Executive otherwise would have been entitled to receive
hereunder.
"XXXXXXX TRANSACTION" shall mean the consummation of any transaction in
which the Company consolidates with, or merges with or into Xxxxxxx Homes, Inc.,
a Delaware corporation ("XXXXXXX"), or sells, assigns, or otherwise transfers
all or substantially all of the Company's assets to Xxxxxxx, or Xxxxxxx
consolidates with, or merges with or into, the Company.
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"SERVICE" shall mean Executive's full-time or substantially full-time
employment with the Company, or any affiliated organization, including any leave
of absence approved by the Partnership.
"TERMINATION OF SERVICE" shall mean Executive's termination of Service
for any reason whatsoever, including death.
4. EXECUTIVE'S RIGHTS WHILE EMPLOYED BY THE COMPANY
(a) BASE SALARY. Beginning on the effective date of this Agreement, during
the Tenn the minimum Annual Base Salary paid to Executive shall be Three Hundred
Fifty Thousand Dollars ($350,000.00). Executive's Base Salary shall be reviewed
annually by the Compensation Committee if any, otherwise by the Partnership, and
may be otherwise increased but not decreased from time to time based on
prevailing market conditions, performance of the Executive and other
considerations. In addition, Executive will receive $50,000 compensation as
prepayment of his Annual Bonus for the following year. The Base Salary and
pre-paid portion of the Annual Bonus shall be paid in equal semi-monthly
installments on the Company's normal payroll dates.
(b) ANNUAL BONUS. Executive shall be entitled to an Annual Bonus based on
the profitability of the Company. Executive shall receive as an Annual Bonus 2
1/2% of the annual earnings before taxes of the Company ("COMPANY EBT");
provided, however, that, if a Xxxxxxx Transaction occurs, Executive shall
receive as an Annual Bonus for his services performed (A) during the Fiscal Year
ending March 31, 2001, 2 1/2% of the Company EBT for such Fiscal Year, (B)
during the Fiscal Year ending March 31, 2002, the greater of 2 1/2% of the
Company EBT for such Fiscal Year or 1 1/4% of the earnings before taxes of the
entity ("NEWCO") resulting from the Xxxxxxx Transaction ("NEWCO EBT") for such
Fiscal Year, and (C) during any Fiscal Year ending after March 31, 2002, 1 1/4%
of the Newco EBT for such Fiscal Year. If a Xxxxxxx Transaction occurs and Newco
subsequently enters into a Capital Transaction (as defined below), or,
alternatively, if a Xxxxxxx Transaction does not occur and the Company enters
into a Capital Transaction, the Annual Bonus may be revised by Newco or the
Company, as the case may be, in its sole discretion; PROVIDED, HOWEVER, that (i)
the payment terms of any Annual Bonus earned by, but not yet paid to, Executive
for any Fiscal Year ending prior to or on the date of the Capital Transaction
may not be revised without the Executive's prior written consent, and (ii) the
terms determining the amount of any Annual Bonus for any Fiscal Year ending
subsequent to the Capital Transaction may not be less favorable to Executive
than the terms determining the amount of the Annual Bonus in effect prior to
such Capital Transaction (for example, if Newco or the Company, as the case may
be, would have had annual earnings before taxes of $20,000,000 if the Capital
Transaction had not occurred, Executive would be owed not less than 2 1/2% or 1
1/4%, as the case may be, of $20,000,000). For purposes of this Agreement,
"CAPITAL TRANSACTION" means and includes any consolidation, merger or
stock/asset acquisition involving the Company or Newco, as the case may be,
whether as the surviving or disappearing entity or as the purchaser or seller,
or any conversion of debt to equity or equity to debt or any issuance of new
equity or any issuance of new debt outside the ordinary course of business of
the Company or Newco, as the case may be (e.g., issuance of high yield debt in
the capital markets).
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The Annual Bonus for a given year (less the prepaid portion) will be
paid in two equal installments. The first installment will be paid as soon as
practicable after the end of the fiscal year in which the Bonus is earned.
The second installment will be paid on the last day of the fiscal year
following the fiscal year in which the Bonus is earned unless, prior to such
date, the Executive effects a voluntary resignation not constituting a
Constructive Termination or the Executive is terminated by reason of Cause.
(c) LONG-TERM INCENTIVES. Executive shall participate in any Long-Term
Incentive Plan that may be designed specifically for Executive or provided to
other executives of the Company during the Term. (Grants to Executive under such
Long-Term Incentive Plan shall be no less favorable to Executive in amount and
other key design features, including vesting restrictions, with any other plans
provided to any other executive at the Company.)
(d) FRINGE BENEFITS AND OTHER. The Company shall provide Executive with the
following:
i. BENEFIT PLANS. Such benefits and perquisites, including but not
limited to disability income, deferred compensation or any form of savings or
retirement plan as may from time to time be provided to other executives of
the Company. Such benefits and perquisites shall exclude fees paid for
Committee service, which are hereby included in Executive's Base Salary.
Benefits and perquisites shall be provided at the same proportional cost to
Executive as that paid by other executives of the Company who participate in
such programs.
ii. AUTOMOBILE. An automobile allowance of $1,000 per month and
reimbursement for fuel and other automotive expenses purchased by Executive
and used in the performance of his duties to the Company.
iii. VACATION. 15 days of paid vacation benefits each calendar year,
accrued on a pro rata basis. Maximum vacation accruals and carry-overs of
unused vacation days will be in accordance with the Company policy then in
effect.
iv. D&O INSURANCE. Payment of premiums on professional liability
insurance for Executive.
v. DUES. Payment of dues for such professional societies and
associations of which Executive is a member that benefit the Company.
Nothing in this Agreement shall be construed as limiting or restricting
any benefit to Executive under any pension, profit-sharing or similar
retirement plan, or under any group life or group health or accident or other
plan of the Company, for the benefit of its employees generally or a group of
them, now or hereafter in existence.
It shall be at the Partnership's discretion to grant any other fringe
benefits to Executive.
5. EXECUTIVE'S RIGHTS UPON TERMINATION OF SERVICE
(a) TERMINATION WITHOUT CAUSE. If, after the Initial Term, the Company
effects Executive's Termination of Service without Cause or for any reason
except those specifically
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described in paragraphs 5(b) through 5(g) herein, Executive (or if Executive
dies while benefits remain under this Agreement, Executive's beneficiaries as
designated in accordance with the provisions of PARAGRAPH 9 herein) shall be
entitled to receive the following:
i. Payment immediately upon Executive's Termination of Service of
any previously unpaid Base Salary and any Annual Bonus granted and previously
unpaid;
ii. Monthly payment of Executive's Base Salary for a period of two
(2) years following the date of Termination of Service; and
iii. Payment in one lump sum, to be delivered no later than 60 days
after the end of the fiscal year in which the Executive's Termination of
Service occurs, of a pro rata portion of any Annual Bonus which would have
been paid to Executive but for his Termination of Service. The pro rata
portion of such Annual Bonus shall be determined by multiplying such Annual
Bonus by a fraction, the numerator of which is the number of days which
elapsed between and including the first day of the applicable fiscal year and
the date of Termination of Service and the denominator of which is 365.
(b) FOR REASON OF CONSTRUCTIVE TERMINATION. In the event of Executive's
Termination of Service for reason of a Constructive Termination, Executive (or
if Executive dies while benefits remain under this Agreement, Executive's
beneficiaries as designated in accordance with the provisions of PARAGRAPH 9
herein) shall be entitled to receive the following:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 90% of the Projected Annual Bonus (as defined below)
for the Fiscal Year in which the Termination of Service occurs, and (C) 80%
of the Projected Annual Bonus for the Fiscal Year immediately following the
Fiscal Year in which Executive's Termination of Service occurs. For purposes
of this Agreement, "PROJECTED ANNUAL BONUS" shall mean the Annual Bonus
which, but for the Executive's Termination of Service, would have been earned
by Executive for the Fiscal Year in question, calculated using the projected
Company EBT or Newco EBT, as the case may be, reflected on the approved
business plan of the Company or Newco, as the case may be;
ii. Immediate vesting of any stock options, or other rights
previously provided to Executive under any Company Long-Term Incentive Plan
and of any previously unpaid portions of any Annual Bonus; and
iii. Monthly payment of Executive's Base Salary for a period of two
(2) years following the date of Termination of Service. In the event of a
Change of Control, Executive shall also be entitled to the protections
outlined in PARAGRAPH 7 herein.
Notwithstanding the foregoing, in the event of Executive's Termination
of Service for reason of a Constructive Termination which is effective prior
to the end of the Fiscal Year ending March 31, 2001, the first part of
subparagraph (i) above shall be replaced with the following provision:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 100%
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of the Projected Annual Bonus (as defined below) for the Fiscal Year in
which the Termination of Service occurs, (C) 90% of the Projected Annual Bonus
for the Fiscal Year immediately following the Fiscal Year in which Executive's
Termination of Service occurs, and (D) 80% of the Projected Annual Bonus for the
Fiscal Year immediately following the Fiscal Year mentioned in (C) above.
(c) FOR REASON OF EXPIRATION OF THE TERM OF THIS AGREEMENT. In the event of
Executive's Termination of Service for reason of expiration of the Term of this
Agreement pursuant to PARAGRAPH 2 hereof, Executive (or if Executive dies while
benefits remain due under this Agreement, Executive's beneficiaries as
designated in accordance with the provisions of PARAGRAPH 9 thereof) shall be
entitled to receive the following:
i. Payment immediately upon Executive's Termination of Service of
any previously unpaid Base Salary and any Annual Bonus granted and previously
unpaid and any Annual Bonus earned by Executive;
ii. Immediate vesting of any stock options or other rights
previously provided to Executive under any Company Long-Term Incentive Plan;
and
iii. Payment of any Disability or other benefits provided to
Executive by the Company in accordance with the terms and conditions of such
benefits and this Agreement.
(d) FOR REASON OF DISABILITY. In the Event of Executive's Termination of
Service for reason of Disability, Executive (or if Executive dies while benefits
remain due under this Agreement, Executive's beneficiaries as designated in
accordance with the provisions of PARAGRAPH 9 hereof) shall be entitled to
receive the following:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 90% of the Projected Annual Bonus for the Fiscal Year
in which the Termination of Service occurs, and (C) 80% of the Projected
Annual Bonus for the Fiscal Year immediately following the Fiscal Year in
which Executive's Termination of Service occurs; notwithstanding the
foregoing, in the event that executive's disability occurs within 60 days
prior to maturity of this agreement, then employee will only be entitled to
the actual annual bonus for the year in which the termination of service
occurs;
ii. Payment of any Disability or other benefits provided to
Executive by the Company in accordance with the terms and conditions of such
benefits and this Agreement; and
iii. Monthly payment of Executive's Base Salary for a period of two
(2) years following the date of Termination of Service.
Notwithstanding the foregoing, in the event of Executive's Termination
of Service for reason of Disability which is effective prior to the end of
the Fiscal Year ending March 31, 2001, the first part of subparagraph (i)
above shall be replaced with the following provision:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 100%
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of the Projected Annual Bonus for the Fiscal Year in which the Termination of
Service occurs, (C) 90% of the Projected Annual Bonus for the Fiscal Year
immediately following the Fiscal Year in which Executive's Termination of
Service occurs, and (D) 80% of the Projected Annual Bonus for the Fiscal Year
immediately following the Fiscal Year mentioned in (C) above.
(e) FOR REASON OF DEATH. In the Event of Executive's Termination of
Service for reason of Death, Executive's beneficiaries as designated in
accordance with the provisions of PARAGRAPH 9 hereof or Executive's estate,
as applicable, shall be entitled to receive the following upon such
Termination of Service:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 90% of the Projected Annual Bonus for the Fiscal Year
in which the Termination of Service occurs, and (C) 80% of the Projected
Annual Bonus for the Fiscal Year immediately following the Fiscal Year in
which Executive's Termination of Service occurs; notwithstanding the
foregoing, in the event that executive's death occurs within 60 days prior to
maturity of this agreement, then employee will only be entitled to the actual
annual bonus for the year in which the termination of service occurs;
ii. Payment of any other benefits provided by the Company in
accordance with the terms and conditions of such benefits and this Agreement;
and
iii. Monthly payment of Executive's Base Salary for a period of two
(2) years following the date of Termination of Service.
Notwithstanding the foregoing, in the event of Executive's Termination
of Service for reason of Death which is effective prior to the end of the Fiscal
Year ending March 31, 2001, the first part of subparagraph (i) above shall be
replaced with the following provision:
i. Payment immediately upon Executive's Termination of Service of
(A) any previously unpaid Base Salary and any Annual Bonus earned and
previously unpaid, (B) 100% of the Projected Annual Bonus for the Fiscal Year
in which the Termination of Service occurs, (C) 90% of the Projected Annual
Bonus for the Fiscal Year immediately following the Fiscal Year in which
Executive's Termination of Service occurs, and (D) 80% of the Projected
Annual Bonus for the Fiscal Year immediately following the Fiscal Year
mentioned in (C) above.
(f) FOR REASON OF VOLUNTARY RESIGNATION NOT CONSTITUTING CONSTRUCTIVE
TERMINATION. In the event of Executive's Termination of Service for reason of
voluntary resignation by Executive not constituting Constructive Termination,
Executive shall be entitled to receive the following upon such Termination of
Service:
i. Payment immediately upon Executive's Termination of Service of
any previously unpaid Base Salary and the first installment only of any
Annual Bonus earned but previously unpaid for the previous fiscal year;
ii. Performance of Company obligations with respect to Executive's
exercise of any stock options or other rights previously granted to Executive
under any Company Long-Term Incentive Plan provided such options or other
rights have vested as of the date of the
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termination of Executive's service in accordance with any agreement between
the Company and Executive covering such options or other rights;
iii. Payment of any Disability or other benefits provided to
Executive by the Company in accordance with the terms and conditions of such
benefits and this Agreement.
(g) FOR REASON OF CAUSE. In the Event of Executive's Termination of Service
for reason of Cause the Company's obligations to Executive shall be limited to:
i. Payment immediately upon Executive's Termination of Service of
any previously unpaid Base Salary and the first installment only of any
Annual Bonus earned but previously unpaid for the previous fiscal year;
ii. Performance of Company obligations with respect to Executive's
exercise of any stock options or other rights previously granted to Executive
under any Company Long-Term Incentive Plan provided such options or other
rights have vested as of the date of the termination of executive's service
in accordance with any agreement between the Company and Executive covering
such options or other rights.
6. MITIGATION AND OFFSET REQUIREMENTS
Executive shall not be required to mitigate the amount of any benefit
provided for in this Agreement by actively seeking alternative employment during
the period in which such benefits are paid. In addition, except as provided for
in PARAGRAPH 8 hereof, Executive shall not be required to offset any such
benefits provided for in this Agreement by amounts earned as a result of
Executive's employment or self-employment during the period in which Executive
is entitled to receive such benefits.
7. EXTENSION OF TERM UPON A CHANGE OF CONTROL
The Term of this Agreement shall automatically be extended through the
close of business twenty-four (24) months following the effective date of any
Change of Control.
8. CONFIDENTIAL INFORMATION
Executive acknowledges that, by reason of his employment by and service
to the Company, he will have access to confidential information of the Company
(and its affiliates) including, without limitation, information and knowledge
pertaining to products, present and future developments, techniques, programs,
trade secrets, services, marketing strategies, processes, patents, copyright,
trademarks, policies, contracts, personnel information, computer programs and
data, improvements, methods of operation, sales and profit figures, pricing
information, customer and client lists, relationships between the Company and
those persons, entities and affiliates with which the Company has contracted and
others who have business dealings with it and other confidential property and
information of the Company and its customers (collectively, "Confidential
Information"). Executive acknowledges that the Confidential Information is a
valuable and unique asset of the Company and covenants that, both during and
after the Term, he will not use any Confidential Information or disclose any
Confidential Information to any person, firm or corporation (except as his
duties as an employee
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of the Company may require) without the prior written authorization of the
Partnership and that all such matters and properties shall be and shall remain
the property of the Company and/or its customers. The obligation of
imposed by this PARAGRAPH 8 shall not apply to information that appears in
issued patents, that is required by governmental authorities to be disclosed,
or that otherwise becomes generally known in the industry through no act of
Executive in breach of this Agreement.
9. NONSOLICITATION OF EMPLOYEES
During and for a period of two years after the termination of his
employment with the Company for any reason whatsoever, Executive shall not, on
his own behalf or on behalf of any other person, partnership, association,
corporation, or other entity, solicit or in any manner attempt to influence or
induce any employee of the Company or its subsidiaries or affiliates (known by
Executive to be such) to leave the employment of the Company or its subsidiaries
or affiliates.
10. RETURN OF COMPANY PROPERTY
Promptly upon termination of Executive's employment by the Company for
any reason or no reason, Executive or Executive's personal representative shall
return to the Company (a) all Confidential Information; (b) all other records,
designs, patents, business plans, financial statements, manuals, memoranda,
lists, correspondence, reports, records, charts, advertising materials, and
other data or property delivered to or compiled by Executive by or on behalf of
the Company, or its representatives, vendors, or customers that pertain to the
business of the Company, whether in paper, electronic, or other form; and (c)
all keys, credit cards, vehicles, and other property of the Company. Executive
shall not retain or cause to be retained any copies of the foregoing. Executive
hereby agrees that all of the foregoing shall be and remain the property of the
Company, and be subject at all times to its discretion and control.
11. DESIGNATION OF BENEFICIARIES
Executive shall have the right at any time to designate any person(s)
or trust(s) as beneficiaries to whom any benefits payable under this Agreement
shall be made in the event of Executive's death prior to the distribution of all
benefits due Executive under this Agreement. Each beneficiary designation shall
be effective only when filed in writing with the Company during Executive's
lifetime. If Executive designates more than one beneficiary, distributions of
cash payments shall be made in equal proportions to each beneficiary unless
otherwise provided for in Executive's beneficiary designation. The filing of a
new beneficiary designation shall cancel all designations previously filed. Any
finalized marriage or divorce (other than common law marriage) of Executive
subsequent to the date of filing a beneficiary designation shall revoke such
designation unless (a) in the case of divorce, the previous spouse was not
designated as beneficiary, and (b) in the case of marriage, Executive's new
spouse had previously been designated as beneficiary. If Executive fails to
designate a beneficiary as provided for above, or if the beneficiary designation
is revoked by marriage, divorce or otherwise without execution of a new
designation, or if the beneficiary designated by Executive dies prior to
distribution of the benefits due Executive under this Agreement, the Partnership
shall direct the distribution of any benefits due under this Agreement to
Executive's estate.
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12. SUCCESSORS
Except as provided for in PARAGRAPH 9 above, the rights and duties of a
party hereunder shall not be assignable by that party; provided, however, that
this Agreement shall be binding upon and shall inure to the benefit of any
successor of the Company, and any such successor shall be deemed substituted for
the Company under the terms of this Agreement. The term successor as used herein
shall include any person, firm, corporation or other business entity which at
any time, by merger, purchase or otherwise, acquires substantially all of the
assets or business of the Company.
13. ATTORNEYS' FEES
(a) SUBSEQUENT TO ANY CHANGE OF CONTROL. Subsequent to any Change of
Control, in any action at law or in equity brought by either party hereto to
enforce any of the provisions or rights under this Agreement in which
Executive is the successful party, the Company, in addition to bearing its
own expenses, shall pay to Executive all costs, expenses and reasonable
attorneys' fees incurred therein by Executive (including without limitation
such costs, expenses and fees on any appeals), and if Executive shall recover
judgment in any such action or proceeding, such costs, expenses and
attorneys' fees shall be included as part of such judgment.
(b) PRIOR TO ANY CHANGE OF CONTROL. Prior to any Change of Control,
in any action at law or in equity to enforce any of the provisions or rights
under this Agreement, the unsuccessful party to such litigation, as
determined by the Court in a final judgment or decree, shall pay the
successful party or parties all costs, expenses and reasonable attorneys'
fees incurred therein by such party or parties (including without limitation
such costs, expenses and fees on any appeals), and if such successful party
or parties shall recover judgment in such action or proceeding, such costs,
expenses and attorneys' fees shall be included as part of such judgment.
14. ADDITIONAL REMEDIES
Executive recognizes that irreparable injury will result to the Company
and its business and properties in the event of any breach by Executive of
PARAGRAPHS 8, 9 OR 10 of this Agreement. In the event of any breach of
Executive's commitments pursuant to PARAGRAPH 8, 9 OR 10 the Company shall be
entitled, in addition to any other remedies and damages available, to injunctive
relief from a court of competent jurisdiction to restrain the violation of such
commitments by Executive or by any person or persons acting for or with
Executive in any capacity whatsoever.
15. ARBITRATION
Any disputes between Executive and the Company arising out of this
Agreement or Executive's employment by the Company or the termination of his
employment shall be resolved by an impartial arbitrator in Los Angeles pursuant
to the Rules for Resolution of Employment Disputes of the American Arbitration
Association. The arbitrator shall be selected by agreement between Executive and
the Company, but if they do not agree on the selection of an arbitrator within
30 days after the date of the request for arbitration, the arbitrator shall be
selected pursuant to the rules of that Association. The award rendered by the
arbitrator shall be
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conclusive and binding upon Executive and the Company. The unsuccessful party
shall pay its own expenses and the expenses of the successful party for the
arbitration and the fee and expenses of the arbitrator.
16. ENTIRE AGREEMENT
With respect to the matters specified herein, this Agreement contains
the entire agreement between the Company and Executive and supersedes all prior
written agreements, understandings and commitments between the Company and
Executive. No amendments to this Agreement may be made except through a written
document signed by the Executive and approved in writing by the Partnership.
17. VALIDITY
In the event that any provision of this Agreement is held to be
invalid, void or unenforceable, the same shall not affect, in any respect
whatsoever, the validity of any other provision of this Agreement.
18. PARAGRAPHS AND OTHER READINGS
Paragraphs and other headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretations of this Agreement.
19. NOTICE
Any notice or demand required or permitted to be given under this
Agreement shall be made in writing and shall be deemed effective upon the
personal delivery thereof if delivered or, if mailed, forty-eight (48) hours
after having been deposited in the United States mail, postage prepaid, and
addressed, in the case of the Company, to the attention of the Partnership at
the Company's then principal place of business, presently 000 Xxxxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xx Xxxxxxx, Xxxxxxxxxx, 00000 and in the case of
Executive, to 00 Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000. Either party
may change the address to which such notices are to be addressed to it by giving
the other party notice in the manner herein set forth.
20. RIGHT OF EMPLOYMENT
Nothing stated or implied by this Agreement shall prevent the Company
from terminating the Service of Executive at any time nor prevent Executive from
voluntarily terminating Service at any time.
21. WITHHOLDING TAXES AND OTHER DEDUCTIONS
To the extent required by law, the Company shall withhold from any
payments due Executive under this Agreement any applicable federal, state or
local taxes and such other deductions as are prescribed by law or Company
policy.
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22. APPLICABLE LAW
To the full extent controllable by stipulation of the Company and
Executive, this Amendment shall be interpreted and enforced under California
law.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized representative(s) and Executive has affixed his
signature as of the date first written above.
EXECUTIVE:
/s/ Xxxxx X. Manchester
---------------------------------------
Xxxxx X. Manchester
COMPANY:
WESTERN PACIFIC HOUSING DEVELOPMENT, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Title: Chairman
---------------------------------
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