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EXHIBIT 10.21
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of November 1, 1996
(the "Effective Date") by and between NEWMARK HOME CORPORATION, a Nevada
corporation (the "Employer"), and XXXX XXXXXXX, an individual residing in
Missouri City, Texas (the "Employee").
RECITALS
The Employer, its divisions, subsidiaries, and other affiliated entities are
primarily engaged in the business of constructing single family residences. It
is the intent and purpose of the parties hereto to specify in this Agreement
the terms and conditions of Employee's employment with the Employer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the
meanings specified or referred to in this Section 1.
"Agreement"--this Employment Agreement, as amended from time to time.
"Base Salary"--as defined in Section 3.1(a).
"Basic Compensation" means Base Salary and Benefits.
"Benefits"--as defined in Section 3.1(b).
"Board of Directors" means the board of directors of the Employer.
"Disability"--as defined in Section 4.2.
"Effective Date" means the date stated in the first paragraph of this
Agreement.
"Employment Period" means the term of the Employee's employment under
this Agreement.
"Fiscal Year" means the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"For cause"--as defined in Section 4.3.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, business trust, association,
organization, or governmental body.
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2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Employee, and the Employee
hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM
Subject to the provisions of Section 5, the term of the
Employee's employment under this Agreement will be three (3)
years and two (2) months, beginning on the Effective Date and
ending on December 31, 1999.
2.3 DUTIES
The Employee will serve as Sr. Vice President-Purchasing of
the Employer for the term of this Agreement and will have such
duties as are assigned or delegated to the Employee by the
Board of Directors. The Employee will devote his full business
time, attention, skill, and energy exclusively to the business
of the Employer, will use his best efforts to promote the
success of the Employer's business, and will cooperate fully
with the Board of Directors in the advancement of the best
interests of the Employer. Nothing in this Section 2.3,
however, will prevent the Employee from engaging in additional
activities in connection with personal investments and
community affairs that are not inconsistent with the
Employee's duties under this Agreement. If the Employee is
elected as a director of the Employer or as a director or
officer of any of its affiliates, the Employee will fulfill
his duties as such director or officer without additional
compensation.
3. COMPENSATION
The compensation and other benefits payable to the Employee under this
Agreement shall constitute the full consideration to be paid to the
Employee for all services to be rendered by the Employee for the
Employer, its divisions, subsidiaries and other affiliated entities.
3.1 BASIC COMPENSATION
(a) The Employee will be paid an annual salary as set
forth below ("Base Salary"), which will be payable in
equal periodic installments according to the
Employer's customary payroll practices, but no less
frequently than monthly.
Year Base Salary
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11/1/96 - 12/31/96 $125,000.00
1997 $140,000.00
1998 $155,000.00
1999 $170,000.00
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(b) The Employee will, during the Employment Period, be
permitted to participate in such pension, profit
sharing, bonus, life insurance, hospitalization,
major medical and other employee benefit plans of the
Employer that may be in effect from time to time, to
the extent Employee is eligible under the terms of
those plans (collectively, the "Benefits"). The term
"Benefits" shall include (a) the payments under the
Option Termination Agreement dated as of October 1,
1993 as provided therein, and (b) the 1996 Bonus
Program currently in effect.
4. TERMINATION
4.1 EVENTS OF TERMINATION
The Employment Period, the Employee's Basic Compensation, and
any and all other rights of the Employee under this Agreement
or otherwise as an employee of the Employer will terminate
(except as otherwise provided in this Section 4):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in
Section 4.2) immediately upon notice from either
party to the other; or
(c) for cause (as defined in Section 4.3), immediately
upon notice from the Employer to the Employee, or at
such later time as such notice may specify;
4.2 DEFINITION OF DISABILITY
For purposes of Section 4.1, the Employee will be deemed to
have a "disability" if, for physical or mental reasons, the
Employee is unable to perform the essential functions of the
Employee's duties under this Agreement for 120 consecutive
days, or 180 days during any twelve (12) month period, as
determined in accordance with this Section 4.2. The disability
of the Employee will be determined by a medical doctor
selected by written agreement of the Employer and the Employee
upon the request of either party by notice to the other. If
the Employer and the Employee cannot agree on the selection of
a medical doctor, each of them will select a medical doctor
and the two (2) medical doctors will select a third medical
doctor who will determine whether the Employee has a
disability. The determination of the medical doctor selected
under this Section 4.2 will be binding on both parties. The
Employee must submit to a reasonable number of examinations by
the medical doctor making the determination of disability
under this Section 4.2, and the Employee hereby authorizes the
disclosure and release to the Employer of such determination
and all supporting medical records. If the Employee is not
legally competent, the Employee's legal guardian or duly
authorized attorney-in-fact will act in the Employee's stead,
under this Section 4.2, for the purposes of submitting the
Employee to the examinations, and providing the authorization
of disclosure, required under this Section 4.2.
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4.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 4.1, the phrase "for cause" means: (a)
the commission of fraud, theft, embezzlement, or similar
malfeasance involving moral turpitude or the conviction of, or
plea of nolo contendere to, any felony; (b) gross negligence,
nonfeasance, dishonesty, willful misconduct or substantial
failure to perform employment duties in a manner consistent
with normal standards of job performance after prior
evaluation and warning related to such standards of job
performance; or (c) the appropriation (or attempted
appropriation) of a material business opportunity of the
Employer.
4.4 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer
will be obligated to pay the Employee (or, in the event of his
death, his designated beneficiary as defined below) only such
compensation as is provided in this Section 4.4, and in lieu
of all other amounts and in settlement and complete release of
all claims the Employee may have against the Employer. For
purposes of this Section 4.4, the Employee's designated
beneficiary will be such individual beneficiary or trust,
located at such address, as the Employee may designate by
notice to the Employer from time to time or, if the Employee
fails to give notice to the Employer of such a beneficiary,
the Employee's estate.
(a) Termination by the Employer for Cause. If the
Employer terminates this Agreement for cause, the
Employee will be entitled to receive his accrued, but
unpaid, Base Salary only through the date such
termination is effective.
(b) Termination upon Disability. If this Agreement is
terminated by either party as a result of the
Employee's disability, as determined under Section
4.2, the Employer will pay the Employee his Base
Salary through the remainder of the calendar month
during which such termination is effective.
(c) Termination upon Death. If this Agreement is
terminated because of the Employee's death, the
Employee's estate will be entitled to receive his
Base Salary through the end of the calendar month in
which his death occurs.
(d) Benefits. The Employee's accrual of, or participation
in plans providing for, Benefits, will cease at the
effective date of the termination of this Agreement,
except as otherwise specifically provided in writing
in the documentation for any such Benefit. The
Employee will not receive, as part of his termination
pay pursuant to this Section 4, any payment or other
compensation for any vacation, holiday, sick leave,
or other leave unused on the date the notice of
termination is given under this Agreement, unless
Employer's written personnel policies provide
otherwise.
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5. GENERAL PROVISIONS
5.1 WAIVER
The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any
delay by either party in exercising any right, power, or
privilege under this Agreement will operate as a waiver of
such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude
any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or
privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by
the other party; (b) no waiver that may be given by a party
will be applicable except in the specific instance for which
it is given; and (c) no notice to or demand on one party will
be deemed to be a waiver of any obligation of such party or of
the right of the party giving such notice or demand to take
further action without notice or demand as provided in this
Agreement.
5.2 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective
successors, assigns, heirs, and legal representatives,
including any entity with which the Employer may merge or
consolidate or to which all or substantially all of its assets
may be transferred. The duties and covenants of the Employee
under this Agreement, being personal, may not be delegated.
5.3 NOTICES
All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have
been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by facsimile (with written
confirmation of receipt), provided that a copy is mailed by
registered mail, return receipt requested, or (c) when
received by the addressee, if sent by a nationally recognized
overnight delivery service (receipt requested), in each case
to the appropriate addresses and facsimile numbers set forth
below (or to such other addresses and facsimile numbers as a
party may designate by notice to the other parties):
If to Employer:
Newmark Home Corporation
00000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Facsimile No.: 713/261-4663
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With a copy to:
Xxxxxxx X. Xxxxxx
Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: 713/871-0155
If to the Employee:
Xxxx Xxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxx 00000
5.4 ENTIRE AGREEMENT; AMENDMENTS
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and
supersede all prior agreements and understandings, oral or
written, between the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended
orally, but only by an agreement in writing signed by the
parties hereto.
5.5 GOVERNING LAW
This Agreement will be governed by the laws of the State of
Texas without regard to conflicts of laws principles.
5.6 SEVERABILITY
If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
"EMPLOYER"
NEWMARK HOME CORPORATION
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
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Title: President 12/26/96
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"EMPLOYEE"
/s/ X.X. XXXXXXX
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XXXX XXXXXXX
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