Exhibit 10.37
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of January 19, 2001 (this
"Agreement"), is by and between American Home Mortgage Holdings, Inc., a
Delaware corporation having a place of business at 00 X. 00xx Xxxxxx, Xxx Xxxx,
XX (the "Company"), and Xxxx Xxxxxxxx, 00 Xxxxxxx Xxxxx, Xxxx 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 February 26,
2001, and shall end on February 25, 2003 unless terminated earlier pursuant to
Section 7 herein. If the Executive remains in the employ of the Company after
February 25, 2003, 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 Senior Vice President of the
Company and of either the Subsidiary or a similar division of the Company. As
such, the Executive shall have all of the powers and duties usually incident to
the office of Senior Vice President 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 the Boards of Directors.
(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 Subsidiary's
principal executive offices, and shall not be required to be absent there from
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 $260,000.00 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 Company shall annually
pay the Executive, an objective achievement bonus the amount of which will be
determined by the compensation committee of the Company's Board of Directors. To
determine the amount of the objective achievement bonus, the compensation
committee will, after the close of each calendar year, consider whether the
Executive has achieved the objectives set forth in the Executive's business plan
for that calendar year. If the compensation committee determines that all of the
objectives were achieved, it will award the Executive an objective achievement
bonus of 17.50% of the Executive's Base Salary. If some, but not all of the
objectives were achieved, the compensation committee will award a lesser
objective achievement bonus. Objective achievement bonuses that are awarded as
set forth herein, shall be paid to the Executive on the first regularly
scheduled Company pay date after March 15th but in no event later than April 1st
during the year of award. If, prior to the Company paying an objective
achievement bonus, the Executive ceases to be employed by the Company, due
either to discharge, resignation, or other reason, the Company shall not pay the
Executive an objective achievement bonus, and any potential bonus will be
forfeited.
(c) During the term of this Agreement, the Company shall annually
pay the Executive, a company profitability bonus, the amount of which will be
determined by the compensation committee of the Company's Board of Directors. To
determine the amount of the company profitability bonus, the compensation
committee will, after the close of each calendar year, consider whether the
Company has achieved its profitability objectives as set forth in its business
plan for that calendar year. If the compensation committee determines that the
objectives were achieved, it will award the Executive a company profitability
bonus of 6.25% of the Executive's Base Salary. Company profitability bonuses
that are awarded as set forth herein, shall be paid to the Executive on the
first regularly scheduled Company pay date after March 15th, but in no event
later than April 1st during the year of award. If, prior to the Company paying a
company profitability bonus, the Executive ceases to be employed by the Company,
due
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either to discharge, resignation, or other reason, the Company shall not pay the
Executive a company profitability bonus, and any potential bonus will be
forfeited.
(d) During the term of this Agreement, the Company shall annually
pay the Executive, a management evaluation bonus, the amount of which will be
determined by the compensation committee of the Company's Board of Directors. To
determine the amount of the management evaluation bonus, the compensation
committee will, after the close of each calendar year, consider the
recommendation of the President of the Company, its own knowledge, if any, of
the performance of the Executive and environmental factors, and will award the
Executive a management evaluation bonus of 6.25% of the Executive's Base Salary
or, at its discretion, a lesser amount. Management evaluation bonuses that are
awarded as set forth herein, shall be paid to the Executive on the first
regularly scheduled Company pay date after March 15th, but in no event later
than April 1st during the year of award. If, prior to the Company paying a
management evaluation bonus, the Executive ceases to be employed by the Company,
due either to discharge, resignation, or other reason, the Company shall not pay
the Executive a company management evaluation bonus, and any potential bonus
will be forfeited.
(e) 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.
(f) Upon execution of this Agreement, the Executive shall receive an
option award for 20,000 shares of the existing class of the common stock of the
company. One-half of the award (10,000 shares) shall vest and be exercisable two
years from the date hereof. The remainder of the award shall vest and be
exercisable three years from the date hereof. In the event that, prior to an
option award vesting, the Executive is no longer employed by the Company, either
due to resignation, discharge or any other reason, the option award will be
forfeited. The terms of the option award will be governed by the Company's
omnibus stock option plan.
(g) Upon commencing employment, the Company shall pay the Executive
an initial sign-on bonus of $20,000. Three months after commencing employment,
provided this Agreement has not been terminated, the Company shall pay the
Executive an additional sign-on bonus of an additional $20,000. If this
Agreement is terminated within 1 year of the Executive commencing employment
hereunder, the Executive will promptly return amounts paid pursuant to this
subsection to the Company.
7. Termination of Employment. The company may discharge the
Executive and thereby terminate this Agreement prior to February 25, 2003 for
cause or in the event of the Executive's disability of death. In such event, the
Executive will not be entitled to severance.
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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;
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 six 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 February 25, 2003 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 six months compensation. Six months
compensation shall include one half of the annual Base Salary plus one half of
the annual amount of each of the types of bonuses set forth in Section 6 herein.
The Executive may resign and thereby terminate this Agreement prior
to February 25, 2003 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 February 25, 2003 for good reason. In such event, the Company shall pay
the Executive severance equal to six months compensation. Six months
compensation shall include one half of the annual Base Salary plus one half of
the annual amount of each of the types of bonuses set forth in Section 6 herein.
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.
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8. Entire Agreement: Amendment.
This Agreement along with the company's letter agreement dated
1/19/01 contain the entire understanding of the parties with respect to the
subject matter hereof and supersede 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.
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 her at 00 Xxxxxxx Xxxxx, Xxxx
Xxxxxxxxx, XX 00000 and, if to the Company, to it at its principal
administrative 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.
12. Definitions. The following terms, when capitalized in this
Agreement, shall have the meanings set forth or incorporated by reference in
this Section 12.
(a) "Base Salary" shall have the meaning set forth in Section 6(a).
(b) "Board of Directors" means the Board of Directors of the
Company, as constituted from time to time.
(c) "Company" means American Home Mortgage Holdings, Inc., a
Delaware corporation, and any successors to its business and/or assets.
(d) "Subsidiary" means American Home Mortgage Corporation, a New
York corporation.
13. Binding Nature. This Agreement shall be binding on the Company,
its successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this duly
executed as of the date first written above.
American Home Mortgage Holdings, Inc.
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: President
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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