Exhibit 10.12
EXECUTIVE EMPLOYMENT AGREEMENT
BETWEEN
MORTGAGE ASSISTANCE CENTER CORPORATION
AND
XXXXXXX XXXXXXX
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made effective as of the
first day of March 2007 by and between Mortgage Assistance Center Corporation, a
Florida corporation, (the "Corporation") and Xxxxxxx Xxxxxxx, a resident of
Florida (hereinafter referred to as "Executive").
WHEREAS, the parties, for and in consideration of the mutual and
reciprocal covenants and agreements hereinafter contained, and intending to be
legally bound hereby, do contract and agree as follows:
1. Purpose and Employment. The Corporation's primary business (the
"Corporation's Business") is (a) to acquire from banks and other financial
institutions relatively large "pools" or groups, consisting of at least ten (10)
or more multiple non-performing mortgages in any one particular "pool" or group,
together with the underlying distressed real properties primarily composed of
single family residences throughout the United States; (b) to generally purchase
such "pools" or groups of multiple non-performing mortgages through special
purpose entities formed with financial partners through a competitive bidding
process or through direct negotiations with the selling bank or financial
institution; and (c) to categorize and separate the newly-acquired real estate
mortgages and real properties into various sub-groups for management,
rehabilitation and resale, usually over a period of eighteen to twenty-four
months. The purpose of this Agreement is to define the employment relationship
between the Corporation and Executive. The Corporation agrees to employ
Executive as the Corporation's Senior Vice President and Chief Financial
Officer, and Executive hereby accepts such employment by the Corporation, all
upon the terms and conditions hereinafter set forth.
2. Executive's Duties and Responsibilities.
(a) Duties. Executive shall serve the Corporation as its
Senior Vice President and Chief Financial Officer. At all times, Executive shall
report to the Corporation's President and Chief Executive Officer, shall perform
such duties, consistent with the Executive's employment as the Senior Vice
President and Chief Financial Officer of the Corporation, shall hold such other
titles with respect to the Corporation, or any of its divisions, subsidiaries,
or affiliates, as the Corporation's President and Chief Executive Officer may
from time to time determine, and shall comply with all applicable provisions of
the Corporation's certificate of incorporation, and any amendments thereto. As
to employees under his management jurisdiction, including those working directly
under his supervision, Executive shall use his best commercially reasonable
efforts (i) to employ and retain only employees who are capable and willing to
perform according to applicable legal requirements and applicable policies of
the Corporation, and also (ii) to assure that such personnel are properly
trained and supervised. Executive may hire and terminate the employment of any
other employee of the Corporation, or of any of its divisions, subsidiaries or
affiliates, who is under his management jurisdiction.
(b) Responsibilities. Executive agrees that during the term of
his employment by the Corporation, he will devote all business time necessary,
proper and appropriate to fulfill and discharge his duties and responsibilities
to the best of his abilities and to exert his best commercially reasonable
efforts and abilities to the performance of his duties and responsibilities for
the Corporation. Executive agrees to act with the Corporation's best interest in
mind at all times. Executive will conduct himself at the highest professional
standards of ethics and integrity. Executive agrees to use his best commercially
reasonable efforts and skills to preserve the business of the Corporation and
the goodwill of its employees and persons having business relations with the
Corporation. Executive will comply with all of the Corporation's policies and
procedures as applicable to Executive.
(c) Permitted Activities. Notwithstanding the foregoing, it
shall not be a violation of Section 2(b) for the Executive to (i) serve on
corporate, civic, or charitable boards or committees, (ii) deliver lectures,
fulfill speaking engagements, or teach at educational institutions during times
other than normal business hours during the business week, or (iii) maintain his
current residence in Tampa, Florida, and commute by air to Dallas, Texas on a
consistent and regular basis as required by the President and Chief Executive
Officer of the Corporation during the term of this Agreement, and (iv) manage
his personal finances and investments, so long as none of such activities as set
forth in this subsection (c) (singularly or collectively) significantly
interfere with the performance of the Executive's responsibilities as an
employee of the Corporation in accordance with this Agreement.
3. Term. The term of this Agreement shall be for a period of two (2)
years commencing and effective as of the date of full execution of this
Agreement as set forth herein, (the "Term") unless terminated earlier by in
accordance with Section 8 of this Agreement. Upon completion of the original
Term, the Agreement shall automatically be renewed for a period of one (1) year
as of each succeeding anniversary date; provided, however, that the Corporation
or the Executive may terminate the Agreement effective as of any such renewal
date by providing ninety (90) days advance written notice to the other party
prior to such renewal. The parties agree that the obligations created in
Sections 6, 7, 10 and 11 of this Agreement will survive the termination of
Executive's employment with the Corporation.
4. No Limitations. Executive warrants and represents that he is under
no contractual, judicial or other restraint that impairs his right or legal
ability to enter into this Agreement and to carry out his duties and
responsibilities for the Corporation.
5. Compensation and Benefits. For all the services to be rendered by
Executive hereunder, the Corporation shall provide Executive with the following
compensation and benefits:
2
(a) Base Salary. During the Term of this Agreement, the Corporation
will pay Executive an annual base salary of one hundred seventy-five thousand
dollars ($175,000) payable in monthly installments and in coordination with the
normal payroll cycle of the Corporation. Commencing as of January 1, 2008,
Executive's Base Salary shall be reviewed no less frequently than annually by
the Corporation and may be adjusted upward (but not downward) by the
Corporation. Upon such annual review during the Term, Executive's Base Salary
shall be increased to the greatest of (i) an amount equal to Base Salary for the
prior year plus 5%, (ii) a factor measured by the increase, if any, in the
Consumer Price Index for Wage Earners and Clerical Workers (CPI-W), as published
by the Bureau of Labor Statistics, for the prior calendar year (the "CPI
Adjustment") or (iii) such greater amount as may be agreed by Executive and the
Company.
(b) Incentive Compensation. In the event that the Corporation's
financial performance meets or exceeds the annual financial budget projection
for any fiscal year as approved by the Board of Directors while this Agreement
is in effect, Executive shall receive a cash bonus equal to fifty percent (50%)
of the Executive's base salary, and any such cash bonuses shall be paid to
Executive no later than April 15th of the year following the year in which such
cash or stock bonus was earned. . Executive may be entitled to other bonuses and
incentive compensation as may be determined by the Corporation's Board of
Directors in its sole discretion. Each such other bonus or incentive
compensation may be paid in cash or shares of common stock as the Corporation's
Board of Directors shall determine such other incentive compensation may also
include options to purchase shares of the Corporation's common stock pursuant to
a plan established by the Corporation's Board of Directors.
(c) Vacation and Holidays. Executive shall be entitled to two (2)
weeks' vacation with pay (or such greater length of time as may be approved from
time to time by the Corporation's Board of Directors) during the first fiscal
year of the Agreement, and shall be entitled to three (3) weeks vacation with
pay during each subsequent fiscal year thereafter, with such vacations to be
taken by Executive at such times as shall be consistent with the business
requirements of the Corporation. In addition, Executive shall also be entitled
to such holidays as are customarily observed by the Corporation for its
employees. Unused holidays and days of vacation may not be carried over from one
fiscal year to another, and additional income will not be given for vacation
time or holidays not taken. Notwithstanding anything contained to the contrary
herein, if Executive is terminated without "Good Cause" as defined in Section
8(d), Executive shall receive the base salary for any unused vacation time for
the fiscal year in which such termination without "Good Cause" occurs.
(d) Other Benefits. The Corporation shall pay Executive, whether
directly or by reimbursement, for that certain health and medical, dental and
vision coverage currently in force as of this date and being made available to
Executive pursuant to such Executive's current medical insurance coverage or any
subsequent replacement coverage. During the term of this Agreement, the
Corporation shall pay for or shall reimburse Executive for coach airfare, ground
transportation, reasonable per diem food allowance, moderately priced temporary
accommodations (such as Hampton Inn, Holiday Inn or Homesuites hotel/motel), a
cellular telephone with a plan of Executive's choice as well as a new laptop
computer of his personal choice for Executive's business use, all as approved by
3
the President and Chief Operating Officer of the Corporation in his sole
reasonable discretion. In addition to other benefits conferred under this
Agreement, Executive shall have the right to participate in (on the same terms
and conditions as available to other senior executives of the Corporation) all
pension plans, retirement plans, deferred compensation plans, executive
compensation plans, major medical, group health, disability, accidental death
and group term life insurance plans, "fringe" benefit plans (including
permissible sick days or leave days), and other employee benefit plans that the
Corporation shall, from time to time, generally confer upon other senior
executives of the Corporation.
(e) Expenses. Executive is expected from time to time, to incur
reasonable expenses as he reasonably deems to be for the Corporation's benefit
and for promoting the business of the Corporation, including expenses for
entertainment, travel, and similar items. Executive shall be reimbursed for all
such reasonable expenses (in accordance with the policies and procedures
regarding employee business-related expense from time to time established by the
Corporation for its senior executive officers) upon his presenting to the
Corporation a detailed itemized expense voucher therefore in accordance with
applicable corporate policies. Executive may also draw funds from the
Corporation, but only to the extent necessary and appropriate, for reasonable
expenses to be incurred on behalf of the Corporation and then only in accordance
with applicable corporate policies. Detailed records of the expenditure of such
funds shall be tendered by Executive for expenses incurred on behalf of the
Corporation in accordance with applicable corporate policies, and if any portion
of such funds is unexpended or unaccountable, then Executive shall promptly
return such unexpended or unaccountable sums to the Corporation.
(f) Stock Grants and Options.
(1) Restricted Stock Grant. During the Term of this Agreement,
Executive may receive a grant of shares of the Corporation's Common Stock as
determined by the Board of Directors in its sole discretion. Except as otherwise
provided in this Agreement, in the event the Agreement is terminated for "Good
Cause" (as defined in Section 8(d)), the shares granted to the Executive under
this provision shall be forfeited; provided however, that in the event the
Executive is terminated by the Corporation without Good Cause, the granted
shares shall not be forfeited.
(2) Incentive Stock Options. Upon execution of this Agreement,
Executive shall be granted incentive stock options for a total of seven hundred
fifty thousand (750,000) shares of the Corporation's common stock under the
Corporation's stock option plan (the "Incentive Stock Options"). This grant is
effective as of the date of the Agreement (or the date of grant under the plan,
if later). One third of such Incentive Stock Options shall become exercisable
upon the full execution of this Agreement and the remaining two thirds of such
Incentive Stock Options shall become exercisable with one half of the remaining
two thirds of the Incentive Stock Options being exercisable on the first
anniversary date of the Agreement, and the remaining half of the two thirds of
the Incentive Stock Options being exercisable on the last day of the two year
initial Term of the Agreement, provided that the Executive has not voluntarily
resigned, or has terminated his employment with "Good Cause" (as defined in
4
Section 8 (e)), or has not been terminated by the Corporation with "Good Cause"
as of either of such dates referred to herein this section.
(3) Non-Vested Shares. If the Executive's employment is
terminated by the Corporation without "Good Cause" or by the Executive with
"Good Cause" prior to the date on which his right to any shares granted to him
pursuant to this Agreement become fully vested and non-forfeitable, the
Executive's rights to any shares granted under this Agreement shall
automatically become fully vested upon termination of employment.
Notwithstanding the foregoing, if the Executive's employment with the
Corporation is terminated by resignation by the Executive upon notice to the
Corporation pursuant to this Agreement, or by the Corporation with "Good Cause"
pursuant to this Agreement, the non-vested shares shall be forfeited as of the
date of resignation or as of the date of termination with "Good Cause".
(4) Change-in-Control. Notwithstanding (3) above, upon the
occurrence of a Change-in-Control of the Corporation, the shares granted to the
Executive under this Agreement shall become fully vested and non-forfeitable.
For purposes of this Agreement, "Change-in-Control" shall mean (i) the sale of
substantially all of the assets of the Corporation to another person or entity
(other than an subsidiary or other affiliate of the Corporation), (ii) the
acquisition of actual or beneficial ownership of more than fifty percent of the
total combined voting power of all classes of Corporation stock entitled to vote
by a person or group of persons acting in concert (other than a subsidiary or
other affiliate of the Corporation) who did not own more than fifty percent of
such on the date of this Agreement, or (iii) the merger of the Corporation into
another entity (other than a subsidiary or other affiliate of the Corporation),
where the Corporation's shareholders (determined as of the date of the merger)
own (directly or indirectly) less than fifty percent of the share of the
surviving entity.
(5) Transfer of Shares. Until any shares awarded under this
Agreement become fully vested and non-forfeitable, such shares shall be held by
the Corporation in escrow. Upon becoming vested, a Share certificate for the
newly vested shares shall be delivered to the Executive as soon as
administratively feasible after the date of vesting. The Executive shall have
all the rights of a shareholder with respect to the shares held in escrow,
including the right to vote the shares and to receive all dividends and other
distributions paid with respect to the shares. Any shares held in escrow under
this Agreement shall be held, and a certificate shall be issued, in the name of
the Executive. The Executive hereby grants to the Corporation an irrevocable
power of attorney to sign any and all documents and to take such other actions
as may be necessary to transfer ownership to the Corporation of any forfeited
shares.
(6) Unvested Shares Not Subject to Creditors, Except Corporation.
Any shares held in escrow by the Corporation for the Executive under this
Agreement are not subject to the claims of the Executive's creditors and may not
be voluntarily or involuntarily transferred, assigned, alienated, accelerated or
encumbered. Notwithstanding the preceding sentence, any shares deliverable to
the Executive under this Agreement may, as determined by the Corporation's Board
of Directors in their discretion, be offset by any liability of the Executive
owing to the Corporation.
(7) Section 83(b) Election. The Executive may make a Section
83(b) election to treat any restricted stock that may have been granted to him
under Section 5(f) (1) as taxable income at the time of transfer pursuant to
this Agreement.
5
6. Training and Confidential Information. The Corporation will provide
Executive with such specialized training as the President and Chief executive
Officer, in his sole discretion, deems necessary or beneficial to the
performance of the Executive's responsibilities and duties. The Corporation will
also provide confidential and proprietary information to Executive regarding its
clients, vendors, employees, sales, purchasing, pricing, services, computer
programs, operations, marketing plans and financial performance, which has not
been previously provided to the Executive. Executive understands and agrees that
after the term of Executive's employment with the Corporation, Executive will
not, directly or indirectly, knowingly use or disclose any Confidential
Information for any reason other than for the advancement of the Corporation's
Business. "Confidential Information" shall mean any information relating to the
Corporation's Business (or to any of its parents, subsidiaries or affiliates)
(whether proprietary or otherwise) not generally known to the real estate
mortgage industry or known by Executive otherwise than as a consequence of or
through his employment with the Corporation and treated by the Corporation as
being confidential, including, but not limited to, research, marketing, customer
lists, databases, financing sources, methods, techniques and systems, all of
which shall be deemed by the Corporation and Executive as being Confidential
Information.
7. Restrictive Covenants. In consideration for the commitments made by
the Corporation to the Executive in this Agreement regarding the Corporation's
employment of Executive, the Corporation disclosing its confidential and
proprietary information to him and the Corporation providing training to him,
Executive agrees to the restrictions set out in this Section. Executive
recognizes and agrees that these restrictions are necessary to protect the
Corporation's customer base, good will, confidential information and other
business interests.
(a) Non-Competition. Executive agrees that during his
employment with the Corporation, and for a one-year period following the
termination of this Agreement, Executive will not, without the prior written
consent of the Corporation, directly or indirectly, either on his own behalf or
on behalf of any person, partnership, limited liability company, corporation,
association, or otherwise, invest in (other than investments in publicly-owned
companies, but excluding the Corporation, which constitute not more than 1% of
the voting securities of), or perform any of the services which he performed for
the Corporation on behalf of any person or entity which is engaged in the
Corporation's Business (as defined in Section 1 of this Agreement) in any
geographical area in which Executive performed services for the Corporation.
(b) Non-Solicitation. Executive agrees that for a one-year
period following the termination of his employment with the Corporation, he will
not, directly or indirectly, in any manner solicit or contact any of the
Corporation's customers or clients that he had personal contact with during his
employment by the Corporation for the purpose of inducing or persuading them to
change in any negative way their business relationship with the Corporation.
(c) Non-Hire. Executive agrees that during his employment with
the Corporation and for a one-year period following the termination of his
employment with the Corporation, he will not directly or indirectly, on his own
behalf or on behalf of any other person or business entity, (1) hire any person
employed by the Corporation during the 60 days prior to his termination, (2)
attempt to influence any person employed by the Corporation at the time of his
6
termination to leave his or her employment or (3) use or disclose to any person
or business entity any Confidential Information regarding any of the
Corporation's employees.
(d) Non-Access. Executive agrees that following the
termination of employment with the Corporation, Executive will not access the
Corporation's computer systems, download files or any information from the
Corporation's computer systems or in any way interfere, disrupt, modify or
change any computer program used by the Corporation or any data stored on the
Corporation's computer systems.
(e) Consent to Court-Ordered Remedy. Executive acknowledges
that Executive's breach of any covenant set forth in this Section 7 will result
in irreparable injury to the Corporation and that the Corporation's remedies at
law for such a breach are inadequate and extremely difficult to calculate or
determine. Accordingly, Executive agrees and consents that upon such a breach or
threatened breach by Executive of any covenant set forth herein, the Corporation
may be entitled to such remedies in law or equity as may be determined by the
court for such a breach or threatened breach.
(f) Remedies Cumulative and Concurrent. The rights and
remedies of the Corporation, as provided in this Section 7, shall be cumulative
and concurrent and may be pursued separately, successively or together against
Executive at the sole discretion of the Corporation, and may be exercised as
often as occasion therefor shall arise. The failure to exercise any right or
remedy shall in no event be construed as a waiver or release thereof.
8. Termination of Agreement.
a. Death of the Executive. This Agreement shall automatically
terminate upon the death of Executive.
b. Disability of the Executive. The Corporation may immediately
terminate this Agreement upon the delivery of a Notice of
Termination (as defined in Section 8(f) of this Agreement) to the
Executive setting forth the facts that indicate that a
determination has been made that the Executive has a Disability.
For purposes of this Agreement, the Executive will be deemed to
have a "Disability" under any of the following conditions: (1)
the Executive is unable to render and perform substantially and
continuously the Executive's duties and services as required by
this Agreement by reason of any medically determinable physical
or mental condition that is expected to result in death or can
reasonably be expected to last for a continuous period of not
less than 12 months, (2) the Executive is determined to be
disabled in accordance with a disability income insurance program
sponsored by the Corporation, provided the definition of
disability applied under such program complies with the
requirements of Section 409A of the Code, or (3) the Executive is
determined to be totally disabled by the Social Security
Administration. Upon the request of either party hereto following
written notice to the other, the Disability of the Executive in
accordance with part (1) of the preceding sentence will be
determined by a medical doctor (the "Examining Doctor") who shall
be selected as follows: the Corporation and the Executive shall
7
each select a medical doctor, and those two medical doctors will
select a third medical doctor who will be the Examining Doctor.
The determination of the Examining Doctor as to whether or not
the Executive has a Disability pursuant to part (1) of this
Section 8(b), will be binding on both parties hereto. For
purposes of part (1) of this Section 8(b), the Executive must
submit to a reasonable number of examinations by the Examining
Doctor, and the Executive hereby authorizes the disclosure and
release to the Corporation of such determination and the results
of such examinations; provided, however, if the Executive is not
legally competent, the Executive's legal guardian or duly
authorized attorney-in-fact will act in the Executive's stead
under this Section 8(b) for the purposes of submitting the
Executive to examinations and providing any such authorizations
of disclosure.
c. Upon Notice. After the expiration of the initial Term of two
years (as defined in Section 3 of this Agreement), this Agreement
may be terminated by (i) the Executive by giving the Corporation
written notice of the Executive's intent to terminate without
"Good Cause" at least ninety (90) days prior to the anniversary
date on which this Agreement would otherwise automatically renew
for an additional year; or by (ii) the Corporation giving the
Executive written notice of the Corporation's intent not to renew
this Agreement at least ninety (90) days prior to the anniversary
date on which this Agreement would otherwise automatically renew
for an additional year. During the ninety (90) day notice period
following either party's notice of intent not to renew and to
terminate the employment relationship, Executive agrees to use
his best efforts to continue his work for the Corporation until
the employment terminates. In the event that the Corporation
gives written notice of termination without "Good Cause", the
Corporation will continue all compensation and benefits as
provided in Section 5 of this Agreement for Executive until the
expiration of the full term and duration of the Agreement then in
effect with all compensation and benefits being the same as
before the notice was given.
d. Termination by Corporation for "Good Cause". The Corporation may
immediately terminate this Agreement upon the delivery of a
Notice of Termination with "Good Cause" to the Executive setting
forth the facts that indicate that an event constituting "Good
Cause" has occurred, or on such later date as may be set forth in
such Notice of Termination. For purposes of this Agreement, "Good
Cause" shall mean: (1) Executive's gross negligence in performing
his duties hereunder or Executive's failure to perform his duties
at an acceptable level of performance to the satisfaction of the
President and Chief Executive of the Corporation for a continuous
period of twenty (20) business days after receiving specific and
detailed written notice from the President and Chief Executive of
the Corporation setting forth the actions or inactions that
constitute the alleged gross negligence as well as the corrective
actions requested by the President and Chief Executive of the
Corporation to the Executive; (2) Executive's willful and
continuous failure or refusal to perform his duties hereunder for
a period of twenty (20) business days after receiving specific
and detailed written notice from the President and Chief
8
Executive Officer of the Corporation; (3) Executive's intentional
wrongful act or intentional wrongful failure to act that
materially and adversely affects the business affairs of the
Corporation as determined in good faith by the President and
Chief Executive of the Corporation; (4) Executive's
non-appealable judicial determination of, or conviction for, any
act of fraud, any commission of any felony other than a minor
third degree felony (such as a moving traffic violation involving
a DWI or a DUI conviction); (5) a material breach of any
provision of this Agreement likely to cause material harm or
damage to the Corporation; (6) Executive's intentional
involvement in any material conflict of interest or self-dealing
transaction in violation of the applicable corporate laws of the
State of Texas, or other material breach of any of Executive's
quasi-fiduciary duties to the Corporation in violation of the
applicable corporate laws of the State of Texas (including, but
not limited to, the duties of due care, loyalty, and fair
dealing) as determined in good faith by the President and Chief
Executive of the Corporation.
e. Termination by Executive with "Good Cause". In the event that the
Executive serves a detailed written notice to the Corporation of
Executive's specific assertions of a material breach or a
material violation of the terms and conditions of this Agreement
by the Corporation (such as failure to pay or a reduction of
compensation or benefits, undisputed reimbursement in excess of
$2000, significant and substantial reduction of authority or
demotion in title and/or position), and such asserted breach or
violation remains uncured or continuing for a period of twenty
(20) business days after such written notice, then Executive
shall be entitled to deem his employment terminated with "Good
Cause" pursuant to this subsection 8(e) and the Corporation will
continue to provide Executive with all the compensation and
benefits set forth in Section 5 of this Agreement after such
termination until the expiration of the full Term and duration of
the Agreement then in effect.
f. Notice of Termination. For purposes of this Agreement, a "Notice
of Termination" shall mean a written notice (delivered in
accordance with Section 14) that indicates the specific
termination provision in this Agreement upon which the party
intending to terminate the Agreement is relying and sets forth in
reasonable detail the facts and circumstances that provide a
basis for termination of the Agreement under such termination
provision.
9. Severance Benefits. In addition to any payments of Base Salary that
are due to the Executive pursuant to Section 5 of this Agreement, upon the
termination of this Agreement, the Corporation shall pay the Executive, or his
Designated Beneficiary (as defined in this Section 9), if at all, as follows:
a. Termination upon Death or Disability. If this Agreement is
terminated in accordance with Section 8(a) or 8(b), the
Corporation will pay to the disabled Executive or to the
Executive's Designated Beneficiary, as the case may be, three
months of the Executive's Base Salary at the time of his Death or
Disability. The Executive or the Executive's Designated
Beneficiary also will be entitled to receive the amount of
incentive compensation, which the Executive has earned through
the termination of this Agreement as determined in good faith by
9
the Board of Directors. Further, any restricted stock grants
which have been made to the Executive pursuant to this Agreement,
any other restricted stock grants to the Executive, and any
outstanding stock options granted to the Executive shall become
fully vested. Except to the extent otherwise provided in this
Section 9(a), the Executive or the Executive's Designated
Beneficiary shall have no right to receive, and the Corporation
shall have no further obligation to pay to the Executive, further
monthly installments of compensation or benefits set forth in
Section 5 of this Agreement. For the purposes of this Agreement,
the Executive's "Designated Beneficiary" means such individual
beneficiary or trust, located at such address as the Executive
may designate by written notice to the Corporation from time to
time or, if the Executive fails to give written notice to the
Corporation of such a beneficiary, the Executive's estate;
provided, however, that, notwithstanding the preceding clause of
this sentence, the Corporation shall have no duty under any
circumstances to attempt to open an estate on behalf of the
Executive, to determine whether any beneficiary designated by the
Executive is alive, to determine the existence of any trust, to
determine whether any person or entity purporting to act as the
Executive's personal representative (or the trustee of a trust
established by the Executive) is duly authorized to act in that
capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee.
b. Termination by the Corporation without "Good Cause" or by
Executive with "Good Cause". If this Agreement is terminated by
the Corporation without "Good Cause", or by Executive with "Good
Cause", the Corporation will continue to provide Executive with
all the compensation and benefits set forth in Section 5 of this
Agreement after such termination until the expiration of the full
Term and duration of the Agreement then in effect. Any Base
Salary to which the Executive is entitled under this Section 9(b)
shall be paid in accordance with the Corporation's normal payroll
practices.
c. Termination by the Corporation for "Good Cause" or by the
Executive without "Good Cause". If this Agreement is terminated
by the Corporation with "Good Cause" or by the Executive without
"Good Cause" as defined in this Agreement, or, after the two year
original Term of this Agreement, by the Executive in accordance
with Section 8(c) of this Agreement whereby Executive serves the
notice of his intent not to renew no less than ninety (90) days
prior to the anniversary date of this Agreement, the Executive
will be entitled to receive his Base Salary with all benefits,
(including any incentive bonuses, accrued vacation, and other
regular benefits previously accorded Employee) through the date
on which the Executive's employment is terminated. The Executive
shall not receive, and shall not be entitled to receive, any
compensation or benefits thereafter, except as otherwise required
in accordance with federal or state law or the terms of the plans
or agreements governing the benefits provided hereunder. Any Base
Salary to which the Executive is entitled under this Section 9(c)
shall be paid in accordance with the Corporation's normal payroll
practices.
10
10. Return of Property to The Corporation. Upon the termination of his
employment by the Corporation, Executive agrees to immediately provide the
Corporation with a written inventory of all Corporation-owned property in his
possession or under his control and to immediately return to the Corporation all
Corporation-owned property in his possession or control. After his termination
Executive will not retain copies of any documents or other property belonging to
the Corporation.
11. Required Notice. Executive agrees that prior to beginning any new
employment following the termination of his employment with the Corporation and
for one year thereafter, Executive will provide the Corporation with 10 business
days' written notice regarding Executive's new employment. The notice will
identify Executive's new employer, designate the position the Executive will
fill for the new employer.
12. Indemnity. To the fullest extent permitted by law, the Corporation
shall indemnify Executive and hold him harmless for any acts or decisions made
by him in good faith while performing services for the Corporation. In addition,
to the fullest extent permitted by law, the Corporation shall promptly and
timely pay all expenses, including attorneys' fees, actually and necessarily
incurred by Executive in connection with the defense of any action, suit or
proceeding challenging such acts of decisions and in connection with any appeal
thereon including the costs of settlement. This indemnification obligation shall
survive the termination of the Executive's employment hereunder.
13. Waiver of Breach of Violation Not Deemed Continuing. The waiver by
either party of a breach or violation of any provision of this Agreement shall
not operate as or be construed to be a waiver of any subsequent breach hereof.
14. Notices. Any and all notices required or permitted to be given
under this Agreement will be sufficient if furnished in writing, personally
delivered or sent by certified mail, return receipt requested as follows:
To Executive: Xxxxxxx Xxxxxxx
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
To Corporation: Mortgage Assistance Center Corporation
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
15. Securities Law Compliance. The Executive represents and agrees that
any shares Executive receives under this Agreement are and shall be for
Executive's own account and with no intention of reselling or distributing the
shares, except as permitted under this Agreement and any applicable federal and
state securities laws. The Corporation shall have the right to take any actions
it may deem necessary or appropriate to ensure that the shares granted to the
Executive complies with applicable federal and state securities laws.
16. Tax Liability. The Corporation may withhold from any payment made
pursuant to this Agreement any federal, state or local taxes required to be
withheld from such payment. The Executive shall make such arrangements as may be
11
required or be satisfactory to the Corporation (in its sole discretion) for the
payment of any tax withholding obligations that arise in connection with the
granting of shares under this Agreement. The Corporation shall not be required
to issue any shares under this Agreement until such obligations are satisfied.
17. Governing Law. This Agreement shall be interpreted, construed and
governed according to the laws of the State of Texas. The parties hereto consent
to jurisdiction and venue in the Texas state courts in Dallas, Texas and United
States District Court for the Northern District of Texas, Dallas Division.
18. Section Headings. The Section headings contained in this Agreement
are for convenience only and shall in no manner be construed as a part of this
Agreement.
19. Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the Corporation, any of its officers, directors,
employees, or agents, and Executive with respect to all xxxxxx relating to the
employment by the Corporation of Executive and all other matters contained
herein, and this Agreement constitutes the sole and entire agreement with
respect thereto. Any representation, inducement, promise or agreement, whether
oral or written, between the Corporation, any of its officers, directors,
employees, or agents, and Executive, which is not embodied herein, shall be of
no force or effect.
20. Successors and Assignors. This Agreement shall be binding upon, and
shall inure to the benefit of, the Corporation and Executive and the respective
heirs, personal and legal representatives, successors, and assigns of each.
21. Severability. If any term, covenant or condition of this Agreement
or the application thereof to any person or circumstance shall, to any extent,
be invalid or unenforceable the remainder of this Agreement or the application
of such terms, covenants and conditions to persons or circumstances other than
those as to which it is held invalid or unenforceable shall be affected thereby
and each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law.
IN WITNESS WHEREOF, the Corporation has hereunder caused this Agreement
to be executed by its duly authorized offices and seals to be hereunto affixed,
and Executive has hereunto set Executive's hand and seal, all being done in
duplicate originals delivered to each party as of the day and year first above
written.
ACKNOWLEDGED AND AGREED TO:
"EXECUTIVE": /s/ Xxxxxxx Xxxxxxx
-------------------
XXXXXXX XXXXXXX
"CORPORATION": MORTGAGE ASSISTANCE CENTER CORPORATION:
/s/ Xxx Xxxxxxx
---------------
By: XXX XXXXXXX, President/Chief Executive Officer
