Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of January 1, 1997 AND AMENDED December 1,
2000 by and between APPROVED FINANCIAL CORP. ("Employer") and its successors and
assigns, and XXXXXXX X. XXXXXXXX ("Employee"), who, in consideration of the
mutual promises of the parties and other good and valuable consideration, the
receipt and adequacy of which are acknowledged, the parties have agreed as
follows:
1. DEFINITIONS. Whenever the following words or phrases are used in the
Agreement, they shall have the meanings given in this Section, unless otherwise
indicated.
(a) "Affiliate" means any Person owned by (greater than 10%), owning
(greater than 10%), under common ownership with, controlling, controlled by, or
under common control with, another Person, which includes subsidiary and parent
organizations.
(b) "Compete" shall mean in any way being in contest with or rivalry
with Employer, including directly or indirectly working with, being employed by,
or having any interest or involvement in any other Person which in involved in
selling marketing or otherwise providing any of the services or products which
are provided or performed as part of the Primary Business Operation of Employer
during Employee's employment with Employee.
(c) "Customer" shall mean individual borrowers, mortgage brokers or
other sources of referrals of business to Employer.
(d) "NonConforming Loans" means all residential real property loans,
regardless of lien position, that do not conform to all applicable Federal
National Mortgage Association guidelines.
(e) "Primary Business Operation" shall mean wholesale and retail
origination and sale of NonConforming Loans.
(f) "Person" shall include both natural persons and entities.
(g) "Territory" shall mean the area encompassed in a 35 mile radius
around any office of Employer or its Affiliates which are in the same Primary
Business Operation.
2. EMPLOYMENT. Employer employs Employee for the position of Vice
President and Underwriting Supervisor. Employee agrees to perform the duties
assigned to Employee, and to comply with the general supervision and policies of
Employer and the orders, advice, and direction of the Chief Executive Officer of
Employer.
3. DUTIES. Employee shall perform the duties customarily performed by
one holding Employee's position in similar business, and such duties as may be
assigned by this Agreement as specified in
Schedule A attached to and incorporated herein, and such other duties as may be
assigned from time to time by Employer, Employee shall make available to
Employer all information of which Employee shall have any knowledge, and shall
make all suggestions and recommendations that will be of benefit to Employer.
4. BEST EFFORTS OF EMPLOYEE. Employee will at all times faithfully,
industriously, and to the best of Employee's ability, perform all of Employee's
duties, to the satisfaction of Employer.
5. TERM AND RENEWAL. This Agreement is for an initial term of one (a)
year, renewable thereafter on a year to year basis. Either party must give
ninety (90) days written notice if the contract is not going to be renewed. Upon
failure to give such notice, this Agreement will automatically renew for a
period of twelve (12) months on the same terms. This notice requirement shall
continue for all subsequent renewal periods.
6. COMPENSATION.
(a) Employer shall pay Employee in full payment for Employee's
services, compensation in accordance with the Compensation Schedule attached to
this Agreement as Schedule B and incorporated as part of this Agreement, which
shall remain in effect until supplemented or replaced by a new Agreement between
Employer and Employee.
(b) It is mutually agreed that the Employer shall pay to Employee one
year's annual base compensation as provided in Schedule B of this Agreement in
the event that following a change of control (more than 50% of the voting stock)
of Employer the present Chairman and President of the Employer, Xxxxx X. Xxxxx,
is no longer employed by the Employer, and Employer chooses to terminate
Employee without cause.
7. OTHER ACTIVITIES. Employee shall devote all business time,
attention, knowledge, and skills solely to the business and interest of
Employer, and Employer shall be entitled to all of the benefits, profits or
other issues arising from or incident to all work, services, and advice of
Employee. Employee shall not, during the term of this Agreement, be employed by
or contract to provide services to any other person or engage in any other
business or trade, nor shall Employee use or take for Employee's personal
benefit any position which conflicts with or is contrary to any position which
would be beneficial to Employer. Nothing in this Agreement, however, shall limit
Employee's right to invest in publicly traded securities, to engage in any
business with the written consent of Employer, or to engage in civic and
charitable activities.
8. BENEFITS. Employee shall be entitled to benefits according to
Employer's stated policy, as amended from time to time.
9. TERMINATION. Employer may terminate this Agreement at any time
without advance notice for cause. For the purpose of this Agreement "cause" is
defined as: (i) a breach of this Agreement or
any policy, rule, instruction, or order of Employer; (ii) any act or omission by
Employee which involves moral turpitude, gross negligence, dishonesty, bad
faith, conflict of interest, intentionally lying to Employer, taking action
prohibited by Employer, or breach of fiduciary duty; (iii) violation of any law
or regulation applicable to the business of the Employer; (iv) repeated neglect
of duties; or (v) failure to follow any lawful directive from the Chief
Executive Officer or Board of Directors. Furthermore, this Agreement shall
terminate immediately upon Employee's death or disability, but such termination
shall not affect any previously vested right of Employee to receive disability
payments in accordance with any applicable plan for a disability which arises
while this Agreement is in effect. Either party may upon ninety (90) days prior
written notice terminate this Agreement without cause. If Employer terminates
without cause, the decision shall be made either by Xxxxx X. Xxxxx, personally,
or Employer's Board of Directors.
10. CONFIDENTIAL AND PROPRIETARY INFORMATION. In the course of this
employment, Employee will be exposed to certain confidential and proprietary
information of Employer and its Customers. Employee shall not reproduce or
remove from any premises any such information without the express written
consent of Employer. Any such information acquired by Employee shall be promptly
delivered to Employer if in tangible form, unless specific written consent is
received from Employer. Employee shall not at any time or in any manner,
disclose to any Person, nor in any way use to his benefit or that of any other
person, any information concerning any matters affecting or relating to the
business of Employer, including any of its Customers, the prices it obtains or
at which it offers its products or services, or the sources of and/or prices it
pays for any supplies, material, services or technical assistance, or any other
information concerning the finances or business of Employer or any of its
Customers, without regard to whether any of the foregoing matters would
otherwise be considered confidential or trade secrets, the parties agreeing that
these matters are important, material, and confidential and gravely affect the
successful conduct of Employer's business and goodwill, and that any breach of
the terms of this Section shall be a material breach of this Agreement and
result in irreparable harm to Employer. Employee further agrees that upon
termination or expiration of this Agreement for any reason, Employee shall
immediately deliver to Employer any and all information, documents, agreements,
data, work product, customer lists, notes, and the like of Employer or relating
to Employer's business. The duties and restrictions on Employee in this Section
shall survive the expiration or termination of this Agreement and remain in full
force and effect for so long as Employer continues in business.
11. COVENANT NOT TO COMPETE. In consideration of the employment of
Employee or in the event Employee is entering into this Agreement after having
been an employee, either with a prior contract or no contract, then in
consideration of continued employment, the benefits of this Agreement and other
good and
valuable consideration, the Employee' independently covenants and agrees with
Employer, each of which said covenants shall be independent of and severable
from each other and each of which shall continue in force for the specified
duration irrespective of the completion and performance of all other obligations
between the parties hereto, that:
(a) Employee will NOT during the term of Employee's employment, nor one
(1) year immediately following the termination of employment, compete with
Employer within the geographical limits of the Territory.
(b) Employee will NOT, during the term of Employee's employment nor one
(1) year immediately following the termination thereof, directly or indirectly,
for Employee, or in conjunction with any other Person, (by disparagement of
Employer's business or otherwise), do business with, divert, take away or cause
to leave any of the Customers of Employer.
(c) Employee will NOT, during the term of Employee's employment nor two
(2) years immediately following the termination thereof, directly or indirectly,
for Employee, or in conjunction with any other Person (by disparagement of
Employer's business or otherwise), employ, solicit, divert or take away any of
the employees of Employer.
(d) If any of the preceding limitations on the Employee imposed by the
preceding subsection "(a)" through "(c)" exceed the maximum limitation
permissible under the statutes, laws or precedents of any state wherein it is
sought to be enforced against the Employee, then the parties hereto agree that
such limitation may and shall be deemed to be amended to conform to the maximum
limitation permissible under such statutes, laws or precedents, or in the
absence thereof, to such limitations deemed appropriate, by any court of record
in the state wherein it is sought to be enforced.
(e) The Employee acknowledges that a violation on Employee's part of
any covenants of this Section and its Subsections or Section 10 or 12 will cause
such damage to the Employer as will be irreparable and the exact amount of which
will be impossible to ascertain, and for that reason, the Employee further
acknowledges that the Employer shall be entitled, as a matter of course, to an
injunction out of any Court of competent jurisdiction, restraining any further
violation of the covenant by the Employee, and, pending the hearing and decision
on the application for such injunction, the Employer shall be entitled to a
Temporary Restraining Order, and waives any request for a bond, or the
equivalent thereof, without prejudice to any other remedies available to it. The
Employee particularly agrees to the immediate issuance of such Temporary
Restraining Order and hereby waives any requirements of notice or objection
whatsoever to the issuance of such an Order.
(f) It is mutually agreed that regardless of whether the Employee
leaves the employ of the Employer by Employee's own request or the
request of the Employer, or regardless of how or by what manner the employment
relationship is terminated (including whether with or without cause), or this
contract is terminated or expires, the independent covenants herein contained in
this Section and in Sections 10 and 12 shall survive and remain in full force
and effect as INDEPENDENT COVENANTS. Should any provision or covenant, in this
Agreement be breached by Employer, or be declared void or unenforceable by a
court of competent jurisdiction, the remaining covenants and provisions
including those in this Section 11 and Sections 10 and 12 shall nevertheless
remain in full force and effect, each being independent and severable.
(g) During the term of the noncompetition covenant, Employee shall give
all of Employee's actual and prospective employers written notice of the
requirements of the noncompetition covenant. If Employer believes that Employee
has failed to provide any actual or prospective employer such notice, Employer
may provide such notice, including providing a copy of any or all of this
Agreement.
(h) Employee acknowledges that (i) there was no duress involved in
signing this Agreement; (ii) other employment options were available to Employee
at the time of signing this Agreement; (iii) Employee's covenant not to compete
was a material and necessary inducement to Employer to employ or continue the
employment of Employee; (iv) Employee understands the policy of reasonableness
regarding restrictive covenants and agrees that the restrictions imposed upon
Employee by this Agreement are reasonable in scope and duration and are
necessary to serve a legitimate business interest of Employer; (v) Employee
acknowledges that the NonConforming Loan business is only a part of the overall
mortgage loan industry and therefore a restrictive covenant limited to the
Primary Business Operation as defined herein would not prevent Employee from
earning a livelihood in the overall mortgage loan industry; and (vi) Employee
has had an opportunity to have this Agreement reviewed by legal counsel of
Employee's choice.
(i) Employee represents and warrants that his employment by Employer
does not and will not breach any agreement or duty which Employee has to any
other Person to keep in confidence any confidential information belonging to
others or not to compete with others. Employee shall not disclose to Employer or
use on its behalf any confidential information belonging to others.
12. INTELLECTUAL PROPERTY RIGHTS. Employee acknowledges that the
proprietary rights to any original works, concepts, software, manuals, programs,
routines, inventions, trademarks, servicemarks, and tradenames made, developed,
or conceived by Employee, whether singularly or in conjunction with another
Person, during the term of this Agreement (collectively "Inventions") shall be
the property of Employer. Accordingly, Employee agrees as follows:
(a) Employee hereby assigns, and shall assign in the future, any and
all of Employee's rights in or to all Inventions.
(b) Employee shall promptly disclose in writing to Employer any
Invention. If requested by Employer, Employee will execute, file, and prosecute
any and all applications and assignments necessary or proper to vest in Employer
the complete rights in and to any Inventions.
(c) If Employer chooses to pursue any patent or other application for
any Invention, Employer shall bear all costs and fees in connection with the
application.
(d) If Employer declines in writing to pursue any patent or other
application for an Invention, Employee may with the written consent of Employer
pursue the application in Employee's own name and at Employee's own expense,
provided that Employer shall have a perpetual, world-wide, royalty-free license
and right to us, or to adapt and develop in any way, any and all Inventions,
whether or not protectable under any applicable law.
(e) Upon the termination of this Agreement for, any reason,Employee
shall deliver to Employer any and all notes, records, documents and other
material relating to any completed or incomplete Inventions which Employee
worked on prior to such termination.
(f) Except as set forth on Schedule C attached to and incorporated in
this Agreement, Employee shall not assert any rights to any Inventions as having
been made or acquired by Employee prior to being employed by Employer, or since
then and not covered by this Agreement.
(g) Employee need not assign to Employer any rights to any invention,
etc. wholly conceived and developed by Employee after the termination of this
Agreement, unless the conception or development of such invention, etc. involves
the use of confidential or proprietary information obtained by Employee while
employed by Employer.
13. GOVERNING LAW AND FORUM. All questions regarding this Agreement
shall be governed by the laws of Virginia, except that in the case of an issue
regarding the reasonableness of any restrictive covenants in Sections 10, 11 or
12 of this Agreement, the parties agree to apply the law of the state wherein
Employer files legal action to enforce any restrictive covenants. Any suit
relating to this Agreement must be brought in the Circuit or General District
Courts of the City of Virginia Beach, Virginia, provided, however, Employer may
file legal action in connection with the enforcement of any of the restrictive
covenants contained in this Agreement in any state or federal court where
Employer in its discretion deems it appropriate for its protection.
14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties and their heirs, personal representatives,
successors and assigns.
15. ASSIGNABILITY. The rights and obligations of Employee under this
Agreement may not be assigned or delegated. The rights and obligations of
Employer may be assigned or delegated without the consent of Employee.
16. OFFSETS AGAINST COMPENSATION. Upon termination of this Agreement
Employee authorizes Employer to offset against any compensation or other amounts
owing to Employee any sums that Employee owes to Employer, evidenced in writing.
17. NOTICES. Any notice or other communication required or permitted by
this Agreement shall be in writing and shall be considered given when hand
delivered or deposited in the United States mail, postage prepaid, via first
class or certified mail, and addressed to Employer at its administrative
headquarters and to Employee at his residence, as indicated by the records of
the Employer.
18. HEADINGS. The headings in this Agreement are for convenience only
and are not a part of the substantive agreement of the parties, nor shall the
headings be used in the interpretation or construction of this Agreement.
19. NUMBER AND GENDER. Whenever used in this Agreement, the singular
shall include the plural, and the plural shall include the singular.
20. SEVERABILITY. If any provision of this Agreement is determined to
be unenforceable, the remainder of this Agreement shall be construed and
enforced as if the unenforceable provision had not been contained in this
Agreement, and each provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
21. ENTIRE AGREEMENT. This Agreement is intended to be a complete,
exclusive, and final expression of the parties' agreements concerning Employee's
employment, merging and replacing all prior negotiations, offers,
representations, warranties and agreements. To the extent that Employee was
employed by Employer prior to the date of this Agreement, this Agreement is in
confirmation of the agreements previously reached and under which the parties
have been working. No course of prior dealing between the parties, no usage of
trade, and no parole or extrinsic evidence of any nature shall be used to
supplement or modify any of the terms of this Agreement.
22. MODIFICATION AND WAIVER. The provisions of this Agreement may not
be modified or waived, including the waiver of the provisions of this Section,
except by a written instrument, signed by the party against whom such
modification or waiver is sought to be enforced.
23. SURVIVAL. Any provision of this Agreement which imposes any
obligation upon Employee which may extend beyond the term of this Agreement
shall survive the termination of this Agreement.
24. THIRD PARTY BENEFICIARIES. The provisions of this Agreement are
intended to benefit only the parties to this Agreement. No person not a party to
this Agreement shall be deemed to be a third party beneficiary of this
Agreement, nor shall any such person be empowered to enforce the provisions of
this Agreement, except to the extent such a person becomes a permitted assignee
of one of the parties.
25. COST OF ENFORCEMENT. In the event of a dispute or litigation
relating to this Agreement, each party shall pay their own costs and expenses,
including legal fees.
26. Change of Position. The parties hereto acknowledge that during the
course of employment of Employee, the Employee's job, location, classification,
or pay may from time to time change by mutual agreement. It is understood and
agreed that such change shall not cause this Agreement to be terminated unless
such termination is agreed to in writing by Employer; and it is further agreed
that the independent covenants contained in Sections 10, 11 and 12 shall survive
any such changes and remain in full force and effect unless and until Employer,
in writing, expressly consents or agrees to terminate them.
27. Non-Waiver. The failure of the Employer at any time to require the
performance by the Employee of any of the provisions, covenants and conditions
hereof shall in no way affect its right thereafter to enforce the same; nor
shall the waiver by the Employer of any breach of this Agreement, term,
provision, covenant or condition hereof be taken or held to be a waiver of any
succeeding breach of any agreement, term, provision, covenant or condition. The
failure by Employer to require performance by any other employee of any
provision, covenant or condition in that employee's employment agreement shall
in no way affect Employer's right to enforce this Agreement or any covenant
herein.
WITNESS the following signatures and seals:
EMPLOYER:
APPROVED FINANCIAL CORP.
By: /s/ Xxxxx X. Xxxxx
----------------------
Xxxxx X. Xxxxx
Title: Chairman and President
EMPLOYEE:
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
SCHEDULE A
ADDITIONAL SPEICIFIC DUTIES ASSIGNED
UPON EXECUTION OF EMPLOYMENT AGREEMENT
The parties acknowledge that Employer may assign new duties and revise
existing duties from time to time without the need to amend this Schedule or the
Employment Agreement. If additional specific duties are assigned upon execution
of this Agreement, they are set forth below. If no additional specific duties
are assigned upon execution of this Agreement, then nothing shall be specified
below.
(1) It is mutually agreed that Employee shall serve as a Director
and/or Officer of the Employer or its Affiliates as elected to such position(s)
by that entity's Shareholders, Members and/or Directors.
SCHEDULE B
COMPENSATION SCHEDULE
1. BASE COMPENSATION: Ninety-five thousand dollars ($95,000.00)
annually payable in arrears in twenty-six (26) equal bi-weekly payments.
2. GROUP BENEFITS: Employee shall be entitled to group benefits as
contained in the stated written policy of the Corporation, which may from time
to time be revised.
3. STOCK OPTIONS: To the extent the Corporation adopts any management
incentive plan involving the Corporation's stock or options, a committee of the
Board of Directors or the Board itself will determine the participants pursuant
to its authority and the requirements of any plan.
4. OTHER:
(a) COMPANY CAR: Employee shall be entitled to the exclusive use
of a Company Car for the term of the Agreement, subject to the mutual agreement
of the parties as to make and model. The Employer shall at all times retain
title to the Company Car provided for the Employee's exclusive use.
(b) DEFERRED COMPENSATION PLAN: In the event the Company is sold in
part or whole or the two Existing majority stock holders, Xx. Xxxxx Xxxxx and
Xx. Xxxx Xxxxxx sell their ownership below 51% of the voting stock, the vesting
period will be waived and the Employee will be entitled to the complete
compensation plan including all Interest Earned.
(c) BONUS FOR YEARS ENDING AFTER DECEMBER 31, 2000.Employee will
participate in Tier 1 of a Management bonus which was approved by the board of
Directors on December 1, 2000, a copy of which is attached as Exhibit 1 to this
Schedule B.
SCHEDULE C
Employee has no inventions which Employee claims to have an interest
in, except those expressly listed below. if there are none, then specify "none."
NONE
MANAGEMENT BONUS PLAN
---------------------
EXHIBIT 1 TO SCHEDULE B OF
XXXXXXX XXXXXXX EMPLOYMENT AGREEMENT
The following is a description of the Management Bonus Plan
("Plan") as ratified by Approved Financial Corp ("AFC") Board of
Directors on December 1, 2000. The Plan is effective as of the year
ended December 31, 2001 and until revoked or amended by the
Compensation Committee of the Board of Directors.
The term "Employer" is meant to refer to Approved Financial
Corp. The term "Employee" is meant to refer to Participants of the Plan
as designated and amended by the authority of the Compensation
Committee of the Board of Directors of AFC.
DEFINITIONS:
Return on Stockholder's Equity ("XXX") - After-tax annual net income per share
--------------------------------------
(net of accrual for Management Bonus Plan) as a percentage of Average
Stockholder's Equity per share during the year as carried on the Balance Sheet
of Approved Financial Corp.
Average Stockholder's Equity - The average stockholder's equity as determined by
----------------------------
the Employer's audited consolidated financial statements.
"Base Return" - 20% XXX
-------------
" Minimum Base Return" - $1,000,000
----------------------
"Excess Return" - The Percentage of XXX in excess of the Base Return (Subject to
---------------
Minimum Base Rate)
"Base Salary" - Employee Salary paid during last fiscal year. (Other forms of
-------------
compensation such as bonus and commission payments are NOT counted as Base
Salary)
"Gross Bonus Percentage" the percentage resulting from dividing the Excess
------------------------
Return by the Base Return.
"Manager Bonus Percentage" - the percentage of the Employee's prior year Base
--------------------------
Salary due as Management Bonus up to a maximum percentage of Base salary as
defined by the assigned Tier Level.
BONUS CALCULATION:
1. Gross Bonus Percentage = Excess Return / Base Return
----------------------
2. Manager Bonus Percentage = the lesser of i) Maximum Bonus
------------------------
Percentage for Tier Level or ii) Gross Bonus Percentage
3. Manager Bonus = Manager Bonus Percentage times (X) Employee
-------------
Base Salary
PAYMENT METHOD:
Fifty percent (50%) of the Manager Bonus may be payable at the Employer's
discretion in cash or unregistered shares of common stock of Approved Financial
Corp. Fifty percent (50%) of the Manager Bonus may be payable at the Employee's
discretion in cash or unregistered shares of common stock of Approved Financial
Corp.
PAYMENT DATE:
The Manager Bonus will be paid within thirty (30) days from the date that the
Company's yearend financial statements have been reviewed by the Company's
outside accountants and presented to the Company with an opinion letter.
PARTICIPANT QUALIFICATION:
To earn and receive a bonus under the Management Bonus Plan, the participant
must be a full time employee of the Company on the Payment Date as defined
above.
TIER LEVELS:
TIER 1 - Maximum Bonus = 100% of Base salary (1 X Base Salary)
TIER 2 - Maximum bonus = 40% of Base salary ( 0.4 X Base Salary)
TIER 3 - Maximum bonus = 20% of Base salary ( 0.2 X Base Salary)
CALCULATION EXAMPLES:
EXAMPLE Tier 1:
Base Salary = $100,000
Base Return = 30% and is ** Minimum Base Return
Excess Return = 30% - 20% = 10%
Gross Bonus Percentage = 10% / 20% = 50%
Manager Bonus Percentage = 50%
Manager Bonus = 50% * $100,000 = $50,000
EXAMPLE Tier 2:
Base Salary = $75,000
Base Return = 30% and is ** Minimum Base Return
Excess Return = 30% - 20% = 10%
Gross Bonus Percentage = 10% / 20% = 50%
Manager Bonus Percentage = 40%
Manager Bonus = 40% * $100,000 = $40,000
EXAMPLE Tier 3:
Base Salary = $60,000
Base Return = 30% and is ** Minimum Base Return
Excess Return = 30% - 20% = 10%
Gross Bonus Percentage = 10% / 20% = 50%
Manager Bonus Percentage = 20%
Manager Bonus = 20% * $60,000 = $12,000
** greater than or equal to
