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EXHIBIT 10.221
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT made as of the 10th day of November, 2000, by and between MEGO
FINANCIAL CORP., a New York corporation (herein called "Company"), and XXXXXX X.
XXXXX (herein called "Employee").
BACKGROUND OF AGREEMENT
The Company and the Employee entered into an Employment Agreement dated
as of September 1, 1996, pursuant to which the Employee was engaged by the
Company as an executive officer of the Company (the "Original Agreement"). The
term of the original agreement was to run from September 1, 1996, through
January 31, 2002, and the Company and the Employee wish to extend the term of
the Initial Agreement and make certain other modifications thereto, as set forth
in this Amended and Restated Employment Agreement (the "Agreement").
NOW, THEREFORE, the parties hereto, intending to be legally bound
hereby, and in consideration of the mutual covenants herein contained, agree as
follows:
1. EMPLOYMENT
The Company hereby continues to employ the Employee, and the
Employee hereby accepts such continued employment, upon the terms and conditions
set forth herein.
2. DUTIES
The Employee shall be an executive officer of the Company, and his
duties and powers in such capacity shall be such as may be determined by the
Board of Directors of the
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Company; provided that until action by the said Board of Directors, the powers
and duties shall be those of President of the Company and its subsidiaries, and
such powers and duties shall only be determined so that they are at all times
consistent with those of an executive officer. During the term of this
Agreement, the Employee shall also serve, without additional compensation, as a
Director or Officer of the Company or any of its subsidiaries.
3. EXTENT OF SERVICES
Employee agrees to devote as much time to the Company's business as
necessary to fulfill his fiduciary responsibility. During the term of this
Agreement, Employee agrees not to be engaged in the operation of any other
business requiring any substantial amount of his business time, and except for
such time as may be approved in connection with the affairs of such other
companies as are approved by the Board of Directors of the Company. However,
this provision shall not be deemed to prevent the Employee from investing and
managing his assets in such form or manner as will not unreasonably interfere
with the services to be rendered by Employee hereunder, or to prevent him from
acting as a director, trustee, or officer of, or upon a committee of, any other
firm, trust or corporation where such positions do not unreasonably interfere
with the services to be rendered by the Employee hereunder.
4. COMPENSATION
4.1 As compensation for all services rendered by Employee to
Company and its subsidiaries during the term hereof, Company agrees to pay and
Employee agrees to accept the Basic Salary (as hereinafter defined) set forth in
Section 4.2 hereof and the Incentive Bonus (as hereinafter defined) set forth in
Section 4.3 hereof. However, neither the provisions for the
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Basic Salary or the Incentive Bonus nor any other provision of this Agreement
shall be deemed to preclude Employee from being eligible to receive, or to
participate in or to continue to participate in, any supplemental employee
benefits which the Board of Directors of the Company may, from time to time,
generally make available to, or provide for, executive and management employees
of the Company or of any one or more of its subsidiaries, including such benefit
plans as are now in force.
4.2 The Basic Salary (herein called "Basic Salary") for the term of
this Agreement shall be $300,000 per annum payable in agreed monthly
installments or otherwise as mutually agreed. Notwithstanding the foregoing, the
Employee's Basic Salary may be reduced in accordance with the provisions of
Section 6 below.
4.3 For each fiscal year of the Company, commencing with fiscal
1997 and ending with fiscal 2004, the Employee shall receive, in addition to the
Basic Salary as hereinabove defined, a sum of money (herein called the
"Incentive Bonus") in an amount equal to two and one-half percent (2-1/2%) of
the Incentive Income of the Company as defined in, and calculated pursuant to,
the Executive Incentive Compensation Plan of the Company adopted by the
Company's Board of Directors on June 22, 1994, a copy of which is attached
hereto as Exhibit "A". Such amount shall be due and payable whether or not the
Company's Executive Incentive Compensation Plan shall be in effect for such
fiscal year, and shall be paid no later than ninety days after the amount of
Incentive Income can be calculated. Notwithstanding the foregoing, the
Employee's Incentive Bonus may be reduced or eliminated in accordance with the
provisions of Section 6 below.
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5. TERM
5.1 The term of this Agreement, as amended and restated, shall
commence as of November 10, 2000, and shall continue until January 31, 2005. The
Company may terminate this Agreement for any reason on 60 days prior written
notice to the Executive, provided, however, that in the event of, and as a
condition to, such termination, the Company shall enter into the Termination
Agreement attached as Exhibit "A" and made a part hereof with the Employee to be
effective as of the date of such termination.
5.2 In the event that (i) the company shall effect a
reorganization, consolidation with, or merger into, any other corporation,
partnership, organization or other entity (each a "Transaction") and the
shareholders of the Company immediately prior to the Transaction own less than
50% of the common stock of the surviving entity in substantially the same
proportions as their ownership in the Company immediately prior to the
Transaction, or (ii) 50% or more of the common stock of the Company is sold to
any other party or group of parties, or (iii) the Company sells all or
substantially all of its assets, then the Company and the Employee, and the
successor or purchasing entity, shall enter into the Termination Agreement
attached as Exhibit A hereto and made a part hereof, and this Employment
Agreement shall be terminated.
6. DISABILITY
In the event that, while this Agreement is in force, Employee shall
become disabled for any reason whatsoever so as to prevent him from performing
his duties hereunder, and such disability shall continue for any consecutive
period of six months or more, Company
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shall pay and Employee shall accept, from and after the end of such six-month
period, (the "Disability Date") for the balance of the remaining term of this
Agreement, an annual income benefit equal to one-half of the Basic Salary which
was being received hereunder by Employee at the commencement of such six-month
period. During such six-month period, Employee shall be entitled to compensation
payable pursuant to Section 4 hereof. In addition, for the fiscal year in which
the Disability Date may occur, the Incentive Bonus due and payable to the
Employee shall be reduced to an amount calculated by multiplying the amount of
the Incentive Bonus which would otherwise be due and payable to the Employee had
be not become disabled, by a fraction, the numerator of which is the number of
days from the commencement of the fiscal year through the Disability Date and
the denominator of which is 365. The Employee shall not be entitled to any
Incentive Bonus for a fiscal year commencing after the Disability Date.
7. EXPENSES
The parties recognize that in the course of performing his duties
hereunder, Employee will necessarily incur expenses in connection with his
duties. Company agrees to reimburse Employee upon presentation of vouchers for
reasonable expenses incurred by Employee in performance of his duties hereunder.
Moreover, while this Agreement shall be in force, Company shall provide Employee
with appropriate offices, in Las Vegas, Nevada, secretarial help, administrative
staff and automobile and other transportation facilities in Las Vegas.
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8. VACATION
For and during each year of employment, Employee shall be entitled
to reasonable vacation periods consistent with his position with the Company.
9. MEDICAL EXPENSES
In addition to any other benefits which may be due to Employee,
Company shall, to the extent that any medical insurance program established by
Company, the premiums for which are to be paid by the Company, shall be
insufficient to meet any medical expenses of Employee incurred from and after
September 1, 1996, and prior to January 31, 2005, expend and pay over or
reimburse to Employee the full amount by which such medical expenses shall
exceed the benefits provided by such Insurance.
10. SITUS
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
11. ENTIRE AGREEMENT
This Agreement constitutes the full and complete understanding and
agreement of the parties and, effective as of November 10, 2000, supersedes all
prior understandings and agreements between Employee and the Company or any of
its subsidiaries concerning the subject matter of this Agreement, and may not be
modified or amended orally, but only by an agreement in writing, signed by the
party against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
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12. BINDING EFFECT
This Agreement and all of the terms hereof shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors, administrators and assigns.
13. SEVERABILITY
In the event that it shall be determined, to the mutual
satisfaction of the parties hereto, or by a final order of a court of competent
jurisdiction, that any term or provision herein set forth is prohibited by, or
is unlawful or unenforceable under any applicable law of any jurisdiction, such
provision shall, as to such jurisdiction, be ineffective to the extent of such
prohibition without invalidating the remaining provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
ATTEST: MEGO FINANCIAL CORP.
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Xxx X. Xxxxxx Xxxxxx Xxxxxxxxxxx
Secretary Chairman of the Board &
Chief Executive Officer
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Xxxxxx X. Xxxxx
Employee
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TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (this "Agreement") is made and entered into
effective as of [ ], [ ], by and among MEGO FINANCIAL CORP., A
New York corporation ("Mego"), [ ], a [ ] corporation,
[as successor to][as the purchaser of more than 50% of the common stock of] Mego
(collectively referred to herein as the "Company") and XXXXXX X. XXXXX
("Xxxxx"). This Agreement is intended to replace that certain Amended and
Restated Employment Agreement, dated as of November 10, 2000, by and between
Mego and the Consultant (the "Employment Agreement"). Accordingly, effective as
of the Commencement Date hereof as that term is hereafter defined, the
Employment Agreement shall be terminated and declared null and void.
RECITATIONS
A. The Company recognizes that Xxxxx has performed substantial services
for Mego which have contributed to the growth of Mego.
B. The Company and Xxxxx now each desire to terminate their existing
business relationship on the terms and conditions set forth in this Agreement.
OPERATIVE PROVISIONS
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In consideration of the foregoing recitations, the mutual promises
hereinafter set forth and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged hereby, the parties hereto, intending to
be legally bound, hereby covenant agree as follows:
ARTICLE I
TERMINATION AGREEMENT
1.1 TERMINATION FEE. In consideration for prior services provided by
Xxxxx to Mego and for the termination of Xxxxx'x Employment Agreement, the
Company shall pay a fee to Xxxxx equal to Seven Hundred Fifty Thousand Dollars
($750,000), payable in thirty six (36) equal consecutive monthly installments of
Twenty Thousand Eight Hundred and Thirty-Three Dollars and Thirty-Three cents
($20,833.33) per month, commencing [insert the effective date] (the
"Commencement Date"). In the event of Xxxxx'x death prior to the entire
distribution of the fee set forth in this Section 1.1, the remaining amounts
shall be paid to the beneficiary designated by Xxxxx, in writing, to the
Company, or if no such beneficiary shall be designated, then to Xxxxx'x estate,
at such times and in such amounts as if Xxxxx had not died.
1.2 OTHER BENEFITS.
(a) Medical Insurance Coverage. During the period commencing on the
Commencement Date and ending on [insert the date that is thirty six months after
the
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commencement date] (the "Coverage Period"), Xxxxx and his Spouse shall continue
to be covered under that certain Equitable Life Assurance Society of the United
States medical insurance policy, number PPB N 86 803 722 (the "Policy"), and the
Company shall pay the premiums thereon that are allocable to the Coverage
Period. In addition, the Company shall reimburse Xxxxx for any medical expenses
incurred by Xxxxx (but not for those medical expenses incurred by his Spouse)
during the Coverage Period that are not covered under the Policy including,
without limitation, any amounts that are not covered by the reason of the
deductible and/or copayment provisions of the Policy. Reimbursements made by the
Company to Xxxxx shall be made on a quarterly basis and the amount of the
quarterly reimbursement shall be based upon invoices submitted by Xxxxx to the
Company during such quarter. Notwithstanding anything to the contrary herein,
the Company shall not be required to pay any medical expenses incurred by Xxxxx
that are not covered by the Policy by reason of their being in excess of the
maximum amount of covered expenses under the Policy.
(b) Occupancy of Office. During the period beginning on the
Commencement Date and ending on the last day of the third calendar month that
begins after the Commencement Date (as defined in Section 1.1 hereof) (the
"Office Period"), the Company shall continue to lease, and pay the rent and
utility costs of, and Xxxxx shall have the right to continue utilizing, the
Company's office space in Miami, Florida (the "Miami Office") where Xxxxx
previously performed services for Mego. In addition, as of the Commencement
Date, Xxxxx shall be entitled to keep any office furniture, furnishings or
equipment located in the Miami Office. During the Office Period, Xxxxx shall
organize all records, files and transaction bibles of the Company, and arrange
to have those documents packaged and shipped, at the Company's expense, to the
Company's offices in Las Vegas, Nevada. Xxxxx shall be entitled to keep or
discard any such documents that the Company does not wish to have shipped as
aforesaid.
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ARTICLE II
RESTRICTIVE COVENANTS.
2.1 NON-COMPETITION. For the three (3) year period ending on the third
anniversary of the Commencement Date (the "Restricted Period") and provided that
the Company is not in breach of any of its obligations under Sections 1.1, 1.2
or 3.4 of this Agreement, Xxxxx shall not, directly or indirectly, engage in or
have any interest in any sole proprietorship, corporation, company, partnership,
association, venture or business or any other person or entity (whether as an
employee, officer, director, partner, agent, security holder, creditor,
consultant or otherwise) that directly or indirectly (or through any affiliated
entity) competes with the Company's business (for this purpose, the Company's
business shall mean any business that engages in time share sales in North
America); provided that such provision shall not apply to Xxxxx'x ownership of
Common Stock of the Company or the acquisition by Xxxxx, solely as an
investment, of securities of any issuer that is registered under Section 12(b)
or 12(g) of the Securities Exchange Act of 1934, as amended, and that are listed
or admitted for trading on any United States national securities exchange or
that are quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as Xxxxx does not
control, acquire a controlling interest in or become a member of a group which
exercises direct or indirect control of, more than five percent of any class of
capital stock of such corporation.
2.2 NONSOLICITATION OF EMPLOYEES. During the Restricted Period, and
provided that the Company is not in breach of any of its obligations under
Sections 1.1, 1.2, or 3.4 of this Agreement,
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Xxxxx shall not, directly or indirectly, for himself or for any other person,
firm, corporation, partnership, association or other entity employ or attempt to
employ or enter into any contractual arrangement with any employee or former
employee of the Company, unless such employee or former employee has not been
employed by the Company for a period in excess of six months.
2.3 ACKNOWLEDGMENT BY XXXXX. Xxxxx acknowledges and confirms that (i)
the restrictive covenants contained in this Article II are reasonably necessary
to protect the legitimate business interests of the Company, and (ii) the
restrictions contained in this Article II (including without limitation the
length of the term of the provisions of this Article II) are not overbroad,
overlong, or unfair and are not the result of overreaching, duress or coercion
of any kind. Xxxxx further acknowledges and confirms that his full, uninhibited
and faithful observance of each of the covenants contained in this Article II
will not cause him any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained herein will not impair his
ability to obtain employment commensurate with his abilities and on terms fully
acceptable to him or otherwise to obtain income required for the comfortable
support of him and his family and the satisfaction of the needs of his
creditors. Xxxxx acknowledges and confirms that his special knowledge of the
business of the Company is such as would cause the Company serious injury or
loss if he were to use such ability and knowledge to the benefit of a competitor
or were to compete with the Company in violation of the terms of this Article
II. Xxxxx further acknowledges that the restrictions contained in this Article
II are intended to be, and shall be, for the benefit of and shall be enforceable
by, the Company's successors and assigns.
2.4 REFORMATION BY COURT. In the event that a court of competent
jurisdiction shall determine that any provision of this Article II is invalid or
more restrictive than permitted under the
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governing law of such jurisdiction, then only as to enforcement of this Article
II within the jurisdiction of such court, such provision shall be interpreted
and enforced as if it provided for the maximum restriction permitted under such
governing law.
2.5 SURVIVAL. The provisions of this Article II shall survive the
payment by the Company to Xxxxx of the Lump Sum Payment pursuant to Article II
hereof.
2.6 INJUNCTION. It is recognized and hereby acknowledged by the parties
hereto that a breach by Xxxxx of any of the covenants contained in Article II of
this Agreement will cause irreparable harm and damage to the Company, the
monetary amount of which may be virtually impossible to ascertain. As a result,
Xxxxx recognizes and hereby acknowledges that the Company shall be entitled to
an injunction from any court of competent jurisdiction enjoining and restraining
any violation of any or all of the covenants contained in Article II of this
Agreement by Xxxxx or any of his affiliates, associates, partners or agents,
either directly or indirectly, and that such right to injunction shall be
cumulative and in addition to whatever other remedies the Company may possess.
ARTICLE III
MISCELLANEOUS
3.1 ENTIRE AGREEMENT: AMENDMENT. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, both written and oral, among the parties hereto. This
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Agreement may not be amended or modified in any way except by a written
instrument executed by the Company and Xxxxx.
3.2 NOTICE. All notices under this Agreement shall be in writing and
shall be given by personal delivery, or by registered or certified United States
mail, postage prepaid, return receipt requested, to the address set forth below:
If to Xxxxx: Xxxxxx X. Xxxxx
[ ]
[ ]
[ ]
with copy to:
If to the Company or a MEGO FINANCIAL CORP.
Successor Corporation
Attn: [ ], President
[ ]
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Attn: [ ], President
or to such other person or persons or to such other address or addresses as
Xxxxx and the Company or their respective successors or assigns may hereafter
furnish to the other by notice similarly given. Notices, if personally
delivered, shall be deemed to have been received on the date of delivery, and if
given by registered or certified mail, shall be deemed to have been received on
the fifth business day after mailing.
3.3 GOVERNING LAW. This Agreement shall be governed by, and construed
and interpreted in accordance with, the laws of the State of Florida, without
giving effect to the conflict of laws principles of each State. With respect to
any disputes concerning federal law, such disputes shall be determined in
accordance with the law as it would be interpreted and applied by the United
States Court of Appeals for the Eleventh Circuit.
3.4 ASSIGNMENT: SUCCESSORS AND ASSIGNS. Neither Xxxxx nor the Company
may make an assignment of this Agreement or any interest herein, by operation of
laws or otherwise, without the prior written consent of the other party. This
Agreement shall inure to the benefit of, and be binding upon, the Company and
Xxxxx, his heirs, personal representatives, executors, legal representatives,
successors and their permitted assigns, if any. In the event that the Company
shall effect a reorganization, consolidate with or merge into any other
corporation, partnership, organization or other entity, or transfer all or
substantially all of its properties or assets to any other corporation,
partnership, organization or other entity, or if more than fifty percent (50%)
of its stock shall be sold, transferred or issued to another party
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or parties, the Company shall immediately pay Xxxxx the balance of the $750,000
fee set forth in Section 1.1 hereof not previously paid by the monthly payments
provided for in the said Section 1.1 hereof (such payment being referred to as
the "Lump Sum Payment"). Upon payment by the Company of the Lump Sum Payment in
accordance with the foregoing sentence of this Section 3.4, then the Coverage
Period for the continued payment of health insurance premiums and reimbursement
of medical expenses under Section 1.2(a) hereof shall cease for expenses
incurred after the date on which the Company has made the Lump Sum Payment to
Xxxxx.
3.5 WAIVER. The waiver by any party hereto of the other party's prompt
and complete performance or breach or violation of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent breach
or violation, and the waiver by any party hereto to exercise any right or remedy
which he or it may possess shall not operate nor be construed as the waiver of
such right or remedy by such party or as a bar to the exercise of such right or
remedy by such party upon the occurrence of any subsequent breach or violation.
3.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part thereof, all of which are inserted conditionally on their being
valid in law, and, in the event that any one or more of the words, phrases,
sentences, clauses, sections or subsections contained in this Agreement shall be
declared invalid by a court of competent jurisdiction, then this Agreement shall
be construed as if such invalid word or words, phrase or phrases, sentence or
sentences, clause or clauses, section or sections, or subsection or subsections
had not been inserted.
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3.7 DAMAGES. Nothing contained herein shall be construed to prevent the
Company or Xxxxx from seeking and recovering from the other damages sustained by
either or both of them as a result of its or his breach of any term or provision
of this Agreement. In the event that either party hereto brings suit for the
collection of any damages resulting from, or the injunction of any action
constituting, a breach of any of the terms or provisions of this Agreement, then
the party found to be at fault shall pay all reasonable court costs and
attorneys' fees of the other.
3.8 CONSENT TO JURISDICTION. In the event any controversy or claim
arises out of or relates to this Agreement or the breach thereof, the parties
hereby consent to the jurisdiction of the Supreme Court of Florida, the Florida
District Court of Appeal, and the United States District Court for the District
of Florida. Accordingly, with respect to any such court action, Xxxxx and the
Company each (i) submit to the personal jurisdiction of such courts; (ii)
consent to service of process; and (iii) waive any other requirement (whether
imposed by statute, rule of court, or otherwise) with respect to personal
jurisdiction or service of process.
3.9 GENDER AND NUMBER. Wherever the context shall so require, all words
herein in the male gender shall be deemed to include the female or neuter
gender, all singular words shall include the plural and all plural words shall
include the singular.
3.10 SECTION HEADINGS. The section or other headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of any or all of the provisions of this Agreement.
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3.11 NO THIRD PARTY BENEFICIARY OTHER THAN COMPANY. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person, firm, corporation, partnership, association or other entity,
other than the parties hereto and each of their respective heirs, personal
representatives, legal representatives, successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
THE COMPANY:
MEGO FINANCIAL CORP., a New York
corporation
---------------------------------
[ ], President
[ ].,a[ ]
corporation
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[ ], President
XXXXX:
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XXXXXX X. XXXXX
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