Exhibit 10.15
EMPLOYMENT AGREEMENT
THIS TOTALLY RESTATED AND AMENDED EMPLOYMENT AGREEMENT (the "Agreement") is
made and entered effective as of January 1, 2003 by and between Vestin Mortgage,
Inc., a Nevada corporation (the "Corporation"), and Xxxxxx Xxxxxx (the
"Executive") with reference to the following facts:
WITNESSETH:
WHEREAS, the Corporation desires to enter into an employment agreement with
Executive; and
WHEREAS, the Corporation desires to enter into this Agreement in order to
retain the services of the Executive and to maximize the period of his continued
availability; and
WHEREAS, the Corporation desires to enter into the Agreement with Executive
as is more fully set forth herein.
NOW, THEREFORE, on the basis of the foregoing facts and in consideration of
the mutual covenants and agreements contained herein, the parties hereto agree
as follows:
1. Employment. The Corporation hereby agrees to, and does hereby, employ
the Executive and Executive hereby accepts employment with the Corporation on
the terms and conditions set forth in this Agreement (the "Agreement").
2. Term. The term of this Agreement shall commence on January 1, 2003,
and shall continue for a period of five (5) years until December 31, 2008 (the
"Term"). After the initial five (5) year Term, this Agreement shall continue for
successive one (1) year periods unless either party hereto shall notify the
other in writing at least thirty (30) days prior to the end of the Term of their
intention of not renewing the same.
3. Duties and Services.
a. The Corporation and the Executive hereby agree that, subject to
the provisions of this Agreement, the Corporation will employ the
Executive and the Executive will serve the Corporation as deemed
necessary during the Term.
b. Executive agrees during the term of this Agreement not to usurp a
corporate opportunity for his own financial gain. A corporate
opportunity shall be defined as a business opportunity which the
Corporation is financially able to undertake, is, from its
nature, in the line of the
Corporation's business and is one in which the Corporation has an
interest or a reasonable expectancy. Executive agrees that he
shall offer a corporate opportunity to the Corporation. The
Corporation shall have ten (10) days to either take the
opportunity for itself or to reject the opportunity in which case
Executive shall have the right to pursue such opportunity for
himself. Failure to notify Executive within such ten (10) day
period shall be deemed a rejection of the opportunity by the
Corporation.
4. Compensation.
a. As salary during the Term, the Corporation shall pay the
Executive, in accordance with its normal payroll, a minimum
annual salary of One Hundred and Twenty One Thousand and Eight
Hundred Dollars ($121,800) such salary to be paid no less than
semi-monthly during the Term. The Executive shall receive such
additional salary as the Board of Directors of the Corporation
may from time to time determine during the Term. Unless expressly
agreed in writing by the parties hereto, no such additional
compensation or benefits shall be deemed to modify or otherwise
affect the terms or conditions of this Agreement. Notwithstanding
the foregoing if Executive is terminated other than for Cause
Executive shall be entitled to the lesser of six (6) months
salary or the salary due for the remaining Term of this Agreement
as severance as Executive's sole and exclusive rights pursuant to
this Agreement. In the event Executive is terminated for Cause,
this Agreement shall terminate and Executive shall be entitled to
no compensation. Cause shall exist when and only when Executive
(i) after receipt of written notification by the Board of
Directors or the CEO has wilfully failed and continues to fail
after such written notice for a period of thirty (30) days to
substantially perform his duties (other than failure resulting
from incapacity due to physical or mental illness), (ii) is
convicted of a crime constituting a felony, or (iii) has been
proven to be dishonest, has embezzled or has committed common law
fraud ("for Cause").
5. Other Benefits. During the Term the Executive shall receive all rights
and benefits for which he is then eligible under any employee benefit plan or
bonus plan which the Corporation generally provides for its employees.
6. Death or Disability. In the event of the death of the Executive or the
disability of the Executive, this Agreement shall immediately terminate and the
Corporation shall pay to the Executive or his estate the greater of (i) six (6)
month's salary or (ii) such amount as is otherwise set forth in a separate
agreement concerning death and/or disability. Any such payment made pursuant to
(i) above shall be paid in a single lump sum payment which payment shall be due
and payable upon the sooner of (i) thirty (30) days of Executive's death or (ii)
thirty (30) days after
Executive is declared by his physician incapable of performing his duties as
specified in this Agreement. The Corporation shall have the right to fund
Executive's death and/or disability benefit through life insurance.
7. Place of Performance. In connection with his employment by the
Corporation during the Term, the Executive shall at all times be entitled to an
office at the principal executive offices of the Corporation, located in Las
Vegas, Nevada, or at such other office of the Corporation.
8. Outside Activities and Non-Competition.
a. Covenant Not to Compete. Executive recognizes that the
Corporation's decision to enter into this Agreement is induced
primarily because of the covenants and assurances made by
Executive, that Executive's covenant not to compete is necessary
to ensure the continuation of the business of the Corporation and
the reputation of the Corporation, and that irrevocable harm and
damage will be done to the Corporation if Executive competes with
the Corporation. Therefore, Executive agrees that during the term
of this Agreement and for a period of two (2) years following
termination of this Agreement, Executive shall not, directly or
indirectly, as an employee, employer, contractor, consultant,
agent, principal, shareholder, corporate officer, director, or in
any other individual or representative capacity, engage or
participate in any business or practice within the Practice
Territory that is in competition in any manner whatsoever with
the business of the Corporation without the written permission of
the Corporation. The term "in competition in any manner
whatsoever with the business of the Corporation" shall include
but not be limited to engaging in the mortgage business in the
Practice Territory. Practice Territory shall be defined as any
area in which the Corporation has an office or conducts business.
Executive agrees:
(i) If Executive should set up an office within the Practice
Territory in competition with the business of the
Corporation, it would cause economic harm and loss of
goodwill to the Corporation resulting in immediate and
irreparable loss, injuries, and damage to the Corporation.
(ii) Notwithstanding anything to the contrary in this Section 8,
Executive is not prohibited from owning less than five
percent (5%) of the equity of any publicly traded entity.
b. Enforcement. The Corporation and Executive further agree that if
any restriction in this Article is held by any court to be
unenforceable or unreasonable, a lesser restriction will be
enforced in its place and the
remaining restrictions in this Agreement will be enforced
independently of each other. In any action to enforce any provision of
this Article 8, the court may award reasonable attorneys' fees, costs,
and expenses to the prevailing party.
c. Survival. The provisions of this Article 8 shall survive the
termination of this Agreement for two (2) years.
9. Confidentiality of Information.
a. Confidential Information. Executive agrees to keep confidential and
not to use or to disclose to others during the term of this Agreement
and for a period of ten (10) years thereafter, except as expressly
consented to in writing by the Corporation or required by law, any
secrets or confidential technology, proprietary information, patient
lists, or trade secrets of the Corporation, or any matter or thing
ascertained by Executive through Executive's affiliation with the
Corporation, the use or disclosure of which matter or thing might
reasonably be construed to be contrary to the best interest of the
Corporation, the use or disclosure of which matter or thing might
reasonably be construed to be contrary to the best interests of the
Corporation. This restriction shall not apply to any information that
(i) is or becomes generally available to and known by the public
(other than as a result of an unpermitted disclosure directly or
indirectly by Executive or Executive's affiliates, advisors, or
representatives); (ii) is or becomes available to Executive on a
nonconfidential basis from a source other than the Corporation or its
affiliates, advisors, or representatives, provided that, at the time
of disclosure to Executive, Executive is not aware that such source
was bound by a confidentiality agreement with or other obligation of
secrecy to the Corporation; or (iii) has already been or is hereafter
independently acquired or developed by the Corporation; without
violating any confidentiality agreement with or other obligation of
secrecy to the Corporation.
b. Departure. Except as provided herein, should Executive leave the
employment of the Corporation, Executive will neither take nor retain,
without prior written authorization from the Corporation, any papers,
client lists, fee books, client records, files, or other documents or
copies thereof or other confidential information of any kind belonging
to the Corporation pertaining to the Corporation's clients, business,
sales, financial condition, or products. Without limiting other
possible remedies to the Corporation for the breach of this covenant,
Executive agrees that injunctive or other equitable relief shall be
available to enforce this covenant, such relief to be without the
necessity of posting a bond, cash or otherwise. Executive further
agrees that if any restriction contained in this
paragraph is held by any court to be unenforceable or unreasonable, a
lesser restriction shall be enforced in its place and remaining
restrictions contained herein shall be enforced independently of each
other.
c. Exceptions.
(i) Executive shall not be prohibited from releasing any confidential
or proprietary information to Executive's legal counsel or
financial advisors, provided that Executive places such advisors
under legal obligation not to disclose the confidential
information.
(ii) It shall not be a breach of Executive's covenants under this
Article 9 if a disclosure is made pursuant to a court order, a
valid administrative agency subpoena, or a lawful request for
information by an administrative agency. Executive shall give the
Corporation prompt notice of any such court order, subpoena, or
request for information.
10. Notice. All Notices and other communications hereunder shall be in
writing and shall be deemed to have been validly served, given or delivered five
(5) days after deposit in the United States mail, by certified mail with return
receipt requested and postage prepaid, when delivered personally, one (1) day
after delivery to any overnight courier, or when transmitted by facsimile
transmission facilities, and addressed to the party to be notified as follows:
If to Corporation at: 0000 Xx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
If to Executive at:
12. Miscellaneous.
a. This Agreement shall inure to the benefit of and be binding upon the
Corporation, its successors and assigns. This Agreement may not be
assigned by the Corporation without the prior written consent of the
Executive. The obligations and duties of the Executive hereunder shall
be personal and not assignable.
b. Whenever possible, each provision of this Agreement shall be
interpreted in such a neater as to be valid and effective under
applicable law, but if any provision of this Agreement is found to be
prohibited or invalid under
applicable law, such provision will be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
c. For purposes of this Agreement an "affiliate" of a person shall
include any person, firm, corporation, association, organization, or
unincorporated trade or business that, now or hereinafter directly
or indirectly, controls, or is controlled by, or practices is under
common control with such person.
d. Any waiver, alteration or modification of any term of this Agreement
will be valid only if made in writing and signed by the parties
hereto. Each party hereto from time to time may waive any of his or
its rights hereunder without effecting a waiver with respect to any
subsequent occurrences or transactions hereunder.
e. Captions and paragraph heading used herein are for convenience only
are not a part hereof and shall not be used in construing this
Agreement.
f. This Agreement constitutes the entire understanding and agreement of
the parties and, except as otherwise provided hereunder, there are
no other agreements or understandings, written or oral, in effect
between the parties relating to the employment of the Executive by
the Corporation during the Term. All prior negotiations or
agreements, if any, between the parties relating solely to the
employment of the Executive by the Corporation during the Term are
hereby superseded.
g. This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Nevada.
h. This Agreement may be executed in counterparts, each of which shall
be deemed an original, but both of which taken together shall
constitute one and the same instrument.
12 Arbitration. Any controversy between the parties hereto, including the
construction or application of any of the terms, covenants or conditions
of this Agreement, shall on written request of one party served on the
other be settled exclusively by arbitration in accordance with the rules
of the American Arbitration Association then in effect. The arbitrator
selected must be a member of the National Academy of Arbitrators and
must have significant experience in arbitrating labor disputes. Further,
the Arbitrator must be an attorney practicing labor law in the Southern
California area. The cost of such arbitration shall be borne by the
losing party or in such proportions as the Arbitrator(s) shall decide.
Judgment may be entered on the arbitrator's award in any court of
competent jurisdiction.
13. The Executive's Employment. Nothing contained in this Agreement (i)
obligates the Corporation or any subsidiary of the Corporation to employ the
Executive in any capacity whatsoever, or (ii) prohibits or restricts the
corporation (or any such subsidiary) from terminating the employment, if any,
of the Executive at any time or for any reason whatsoever, with or without
cause, subject to the terms and conditions of this Agreement.
IN WITNESS WHEREOF, this Agreement is effective as of the day and year
first above written.
"EXECUTIVE"
/s/ XXXXXX XXXXXX
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Xxxxxx Xxxxxx
VESTIN MORTGAGE, INC.,
A NEVADA CORPORATION
By: /s/ XXXXX XXXXXXXX
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Name: Xxxxx Xxxxxxxx
Title: President
