EMPLOYMENT AND COMPENSATION AGREEMENT
This Employment and Compensation Agreement (the "Agreement") is entered
into in Contra Costa County, California, as of January 31, 2000 by and between,
XxXxx.xxx, Inc., a Delaware corporation ("FiNet" or "Employer") and Xxxxxx Xxxx,
an individual ("Employee"), who agree as follows:
This Agreement is made with reference to the following facts:
FiNet, is a provider of both traditional and e-commerce home financing
services.
Employee desires to perform services for Employer and Employer desires
to engage Employee to perform services in accordance with the terms and
conditions set forth in this Agreement.
Now therefore, in consideration of the foregoing and of the covenants,
representations and promises set forth in this Agreement, the parties hereto,
agree as follows:
1. EMPLOYMENT.
a. Employer hereby offers Employee employment with Employer, and
Employee hereby accepts employment, commencing on January 31, 2000, on the terms
and conditions contained in this Agreement.
b. Employee shall serve as the Executive Vice President of Business to
Business for FiNet, reporting directly to FiNet's Chief Executive Officer or his
designee. In that capacity, Employee shall faithfully and diligently carry out
such duties and have such responsibilities as are customary among persons
employed in substantially similar capacities for similar companies, provided
that Employee shall at all times be subject to the direction of the Chief
Executive Officer of FiNet. Employee agrees to the best of his ability and
experience to perform loyally and conscientiously all of the duties and
responsibilities required of him, either expressly or implicitly, by the terms
of this Agreement.
c. Location of Employee's employment shall be as determined by
Employer.
2. TERM OF EMPLOYMENT. Employee's Term of Employment in accordance with
the terms of this Agreement, shall commence as of January 31, 2000 and shall
terminate upon the earlier of January 30, 2003 or as is otherwise specified
in this Agreement (the "Term of Employment").
3. COMMITMENT. Except as is otherwise provided herein, during the Term
of Employment Employee shall devote one hundred (100%) percent of his entire
productive time, ability, and attention to the business of the Employer.
Except as is otherwise provided herein, Employee shall not render any
services of a commercial or professional nature to any other person or
organization, whether for compensation or otherwise. However, the expenditure
of reasonable
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amounts of time for educational, charitable, or professional activities shall
not be deemed a breach of this Agreement if those activities do not materially
interfere with the services required under this Agreement and shall not require
the prior written consent. Notwithstanding the foregoing, this Agreement shall
not be interpreted to prohibit Employee from making passive personal investments
or conducting private business affairs if those activities do not materially
interfere with the services required under this Agreement.
4. COMPETITIVE ACTIVITIES.
a. During the Term of Employment, Employee shall not, directly or
indirectly, own an interest in, operate, join, control, or participate in, or be
connected as an officer, employee, agent, independent contractor, partner,
shareholder or principal of any corporation, partnership, proprietorship, firm,
association, person, or other entity producing, designing, providing, soliciting
orders for, selling, distributing, or marketing products, goods, equipment, or
services that compete directly or indirectly with Employer's products and
services or Employer's business, without first obtaining the written approval of
Employer. Such approval may be rescinded by Employer if and when, in the opinion
of Employer, such activities materially inhibit Employee's performance under
this Agreement or place Employer at risk.
b. For one year following his termination as an Employee of, or
consultant to, Employer, whichever occurs later ("Posttermination Period"),
Employee shall not be prohibited from employment in the mortgage industry
involving activities similar to those engaged in prior to becoming an Employee
of or consultant to Employer, except, however, Employee shall not undertake any
employment or activity competitive with Employer's business in which the loyal
and complete fulfillment of the duties of the competitive employment or activity
would call on Employee to reveal or otherwise to use any confidential business
information or trade secrets of Employer's business to which Employee had access
by reason of his prior engagement by Employer.
c. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly, either for himself or for any other
person, firm, or corporation, divert or take away or attempt to divert or take
away (and during the Posttermination Period, call on or solicit or attempt to
call on or solicit) any of Employer's customers or patrons, including but not
limited to those on whom Employee called or whom he solicited or to whom he
catered or with whom Employee became acquainted during his engagement by
Employer. Nothing herein shall limit Employee's right during the Posttermination
Period, to call on or solicit or attempt to call on or solicit any of Employee's
customers or patrons on whom Employee called or whom he solicited or to whom he
catered or with whom he became acquainted during the period prior to Employee's
engagement by Employer.
d. During the Term of Employment, Employee shall not undertake planning
for or organization of any business activity competitive with Employer's
business or combine or join with other employees or representatives of
Employer's business for the purpose of organizing any such competitive business
activity.
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e. During the Term of Employment and the Posttermination Period,
Employee shall not, directly or indirectly or by action in concert with others,
induce or influence (or seek to induce or influence) any person who is engaged
(as an employee, agent, independent contractor, or otherwise) by Employer to
terminate his or her employment or engagement.
5. COMPENSATION. As compensation for the services to be rendered by
Employee hereunder during the Term of Employment, Employer shall pay Employee
a Base Salary and additional compensation based upon performance of the
Employee ("Adjusted Base Salary"), as is more specifically set forth in
Addendum A to this Agreement. In addition, Employee shall be granted those
equity incentives as are more specifically set forth in Addendum A.
6. BENEFITS. In addition to the compensation described herein above,
during the Term of Employment, Employee shall be eligible to receive the
following benefits:
a. Such health insurance and other benefits that Employer may, from
time to time, make available to Employer's employees.
b. Three (3) weeks vacation time, sick leave, holidays and personal
time in accordance with Employer's vacation and absence policies, which Employer
may, from time to time, maintain for employees at Employee's level of
employment.
c. Reimbursement of allowed business expenses, upon submission of
documentation in accordance with Employer's regular expense reimbursement
policies, for reasonable business expenses incurred on behalf of Employer by
Employee.
d. Participation in any savings plan, 401(k) plan, profit sharing plan
or pension plan, which Employer may, from time to time, maintain for employees
at Employee's level of employment, subject to plan eligibility.
7. CONFIDENTIAL INFORMATION.
a. Employee recognizes that, during the course of his employment with
Employer, he will be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to Employer.
Such confidential information includes but is not limited to Employer's
investment plans or strategies, trade secrets, sources of supply, customer
lists, lists of potential customers, customer or consultant contracts and the
details thereof, pricing policies, operational methods, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, unannounced products and services, research and development
activities, processes, formulas, methods, techniques, technical data, know-how,
inventions, designs, financial or accounting data, inventory reports, production
schedules, cost and sales data, strategies, forecasts, and all other information
that is not publicly available pertaining to the business of Employer or any of
its affiliates. Such confidential information is hereinafter referred to as
"Confidential Information".
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b. Confidential Information shall not include (i) any information which
is or becomes publicly available other than through breach of this Agreement, or
(ii) any information which is or becomes known or available to Employee on a
non-confidential basis and not in contravention of applicable law from a source
which is entitled to disclose such information to Employee.
c. Employee agrees that he will not, while employed by Employer,
divulge Confidential Information to any person, directly or indirectly, except
to Employer or its officers and agents, or as reasonably required in connection
with Employee's duties on behalf of the Employer, except as is required by law
or court order. Employee further agrees not to use, except on behalf of the
Employer, any Confidential Information acquired by Employee during the Term of
Employment. Employee agrees that he will not at any time after his employment
with Employer has ended, divulge to any person, directly or indirectly, any
Confidential Information, except as is required by law or court order. Employee
further agrees that, if his relationship with the Employer is terminated for any
reason, Employee shall not take with him but will leave with Employer all
records, papers, and computer software and data, and any copies thereof relating
to the Confidential Information (or if such papers, records, computer software
and data, or copies are not on the premises of Employer, Employee agrees to
return such papers, records, and computer software and data immediately upon his
termination). Employee acknowledges that all such papers, records, computer
software and data, or copies thereof are and remain the property of Employer.
8. VOICE MAIL AND ELECTRONIC MAIL. All voice mail and electronic mail
on Employer's telephone or computer systems are the property of Employer and
shall be non-personal, non-private and non-privileged to Employee, and
Employee shall disclose to Employer all codes or passwords necessary for
Employer to access such voice mail or electronic mail.
9. COOPERATION. As a condition of his employment with Employer,
Employee agrees that he will not disrupt, damage, impair, or interfere with
the business of the Employer, such as by interfering with the duties of the
Employer's employees, disrupting relationships with Employer's customers,
agents, representatives, or vendors, or otherwise.
10. TERMINATION.
a. Employee may terminate this Agreement for any reason or for no
reason upon providing Employer with sixty- (60) days prior written notice of his
intention to terminate.
b. Employer may terminate this Agreement upon written notice to
Employee prior to its expiration date for just cause or due to the Employee's
death or substantial physical impairment which prevents Employee from performing
his duties and responsibilities as set forth herein. For purposes of this
Section, "just cause" is defined as the failure of Employee to perform his
duties and responsibilities as set forth herein to the satisfaction of Employer;
a violation of Section(s) 3, 4, 7, 8, or 9 of this Agreement; fraud;
misappropriation of funds; breach
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of fiduciary duty; embezzlement; theft; physical assault or threatened assault
on another person; drunkenness on the job; possession or use of narcotics on
Employer's property; willful and material damage to Employer's property;
conviction of a felony; violation of any state or federal law applicable to
Employer's business or premises; or repeated or material violations of
Employer's policies, including but not limited to those policies prohibiting
unlawful employment discrimination and harassment.
c. In the event Employee's employment is terminated, whether by
Employer for "just cause", as is defined herein or due to the Employee's death
or substantial physical or mental impairment preventing Employee from performing
the essential functions of his job, or by Employee as provided herein, Employer
shall have no further obligation to pay any compensation to or benefits on
behalf of Employee, however all compensation accrued as of the date of
termination shall be paid to Employee upon termination.
d. Upon termination of his employment, Employee agrees to deliver
promptly to Employer all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all copies
thereof, and any and all materials relating to Employer's Confidential
Information that is in Employee's possession or control. At the time of
termination, Employee will have an exit interview with Employer wherein Employee
will certify that Employee has returned to Employer all tangible Confidential
Information disclosed to him and disclose Inventions conceived or developed by
him during the Term of Employment.
e. Sections 4, 7, 8, 10, 11, 12, 13, 14, 15, and 16, hereof, shall
survive termination of this Agreement.
11. ASSIGNMENT. The rights and liabilities of the parties hereto shall
bind and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Employer has
specifically contracted for Employee's services, Employee may not assign or
delegate his duties and responsibilities under this Agreement either in whole
or part without the prior written consent of Employer. Employer may assign
its rights and obligations to a successor in interest to Employer, provided
such successor assumes all obligations and liabilities thereunder.
12. SEVERABILITY OF PROVISIONS. In the event any provision of this
Agreement is held to be illegal, invalid, or unenforceable under any present
or future law, (a) such provision will be fully severable, (b) this Agreement
will be construed and enforced as if such illegal, invalid, or unenforceable
provision had never comprised a part hereof, (c) the remaining provisions of
this Agreement will remain in full force and effect and will not be affected
by the illegal, invalid, or unenforceable provision or by its severance
herefrom, and (d) in lieu of such illegal, invalid, or unenforceable
provision, there will be added automatically as a part of this Agreement a
legal, valid, and enforceable provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible.
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13. MEDIATION AND ARBITRATION. Initially all claims and controversies of
any kind relating to this Agreement shall be submitted to mediation pursuant
to the services of JAMS/Endispute Mediation Service ("JAMS") with the venue
of the mediation being San Francisco, CA. In the event the matter cannot be
disposed of by mediation, all claims and controversies of any kind relating
to this Agreement shall be finally settled by binding arbitration before a
single JAMS arbitrator in San Francisco, CA, in accordance with the
JAMS/Endispute Rules and Procedures for Mediation/Arbitration of Employment
Disputes. The parties to this Agreement shall be bound by the decisions in
any such arbitration, and judgment upon such arbitration may be entered by
any court of proper jurisdiction. Notwithstanding the applicable rules of
JAMS, in accordance with California Code of Civil Procedure Section 1283.1
(b), the parties agree that depositions may be taken and discovery obtained
in any arbitration proceeding relating to this Agreement in accordance with
California Code of Civil Procedure Section 1283.05. Attorney's fees and costs
shall be allocated by agreement in mediation or by the arbitrator in
arbitration.
14. NOTICES. Any notice provided for in this Agreement must be in
writing and must be either personally delivered, or mailed by certified mail
(postage prepaid and return receipt requested), or sent by reputable
overnight courier service, to the recipient at the address below indicated:
To Employee: Xxxxxx Xxxx
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
To Employer: Chief Executive Officer
XxXxx.Xxx, Inc.
0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
, or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given when so
delivered or if mailed, five (5) days after deposit in a U.S. Postal facility.
15. ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement contains
the sole, complete, final, exclusive and entire agreement between the parties
pertaining to the employment of Employee by Employer and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission
or waiver of this Agreement shall be binding unless executed in writing by
the parties. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a continuing waiver unless otherwise expressly
provided. The parties expressly acknowledge that they have not relied upon
any prior agreements, understandings, negotiations or discussions, whether
oral or written.
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16. CHOICE OF LAW. The rights and duties of the parties will be governed
by the law of the State of California, excluding any choice-of-law rules that
would require the application of laws of any other jurisdiction.
17. INSURANCE. Employee shall cooperate with Employer, at no cost to
Employee, should Employer wish to purchase key-man insurance on Employee's
life.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPLOYER EMPLOYEE
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By: By:
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Xxxx Xxxxxxx Xxxxxx Xxxx
Chief Executive Officer
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ADDENDUM A
TO
EMPLOYMENT AND COMPENSATION AGREEMENT
XXXXXX XXXX
This Addendum by and between Xxxxx.xxx, Inc. ("FiNet" or
"Employer") and Xxxxxx Xxxx ("Employee") shall define terms of Compensation.
1. SALARY. Employee shall receive a Base Salary of $182,000.00 per annum.
2. BONUS. In addition to Base Salary, Employee shall be granted a monthly
performance incentive on Business to Business production volumes in excess of
$50,000,000.00 ("Bonus"). For purposes of this Addendum, Business to Business
shall be defined as wholesale and affinity business, with the Bonus calculated
as follows:
a. One basis point (.0001) on production volumes in excess of
$50,000,000.00 on loans brokered within the geographic area of Northern
California to Fresno.
b. Three basis points (.0003) on production volumes in excess of
$50,000,000.00 on loans brokered within the geographic area covering Southern
California and the remaining licensed jurisdictions.
c. On additional basis point (.0001) added to the provisions of
Paragraphs 2(a) and/or 2(b) on production volumes in excess of $50,000,000.00
when the average loan amount is $175,000.00 or greater in any given month. The
average loan amount shall be calculated and reviewed on a monthly basis.
d. Regardless of production volume, Employee shall be guaranteed a
minimum monthly bonus in the amount of $15,000.00 during the first four months
of employment.
3. ANNUAL BONUS. Employee shall be eligible to earn a one time bonus in
the amount of $50,000.00, if Employee maintains an efficiency level within
the Business to Business division of 10 loans per day per full time
equivalents AND production volume on closed loans reached $150,000,000.00 in
any single month prior to December 31, 2000.
4. EQUITY INCENTIVES. Employee shall be granted options to purchase
500,000 shares of FiNet common stock, at a price of $1.281 per share
("Options"), vesting 100,000 shares on January 31, 2000, 133,333 shares on
December 31, 2000, 133,333 shares on December 31, 2001 and the remaining
133,334 shares on December 31, 2002, conditioned upon Employee's continued
employment by Employer ("Vested Options"). For the purpose of this provision,
Employee may only exercise Options that are Vested. The terms and conditions
of the Options shall remain subject to and interpreted in conformity with the
Finet Holdings Corporation 1998 Stock Option Plan, as may be amended from
time to time.
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5. RELOCATION EXPENSES. Employee shall be reimbursed for actual
expenses incurred in the relocation of his family to California in an amount
not to exceed $40,000 ("Relocation Expenses"). Relocation Expenses shall be
limited to those expenses reasonably incurred by Employee in the moving of
his family and furnishings from his current residence in Chicago, Illinois to
a residence in Northern California. For purposes of this Addendum Relocation
Expenses shall be limited to:
a. Packing and unpacking of furnishings;
b. Transportation costs charged by a household goods carrier for
shipment of household goods from Chicago, Illinois to Northern
California;
c. Coach airfare and lodging for Employee and his spouse to visit
Northern California to look for a residence;
d. Payment of industry standard real estate commission on the sale of
Employee's residence in Illinois; and
e. Coach airfare and lodging for family.
If Employee terminates his employment prior to January 30, 2001,
Employee shall be required to repay Employer upon termination the Relocation
Expenses paid in accordance with this provision.
6. CHANGE OF CONTROL. In the event a person or entity gains ownership
of over 35% of the outstanding shares of FiNet ("Change of Control"), all of
the Employee's Options shall fully vest. In conjunction with the Change of
Control or thereafter during the Term of Employment, should Employee's
employment by FiNet be terminated by Employer without "just cause", Employer
will continue to pay Base Salary compensation through the remaining Term of
Employment. All of Employee's vested Options must be exercised within 90 days
of the date of termination.
Agreed to:
EMPLOYER EMPLOYEE
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By: By:
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Xxxx Xxxxxxx Xxxxxx Xxxx
Chief Executive Officer
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