Exhibit 10.7
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is effective as of the 2/nd/
day of October, 2001, and is executed this 2/nd/ day of October, 2001 by and
between FIRST CONSUMER CREDIT, INC., a Texas corporation (the "Company"), and
XXXXX X. XXXXXXXX (the "Executive").
W I T N E S S E T H:
WHEREAS, Executive is an equity member of First Consumer Credit, LLC (the
"LLC"); and
WHEREAS, Executive and LLC, along with other parties including U.S. Home
Systems, Inc. ("U.S. Homes"), are parties to an Agreement and Plan of Merger by
and between Home Credit Acquisition Inc., U.S. Home Systems, Inc. and First
Consumer Credit, LLC, and its Members Listed Therein (the "Plan of Merger"); and
WHEREAS, pursuant to the Plan of Merger, LLC will be converted to the
Company, the Company will become a wholly owned subsidiary of U.S. Homes, and
Executive will be employed as President of Company; and
WHEREAS, Executive will receive substantial cash and other consideration
pursuant to the Plan of Merger in exchange for his equity ownership in the LLC,
including its goodwill, Confidential Information (as defined herein), and other
assets; and
WHEREAS, pursuant to this Employment Agreement, Executive will receive
Confidential Information (as defined herein) pertaining to the Company, U.S.
Homes, and its other affiliates; and
WHEREAS, ancillary to the otherwise enforceable promises contained in the
Plan of Merger, the attachments thereto, and this Agreement, the parties have
entered into noncompetition agreements, as set forth herein and the Plan of
Merger; and
WHEREAS, the Company desires to employ the Executive in the capacity
hereinafter stated, and the Executive desires to enter into the employ of the
Company in that capacity for the period and on the terms and conditions set
forth herein;
NOW, THEREFORE, the Company and the Executive represent, warrant, covenant,
and agree as follows:
1. Employment and Duties. The Company will employ the Executive in the
---------------------
capacity of the President of the Company. The Executive agrees that during the
term of this Agreement he will devote substantially all of his business time,
ability, and attention exclusively to the business and interest of the Company
and will execute his duties loyally and solely for the benefit of the Company.
The Executive agrees that he will perform all of the functions generally
considered to be the duties of a President, which include but are not limited
to: generally overseeing the business of the Company; implementing objectives
established by the Board of
EMPLOYMENT AGREEMENT - Page 1
Directors of the Company; and such other reasonable duties, functions,
responsibilities, and authority in connection with the foregoing as are
consistent with his position as President of the Company and as are from time to
time delegated to the Executive by the Board of Directors of the Company. In
addition, Executive shall have the authority to oversee the relationship between
the Company and First Savings Bank, FSB, Arlington, Texas. As such, the Company
will provide Confidential Information (as defined herein in Paragraph 5) to
allow the Executive to discharge his duties. Pursuant to his duties hereunder,
Executive will create such Confidential Information for the Company solely for
its best interests and will create and promote the Company's goodwill among its
customers, lenders, employees, loan servicing agents, loan purchasers and other
parties with whom it has business relationships.
2. Term. Subject to the earlier termination of this Agreement in accordance
----
with Paragraph 8 hereof, the term of this Agreement shall be three (3) years,
commencing on the date first set out above and terminating on the 2/nd/ day of
October, 2004 (such period to be referred to as the "Term"). The Term will be
automatically extended for consecutive one year periods, unless either party
gives notice that it does not intend to renew the Agreement at any time within
ninety (90) days prior to the expiration of the Term.
3. Compensation. In consideration of all of the services to be rendered by
------------
the Executive to the Company hereunder, the Company hereby agrees to pay the
Executive, and the Executive hereby agrees to accept from the Company, the
following compensation:
(a) Annual Salary. During the term of this Agreement, the Company will
-------------
pay the Executive a base annual salary of $180,000 which salary will be
payable in equal semi-monthly installments ("Annual Salary"). The Annual
Salary shall be reviewed for increase annually by the Board of Directors of
the Company. The Annual Salary may not be reduced during the Term and shall
be increased on an annual basis by the Consumer Price Index published by
the Bureau of Labor Statistics for the Dallas-Fort Worth area.
(b) Bonus. In addition to the base Annual Salary payable to the
-----
Executive hereunder, the Company shall pay to the Executive an annual cash
bonus in an amount equal to five percent (5%) of the actual pretax profits
of the Company for such fiscal year taking into account all loss carry
forward of the Company for all prior monthly periods from the inception of
the Company. The Company shall advance 50 percent of the earned bonus on a
quarterly basis. Such advance shall be payable in cash within 30 days after
the end of each fiscal quarter. Within forty-five (45) days after the end
of such fiscal year, the Company will pay the remaining unpaid bonus or, if
the advance exceeds the actual bonus, Executive shall repay the excess.
(c) Health Insurance. During the term of this Agreement, the Company, at
----------------
its sole expense, will provide the Executive and his family with a health
insurance plan equal to that which is provided to the other officers and
employees of the Company.
(d) Car Allowance. During the term of this Agreement, the Company shall
-------------
pay the Executive Seven Hundred and Fifty Dollars ($750.00) per month as a
car allowance. Neither this car allowance or this Agreement shall make the
Company the
EMPLOYMENT AGREEMENT - Page 2
owner, bailee or lessee of the Executive's automobile nor shall the
Company be responsible for any damage to same.
(e) Expenses. During the term of this Agreement, the Executive shall be
--------
entitled to receive reimbursement for all reasonable expenses incurred by
the Executive in connection with the fulfillment of his duties herein;
provided the Executive has complied with all policies and procedures
relating to the reimbursement of such expenses as may from time to time be
established by the Company including, but not limited to, the providing of
all supporting backup to such expenses as is required by the Internal
Revenue Service.
4. Severance. During the term of this Agreement, on dismissal or
---------
termination of employment of the Executive other than for Just Cause (as
hereinafter defined), death or disability, the Company shall make a cash
severance payment to the Executive in an amount equal to the greater of (a)
Executive's Annual Salary (exclusive of Bonus) for the remainder of the Term or
(b) one year's Annual Salary exclusive of Bonus, provided, however, that, if the
Company elects not to renew this Agreement pursuant to Paragraph 2, the Company
will be obliged to pay only the Executive's Annual Salary and Bonus for the
remainder of the Term. The severance payment shall be paid out in equal monthly
installments over the remaining Term or a one year period less any taxes
required to be withheld by federal, state or local law in respect to any payment
in cash.
5. Nondisclosure Agreement. Executive acknowledges and agrees that,
-----------------------
pursuant to the Plan of Merger, he has agreed to maintain the confidentiality of
all Confidential Information (as defined herein) created by the Company prior to
the Closing (as that term is defined in the Plan of Merger). The Executive also
acknowledges that during his term of employment with the Company, he shall have
access to and become familiar with Confidential Information (as defined herein)
that is owned by the Company, U.S. Homes, and their Affiliates (as that term is
defined in the Plan of Merger) and that is regularly used in the operation of
the business of the Company, U.S. Homes, and their Affiliates. For purposes of
this Agreement, "Confidential Information" means all information, research,
computer software, or programs and related documentation, practices, technical
plans, customer lists, loan servicing agreements, loan purchasing and re-sale
agreements and programs, pricing techniques, marketing plans, development plans,
feasibility studies, acquisition programs, financial information or all other
compilations of information related to the business of and owned by the Company,
and that has not been disclosed by the Company to the general public or that
does not exist in the public market. During the Noncompetition Period (as
defined below), the Executive shall not use or disclose any of the Confidential
Information, directly or indirectly, either during the term of his employment or
at any time thereafter, except as required in the course of his employment. The
Executive shall promptly deliver to the Company upon termination of his
employment all files, records, documents, information, data, and similar items
and documentation relating to the business of the Company, whether prepared by
the Executive or otherwise coming into his possession. The obligations of this
Paragraph 5 and 6 are continuous and shall survive the termination of the
Executive's employment with the Company.
EMPLOYMENT AGREEMENT - Page 3
6. Noncompetition Agreement. Ancillary to the otherwise enforceable
------------------------
agreements contained in the Plan of Merger, the attachments thereto, and this
Agreement, and to protect the Company's goodwill, Confidential Information, and
other legitimate business interests (including the interests of U.S. Homes in
the Plan of Merger and with respect to the goodwill and Confidential Information
of U.S. Homes and its Affiliates), the Executive agrees that:
(a) During the "Noncompetition Period" (as herein so defined), Executive
shall not, directly or indirectly, acquire, invest in, or otherwise engage
(whether as an employee in a managerial, executive or supervisory capacity,
director, officer, member, manager, or as a consultant) in the Business (as
hereafter defined) in the Restricted Area (as hereafter defined). For
purposes of this Agreement, the terms (i)"Business" shall be defined as
originating, selling, buying, or servicing residential home improvement
loans and the providing of home improvement services similar to that
provided by the Company (except that the Executive may invest in up to five
percent (5%) of any outstanding class of equity securities of any company
registered under Paragraph 12 of the Securities Exchange Act of 1934, as
amended); and (ii) "Restricted Area" shall mean the State of Texas or any
State where the Company has made, bought, serviced, or sold home
improvement loans within a twelve month period preceding the termination of
Executive's employment;
(b) During the Noncompetition Period, Executive shall not directly or
indirectly, whether as an employee in a managerial, executive or
supervisory capacity, director, officer, member, manager, or as a
consultant, (i) solicit, or attempt to solicit or accept business that is
competitive with such business being conducted by the Company, U.S. Homes,
or its Affiliates in the Restricted Area; or (ii) engage, hire, employ, or
solicit in any manner whatsoever the employment of an employee of the
Company; or (iii) interfere in any business relationship or contract
between the Company and its customers, lenders, or financial institutions.
(c) During the Noncompetition Period, the Executive shall not knowingly
seek or accept, directly or indirectly, personal gain from anyone
soliciting business with the Company, U.S. Homes or its Affiliates, (ii)
any person or firm doing business with the Company, U.S. Homes or its
Affiliates, and (iii) any person or firm in business competition with the
Company, U.S. Homes or its Affiliates. The preceding sentence shall not
apply to any gifts, meals, and entertainment of a nominal value if the
Executive's objective is to perform in the best interest of the Company and
all Related Parties would not be adversely affected.
(d) The "Noncompetition Period" shall be the Term of this Agreement and
such additional periods as set forth in this subparagraph. If (i)
Executive's employment is terminated by the Company for Just Cause; or (ii)
Executive resigns his employment or elects not to renew this Agreement for
any reason other than those set forth in Paragraph 7(c), then the
Noncompetition Period shall be extended for two years after the termination
of Executive's employment under this Agreement. If (x) Executive's
employment is terminated without Just Cause; or (y) the Company elects not
to renew the Agreement pursuant to Paragraph 2; or (z) Executive resigns
his employment for any
EMPLOYMENT AGREEMENT - Page 4
"Good Reason" set forth in Paragraph 7(c), the Noncompetition Period may be
extended by the Company for one year following the termination of
Executive's employment, but only if the Company pays Executive fifty
percent (50%) of his Annual Salary (at the rate as of the time of the
termination). Such payments will be made in 12 equal monthly installments
commencing on the thirtieth day following the termination of Executive's
employment.
(e) Due to the irreparable and continuing nature of the injury which
would result from a breach of any of the covenant contained in Paragraphs 5
or 6, Executive agrees that Company (or U.S. Homes or its Affiliates) may,
in addition to any remedy which the Company (or U.S. Homes or its
Affiliates) may have at law or in equity, apply to any court of competent
jurisdiction for the entry of an immediate order to restrain or enjoin the
breach of this covenant and to otherwise specifically enforce the
provisions of this covenant.
(f) The Executive recognizes that the foregoing territorial and time
limitations are reasonable and properly required for the adequate
protection of the business of the Company and that if any such territorial
or time limitation is found to be unreasonable by a court of competent
jurisdiction, the Executive agrees and submits to the reduction of either
said territorial or time limitation to such an area or period as appears
reasonable to such court. Provided however, if the Company shall
successfully enforce its injunctive rights hereunder in a court of
competent jurisdiction, the terms of this covenant shall be extended by the
period of time, if any, that the Executive was not restrained or enjoined
from competing with the Company during the pendency of the court
proceedings.
(g) The existence of any potential or alleged claim or cause of action
of the Executive against the Company, U.S. Homes, or its Affiliates,
whether predicated on this Agreement or otherwise, except as provided in
the Escrow Agreement and the Borschow Agreement, will not constitute a
defense to the enforcement by any party of the covenants contained in this
Agreement. An alleged or actual breach of the Agreement by the Company,
U.S. Homes, or its Affiliates will not be a defense to enforcement of the
provisions of this Paragraph or other obligations of Employee to any such
party.
(h) In consideration of the Executive's noncompetition agreement with
the Company, after the Executive's employment terminates, the Company and
the Executive agree that the Executive's employment, a portion of the
Executive's Annual Salary and all of the Executive's severance pay, if any,
shall be considered payment for the Executive's noncompetition agreement.
(i) The Executive's covenants in Paragraph 5 and this Paragraph 6 shall
terminate and be of no further effect if US Homes or the Company cease to
conduct the Business, dissolve, or become subject to a petition in
bankruptcy or if the Executive's employment is terminated other than for
Just Cause.
7. Termination of Agreement. This Agreement (other than the provisions of
------------------------
Paragraphs 4, 5, 6, 8, 9, 10, 13, 14, 15, 16, 17, 18, and 19, which shall
survive such termination) may be terminated as provided herein:
EMPLOYMENT AGREEMENT - Page 5
(a) The Agreement (other than the provisions of Paragraphs 4, 5,
6, 8, 9, 10, 13, 14, 15, 16, 17, 18, and 19) will be terminated by any
of the following events:
(i) By the mutual written agreement of the Company and the
Executive,
(ii) Automatically on the death of the Executive;
(iii) By the Company, at its option, at any time if the
Executive's conduct or performance is found to be in violation
of the provisions of Paragraph 7(b)(i) or 7(b)(ii);
(iv) By the Company, at its option, at any time if the
Executive fails to comply with the provisions of subsections
(iii) , (iv) , (v) and (vi) of Paragraph 7(b) and if the
Executive does not cure such failure within thirty (30) days
after written notice thereof to the Executive (such right of
cure to be available only for those acts or omissions which may
be reasonably cured by further action by the Executive);
(v) If the Executive becomes unable to perform his duties
as described herein due to injury, illness, or disability
(physical or mental) for such length of time, either during one
(1) consecutive period of one hundred eighty (180) days or for
three hundred sixty (360) days cumulatively during an eighteen
month period, which incapacity is, in the Company's judgment,
prejudicial to the Company's best interests; or
(vi) If the Company terminates Executive's employment
without Just Cause (but, in such event, the Company shall pay
the Severance set forth in Paragraph 4); or
(vii) If the Executive resigns his employment.
(b) Definition of "Just Cause". For purposes hereof, the Company
-------------------------
shall have "Just Cause" to terminate the Executive's employment
hereunder in any of the following events:
(i) the performance of his duties in a grossly negligent
manner;
(ii) the commission by the Executive of any felony, any act
of fraud, embezzlement, or misappropriation materially
prejudicial to the Company's best interest;
(iii) any breach by the Executive of any of the terms of, or
the failure to perform any covenant or agreement contained in
this Agreement;
(iv) the refusal of the Executive to perform acts or
services commensurate with the Executive's position as the
President, as and when
EMPLOYMENT AGREEMENT - Page 6
reasonably requested, from the Board of Directors of the Company,
except in those circumstances in which the performance of such act or
service would be a violation of any valid and existing law;
(v) the failure or refusal of the Executive to devote
substantially all of his business time, ability, attention, efforts,
and energy to the Company during regular business hours as provided
herein; or
(vi) the failure, either intentionally or with gross
negligence, of the Executive to materially comply with the Company
policy or applicable law, including, without limitation, its policies
concerning harassment and discrimination in the workplace.
(c) Resignation for Good Reason. The Executive's employment shall be
---------------------------
deemed to have been terminated other than for Just Cause and for "Good
Reason" (as herein so used), if Executive tenders his resignation within
thirty (30) days of the occurrence of any of the following events:
(i) any material breach by the Company of any of the terms of,
or the failure to perform any covenant or agreement contained in this
Agreement;
(ii) any substantial reduction in title, position,
responsibilities, or duties of the Executive;
(iii) any reduction in the Annual Salary; or
(iv) the transfer of the Executive's office to a location other
than in Collin County, Texas or any county adjacent thereto.
8. Notices. Any notice or communication required or permitted hereunder
-------
shall be in writing and personally delivered or mailed by certified mail, return
receipt requested, or delivered by an overnight express courier, addressed to
the Company or the Executive, as the case may be, at the addresses set forth
below:
If to the Company: FIRST CONSUMER CREDIT, INC.
-----------------
000 Xxxxx Xxxxxxx 000 Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxx 00000
If to the Executive: XXXXX X. XXXXXXXX
-------------------
00000 Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Any parties' address for notice may be changed by written notice
delivered to the other party in accordance with this paragraph. Any notice by
certified mail shall be deemed delivered upon actual receipt.
EMPLOYMENT AGREEMENT - Page 7
9. Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties hereto relating to the subject matter hereof, and supersedes
all prior agreements and understandings, whether oral or written, with respect
to the same. No modification, alteration, amendment, or rescission of or
supplement to this Agreement shall be valid or effective unless the same is in
writing and signed by all parties hereto.
10. Texas Law to Apply. This Agreement shall be construed under and in
------------------
accordance with the laws of the State of Texas, and all obligations of the
parties created hereunder to be performed in Dallas County, Texas.
11. Other Instruments. The parties hereto covenant and agree that they
-----------------
will execute such other instruments and documents as are or may become necessary
or convenient to effectuate and carry out this Agreement.
12. Headings. The headings used in this Agreement are used for
--------
administrative purposes only and do not constitute substantive matters to be
considered in construing the terms of this Agreement.
13. Parties Bound. This Agreement shall be binding upon and inure to the
-------------
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and assigns where permitted
by this Agreement.
14. Severability. If any one or more of the provisions contained in this
------------
Agreement for any reason are held to be invalid, illegal, or unenforceable in
any respect, such invalidity, illegality, or unenforceability shall not affect
any other provision thereof and this Agreement shall be construed as if such
invalid, illegal, or unenforceable provision had never been contained herein.
15. Counterparts. This Agreement may be executed in any number of
------------
counterparts and each of such counterparts shall for all purposes be deemed to
be an original.
16. Construction. 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.
17. Cost of Enforcement. In the event attorneys' fees or other costs are
-------------------
incurred to secure performance of any of the obligations herein provided for, or
to establish damages for the breach thereof, or to obtain any other appropriate
relief, whether by way of prosecution or defense, the prevailing party shall be
entitled to recover reasonable attorneys' fees and costs incurred therein.
18. Waiver of Breach. Failure of any party to protest a breach by any
----------------
other party or waiver by any party of a breach shall not operate as or be
construed as a waiver of rights or remedies as to that breach and a waiver by
any party of a breach shall not operate as or be construed as a waiver of rights
or remedies as to any subsequent breach by any other party.
EMPLOYMENT AGREEMENT - Page 8
19. Arbitration. In the event of a dispute as to the application of any
-----------
of the provisions of this Agreement, the parties hereby agree that the matter or
dispute shall be submitted to arbitration according to the National Rules for
the Resolution of Employment Disputes of the American Arbitration Association.
The matter shall be decided by a single arbitrator selected according to such
rules. The cost of arbitration shall be borne as the arbitrator determine. Each
party shall bear its own respective attorney's fees during the arbitration, but
the arbitrator may award all or part of the reasonable attorney's fees incurred
to the prevailing party. The results of the arbitration shall be binding upon
both sides and no appeal shall be available therefrom. Notwithstanding this
paragraph, the Company may seek a temporary restraining order and a temporary
injunction with regard to the enforcement of the provisions of Paragraphs 5 and
6 prior to or during the pendency of any such arbitration.
20. Receipt of Copy. The Executive, by his signature below, acknowledges
---------------
receipt of a full and complete copy of this Agreement.
21. Assistance of Counsel. Executive acknowledges and agrees that
---------------------
Xxxxxxx Xxxxxx L.L.P., who is counsel for U.S. Homes, has represented only its
interests in the negotiation and execution of this agreement.
FIRST CONSUMER CREDIT, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, Chairman & CEO
/s/ Xxxxx X. Xxxxxxxx
--------------------------------
XXXXX X. XXXXXXXX
EMPLOYMENT AGREEMENT - Page 9
