EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this
“Agreement”)
is
made and entered into as of the 13th day of March, 2008, by and between
Rubicon
Real Estate and Mortgages, Inc., a
California corporation (“RREM”),
and
Xxxxx Xxxxxxx (“Xxxxxxx”).
W
I T N E S S E T H:
WHEREAS,
RREM is
a wholly-owned subsidiary of Rubicon Financial Incorporated (“RBCF”), a publicly
traded Delaware corporation with a principal place of business at 00000 Xxx
Xxxxxx Xxx., Xxxxx 000, Xxxxxx, Xxxxxxxxxx 00000.
WHEREAS,
the
officers, managers and/or directors of RREM and RBCF are of the opinion that
Triance has education, experience and/or expertise which is of value to RREM
and
its stockholders, and
WHEREAS,
RREM
and Triance desire to enter into this Employment Agreement, pursuant to which
Triance shall be employed by RREM, to set forth the respective rights, duties
and obligations of the parties hereto.
NOW
THEREFORE,
in
consideration of the promises and covenants contained herein, and other good
and
valuable consideration, the receipt and sufficiency of which the parties hereto
acknowledge, RREM and Triance agree as follows:
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1.
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EMPLOYMENT: RREM
hereby agrees to employ Triance and Triance hereby accepts such
employment, upon the terms and conditions hereinafter set
forth.
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2.
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TERM: For
purposes of this Agreement, “Term”
shall mean the original term (as defined in Section
2.1
below), if Renewal Term is initiated, then “Term” shall mean the renewal
term period.
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2.1
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Original
Term.
The Term of this Agreement shall commence on March 15, 2008 and expire
on
March 31, 2009 unless sooner terminated pursuant to the terms and
provisions herein stated.
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2.2
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Renewal.
At
any time prior to the expiration of the Original Term, as stated
above,
RREM and Triance may, by mutual written agreement, extend Triance’s
employment under the terms of this Agreement for such additional
periods
as they may agree.
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| 3. |
COMPENSATION:
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3.1
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Salary.
RREM shall pay Triance a base salary of Eight Thousand Dollars ($8,000)
per month during the Original Term of this Agreement. Such salary
shall be
payable in accordance with RREM’s normal policies but in no event less
often than semi-monthly (the “Salary”).
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3.2
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Stock
Option Plan/Stock Purchase Plan.
Triance shall also be eligible to participate in RBCF’s Stock Option Plans
and Stock Purchase Plans, if any, during the Term of this
Agreement.
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| 4. |
TRIANCE
BENEFITS:
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4.1
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General
Benefits.
Triance shall be entitled to receive or participate in all benefit
plans
and programs of RREM and/or RBCF currently existing or hereafter
made
available to executives or senior management of RREM and/or RBCF,
including but not limited to, medical insurance, dental insurance,
pension
and profit sharing plans, 401(k) plans, incentive savings plans,
stock
option plans, group life insurance, and other fringe benefits.
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4.2
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Vacation.
Triance shall be entitled during each twelve (12) month period during
the
Term of this Agreement to a vacation of two (2) weeks during which
time
Triance’s compensation will be paid in full. Unused days of vacation will
be compensated in accordance with RREM’s policy as established by RREM
from time to time. Triance may take the vacation periods at any time
during the year as long as Triance schedules time off as to not create
hardship on RREM. In addition, Triance shall have such other days
off as
shall be determined by RREM and shall be entitled to paid sick leave
and
paid holidays in accordance with RREM’s
policy.
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| 5. |
DUTIES/SERVICE:
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5.1
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Position. Triance
is employed as CEO/President and a nominated Member of the Board
of
Directors RREM and
shall perform such services and duties as are defined in Addendum
A,
Job Description, attached hereto, and as are normally associated
with such
position, subject to the direction, supervision and rules and regulations
of RREM.
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5.2
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Place
of Employment. The
place of Triance’s employment and the performance of Triance’s duties will
be at RREM’s corporate headquarters or at such location as agreed upon by
RREM and Triance.
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5.3
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Extent
of Services.
Triance shall at all times and to the best of his ability perform
his
duties and obligations under this Agreement in a reasonable manner
consistent with the interests of RREM. The precise services of Triance
may
be extended or curtailed, from time to time at the discretion of
RREM, and
Triance agrees to render such different and/or additional services
of a
similar nature as may be assigned from time to time by RREM.
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5.3.1 Except
as
otherwise agreed by RREM and Triance in writing, it is expressly understood
and
agreed that Triance’s employment is fulltime and of a critical nature to the
success of RREM and is therefore exclusive. Triance may not be employed by
other
entities or otherwise perform duties and undertakings on behalf of others or
for
his own interest unless pre-approved by the Board of Directors. RREM
acknowledges that Triance presently, or may in the future, serve on the Board
of
Directors of other companies and such action shall not be a breach of this
section; provided,
however,
that
such companies either: (a) are listed on Addendum
B,
attached hereto; or (b) do not compete with RREM or interfere with the
performance of Triance’s duties pursuant to this Agreement, as determined in the
reasonable judgment of the Board of Directors.
5.3.2 Additionally,
RREM recognizes that Triance has, or may have in the future, non-passive equity
positions in other companies, which either: (a) are listed on Addendum
B
attached
hereto; or (b) do not compete with RREM in the reasonable judgment of the Board
of Directors. RREM recognizes that such equity positions may occasionally
require some limited attention from Triance during normal business hours.
However, Triance agrees that if such time is considered excessive by the Board
of Directors, Triance shall be so advised and noticed by RREM and Triance shall
be required to make appropriate adjustments to ensure his duties and obligations
under this Agreement are fulfilled.
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5.4
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Licenses
and Registrations.
During the term of this Agreement, Triance shall maintain in good
standing
all required licenses and registrations required for the proper
performance of his duties and
functions.
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6.
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TERMINATION: The
Term of this Agreement shall end upon its expiration pursuant to
Section
2
hereof, provided that this Agreement shall terminate prior to such
date:
(a) upon Triance’s resignation, death or permanent disability or
incapacity; or (b) by RREM at any time for “Cause”
(as defined in Section
6.4
below) or without Cause.
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6.1
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By
Resignation.
If
Triance resigns with “Good
Reason”
(as defined below), this Agreement shall terminate but, Triance shall
continue to receive, for a one-month period, Triance’s Salary payable in
periodic installments on RREM’s regular paydays, at the rate then in
effect. For purposes of this Agreement, “Good
Reason”
shall mean: (i) the assignment to Triance of duties substantially
and
materially inconsistent with the position and nature of Triance’s
employment, the substantial and material reduction of the duties
of
Triance which is inconsistent with the position and nature of Triance’s
employment, or the change of Triance’s title indicating a substantial and
material change in the position and nature of Triance’s employment; or
(ii) a reduction in compensation and benefits that would substantially
diminish the aggregate value of Triance’s compensation and benefits
without Triance’s written consent. If Triance resigns without Good Reason,
Triance shall be entitled to receive Triance’s Salary only through the
date of such resignation.
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6.2
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By
Reason of Incapacity or Disability. If
Triance becomes so incapacitated by reason of accident, illness,
or other
disability that Triance is unable to carry on substantially all of
the
normal duties and obligations of Triance under this Agreement for
a
continuous period of thirty (30) days (the “Incapacity
Period”),
this Agreement shall terminate. For purposes of the foregoing, Triance’s
permanent disability or incapacity shall be determined in accordance
with
RREM’s disability insurance policy, if such a policy is then in effect,
or
if no such policy is then in effect, such permanent disability or
incapacity shall be determined by RREM’s Board of Directors in its good
faith judgment based upon Triance’s inability to perform normal and
reasonable duties and obligations.
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6.3
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By
Reason of Death.
If
Triance dies during the Term of this Agreement, RREM shall pay to
the
estate of Triance any earned Salary only through the date of Triance’s
death. Other
death benefits, if any, will be determined in accordance with the
terms of
RREM’s benefit plans and programs.
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6.4
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For
Cause.
If
the Term of this Agreement is terminated by RREM for Cause Triance
shall
be entitled to receive Triance’s Salary only through the date of
termination. However, if a dispute arises between RREM and Triance
that is
not resolved within sixty (60) days and neither party initiates
arbitration proceedings pursuant to Section 14.8,
RREM shall have the option to pay Triance the lump sum of two (2)
months
base of Triance’s Salary at the time of termination (the “Severance
Payment”)
rather than Triance’s Salary through the date of termination. Such
determination to pay the Severance Payment in lieu of Triance’s Salary
shall be made in the reasonable judgment of the Board of Directors.
If
RREM elects to make a payment to Triance of the Severance Payment,
the
parties hereto agree that such payment shall be Triance’s complete and
exclusive remedy for such a termination for Cause. For purposes of
this
Agreement, “Cause”
shall mean: (i) any act of dishonesty or fraud with respect to RREM;
(ii)
the commission by Triance of a felony, a crime involving moral turpitude
or other act causing material harm to RREM’s standing and reputation;
(iii) Triance’s continued material failure to perform Triance’s duties to
RREM after ten (10) days’ written notice thereof to Triance; (iv) any
“back-dooring” set forth in Section 6.6 below; or (v) gross negligence or
willful misconduct by Triance with respect to RREM. RREM shall provide
Triance, within ten (10) days of becoming aware of a “For Cause” breach,
written notice, which shall include written documentation, if any,
of the
“For Cause” breach, as defined above. Upon receipt of the written notice,
Triance shall have ten (10) days to respond to RREM’s notice and attempt
to cure or resolve the “For Cause” breach.
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6.5
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Without
Cause.
If, during the Term of this Agreement, RREM terminates Triance’s
employment without Cause, Triance shall be entitled to receive, for
a
two-month period, Triance’s Base Salary, payable in periodic installments
on RREM’s regular paydays, at the rate then in
effect.
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6.6
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Back-Dooring.
Triance hereby acknowledges and agrees that all loans and other potential
transactions or contacts established with potential customers of
RREM
during Triance’s employment hereby are assumed to be the result of RREM’s
lead system. Further, leads Triance establishes through any sort
of
“call-in” or referral from RREM, RBCF or their respective Affiliates,
including leads from supplier’s, vendors or associates of RREM, RBCF or
their respective Affiliates, would be considered a RREM lead. Triance
shall not take, refer or in any way transfer a RREM lead or in any
way
personally profit from a RREM lead, other than as set forth in this
Agreement. Any violation of this provision shall be grounds for immediate
termination For Cause and may be considered embezzlement by
law.
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7.
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Trade
Secrets and
Confidentiality:
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7.1
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Nondisclosure.
Without the prior written consent of RREM, Triance shall not, at
any time,
either during or after the term of this Agreement, directly or indirectly,
divulge or disclose to any person, firm, association, or corporation,
or
use for Triance’s own benefit, gain, or otherwise, any customer lists,
plans, products, data, sales leads and related data, or any other
trade
secrets or confidential materials or like information (collectively
referred to as the “Confidential Information”) of RREM and/or its
Affiliates, as hereinafter defined, it being the intent of RREM,
with
which intent Triance hereby agrees, to restrict Triance from disseminating
or using any like information that is unpublished or not readily
available
to the general public.
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7.1.1
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Definition
of Affiliate.
For purposes of this Agreement, the term “Affiliate” shall mean any
entity, individual, firm, or corporation, directly or indirectly,
through
one or more intermediaries, controlling controlled by, or under common
control with RREM.
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7.2
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Return
of Property.
Upon the termination of this Agreement, Triance shall deliver to
RREM all
lists, books, records, data, and other information (including all
copies
thereof in whatever form or media) of every kind relating to or connected
with RREM or its Affiliates and their activities, business and
customers.
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7.3
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Notice
of Compelled Disclosure.
If, at any time, Triance becomes legally compelled (by deposition,
interrogatory, request for documents, subpoena, civil investigative
demand, or similar process or otherwise) to disclose any of the
Confidential Information, Triance shall provide RREM with prompt,
prior
written notice of such requirement so that RREM may seek a protective
order or other appropriate remedy and/or waive compliance with the
terms
of this Agreement. In the event that such protective order or other
remedy
is not obtained, that RREM waives compliance with the provisions
hereof,
Triance agrees to furnish only that portion of the Confidential
Information which Triance is advised by written opinion of counsel
is
legally required and exercise Triance’s best efforts to obtain assurance
that confidential treatment will be accorded such Confidential
Information. In any event, Triance shall not oppose action by RREM
to
obtain an appropriate protective order or other reliable assurance
that
confidential treatment will be accorded the Confidential
Information.
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7.4
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Assurance
of Compliance.
Triance agrees to represent to RREM, in writing, at any time that
RREM so
request, that Triance has complied with the provisions of this section,
or
any other section of this
Agreement.
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8.
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RETURN
OF RREM PROPERTY:
Triance agrees that upon any termination of his employment, Triance
shall
return to RREM within a reasonable time not to exceed two (2) weeks,
any
of RREM’s property in his possession or under his control, including but
not limited to, computer/office automation equipment, records and
names,
addresses, and other information with regard to customers or potential
customers of RREM with whom Triance has had contact or done
business.
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9.
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NON-COMPETITION:
For a period of one (1) year after the termination of this Agreement,
Triance expressly covenants and agrees that he will not and will
not
attempt to, without the prior written consent of RBCF and RREM, directly
or indirectly own, manage, operate, finance, join, control, or participate
in the ownership, management, operation, financing, or control of,
or be
associated as an officer, director, employee, agent, partner, principal,
representative, consultant, or otherwise with, or use or permit his
name
to be used in connection with, any line of business or enterprise
that
competes with RREM, RBCF or each of their respective Affiliates (as
defined herein) in any business of RREM, RBCF or their respective
Affiliates, existing or proposed, wherever located, provided that
Triance
shall not be prohibited from owning, directly or indirectly, less
than one
percent (1%) of the outstanding shares of any corporation, the shares
of
which are traded on a National Securities Exchange or in the
over-the-counter markets. This Section shall not apply to the companies
identified in Attachment B.
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10.
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NO
INTERFERENCE:
For a period of two (2) years after the termination of this Agreement,
Triance expressly covenants and agrees that he will not and will
not
attempt to, without the prior written consent of RBCF and RREM, directly
or indirectly interfere with or disrupt or attempt to interfere with
or
disrupt or take any action that could be reasonably expected to interfere
with or disrupt any past or present or prospective relationship,
contractual or otherwise, between RREM, RBCF and/or any of their
respective Affiliates, and any customer, insurance company, mortgage
company, financial services company, supplier, sales representative,
or
agent or employee of RREM, RBCF or any of their respective Affiliates.
This Section shall not apply to the companies identified in Attachment
B.
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11.
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NON-SOLICITATION;
AGREEMENT NOT TO HIRE:
Triance understands and appreciates that RREM and RBCF invest a tremendous
amount of time, energy, resources and expertise in the training and
education of their respective employees and subcontractors to be
able to
provide services to clients. Further, Triance understands that in
the
event an employee or subcontractor of RREM, RBCF or any of their
respective Affiliates is enticed to leave, then RREM shall be damaged
in
an amount the Parties are not capable of calculating at the present
time.
Therefore, Triance agrees not to offer employment or subcontractor
status
to any employee or subcontractor of RREM, RBCF or their respective
Affiliates, nor to allow any person or entity known to Triance to
offer
such employment or subcontractor status with Triance or any other
concern,
venture or entity with whom Triance may be employed by, associated
or hold
a financial stake in, for a period of three (3) years from the date
of
expiration or termination of this Agreement. Further, in the event
an
employee or subcontractor of RREM, RBCF or their respective Affiliates
leaves the employ of, dissolves or breaks association with RREM,
RBCF or
their respective Affiliates and subsequently establishes employment
or an
association of any kind with another financial services company,
investment banking or other type of competing firm of RREM, RBCF
or their
respective Affiliates, Triance agrees not to do business with such
other
competing firm for a period of three (3) years from the date of expiration
or termination of this Agreement.
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12.
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RELATIONSHIP
OF PARTIES:
The parties intend that this Agreement create an Employee-Employer
relationship between the parties.
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| 13. |
NOTICES:
All notices, required and demands and other communications hereunder
must
be in writing and shall be deemed to have been duly given when personally
delivered or when placed in the United States Mail and forwarded
by
Registered or Certified Mail, Return Receipt Requested, postage prepaid,
or when forwarded via reputable overnight carrier, addressed to the
party
to whom such notices is being given at the following address:
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As
to RREM:
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Rubicon
Real Estate and Mortgages, Inc.
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00000
Xxx Xxxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Attn:
Chief Executive Officer
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As
to Triance:
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Xxxxx
Xxxxxxx
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000
X. Xxxxx Xxx., #000
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Xxxxxxxx,
XX 00000
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Address
Change: Any
party
may change the address (as) at which notices to it or him, as the case may
be,
are to be sent by giving the notice of such change to the other parties in
accordance with this Section
13.
| 14. |
MISCELLANEOUS:
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14.1
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Entire
Agreement.
This Agreement and the Addendums hereto contain the entire agreement
of
the parties. This Agreement may not be altered, amended or modified
except
in writing duly executed by the
parties.
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14.2
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Assignment.
Neither party, without the written consent of the other party, can
assign
this Agreement.
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14.3
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Binding.
This Agreement shall be binding upon and inure to the benefit of
the
parties, their personal representative, successors and
assigns.
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14.4
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No
Waiver.
The waiver of the breach of any covenant or condition herein shall
in no
way operate as a continuing or permanent waiver of the same or similar
covenant or condition.
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14.5
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Severability.
If
any provision of this Agreement is held to be invalid or unenforceable
for
any reason, the remaining provisions will continue in full force
without
being impaired or invalidated in any way. The parties hereto agree
to
replace any invalid provision with at valid provision which most
closely
approximates the intent of the invalid
provision.
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14.6
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Interpretation.
This Agreement shall not be construed more strongly against any party
hereto regardless of which party may have been more responsible for
the
preparation of Agreement.
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14.7
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Governing
Law.
This Agreement shall be governed by and construed under the laws
of the
State of California, without reference to the choice of law principles
thereof.
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14.8
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Arbitration.
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14.8.1
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Any
controversy, dispute or claim of whatever nature in any way arising
out of
or relating to Triance’s employment with RREM, including, without
limitation (except as expressly excluded below in Section
14.8.2)
any claims or disputes by Triance against RREM, or by RREM against
Triance, concerning, arising out of or relating to the separation
of that
employment; any other adverse personnel action by RREM; any federal,
state
or local law, statute or regulation prohibiting employment discrimination
or harassment; any public policy; any RREM disciplinary action; any
RREM
decision regarding a RREM policy or practice, including but not limited
to
Triance’s compensation or other benefits; and any other claim for
personal, emotional, physical or economic injury (individually or
collectively, “Covered
Claims”)
shall be resolved, at the request of any party to this Agreement,
by final
and binding arbitration in Orange County, California before Judicial
Arbitration Mediation Services (“JAMS”)
in accordance with JAMS’ then-current policies and procedures for
arbitration of employment disputes.
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14.8.2
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The
only claims or disputes excluded from binding arbitration under this
Agreement are the following: any claim by Triance for workers’
compensation benefits or for benefits under a RREM plan that provides
its
own arbitration procedure; and any claim by either party for equitable
relief, including but not limited to, a temporary restraining order,
preliminary injunction or permanent injunction against the other
party.
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14.8.3
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This
agreement to submit all Covered Claims to binding arbitration in
no way
alters the exclusivity of Triance’s remedy under Section
6.5
in
the event of any termination without Cause or the exclusivity of
Triance’s
remedy under Section 6.4
in
the event of any termination with Cause, and does not require RREM
to
provide Triance with any type of progressive
discipline.
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14.9
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Titles.
Titles to the sections of this Agreement are solely for the convenience
of
the parties and shall not be used to explain, modify, simplify, or
aid in
the interpretation of the provisions of this
Agreement.
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14.10
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Counterparts.
This Agreement may be executed in counterparts, each of which shall
be
deemed an original, but together which shall constitute one and the
same
instrument.
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(BALANCE
OF THIS PAGE INTENTIONALLY LEFT BLANK)
SIGNATURE
PAGE TO FOLLOW
-9-
IN
WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first written
above.
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RREM:
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Rubicon
Real Estate and Mortgages, Inc.
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a
California corporation
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By:
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/s/
Xxxxxx Xxxxxx
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Xxxxxx
Xxxxxx, COO
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Triance:
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By:
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/s/
Xxxxx Xxxxxxx
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Xxxxx
Xxxxxxx
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-10-
ADDENDUM A
Job
Description for Xxxxx Xxxxxxx
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Job
Title:
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CEO/President
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Executive
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Reports
To:
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Board
of Directors
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ESSENTIAL DUTIES AND RESPONSIBILITIES include the following. Other duties may be assigned.
Investments:
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·
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Spearheads
potential real estate investments e.g., distressed properties, land
purchase opportunities.
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On
the
Real Estate Division:
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·
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Spearheads
Marketing.
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·
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Co-ordinates
open house inspections for prospective
clients.
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·
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Co-ordinates
open house for current listings.
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·
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Co-ordinates
inspection reports and other essential requirements with both buyers
and
sellers to prepare the house for contract date
closing.
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·
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Co-ordinates
final walk through with client.
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On
the
Mortgage Loan Division:
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·
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Originates
client loans.
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·
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Co-ordinates
with lenders to price the loan.
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·
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Co-ordinates
with the clients to sell the loan.
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·
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Negotiates
the best terms with the lender on behalf of the
client.
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·
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Schedules
the final loan doc signings with the client to respond to open
questions.
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General:
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·
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In
addition to the above, the President shall take direction and perform
additional responsibilities as may be assigned by the CEO.
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ADDENDUM B
Approved
Non-Rubicon Real Estate and Mortgages, Inc.
Business
Activity Exemptions
Description
of Business Activity
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1.
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Cambridge
Financial Consultants LLC
0000 Xxxxx Xx. #000 Xx Xxxxx, XX 00000 CFL
– 603C618
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