Exhibit 10.15
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| XXXXXXX TECHNOLOGIES, INC. |
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "AGREEMENT") is entered into this fifteenth
day of September, 2004, effective November 1, 2004 by and between XXXXXXX
TECHNOLOGIES, Inc., a Delaware Corporation with its principal place of business
located at 0 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000 (hereinafter referred to as
"EMPLOYER"), and Xxx Xxxxxxxxxx (hereinafter referred to as "EMPLOYEE").
Employer and Employee are collectively hereinafter referred to as the "PARTIES".
WITNESSETH
WHEREAS, Employer together with it's subsidiaries and other affiliates is in the
business of providing advisory products and services relating to residential,
consumer and commercial loan asset classes, including (i) portfolio due
diligence, advice, data collection, management and analysis, (ii) regulatory and
operational compliance reporting, (iii) credit underwriting, and (iv) loan
valuation, in each case to financial institutions, including investment banking
firms, mortgage companies, commercial banks, thrifts, government sponsored
enterprises, rating agencies, mortgage insurance companies and bond insurers
(together with any other businesses or activities conducted by Employer and its
subsidiaries from time to time, the "Business");
WHEREAS, Employer desires to employ Employee in the position of Chief
Information Officer; and
WHEREAS, Employee desires be employed in the position of Chief Information
Officer;
WHEREAS, the Employer and Employee are simultaneously entering into a certain
Employee Agreement dated as the date hereof between Employer and Employee
containing certain restrictive covenants (the "Employee Agreement");
Now therefore, for the consideration stated herein, Employer agrees to employ
Employee and Employee agrees to accept employment in accordance with the
following terms and conditions.
I. AT WILL EMPLOYMENT/ EXEMPT EMPLOYMENT:
Employee acknowledges and agrees that:
(a) His employment by Employer is at will, which means that Employer
or Employee may terminate his employment at any time for any
reason or for no reason, in accordance with applicable law, so
long as the Party desiring to terminate the Employment Agreement
provides written notice thirty (30) days in advance of the
termination date, unless such termination is by Employer for
cause (as referenced below). If the termination is for cause, no
notice shall be required.
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(b) The circumstances giving rise to termination for "cause" shall
include, without limitation, such circumstances and conduct as
(i) any act, whether or not involving Employer or any of its
affiliates or their respective businesses, of fraud, gross
misconduct or harassment; (ii) any act of dishonesty or
illegality, in any such case, materially and adversely affecting
Employer; (iii) the conviction of Employee for (A) a felony, or
(B) any misdemeanor involving moral turpitude; (iv) the
commission, in the reasonable judgment of the board of directors
of Employer, of an act involving a violation of procedures or
policies of Employer which are material to Employer; (v) a
material and sustained failure of Employee to perform the duties
and responsibilities assigned or delegated under this Agreement,
which such failure continues for thirty (30) days after written
notice has been given to the Employee by the Board of Directors;
(vi) gross negligence or willful misconduct by Employee with
respect to Employer or any affiliate of Employer; or (vii) a
breach by Employee of any of Employee's material obligations
under this Agreement or a breach by Employee of any of Employee's
obligations under the Employee Agreement.
II. DUTIES AND RESPONSIBILITIES:
Employee will be directly responsible for performing the duties and
responsibilities during the term of this Agreement as outlined in the
attached EXHIBIT 1.
Employee will report to Xxxxxxx Xxxxxxx ("Xxxxxxx") or such other
individual as Xxxxxxx or the chief executive officer of Employer may
direct from time to time. Employee's duties and responsibilities may be
amended, modified, increased or decreased as Employer may determine in its
sole and absolute discretion.
III. LOCATION OF SERVICES:
Employee will provide services from Employer's offices at 0 Xxxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000 or such other location as agreed to by
Employer and Employee. Employee acknowledges and agrees that; depending
upon the needs of Employer, he may be required to provide services from
time to time at locations other than Employer's principal location in
Shelton, Connecticut.
IV. COMPENSATION:
Employer shall pay to Employee as base compensation for the services and
responsibilities set out in this Agreement and any additional services or
responsibilities which the position may require or be assigned an annual
base salary at the rate of two-hundred and fifty thousand ($250,000) per
year (the "Base Salary"), subject to applicable withholding under
applicable law. Such Base Salary shall be protected for partial years and
payable in periodic installments in accordance with Employer's payroll
policies.
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Such Base Salary shall be reviewed annually, and shall be subject to such
annual increases, if any, as determined by Employer.
Employer shall pay to Employee an Automobile Allowance of $650 per month
in addition to salary, subject to applicable withholding under applicable
law.
Notwithstanding the "at will" nature of this Agreement and Employee's
employment hereunder, if Employee's employment under this Agreement is
terminated for any reason other than (i) for cause (as referenced in
Section I(b)) or (ii) as a result of Employee's voluntary termination
other than for Good Reason (as defined below), death or disability,
Employer shall provide to Employee the following termination benefits
("Termination Benefits"):
(i) continuation of salary at a rate equal to 100% of
Employee's Base Salary as in effect at the date of termination for a
period of twelve (12) months following the date of termination
(payment shall be subject to withholding under applicable law and
shall be made in periodic installments in accordance with the
Employer's payroll policies; and
(ii) continuation of group health plan benefits during the
period during which Employee is receiving payments pursuant to
subsection (i) above, to the extent authorized by and consistent with
29 U.S.C. Section 1161 ET SEQ. (commonly known as "COBRA"), with the
cost of the regular premium for such benefits shared in the same
relative proportion by the Employer and Employee as in effect on the
date of termination.
Employer shall have the right to terminate all of the Termination Benefits
set forth in this Section IV in the event that Employee fails to comply
with Employee's continuing obligations under Section X of this Agreement
and under the Employee Agreement. Employer's liability for Base Salary
continuation pursuant to subsection (i) shall be reduced by the amount of
any severance pay paid to Employee pursuant to any severance pay plan of
Employer. Notwithstanding the foregoing, nothing in this Section IV shall
be construed to affect Employee's right to receive COBRA continuation
entirely at Employee's own cost to the extent that Employee may continue
to be entitled to COBRA continuation after Employee's right to cost
sharing under subsection (ii) ceases. Employer and Employee agree that the
Termination Benefits paid by Employer to Employee under this Section IV
shall be in full satisfaction, compromise and release of any claims
arising exclusively out of any termination of Employee's employment under
this Agreement, and that the payment of the Termination Benefits shall be
contingent upon Employee's delivery of a general release effectuating such
full satisfaction, compromise and release, in favor of Employer and its
affiliates of any and all claims arising exclusively out of any such
termination, which general release shall be effective
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upon termination of employment and shall be in a form reasonably
satisfactory to Employer, it being understood that no Termination Benefits
shall be provided unless and until Employee executes and delivers such
release.
For purposes of this Agreement, "Good Reason" shall mean the occurrence of
any of the following events: (i) a substantial adverse change in the
nature or scope of the Employee's responsibilities, authorities, powers,
functions or duties under this Agreement; (ii) a reduction in the
Employee's annual Base Salary; or (iii) the relocation of the offices at
which the Employee is principally employed to any other location which is
more than fifty (50) miles from the current location of such offices.
V. INCENTIVE COMPENSATION:
Maximum variable compensation of $112,500 based upon a "Meets", $155,000
based upon "Exceeds" and $200,000 based upon a "Far Exceeds" performance
rating. This rating is based upon Company and Employee performance against
a series of specific indicators established for Employee's role and
responsibilities within the organization. The specific indicators of
performance will be determined within 45 days of Employee's hire date.
Variable compensation specified above is the maximum payable on an
annualized basis. All incentive compensation will be reviewed at the end
of 2004.
The Employee will receive a guaranteed bonus of $100,000 for the period
ending December 31, 2004, except if he voluntarily leaves the employment
of the Employer, or is terminated for cause (as referenced in Section
I(b)) prior to December 31, 2004. The Employee will not be entitled to a
guaranteed bonus subsequent to December 31, 2004.
VI. RELOCATION:
The Employee acknowledges that he will relocate so that he may work from
the Employer's Shelton, CT office. The Employer will pay directly or
reimburse to the Employee a relocation reimbursement of up to $65,000 (the
"Relocation Reimbursement") for allowable moving costs related to his
relocation. All travel to and from Xxxxxxx to the employee's current home,
temporary housing while working in Shelton, CT, and costs incurred in
selling his home and relocating his personal effects will be deducted from
the Relocation Reimbursement up to the $65,000 limit specified above. The
Employee acknowledges that his relocation must be completed no later than
September 15, 2005. Relocation Reimbursement must be used in order to be
paid. Should employee not use the entire $65,000 limit by September 15,
2005 he forfeits the remaining balance.
The Employee acknowledges that should he voluntarily leave the employment
of the Employer within 12 months of his date of employment, he must
immediately repay the
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actual Relocation Reimbursement paid on behalf of or reimbursed to the
Employee. If Employee leaves for cause the Relocation Reimbursement will
be prorated.
VII. TERMINATION:
The rights and obligations set forth in the Employee Agreement shall
survive any termination of this Agreement and Employee's employment with
the Company at any time and for any reason.
Upon termination of Employee's employment, Employee shall deliver
forthwith to Employer all manner of identification, advertising materials,
promotional items, sample contracts, and other materials Employer may have
furnished Employee, or which Employee may have created or developed for
Employer during Employee's employment, as well as all documents pertaining
to Employer, including but not limited to correspondence with customers
and potential customers, communications between Employer and Employee,
customer and potential customer information including names, addresses and
telephone and fax numbers and any other material not specified above but
which contain Confidential Information (as defined below), as well as all
other property of Employer in Employee's possession, custody or control,
and Employee shall execute at the request of Employer, such documents and
take such actions as necessary in order to reaffirm the covenants and
obligations set forth in this Agreement; provided, however, that failure
to request such reaffirmation shall not act as a waiver of any
requirements of this Agreement.
VIII. BENEFITS:
Employee shall be entitled to participate in any Employer established
insurance plan(s) on the same terms and conditions as other employees of
Employer and in a manner consistent with and in accordance with the terms
and provisions of said plan(s).
Employee shall be entitled to participate in any Employer established
pension or retirement plan(s) on the same terms and conditions as other
employees of Employer and in a manner consistent with and in accordance
with the terms and conditions of said plan(s).
IX. VACATION:
Employer and Employee agree that Employee is entitled to earn up to 23
days vacation on an annual basis commencing January 1st of each calendar
year and that Employee will earn such vacation time at the rate of 1.92
days per month of Employment. Vacation periods are not cumulative, but are
to be taken annually. Vacation not taken during the year in which it is
earned is forfeited.
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If Employee's employment terminates, Employee will be paid for all
accrued, unused vacation for the year of termination at Employee's then
current salary rate.
Vacation must be taken by Employee at such time or times as approved by
Employer.
X. BEST EFFORTS:
Employee shall devote Employee's full business time, attention and effort
to the affairs of Employer and its affiliates and shall use Employee's
reasonable best efforts to promote the interests of Employer and its
affiliates. Employee may engage in charitable, civic or community
activities and, with the prior approval of the board of directors of
Employer (the "Board of Directors"), may serve as a director of any other
business corporation, provided that such activities do not interfere with
Employee's duties hereunder or violate the terms of any of the covenants
contained in Section X or the Employee Agreement.
XI. CONFIDENTIALITY:
"Confidential Information" means information and data not generally known
outside Employer (unless as a result of a breach by Employee or others of
any of the obligations imposed by this Agreement or a similar agreement or
legal duty). It includes all confidential information of Employer, Parent,
its other affiliates, and their customers, including, but not limited to:
the terms, conditions and existence of this Agreement, research, design,
development, strategies, production, presentation, methodologies, costs,
expenses, margins and budgets; information and materials used in marketing
or presenting the business of Employer, Parent or any of their affiliates
including style, format and content; customer and potential customer lists
and information pertaining to customer goals and strategies; prices and
terms offered or paid for products and services; information and materials
related to determining whether products and services should be offered or
sold to a customer; supplier and contractor lists, contacts, prices,
specifications and other information; techniques, procedures, processes,
formulas, equipment, methods, technical data, know-how and compilations;
business proposals and plans and financial and operational information and
strategies; Employer's financial and capital structure; creditors, debtors
and financial data of Employer, Parent or any of their affiliates; any
material or information of whatever nature which provides Employer or
Employer's customers an opportunity to gain an advantage over competitors;
and any and all other trade secrets or proprietary and confidential
information or materials of Employer or any customer or potential
customer.
Except as required in the course of representing Employer and in the
furtherance of Employer's interests, Employee shall not use or disclose
Confidential Information to any person or entity for any reason or purpose
whatsoever during or after the term of Employee's employment by or other
engagement with Employer. Employee shall immediately notify an officer of
Employer of any information which becomes known to Employee which
indicates that an unauthorized disclosure or use of Confidential
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Information may have occurred or is likely to occur. Employee shall not
publish or submit for publication any material based upon any Confidential
Information without the prior written consent of an officer of Employer.
Employee acknowledges that Employer has expended time, effort and money to
obtain and develop the Confidential Information, and that the Confidential
Information constitutes special, valuable and unique assets of Employer,
without regard to whether or not any of the Confidential Information is
embodied in tangible or intangible form.
Employee shall protect all property of Employer, Parent and their
affiliates (and property of customer(s) to which Employee has access
because of Employee's employment by or other engagement with Employer)
with the utmost care and shall not suffer or permit any such property,
including, without limitation, copies of any such property or any
proprietary works to be removed from Employer's offices or other locations
without the consent of an officer of Employer. All materials containing
Confidential Information are the property of Employer, Parent or the
affiliate as the case may be. Employee acknowledges and shall adhere to
Employer's, Parent's, and their affiliates' security policies and
measures, including, but not limited to: (i) locking offices and file
cabinets; (ii) enforcing and complying with Employer's sign in and out
procedures; and (iii) provision of information only to those authorized to
receive it, who have signed Confidentiality Agreements with Employer, and
who need to know such information. In addition, Employee acknowledges and
shall adhere to Employer's procedures concerning password-protected
computer access and, among other things, shall safeguard and maintain the
confidentiality of any and all such passwords used to access records or
information.
Employee acknowledges that the provisions of this Section X and the
Employee Agreement are integral parts of Employee's employment
arrangements with Employer.
XII. REMEDIES:
Employee recognizes that the remedy(ies) at law for violation of Section X
of this Agreement and/or the provisions of the Employee Agreement will be
inadequate and that in any event such damages will be substantial but not
readily ascertainable and that Employer will suffer continuing and
irreparable injury to its Business as a direct result of such violation.
Employee agrees that if Employee should breach or fail to perform, or to
threaten to breach or fail to perform any term, condition, or duty
contained in this Agreement, Employer shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction either in law
or in equity to obtain the specific performance thereof by Employee or to
enjoin Employee from violating the provisions hereof. Pending the outcome
of any such litigation, Employer shall be entitled to obtain temporary,
preliminary, and permanent injunctive or other relief, without bond.
Employer shall be entitled to recover from Employee all reasonable
attorneys' fees, court costs and related expenses incurred in enforcing
this Agreement.
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XIII. ALTERNATIVE DISPUTE RESOLUTION:
Except for injunctive relief available to Employer in connection with any
breach or threatened breach of any provision of this Agreement, any
dispute under this Agreement that cannot be resolved by the Parties, other
than injunctive relief, shall be required to be resolved by binding
arbitration of the parties hereto. Said arbitration will take place in
Hartford, Connecticut (or such other location as the Parties mutually
agree), with each party selecting an arbitrator and both arbitrators
selecting a third arbitrator. The arbitration shall be governed by the
rules of the American Arbitration Association then in force and effect.
Any and all cost associated with said arbitration will be shared equally.
XIV. MISCELLANEOUS PROVISIONS:
(a) AMENDMENTS AND MODIFICATIONS: This Agreement may be amended,
changed, modified or altered only by an instrument in writing
executed by the Parties.
(b) WAIVERS: Any waiver by any party of a breach of any provision of
this Agreement will not operate as or be construed to be a waiver of
any other breach of such provision or any other provision of this
Agreement. The failure of any party to insist upon strict adherence
to any term of this Agreement will not be considered a waiver of,
nor shall it deprive, any party of the right thereafter to insist
upon strict adherence to that term or any other term of this
Agreement.
(c) SEVERABILITY: Every provision of this Agreement is intended to be
severable. If any Section or provision, or sub-paragraph or
sub-part, of this Agreement shall, for any reason, be adjudged by
any court of competent jurisdiction to be invalid or unenforceable,
such judgment shall not affect, impair or otherwise invalidate the
remainder of this Agreement or the Section or provision, or
sub-paragraph or sub-part, but shall be confined in its operation to
the Section or provision, or sub-paragraph or sub-part, of this
Agreement directly involved in the controversy in which judgment
shall have been rendered. If any Section or provision, or
sub-paragraph or sub-part, hereof is deemed unenforceable because of
its scope in terms of area, time or business activities, or any
other reason, the Court may modify such Section or provision, or
sub-paragraph or sub-party, by reductions, additions, or limitations
thereon, or otherwise, so as to be render the Section or provision,
or sub-paragraph or sub-part, enforceable to the fullest extent
permissible under applicable law.
(d) GOVERNING LAW: This Agreement shall be construed in accordance with
the laws of the State of Connecticut and the obligations, rights,
and remedies of the Parties hereunder shall be determined in
accordance with such laws without reference to the principles of
conflicts of law thereof. The parties hereby agree that they are and
shall be subject to the jurisdiction of the courts of the State of
Connecticut and the United States District Court for the District of
Connecticut. Venue for all
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actions or claims related to this Agreement or Employee's employment
by or other relationship with Employer shall be in the State and
Federal Courts located in Connecticut.
(e) HEADING: The headings of the various sections and paragraphs of this
Agreement have been inserted for convenience and reference only and
shall not be deemed to be a part of this Agreement.
(f) SUCCESSORS AND ASSIGNS: This Agreement shall inure to the benefit of
and be binding upon Employer and its successors and assigns. Any
successor or assign of Employer is authorized to enforce the
restrictive covenants of this Agreement in Section X as if the name
of such successor or assign replaced Employer throughout this
Agreement. Since this Agreement is personal to Employee, Employee's
obligation under this Agreement may not be assigned or transferred
to any other person or entity.
(g) NOTICE: Any notices under this Agreement to any Party will be in
writing and will be mailed registered mail, postage prepaid, or
delivered by overnight carrier or express mail or personally
delivered, addressed to the party at the following address or to
such address as such party may designate by written notice.
To Employer:
Xxxxxxx Technologies, Inc.
0 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
To Employee:
Xxx Xxxxxxxxxx
(h) ENTIRE AGREEMENT: This Agreement and its exhibits and attachments
contain the entire understanding between the Parties and merges and
supersedes all prior discussions and agreements with respect
thereto, including, without limitation, all other agreements
described in the preceding sentence.
[***SIGNATURES TO FOLLOW***]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first written above.
EMPLOYEE:
By:/s/ Xxx Xxxxxxxxxx
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Xxx Xxxxxxxxxx
EMPLOYER:
XXXXXXX TECHNOLOGIES, INC.
By:/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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