Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered effective as of September 1, 2001 by
and between VESTIN MORTGAGE, a Nevada corporation (the "Corporation"), and
Xxxxx May (the "Executive") with reference to the following facts:
WITNESSETH:
WHEREAS, the Corporation previously hired Executive in the position of
President for the Corporation; and
WHEREAS, in order to retain the services of the Executive and to maximize
the period of her continued availability, the Corporation desires to enter into
the Agreement with Executive as is more fully set forth herein.
NOW, THEREFORE, on the basis of the foregoing facts and in consideration
of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:
1. Employment. The Corporation hereby agrees to, and does hereby, employ
the Executive and Executive hereby accepts employment with the Corporation on
the terms and conditions set forth in this Agreement (the "Agreement").
2. Term. The term of this Agreement shall commence on September 1, 2001,
and shall continue for a period of three (3) years until August 31, 2004 (the
"Term"). After the original Term, this Agreement shall continue for successive
one (1) year periods unless either party hereto shall notify the other in
writing at least thirty (30) days prior to the end of the Term of their
intention of not renewing the same.
3. Duties and Services.
a. The Corporation and the Executive hereby agree that, subject to
the provisions of this Agreement, the Corporation will employ the
Executive and the Executive will serve the Corporation as
President during the Term.
b. Executive agrees during the term of this Agreement not to usurp a
corporate opportunity for her own financial gain. A corporate
opportunity shall be defined as a business opportunity which the
Corporation is financially able to undertake, is, from its
nature, in the line of the Corporation's business and is one in
which the Corporation has an interest or a reasonable expectancy.
Executive agrees that he shall offer a corporate opportunity to
the Corporation. The Corporation shall have ten (10) days to
either take the opportunity for itself or to reject the
opportunity in which case Executive shall have the right to
pursue such opportunity for himself. Failure to notify Executive
within such ten (10) day period shall be deemed a rejection of
the opportunity by the Corporation.
4. Definitions. The following terms shall have the following meanings
when used herein:
a. Cause. Cause shall exist when and only when Executive (i) is
convicted of a crime constituting a felony, or (ii) has been
proven to be dishonest, has embezzled or has committed common law
fraud ("for Cause").
5. Compensation. As salary during the Term, the Corporation shall pay the
Executive, in accordance with its normal payroll, a minimum annual salary of One
Hundred Sixty Thousand Dollars ($160,000) such salary to be paid no less than
semi-monthly during the Term. The Executive shall receive such additional salary
as the Board of Directors of the Corporation may from time to time determine
during the Term. Unless expressly agreed in writing by the parties hereto, no
such additional compensation or benefits shall be deemed to modify or otherwise
affect the terms or conditions of this Agreement. Notwithstanding the foregoing
if Executive is terminated other than for Cause, as defined herein, Executive
shall be entitled to twelve (12) months salary as severance as Executive's sole
and exclusive rights pursuant to this Agreement.
6. Other Benefits. During the Term Executive shall receive all rights and
benefits for which he is then eligible under any employee benefit plan or bonus
plan which the Corporation generally provides for its employees. Such benefits
shall include, but not be limited to medical insurance for Executive.
7. Death or Disability. In the event of the death of the Executive or the
disability of the Executive, this Agreement shall immediately terminate and the
Corporation shall pay to the Executive or her estate one (1) year's salary in a
single lump sum payment which payment shall be due and payable upon the sooner
of (i) thirty (30) days of Executive's death or (ii) thirty (30) days after
Executive is declared by her physician incapable of performing her duties as
specified in this Agreement. The Corporation shall have the right to fund
Executive's death and/or disability benefit through life insurance.
8. Place of Performance. In connection with her employment by the
Corporation during the Term, the Executive shall at all times be entitled to an
office at the principal executive offices of the Corporation, located in Las
Vegas, Nevada, or at such other office of the Corporation, as the Chief
Executive Officer of the Corporation shall, in her reasonable discretion deem to
be in the best interest of the Corporation.
9. Outside Activities and Non-Competition.
a. Covenant Not to Compete. Executive recognizes that the
Corporation's decision to enter into this Agreement is induced
primarily because of the covenants and assurances made by
Executive, that Executive's covenant not to compete is necessary
to ensure the continuation of the business of the Corporation and
the reputation of the Corporation, and that irrevocable harm and
damage will be done to the Corporation if Executive competes with
the Corporation. Therefore, Executive agrees that during the term
of this Agreement and for a period of one (1) year following
termination of this Agreement, Executive shall not, directly or
indirectly, as an employee,
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employer, contractor, consultant, agent, principal, shareholder,
corporate officer, director, or in any other individual or
representative capacity, engage or participate in any business or
practice within the Practice Territory that is in competition in any
manner whatsoever with the business of the Corporation without the
written permission of the Corporation. The term "in competition in any
manner whatsoever with the business of the Corporation" shall include
the practice of accounting in the Practice Territory and engaging in
the mortgage business in the State of Nevada. Practice Territory shall
be defined as any area in which the Corporation has an office or
conducts business. Executive agrees:
(i) If Executive should set up an office within the Practice
Territory in competition with the business of the Corporation, it
would cause economic harm and loss of goodwill to the Corporation
resulting in immediate and irreparable loss, injuries, and damage
to the Corporation.
(ii) Notwithstanding anything to the contrary in this Section 10,
Executive is not prohibited from owning less than five percent
(5%) of the equity of any publicly traded entity.
b. Enforcement. The Corporation and Executive further agree that if any
restriction in this Article is held by any court to be unenforceable
or unreasonable, a lesser restriction will be enforced in its place
and the remaining restrictions in this Agreement will be enforced
independently of each other. In any action to enforce any provision of
this Article 10, the court may award reasonable attorneys' fees,
costs, and expenses to the prevailing party.
c. Survival. The provisions of this Article 10 shall survive the
termination of this Agreement for one (1) year.
10. Confidentiality of Information.
a. Confidential Information. Executive agrees to keep confidential and
not to use or to disclose to others during the term of this Agreement
and for a period of five (5) years thereafter, except as expressly
consented to in writing by the Corporation or required by law, any
secrets or confidential technology, proprietary information, patient
lists, or trade secrets of the Corporation, or any matter or thing
ascertained by Executive through Executive's affiliation with the
Corporation, the use or disclosure of which matter or thing might
reasonably be construed to be contrary to the best interest of the
Corporation, the use or disclosure of which matter or thing might
reasonably be construed to be contrary to the best interests of the
Corporation. This restriction shall not apply to any information that
(i) is or becomes generally available to and known by the public
(other than as a result of an unpermitted disclosure directly or
indirectly by Executive or Executive's affiliates, advisors, or
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representatives; (ii) is or becomes available to Executive
on a nonconfidential basis from a source other than the
Corporation or its affiliates, advisors, or representatives,
provided that, at the time of disclosure to Executive,
Executive is not aware that such source was bound by a
confidentiality agreement with or other obligation of
secrecy to the Corporation; or (iii) has already been or is
hereafter independently acquired or developed by the
Corporation; without violating any confidentiality agreement
with or other obligation of secrecy to the Corporation.
b. Departure. Except as provided herein, should Executive
leave the employment of the Corporation, Executive will
neither take nor retain, without prior written authorization
from the Corporation, any papers, client lists, fee books,
client records, files, or other documents or copies thereof
or other confidential information of any kind belonging to
the Corporation pertaining to the Corporation's clients,
business, sales, financial condition, or products. Without
limiting other possible remedies to the Corporation for
the breach of this covenant, Executive agrees that
injunctive or other equitable relief shall be available to
enforce this covenant, such relief to be without the
necessity of posting a bond, cash or otherwise. Executive
further agrees that if any restriction contained in this
paragraph is held by any court to be unenforceable or
unreasonable, a lesser restriction shall be enforced in
its place and remaining restrictions contained herein shall
be enforced independently of each other.
c. Exceptions.
(i) Executive shall not be prohibited from releasing any
confidential or proprietary information to Executive's
legal counsel or financial advisors, provided that
Executive places such advisors under legal obligation
not to disclose the confidential information.
(ii) It shall not be a breach of Executive's covenants
under this Article 10 if a disclosure is made pursuant
to a court order, a valid administrative agency
subpoena, or a lawful request for information by an
administrative agency. Executive shall give the
Corporation prompt notice of any such court order,
subpoena, or request for information.
11 Notice. All Notices and other communications hereunder shall be
in writing and shall be deemed to have been validly served, given or delivered
five (5) days after deposit in the United States mail, by certified mail with
return receipt requested and postage prepaid, when delivered personally,
one (1) day after delivery to any overnight courier, or when transmitted by
facsimile transmission facilities, and addressed to the party to be notified as
follows:
If to Corporation at: 0000 Xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
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If to Executive at: 0000 Xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
12. Miscellaneous.
a. This Agreement shall inure to the benefit of and be binding upon the
Corporation, its successors and assigns. This Agreement may not be
assigned by the Corporation without the prior written consent of the
Executive. The obligations and duties of the Executive hereunder shall
be personal and not assignable.
b. Whenever possible, each provision of this Agreement shall be
interpreted in such a neater as to be valid and effective under
applicable law, but if any provision of this Agreement is found to be
prohibited or invalid under applicable law, such provision will be
ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining
provisions of this Agreement.
c. For purposes of this Agreement an "affiliate" of a person shall
include any person, firm, corporation, association, organization, or
unincorporated trade or business that, now or hereinafter directly or
indirectly, controls, or is controlled by, or practices is under
common control with such person.
d. Any waiver, alteration or modification of any term of this Agreement
will be valid only if made in writing and signed by the parties
hereto. Each party hereto from time to time may waive any of her or
its rights hereunder without effecting a waiver with respect to any
subsequent occurrences or transactions hereunder.
e. Captions and paragraph heading used herein are for convenience only
are not a part hereof and shall not be used in construing this
Agreement.
f. This Agreement constitutes the entire understanding and agreement of
the parties and, except as otherwise provided hereunder, there are no
other agreements or understandings, written or oral, in effect between
the parties relating to the employment of the Executive by the
Corporation during the Term. All prior negotiations or agreements, if
any, between the parties relating solely to the employment of the
Executive by the Corporation during the Term are hereby superseded.
g. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Nevada.
h. This Agreement may be executed in counterparts, each of which shall be
deemed an original, but both of which taken together shall constitute
one and the same instrument.
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13 Arbitration. Any controversy between the parties hereto, including
the construction or application of any of the terms, covenants or conditions of
this Agreement, shall on written request of one party served on the other be
settled exclusively by arbitration in accordance with the rules of the American
Arbitration Association then in effect. The arbitrator selected must be a
member of the National Academy of Arbitrators and must have significant
experience in arbitrating labor disputes. Further, the Arbitrator must be an
attorney practicing labor law in the Southern California area. The cost of such
arbitration shall be borne by the losing party or in such proportions as the
Arbitrator(s) shall decide. Judgment may be entered on the arbitrator's award
in any court of competent jurisdiction.
14 The Executive's Employment. Nothing contained in this Agreement (i)
obligates the Corporation or any subsidiary of the Corporation to employ the
Executive in any capacity whatsoever, or (ii) prohibits or restricts the
corporation (or any such subsidiary) from terminating the employment, if any,
of the Executive at any time or for any reason whatsoever, with or without
cause, subject to the terms and conditions of this Agreement.
IN WITNESS WHEREOF, this Agreement is effective as of the day and year
first above written.
"EXECUTIVE"
/s/ Xxxxx May
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Xxxxx May
VESTIN MORTGAGE, INC.,
A NEVADA CORPORATION
By: /s/ Xxxxx Xxxxxxxx
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Name:
Title: President/CFO
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