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EXHIBIT 10.63
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
This First Amendment to Employment Agreement is dated as of May 11,
1995 and is by and between X. Xxxxxx Dryer ("Executive") and Lomas Financial
Corporation (the "Company").
WHEREAS, the parties have come to recognize over the course of
Executive's employment that the business of the Company is inextricably linked
to the operations of its principal subsidiary, Lomas Mortgage USA, Inc.
("LMUSA"); and
WHEREAS, the parties have come to recognize over the same
period that the greatest portion of Executive's time and effort must be devoted
to LMUSA if the Company is to preserve its value to its shareholders; and
WHEREAS, the parties wish to formalize the contractual
relationship between LMUSA and Executive;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants contained herein and for other good and valuable
consideration, the parties agree as follows:
1. Position. In addition to serving as Senior Vice
President of the Company, Executive shall serve as Senior Vice President of
LMUSA and shall have such duties and responsibilities with regard to LMUSA as
are consistent with those of a senior vice president. Executive shall devote
such time as is necessary to the performance of his duties for LMUSA. Section
2 of the Employment Agreement dated January 3, 1995 (the "Agreement") is
amended accordingly.
2. Termination. Executive's term of employment with
LMUSA shall be co-terminus with his employment with the Company subject to the
terms of the Agreement. Executive's employment with LMUSA may only be
terminated concurrently with his employment with the Company as provided in
section 7 of the Agreement.
3. Specific Amendments.
(a) Subsection 7(e) of the Employment Agreement
is amended by deleting the final sentence
thereof.
(b) Subsection 8(d)(ii) of the Employment
Agreement is hereby amended and restated in
its entirety to read as follows:
(ii) in lieu of any further payments
of salary to the Executive for periods
subsequent to the Date of Termination the
Company shall, on the fifth day following the
Date of Termination, pay as severance pay to
the Executive, a lump sum amount equal to the
greater of (A) the amount of the Executive's
Base Salary which would have accrued pursuant
to Subsection 4(a)
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hereof for a period (the "Determination
Period") commencing on the Date of
Termination and ending on January 3, 1997 and
(B) the amount of severance pay the Executive
would have been entitled to under the Company
severance plan in effect on May 1, 1995, a
copy of which is attached hereto as Exhibit
"A"; and
(c) Exhibit "A" attached hereto is incorporated
into the Employment Agreement with the same
effect as if originally attached thereto.
4. Indemnification. Executive shall enjoy the same duty
of indemnification from LMUSA as he enjoys from the Company for the performance
of Executive's duties on behalf of LMUSA.
5. Joint and Several Liability. The liability of LMUSA
and the Company for payment of the salary, bonus, benefits and other
perquisites due Executive under the Agreement shall be joint and several,
without requirement to apportion between LMUSA and the Company the relative
time and effort spent on behalf of each by Executive.
6. Relation Back. This First Amendment to Employment
Agreement relates back to the execution of the Employment Agreement such that
LMUSA assumes joint and several liability for all of the Company's duties and
obligations to Executive from and after that date to and including the present
and ratifies all agreements and understandings between the Company and
Executive.
7. Execution by LMUSA. LMUSA joins in the execution of
this First Amendment to Employment Agreement, although not originally a party
to the Agreement, for the purpose of acknowledging the terms of this First
Amendment to Employment Agreement and to signify that it is contractually bound
by the terms hereof.
IN WITNESS WHEREOF, the parties have executed this First
Amendment to Employment Agreement as of the date written above.
LOMAS FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX
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Its: CEO
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LOMAS MORTGAGE USA, INC.
By: /s/ XXXXX X. XXXXXXX
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Its: Senior Vice President & General Counsel
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/s/ X. XXXXXX DRYER
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X. Xxxxxx Dryer
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Exhibit "A"
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The Company will pay the employee through the last day he or she works plus up
to a maximum of 80 hours of unused vacation awarded on his or her last
employment anniversary date.
No law requires a company to pay severance pay upon termination. No unused sick
time, floating personal days or birthday time will be paid at termination.
JOB REFERENCES
If called for a job reference, the Company supplies only the dates of
employment and the last position held by the employee. Additional information
may be released only upon written request from the terminated employee at the
Company's discretion.
All inquiries and responses should be directed through the Human Resources
Department.
SEVERANCE PLAN
-- QUALIFYING EVENTS
Standard benefits under the Company's Severance Plan are available to
eligible, terminated employees under the following circumstances:
-- When there is a general company-wide, division-wide, or unit-wide
reduction-in-force.
-- When a particular position within a unit is eliminated in order to
increase efficiency or because of budget constraints.
-- EMPLOYEE ELIGIBILITY
An employee who has been terminated because of one of the above described
events and who has a scheduled workweek of 24 or more hours is eligible to
receive certain severance benefits as set out below, provided that all of
the following conditions are met:
-- the employee must have been involuntarily terminated without cause;
and
-- the employee must not be eligible to receive any other form of
severance pay; and
-- the employee must not have been offered an alternative employment
opportunity in any capacity by the Company or any of its
subsidiaries or affiliates; and
-- the employee must not be reemployed by the Company or any of its
subsidiaries or affiliates during the period for which severance is
being paid; and
-- the employee must sign a waiver and release form, waiving and
releasing any claims he or she may have against the Company relating
to his or her employment or the termination thereof.
-- SEVERANCE PAY
The amount of severance pay to be received by an eligible, terminated
employee shall be determined on the basis of the employee's status at
the time of termination and on the employee's length of service as of the
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employee's last employment anniversary (based only on the eligible, terminated
employee's most recent hire date).
Severance pay will be based on the employee's base annual salary or regular
weekly wage in effect on the last day of active employment (exclusive of
overtime, commissions, bonus, incentive pay, or any other special payments).
Applicable deductions and withholding will apply.
Any pay mandated by state or federal law (or which would be mandated absent
prior notice), such as plant closing benefits and the like, will reduce the
amount of severance pay otherwise payable hereunder. Benefits hereunder may not
be assigned or alienated, whether voluntarily or involuntarily, and any attempt
to do so will be null and void to the fullest extent permitted by law.
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IF THE ELIGIBLE AND THE ELIGIBLE THE AMOUNT OF
EMPLOYEE IS (A/AN): EMPLOYEE HAS BEEN SEVERANCE PAY IS:
WITH THE COMPANY:
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Non-officer Five years or less two months
Non-officer More than five years two months*
Officer (any Officer other Five years of less four months
than a Senior Officer)
Officer (any Officer other More than five years four months*
than a Senior Officer)
Senior Officer Five years or less six months
Senior Officer More than five but six months*
less than 20 years
Senior Officer More than 20 years one year**
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* Plus one week of additional pay for each full year employed with the
Company (since last hire date) in excess of five years.
** Plus one week of additional pay for each full year employed with the
Company (since last hire date) in excess of 20 years.
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In addition, an eligible, terminated employee who receives approved severance
pay will also receive pay for a maximum of 80 hours of available vacation time,
as awarded at the employee's last anniversary of employment. The eligible,
terminated employee shall not receive any pay for unused floating personal
days, birthday time or sick time.
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In lieu of the above standard severance benefits, the Company may elect, in its
sole discretion, to provide severance benefits which could either enhance or
diminish the standard benefits described above, as it deems appropriate and in
the best interests of the Company.
-- CONTINUATION OF CERTAIN BENEFITS AFTER TERMINATION
Each eligible, terminated employee who is under age 50 (or who is over age
50, but has not completed 15 years of continuous service to the Company)
and who receives approved severance pay will also be entitled to three
months of continued health care coverage in the eligible, terminated
employee's current health care plan and at the employee's current enrolled
level of coverage, i.e., individual or family coverage, so that if the
eligible, terminated employee has not obtained other employer-sponsored
health coverage, three on the 18 months of eligible COBRA-required
coverage will be at the Company's sole expense and the remaining 15 months
of COBRA-required coverage will be at the eligible, terminated employee's
sole expense (the employee's expense to be calculated at the total
prevailing monthly premium [employee plus employer costs] as of the annual
plan renewal date each year).
Each eligible, terminated employee who receives approved severance pay and
who, on the effective termination date, is 50 years of age or older and
has 15 or more years of continuous service with the Company since his or
her last hire date, will be entitled to receive three months of continued
health care coverage in the eligible, terminated employee's current
health care plan at the employee's current enrolled level of coverage
(i.e., individual or family coverage) at the Company's sole expense, plus
coverage thereafter at the eligible, terminated employee's current
coverage at the employee's sole expense (the employee's expense to be
calculated at the total prevailing monthly premium [employee plus employer
costs] as of the annual plan renewal date each year), such coverage to
continue until the date of the first to occur of (a) the employee's
eligibility for other employer-sponsored health coverage, (b) the
employee's eligibility for Medicare, (c) the employee's 65th birthday or
(d) the end of the 60th month after the date of the employee's
termination.
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-- OTHER PROVISIONS
If a terminated employee is rehired within the period for which severance
pay is being or has been paid, such employee will be required to refund
the amount of severance pay received that is in excess of the employee's
actual period of unemployment with the Company, and no further severance
payments will be made after the rehire.
For information concerning the payment of benefits under the Company's
Pension Plan or 401(k) Plan, please refer to the section of this Employee
Handbook relating to the treatment of such benefits upon termination.
Other than stated in this section (or the sections referred to in this
section), no other benefits will be continued or paid by the Company with
respect to an eligible, terminated employee who receives the severance
benefits described above.
-- ADDITIONAL INFORMATION
The following information is furnished by the Plan Administrator of the
Severance Plan to comply with government regulations. If you have any
questions or you want to contact someone regarding your benefits under the
Severance Plan, you may contact the Human Resources Department.
-- Name of the plan: Lomas Financial Group Severance Pay Plan.
-- Plan Administrator: The Plan Administrator of the Severance Plan
is a committee appointed under the authority of the
Company's Board of Directors. The Plan Administrator may be
contacted at 0000 Xxxxxxx Xxxxx, X.X. Xxx 000000, Xxxxxx, Xxxxx
00000-0000, (000) 000-0000. The Plan Administrator is also the
named "fiduciary" for purposes of ERISA.
-- Agent for service of legal process: Same as Plan Administrator.
-- Plan year: The Severance Plan and all of its records are kept on a
calendar year basis, January 1 to December 31.
-- Type of plan and funding medium: The Severance Plan is a welfare
benefit plan providing severance pay benefits upon the
occurrence of certain specific events to terminated participants
who meet all of the eligibility requirements. It is unfunded,
non-insured and unsecured. Benefits are payable solely from the
general assets of the Company.
-- Severance Plan continuation: Although the Company currently
intends to continue the Severance Plan indefinitely, rights
hereunder are neither "vested" nor "accrued", and the Company,
through its Board of Directors, Chief Executive Officer, or any
committee authorized by the Board of Directors, reserves the right
to change or end the Severance Plan at any time. This right to
amend or terminate the Severance Plan applies even if the Company
has full knowledge of an impending event which could result in
benefits being payable under the Severance Plan but for the
amendment or terminaton.
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The Plan Administrator shall have complete fiduciary discretion and
authority to interpret and construe the Severance Plan, including, without
limitation, all questions of eligibility, benefits, and status arising
under the Severance Plan. This discretion extends, but is not limited
to, determining whether an employee is a participant in the Severance
Plan, under what circumstances a participant in the Severance Plan is
eligible to receive benefits, if any, and the determination and
calculation of such benefits.
If an employee believes he or she is due benefits under the Severance
Plan, he or she may file a claim therefor with the Plan Administrator. A
decision will generally be made within 90 days (180 days if special
circumstances so require) and sent to the employee in writing, citing the
reasons for the decision and a reference to the provisions on which it is
based. An employee (or his or her representative) may appeal any denied
claim, review pertinent documents, and submit issues and comments in
writing. However, any appeal must be made in writing within 60 days of
the initial denial.
The Plan Administrator shall review the appealed claim and make a final
decision within 60 days of its receipt of the appeal (120 days if special
circumstances so require). The decision of the Plan Administrator on
appeal will be final, binding, and conclusive on all parties involved.
-- YOUR RIGHTS UNDER THE LAW
The Employee Retirement Income Security Act of 1974 (ERISA) provides
certain rights and protection to participants of the Company's employee
benefit plans. As a participant in the Severance Plan covered by ERISA,
you are entitled to the rights and protection guaranteed by ERISA,
including the rights to:
-- Examine, without charge, at the Plan Administrator's office, all
plan documents, and copies of all documents filed by the Plan
Administrator with the U.S. Department of labor, such as the annual
report and plan descriptions.
-- Obtain copies of all plan documents and certain other plan
information upon written request to the Plan Administrator. The
Plan Administrator may charge a reasonable fee for copies.
-- Receive the plan's annual financial report. The Plan Administrator
is required by law to furnish each participant with a copy of the
annual report.
In addition to creating rights for plan participants, ERISA imposes duties
upon the people who are responsible for the operation of an employee benefit
plan. The people who operated the Severance Plan, called "fiduciaries" of
the Severance Plan, have a duty to do so prudently and in the interest of
you and other participants and beneficiaries of the Severance Plan.
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No one, including Lomas or any other person, may terminate your
employment or otherwise discriminate against you in any way to
prevent you from obtaining a benefit or exercising your rights under
ERISA.
If your claim for a benefit is denied in whole or in part, you must
receive a written explanation of the reasons for the denial. You have
the right to have the Plan Administrator review and reconsider your
claim.
Under ERISA, there are steps you can take to enforce these rights:
-- If you request materials from the Plan Administrator and do
not receive them within 30 days, you may file suit in a federal
court. In such a case, the court may require the Plan
Administrator to provide the materials and pay you up to $100
a day until you receive the materials, unless the materials
were not sent because of reasons beyond the control of the
Plan Administrator.
-- If you have a claim for benefits that is denied in whole or in
part, you may file suit in a state or federal court. If you are
discriminated against for asserting your rights, you may seek
assistance from the U.S. Department of Labor, or you may file
suit in a federal court. The court will decide who should pay
court costs and legal fees. If you suit is successful, the
court may order the person you have sued to pay these costs
and fees. If you lose, the court may order you to pay these
costs and fees; for example, if it finds your claim is
frivolous.
If you have any questions about the Severance Plan, you should contact
the Plan Administrator. If you have any questions about this statement
or about your rights under ERISA, you should contact the nearest area
office of the U.S. Labor Management Services Administration, Department
of Labor.
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