Exhibit 10.23
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement ("Agreement") is made effective as
of September 1, 2004 ("Effective Date"), by and between AmNet Mortgage, Inc., a
Maryland corporation ("Company"), and Xxxx Xxxxx ("Executive").
WHEREAS, Executive and Company entered into an Amended and Restated
Employment Agreement effective January 1, 2003, which expired on December 31,
2003; and
WHEREAS, Executive and Company desire to continue the employment
relationship on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and respective
covenants of the parties contained herein, Executive and Company agree as
follows:
1. Employment. Company hereby employs Executive, and Executive hereby
accepts such employment, upon the terms and conditions set forth herein.
2. Duties.
2.1 Position. Executive is employed as Executive Vice President of
Operations and shall have the duties and responsibilities assigned by
Company both upon the Effective Date and as may be reasonably assigned from
time to time. Executive shall perform faithfully and diligently all duties
assigned to Executive. Company reserves the right to modify Executive's
position and duties at any time in its sole and absolute discretion,
provided that the duties assigned are consistent with the position of a
senior executive and that Executive continues to report to the Chief
Executive Officer ("CEO").
2.2 Best Efforts/Full-time. Executive will expend Executive's best
efforts on behalf of Company, and will abide by all policies and decisions
made by Company, as well as all applicable federal, state and local laws,
regulations or ordinances. Executive will act in the best interest of
Company at all times. Executive shall devote Executive's full business time
and efforts to the performance of Executive's assigned duties for Company,
unless Executive notifies the Company's CEO in advance of Executive's
intent to engage in other paid work and receives the CEO's express written
consent to do so.
2.3 Work Location. Executive's principal place of work shall be
located at 00000 Xxxxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx, or such other
location as the parties may agree upon from time to time.
3. Term of this Agreement. The term of this Agreement shall be for a 3-year
period, commencing on the Effective Date set forth above and continuing until
the third anniversary of this Agreement, unless sooner terminated in accordance
with section 8 below. Notwithstanding the foregoing, in the event the 3-year
period expires within 18 months following a Change of Control (as defined in
subsection 8.5(d) below), the term of this Agreement shall continue for a
18-month period commencing on the date of the Change of Control.
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4. Compensation.
4.1 Base Salary. As compensation for Executive's performance of
Executive's duties hereunder, Company shall pay to Executive an initial
Base Salary of $225,000 per year, payable in accordance with the normal
payroll practices of Company, less required deductions for state and
federal withholding tax, social security and all other employment taxes and
payroll deductions. In the event Executive's employment under this
Agreement is terminated by either party, for any reason, Executive will
earn the Base Salary prorated to the date of termination.
4.2 Bonus. Executive will be eligible to earn a bonus based on
achievement of targeted goals and objectives, including net income,
pursuant to a plan to be established annually by the Compensation Committee
("Annual Bonus"). As part of the annual bonus plan, the Compensation
Committee will establish, in its good faith discretion, a Target Annual
Bonus for Executive and may also establish a minimum and a maximum Annual
Bonus.
4.3 Performance and Salary Review. The Compensation Committee will
periodically review Executive's performance. Adjustments to salary or other
compensation, if any, will be made by the Compensation Committee in its
sole and absolute discretion.
5. Fringe Benefits. Executive will be eligible for all customary and usual
fringe benefits generally available to executives of Company subject to the
terms and conditions of Company's benefit plan documents. Company may change or
eliminate these benefits on a prospective basis to the extent allowed under the
applicable benefit plan document. The benefits currently available to Executive
include, but are not limited to, 27 days of PTO per year, health, disability and
life insurance, pension/401(k), ExecuCare, Long Term Incentive Cash Plan, and
Supplemental Executive Retirement Plan.
6. Business Expenses. Executive will be reimbursed for all reasonable,
out-of-pocket business expenses incurred in the performance of Executive's
duties on behalf of Company. To obtain reimbursement, expenses must be submitted
promptly with appropriate supporting documentation in accordance with Company's
policies.
7. Effect of Change of Control. If a Change of Control occurs with respect
to the Company under any of the following plans then with respect to such plan:
(a) the vesting of all equity awards (such as stock options, stock appreciation
rights, restricted stock, restricted stock units, etc...) granted to Executive
under any Company equity incentive plan that as of the date of such Change of
Control remain unvested shall accelerate, to the extent permissible by law, as
per the terms and conditions of such equity award and/or Company equity
incentive plan; (b) Company shall make a payment, a bookkeeping entry and/or a
contribution (to the extent applicable) to the Supplemental Executive Retirement
Plan ("SERP") in an amount that is deemed necessary to fully fund Executive's
SERP account (including any amount that the Compensation Committee shall
determine in its sole discretion is appropriate to reflect the partial year in
which the Change of Control occurs) as of the day prior to the date of such
Change of Control. If a change of control occurs under Section 8.5(d) below,
then the Compensation Committee shall determine a prorated amount to be paid to
Executive under the Long-Term Incentive Cash Plan or any other long-term
incentive plan (collectively, "LTIPs") as of the date 5 business days prior to
the date of the Change of Control and shall also accelerate the payment of such
prorated amount, and all other amounts owed to the Executive under the LTIPs, to
a date prior to the consummation of the Change of Control. Executive shall also
be eligible for any and all other benefits after the Change of Control as may be
provided in accordance with subsection 8.5.
8. Termination of Executive's Employment.
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8.1 Termination for Cause by Company. Although Company anticipates a
mutually rewarding employment relationship with Executive, Company may
terminate Executive's employment immediately at any time for Cause. For
purposes of this Agreement, "Cause" is defined as: (a) acts or omissions
constituting gross negligence, recklessness or willful misconduct on the
part of Executive with respect to Executive's obligations or otherwise
relating to the business of Company; (b) Executive's material breach of
this Agreement or Company's Confidentiality Agreement; (c) Executive's
conviction or entry of a plea of nolo contendere for fraud,
misappropriation or embezzlement, or any felony or crime of moral
turpitude; (d) Executive's willful neglect of duties; or (e) Executive's
chemical dependence, as certified by a licensed physician, resulting in
impairment of Executive's abilities to perform her duties hereunder or
substantial damage to the reputation of Company. Notwithstanding the
foregoing, the termination of Executive's employment shall not constitute
termination for Cause unless Company first provides Executive with written
notice of the breach and Executive fails to cure the breach (if possible)
within 30 days of the notice. During this 30-day notice period, Executive
shall be afforded the opportunity to make a presentation to the Board of
Directors regarding the matters referred to in the notice of breach. In the
event Executive's employment is terminated in accordance with this
subsection 8.1, Executive shall be entitled to receive only the Base Salary
then in effect, prorated to the date of termination, and any amounts
payable pursuant to sections 5 and 6 or otherwise required by law
("Standard Entitlements"). All other Company obligations to Executive
pursuant to any Company equity incentive plan, the SERP or the LTIPs shall
be controlled by the terms of each applicable plan. However, all other
Company obligations to Executive pursuant to this Agreement will become
automatically terminated and completely extinguished. Executive will not be
entitled to receive the Severance Package described in subsection 8.2(a)
below.
8.2 Termination Without Cause by Company/Severance. Company may
terminate Executive's employment under this Agreement without Cause at any
time on 30 days' advance written notice to Executive. In the event of such
termination and provided that section 8.5 does not apply, Executive will
receive the Standard Entitlements and will be eligible to receive a
"Severance Package" as described in subsection (a) below, provided
Executive complies with all the conditions set forth in subsection (b)
below. All other Company obligations to Executive will be automatically
terminated and completely extinguished.
(a) Severance Package. The Severance Package will consist of the
following:
(i) Severance Payment. Executive will receive a Severance
Payment equivalent to 12 months of Executive's Base Salary then
in effect on the date of termination, less required deductions
for state and federal withholding tax, social security and all
other employment taxes and payroll deductions, payable in a lump
sum payment on the effective date of the general release
described in subsection (b) below.
(ii) Bonus Payment. Executive will receive a Bonus Payment
equivalent to Executive's actual bonus for the year preceding the
year in which termination occurs, less required deductions for
state and federal withholding tax, social security and all other
employment taxes and payroll deductions, payable in a lump sum
payment on the effective date of the general release described in
subsection (b) below.
(iii) Other Plans. Executive will be eligible for the
accelerated vesting, pro-rated contribution and/or allocation and
distribution rights under any Company equity incentive plan, SERP
or LTIPs as provided by the terms of each applicable plan (if
any).
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(iv) Continuation of Group Health Benefits. Company agrees
to pay the premiums required to continue Executive's group health
care coverage for 12 months after the date of Executive's
termination, under the applicable provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the
California Continuation Benefits Replacement Act ("Cal-COBRA"),
provided that Executive elects to continue and remains eligible
for these benefits under COBRA and Cal-COBRA and does not obtain
health coverage through another employer during this period.
Thereafter, Executive may continue group health insurance
coverage at her own expense in accordance with the applicable
provisions of COBRA or Cal-COBRA. If Executive's group health
care coverage immediately prior to the date of termination of
employment included Executive's dependents, Company paid COBRA
premiums shall include premiums for such dependents.
(b) Conditions to Receive Severance Package. Executive will be
eligible for the Severance Package provided that Executive: (i)
complies with all surviving provisions of this Agreement as specified
in subsection 14.8 below; and (ii) executes a full general release in
a form suitable to Company and substantially similar to the form
attached hereto as Exhibit A. All other Company obligations to
Executive will be automatically terminated and completely
extinguished.
8.3 Voluntary Resignation by Executive for Good Reason/Severance.
Executive may voluntarily resign Executive's position with Company for Good
Reason at any time on 30 days' advance written notice. Executive will be
deemed to have resigned for Good Reason if resignation is made within 6
months following the occurrence of any of the following circumstances: (a)
Company's material breach of this Agreement; (b) Executive's Base Salary is
reduced by a total of more than 10% below Executive's Base Salary for the
prior calendar year, unless the reduction is due to a voluntary change of
Executive's responsibilities; (c) Executive's Base Salary and Target Annual
Bonus (as specified in subsection 4.2 above) combined are reduced by a
total of more than 10% below Executive's Base Salary and Target Annual
Bonus combined for the prior calendar year, unless the reduction is due to
a voluntary change of Executive's responsibilities; (d) Executive's
position and/or duties are modified so that Executive's duties are no
longer consistent with the position of a senior executive or Executive no
longer reports to the CEO; or (e) Company relocates Executive's principal
place of work to a location more than 30 miles from the location specified
in subsection 2.3, without Executive's prior written approval.
Notwithstanding the foregoing, the termination of Executive's employment
under this subsection 8.3 shall not constitute voluntary resignation for
Good Reason unless Executive first provides Company with written notice of
the breach and Company fails to cure the breach (if possible) within 30
days of the notice. In the event of Executive's resignation for Good
Reason, Executive will be entitled to receive the Standard Entitlements and
the Severance Package described in subsection 8.2(a) above, provided
Executive complies with all of the conditions in subsection 8.2(b) above.
All other Company obligations to Executive pursuant to this Agreement will
become automatically terminated and completely extinguished.
8.4 Voluntary Resignation by Executive Without Good Reason. Executive
may voluntarily resign Executive's position with Company Without Good
Reason at any time on 30 days' advance written notice. In the event of
Executive's resignation Without Good Reason, Executive will be entitled to
receive only the Standard Entitlements for the 30-day notice period and no
other amount. All other Company obligations to Executive pursuant to this
Agreement will become automatically terminated and completely extinguished.
In addition, Executive will not be entitled to receive the Severance
Package described in subsection 8.2(a) above.
8.5 Termination Upon A Change of Control. If Executive's employment is
terminated by Company within 12 months after a Change of Control (as that
term is defined below), other than for Cause (as defined in subsection 8.1
above), Executive will receive the Standard Entitlements and will be
eligible to receive a "Change of Control Severance Package" as described in
subsection (a) below, provided Executive complies with all the conditions
set forth in subsection (b) below.
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(a) Change of Control Severance Package. The Change of Control
Severance Package will consist of the following:
(i) Severance Payment. Executive will receive a Severance
Payment equivalent to 18 months of Executive's Base Salary then
in effect on the date of termination, less required deductions
for state and federal withholding tax, social security and all
other employment taxes and payroll deductions, payable in a lump
sum payment on the effective date of the general release
described in subsection (b) below.
(ii) Bonus Payment. Executive will receive a Bonus Payment
equivalent to 1.5 times Executive's Target Annual Bonus for the
year in which termination occurs, less required deductions for
state and federal withholding tax, social security and all other
employment taxes and payroll deductions, payable in a lump sum
payment on the effective date of the general release described in
subsection (b) below.
(iii) Continuation of Group Health Benefits. Company agrees
to pay the premiums required to continue Executive's group health
care coverage for 18 months after the date of Executive's
termination, under the applicable provisions of the Consolidated
Omnibus Budget Reconciliation Act of 1985 ("COBRA") and the
California Continuation Benefits Replacement Act ("Cal-COBRA"),
provided that Executive elects to continue and remains eligible
for these benefits under COBRA and Cal-COBRA and does not obtain
health coverage through another employer during this period.
Thereafter, Executive may continue group health insurance
coverage at her own expense in accordance with the applicable
provisions of COBRA or Cal-COBRA. If Executive's group health
care coverage immediately prior to the date of termination of
employment included Executive's dependents, Company paid COBRA
premiums shall include premiums for such dependents.
(b) Conditions to Receive Change of Control Severance Package.
Executive will be eligible for the Change of Control Severance Package
provided that Executive: (i) complies with all surviving provisions of
this Agreement as specified in subsection 14.8 below; and (ii)
executes a full general release in a form suitable to Company and
substantially similar to the form attached hereto as Exhibit A. All
other Company obligations to Executive will be automatically
terminated and completely extinguished.
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(c) 280G. In the event that the severance and all other benefits
provided for in this Agreement or otherwise payable to Executive (but
excluding any payments that may be made under this Section 8.5(c))
constitute "parachute payments" within the meaning of Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code") and will be
subject to the excise tax imposed by Section 4999 of the Code, then
Executive shall receive a payment from Company sufficient to pay such
excise tax. Notwithstanding the foregoing, Executive may elect, in her
sole discretion and by written notice to the Company, (i) to not
receive the payment provided for in this subsection or (ii) to reduce
the amount of severance and other benefits that she would otherwise
receive so as to eliminate any "parachute payments." Such notice must
be delivered to the Company no later than 10 days following the
determination by the Accountants of the amount of Executive's excise
tax liability, as described below. This election shall not be
effective as to benefits that Executive has already received. Unless
Company and Executive otherwise agree in writing, the determination of
Executive's excise tax liability and the amount required to be paid
under this subsection shall be made promptly in writing by Company's
independent public accountants or such other tax experts as reasonably
agreed to by the Company and Executive (the "Accountants") and such
amount shall be paid to Executive promptly, but not before 10 days
after such determination. In the event that the excise tax incurred by
Executive is determined by the Internal Revenue Service to be greater
or lesser than the amount so determined by the Accountants, Company
and Executive agree to promptly make such additional payment,
including interest and any tax penalties, to the other party as the
Accountants reasonably determine is appropriate. For purposes of
making the calculations required by this subsection, the Accountants
may make reasonable assumptions and approximations concerning
applicable taxes and may rely on interpretations of the Code for which
there is "substantial authority" tax reporting position. Company and
Executive shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this subsection. Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this subsection.
(d) Change of Control. A Change of Control for purposes of this
Agreement is defined as any one of the following occurrences:
(i) Any "person" (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act")), other than a trustee or other fiduciary holding
securities of Company under an employee benefit plan of Company,
becomes the "beneficial owner" (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
the securities of Company representing more than 50% of (A) the
outstanding shares of common stock of Company or (B) the combined
voting power of the Company's then-outstanding securities; or
(ii) the sale or disposition of all or substantially all of
Company's assets (or any transaction having similar effect is
consummated); or
(iii) Company is party to a merger or consolidation that
results in the holders of voting securities of Company
outstanding immediately prior thereto failing to continue to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) more than 50% of
the combined voting power of the voting securities of Company or
such surviving entity outstanding immediately after such merger
or consolidation; or
(iv) the dissolution or liquidation of Company.
8.6 Termination Upon Death. Executive's employment will terminate
immediately on Executive's death. In the event of such termination, Company
shall provide a death benefit equal to: (a) Executive's Base Salary then in
effect, prorated for the current year to the date of Executive's death; (b)
an amount equal to Executive's Target Annual Bonus for the applicable year,
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prorated to the date of Executive's death; and (c) any amounts payable
pursuant to sections 5 and 6 that at the date of Executive's death are
accrued but unpaid (collectively "Death Benefit"). The Compensation
Committee shall determine a prorated award to be paid and may, in its sole
discretion, provide for accelerated vesting under any Company equity
incentive plan, SERP and/or LTIPs to such Executive and/or such Executive's
account under any applicable plan to reflect the prorated portion of the
year in which the Executive's death occurs. The Death Benefit shall be made
in a lump sum payment within 90 days of Executive's death to such person as
Executive shall designate in a notice filed with Company or, if no such
notice is filed, the Death Benefit shall be paid to Executive's estate.
8.7 Termination Upon Disability. Executive's employment may be
terminated by Company as a result of Executive's inability to perform the
essential functions of Executive's position, with or without reasonable
accommodation if required by law, due to a mental or physical disability.
In no event will Executive's employment be terminated pursuant to this
subsection 8.7 until 180 consecutive days of paid leave have elapsed and
Company has provided 30 days' written notice in advance of termination. In
the event of termination pursuant to this subsection 8.7, Company shall
provide a disability benefit equal to (a) Executive's Base Salary then in
effect, prorated for the current year to the date of Executive's
termination; (b) an amount equal to Executive's Target Annual Bonus for the
applicable year, prorated to the date of Executive's termination; and (c)
any amounts payable pursuant to sections 5 and 6 that at the date of
Executive's termination are accrued but unpaid (collectively "Disability
Benefit"). The Compensation Committee shall determine a prorated award to
be paid and may, in its sole discretion, provide for accelerated vesting
under any Company equity incentive plan, SERP and/or LTIPs to such
Executive and/or such Executive's account under any applicable plan to
reflect the prorated portion of the year in which the Executive's
disability occurs. The Disability Benefit shall be made in a lump sum
payment within 90 days of Executive's termination under this section
provided that Executive: (i) complies with all surviving provisions of this
Agreement as specified in subsection 14.8 below; and (ii) executes a full
general release in a form suitable to Company and substantially similar to
the form attached hereto as Exhibit A. Executive will not be entitled to
receive the Severance Package described in subsection 8.2(a) above.
9. No Conflict of Interest. During the term of Executive's employment with
Company, Executive must not engage in any work, paid or unpaid, that creates an
actual conflict of interest with Company. Such work shall include, but is not
limited to, directly competing with Company in any way, or acting as an officer,
director, employee, consultant, stockholder, volunteer, lender, or agent of any
business enterprise of the same nature as, or which is in direct competition
with, the business in which Company is now engaged or in which Company becomes
engaged during the term of Executive's employment with Company, as may be
determined by the Board of Directors in its sole discretion. If the Board of
Directors believes such a conflict exists during the term of this Agreement, the
Board of Directors may ask Executive to choose to discontinue the other work or
resign employment with Company. In addition, Executive agrees not to refer any
client or potential client of Company to competitors of Company, without
obtaining Company's prior written consent, during the term of Executive's
employment. Notwithstanding the foregoing, Executive may work or perform
services for Company and its affiliates or a financial institution or similar
entity that is involved in the mortgage business so long as such entity is not
engaged primarily in managing real estate investment trusts or originating
and/or selling mortgages, and Executive may own securities in any publicly held
corporation, but only to the extent Executive does not own of record or
beneficially more than 1 percent of the outstanding beneficial ownership of such
corporation.
10. Confidentiality Agreement and Return of Company Property. Executive
agrees to abide by Company's confidentiality agreement as set forth in Company's
Employee Handbook ("Confidentiality Agreement"), which is incorporated herein by
reference. Executive further agrees (i) that such obligations will survive
termination or expiration of Executive's employment and (ii) that upon
termination or expiration of Executive's employment, Executive will return all
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Company property, including all confidential and proprietary information as
described in the Confidentiality Agreement, all materials and documents
containing trade secrets and copyrighted materials, all correspondence,
management studies and any other materials or data relating to or connected with
Executive's employment, including all copies and excerpts of the same.
11. Indemnification. Company agrees to defend and indemnify Executive to
the fullest extent provided by California Labor Code section 2802 and/or
Company's Directors' and Officers' liability insurance policy.
12. Injunctive Relief. Executive acknowledges that Executive's breach of
the covenants contained in sections 9 and 10 (collectively "Covenants") would
cause irreparable injury to Company and agrees that in the event of any such
breach, Company shall be entitled to seek injunctive relief, to the extent
allowed under the California Arbitration Act, without the necessity of proving
actual damages or posting any bond or other security.
13. Agreement to Arbitrate. To the fullest extent permitted by law,
Executive and Company agree to arbitrate any controversy, claim or dispute
between them arising out of or in any way related to this Agreement, the
employment relationship between Company and Executive and any disputes upon
termination of employment, including but not limited to breach of contract,
tort, discrimination, harassment, wrongful termination, demotion, discipline,
failure to accommodate, family and medical leave, compensation or benefits
claims, constitutional claims; and any claims for violation of any local, state
or federal law, statute, regulation or ordinance or common law. By executing
this Agreement, Executive and Company are both waiving the right to jury trial
with respect to any such disputes. For the purpose of this agreement to
arbitrate, references to "Company" include all parent, subsidiary or related
entities and their employees, supervisors, officers, directors, agents, pension
or benefit plans, pension or benefit plan sponsors, fiduciaries, administrators,
affiliates and all successors and assigns of any of them, and this agreement
shall apply to them to the extent Executive's claims arise out of or relate to
their actions on behalf of Company.
13.1 Consideration. The mutual promise by Company and Executive to
arbitrate any and all disputes between them, rather than litigate them
before the courts or other bodies, provides the consideration for this
agreement to arbitrate.
13.2 Initiation of Arbitration. Either party may exercise the right to
arbitrate by providing the other party with written notice of any and all
claims forming the basis of such right in sufficient detail to inform the
other party of the substance of such claims. In no event shall the request
for arbitration be made after the date when institution of legal or
equitable proceedings based on such claims would be barred by the
applicable statute of limitations.
13.3 Arbitration Procedure. The arbitration will be conducted in San
Diego, California by a single neutral arbitrator and in accordance with the
then current rules for resolution of employment disputes of the American
Arbitration Association ("AAA"). The parties are entitled to representation
by an attorney or other representative of their choosing. The arbitrator
shall have the power to enter any award that could be entered by a judge of
the trial court of the State of California, and only such power, and shall
follow the law. The parties agree to abide by and perform any award
rendered by the arbitrator. The arbitrator shall issue the award in writing
and therein state the essential findings and conclusions on which the award
is based. Judgment on the award may be entered in any court having
jurisdiction thereof.
13.4 Costs of Arbitration. Company shall bear the costs of the
arbitration filing and hearing fees and the cost of the arbitrator.
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14. General Provisions.
14.1 Successors and Assigns. The rights and obligations of Company
under this Agreement shall inure to the benefit of and shall be binding
upon the successors and assigns of Company. Company may assign any
obligations hereunder to any of its subsidiaries. Executive shall not be
entitled to assign any of Executive's rights or obligations under this
Agreement.
14.2 Waiver. Either party's failure to enforce any provision of this
Agreement shall not in any way be construed as a waiver of any such
provision, or prevent that party thereafter from enforcing each and every
other provision of this Agreement.
14.3 Attorneys' Fees. Each side will bear its own attorneys' fees in
any dispute unless a statutory section at issue, if any, authorizes the
award of attorneys' fees to the prevailing party.
14.4 Severability. In the event any provision of this Agreement is
found to be unenforceable by an arbitrator or court of competent
jurisdiction, such provision shall be deemed modified to the extent
necessary to allow enforceability of the provision as so limited, it being
intended that the parties shall receive the benefit contemplated herein to
the fullest extent permitted by law. If a deemed modification is not
satisfactory in the judgment of such arbitrator or court, the unenforceable
provision shall be deemed deleted, and the validity and enforceability of
the remaining provisions shall not be affected thereby.
14.5 Interpretation; Construction. The headings set forth in this
Agreement are for convenience only and shall not be used in interpreting
this Agreement. This Agreement has been drafted by legal counsel
representing Company, but Executive has participated in the negotiation of
its terms. Furthermore, Executive acknowledges that Executive has had an
opportunity to review and revise the Agreement and have it reviewed by
legal counsel, if desired, and, therefore, the normal rule of construction
to the effect that any ambiguities are to be resolved against the drafting
party shall not be employed in the interpretation of this Agreement.
14.6 Governing Law. This Agreement will be governed by and construed
in accordance with the laws of the United States and the State of
California. Each party consents to the jurisdiction and venue of the state
or federal courts in San Diego, California, if applicable, in any action,
suit, or proceeding arising out of or relating to this Agreement.
14.7 Notices. Any notice required or permitted by this Agreement shall
be in writing and shall be delivered as follows with notice deemed given as
indicated: (a) by personal delivery when delivered personally; (b) by
overnight courier upon written verification of receipt; (c ) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; or (d) by certified or registered mail, return receipt
requested, upon verification of receipt. Notice shall be sent to the
addresses set forth below, or such other address as either party may
specify in writing.
14.8 Survival. Sections 9("No Conflict of Interest"), 10
("Confidentiality Agreement and Return of Company Property"), 12
("Injunctive Relief"), 13 ("Agreement to Arbitrate"), 14 ("General
Provisions") and 15 ("Entire Agreement") of this Agreement shall survive
Executive's employment by Company.
15. Entire Agreement. This Agreement, including Company's Confidentiality
Agreement incorporated herein by reference, constitutes the entire agreement
between the parties relating to this subject matter and supersedes all prior or
simultaneous representations, discussions, negotiations, and agreements, whether
written or oral. This Agreement may be amended or modified only with the written
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consent of Executive and the Compensation Committee of Company. No oral waiver,
amendment or modification will be effective under any circumstances whatsoever.
THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY
UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES
HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.
XXXX XXXXX
Dated: September 30, 2004 /s/ Xxxx Xxxxx
---------------------- ------------------------------------------
AMNET MORTGAGE, INC.
Dated: September 30, 2004 By: /s/ Xxxxxx X. Xxxxx
---------------------- ---------------------------------------
Xxxxxx X. Xxxxx
Chairman, Compensation Committee
00000 Xxxxxxxxx Xxxxxx, Xxx. 000
Xxx Xxxxx, XX 00000
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