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EXHIBIT 10.2
RETENTION AGREEMENT
This Retention Agreement (this "Agreement"), dated and effective as of the 1st
day of December, 1997 is by and between Siena Holdings, Inc., a Delaware
corporation ("Company"), and X. Xxxxxx Dryer, an individual residing in Dallas,
Texas, ("Officer").
In consideration of the mutual covenants set forth herein, Company and Officer,
intending to be legally bound, hereby agree as follows:
1. Relationship. Company hereby retains Officer, and Officer hereby
accepts such retention, upon the terms and conditions set forth in
this Agreement. Such retention relationship shall continue for the
stated term of this Agreement, as described in Section 7 hereof, or
until the earlier termination of such relationship and this Agreement
pursuant to Section 5 hereof.
2. Position and Responsibilities of Officer. Officer shall be retained as
the President of Company and shall be stationed in Dallas, Texas or
such other locations which during the term of this Agreement, may be
designated by Company and approved by Officer. Officer shall devote
approximately one-half of his business time and attention to the
business of Company. Officer shall make himself available in person to
render services on a regular basis equivalent to four days a week,
allowing for reasonable and customary vacations and taking into
account the nature of the services required; and provided that Officer
shall be required to render no less than 20 hours per week on average.
Officer, shall, subject to the supervision, direction and control of
the Board of Directors of Company (the "Board") and the provisions of
the Certificate of Incorporation, as amended from time to time in
accordance with the provisions thereof, and Bylaws, as amended from
time to time in accordance with the provisions thereof, of Company,
manage, supervise and control such business, and shall devote his best
efforts to the faithful performance of his duties on behalf of
Company; provided, however, that it is the understanding of parties
that Officer shall be entitled to engage in other business,
professional and fiduciary obligations, including but not limited to
those currently being pursued by Officer to the extent that such
interests and obligations do no materially interfere with Officer's
performance of his duties for Company. Officer's duties shall
generally be those assigned to and customarily performed by the
President of a company and shall include, specifically without
limitation, management of Siena Housing Management operations, LLG
Lands real estate, provision of information to trustee of the certain
litigation trust("Litigation Trustee")created pursuant to the Second
Amended Joint Chapter 11 Plan of Lomas Financial Corporation, Lomas
Information Systems, Inc. and Lomas Administrative Services,
Inc.("Plan") and post-confirmation
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creditor's committee as authorized in the confirmation order to the
Plan to execute the terms of the Plan, maintenance of existing
records, and general supervision of the corporate and legal affairs of
the Company and the LFC Creditors Trust while the Company is Trustee.
3. Compensation. As approved by the Board of Directors in its meeting of
November 24, 1997; for all services rendered by Officer pursuant to
this Agreement, Company shall pay to Officer, and Officer shall accept
as full compensation hereunder, the following:
(A) Retainer. Officer shall receive a monthly retainer of not
less than $12,000, with such adjustments thereto as may be determined
by the Board in its sole discretion. If Officer's base annual retainer
is increased at any time, it shall not thereafter be decreased during
the term of this Agreement, unless such decrease is the result of a
general reduction affecting the base salaries of all other executive
officers of the Company.
(B) Bonus. Such bonuses to be paid as part of the deal-maker
portion of the incentive plan which will pay a percentage of the deal
value established by the Board of Directors or the appreciated value
above the fair market value of the asset; which, as a result of the
fresh start adjustments is the same as book value on June 30, 1997.
Officer shall be paid 4% of the gross appreciation value above book
value or 4% of the deal value, upon the close of such transaction.
Such bonus provision shall apply to the Company and its subsidiaries
and shall be applied to the Company's results as Trustee of the LFC
Creditors Trust.
(C) Stock Options. Officer shall receive 163,000
non-qualified stock options which will vest at a rate of 20% per 12
months of service. Upon the event of any change-in-control of the
Company the stock options shall be 100% vested. The Chief Executive
Officer and/or the Board of Directors may from time to time grant
additional stock options or other forms of long-term incentive
compensation arrangements to the Officer. The privilege to participate
in these grants is at the discretion of the Chief Executive Officer
and/or the Board of Directors and the stipulations regarding the
granting of these awards and their exercise by the Officer will be
defined in separate agreements or in other plans or actions of the
Chief Executive Officer and/or the Board of Directors.
(D) Benefits and Perquisites. Officer shall be entitled to
retain the Airpass previously purchased by Lomas Financial Corporation
in the Officer's name.
(E) Insurance. Company will provide Officer with coverage
under a customary insurance policy with respect to certain errors,
omission and acts of directors and officers as supplied to the Board
of Directors. Failure to provide such a policy shall constitute
constructive termination of Officer by Company and shall entitle
Officer to a termination payment in accordance with paragraph 6.
4. Reimbursement of Expense. Officer shall be entitled to reimbursement
for reasonable expenses incurred by Officer in the course of rendering
services to Company under this agreement.
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5. Termination. The Retention relationship between Officer and Company
created hereunder shall terminate before the expiration of the stated
term of this Agreement upon the occurrence of any of the following
events:
(a) Termination for Cause. The following events, which for
purposes of this Agreement shall constitute "cause" for
termination:
(i) the willful breach by Officer of any provision of
Sections 1 or 2 (including but not limited to a refusal to follow
lawful directives of the Board);
(ii) any act of fraud or dishonesty by Officer with respect
to any aspect of Company's business;
(iii) the illegal use of drugs by Officer during the term of
this Agreement that, in the determination of the Board, substantially
interferes with Company's business;
(iv) substantial failure of performance by Officer, which is
repeated or continued after written notice to Officer of such failure,
and which is reasonably determined by the Board to be materially
injurious to the business or interests of Company;
(v) conviction of Officer by a court of competent
jurisdiction of a felony or of a crime involving moral turpitude; or
(vi) death of Officer or disability because of injury,
illness, or other incapacity (physical or mental) which for more than
90 days renders Officer incapable of performing the essential
functions of the position contemplated by the Agreement herein.
Any notice of discharge shall describe with reasonable specificity the cause of
causes for the termination of Officer's retention, as well as the effective
date of the termination (which effective date may be the date of such notice).
If Company terminates Officer's retention for any of the reasons set forth
above in this Section 5(a), Company shall have no further obligations hereunder
from and after the effective date of termination (other than as set forth
below) and shall have all other rights and remedies available under this or any
other agreement and at law or in equity.
(b) Voluntary Termination. Officer provides 60 days written
notice to Company of his intent to terminate the retention
relationship with Company. Company retains the right after proper
notice of Officer's voluntary termination to require Officer to cease
retention immediately; however, in such event, Company shall remain
obligated to pay Officer his retention payment during the 60-day
notice period.
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6. Compensation Upon Termination.
(a) General. Upon the termination of Officer's retention
under this Agreement before the expiration of the stated term hereof
for any reason, Officer shall be entitled to the compensation earned
by him before the effective date of termination, as provided in
Section 3 hereof, prorated on the basis of the number of full days of
service rendered by Officer during the month to the effective date of
termination. Upon the event of any termination pursuant to this
section the Company the stock options identified above shall be 100%
vested.
(b) Termination Payment. If such termination is the result of
the discharge of Officer by Company for any reason other than cause
(as defined in Section 5(a) hereof), then Officer shall be entitled to
receive on the effective date of termination as a termination payment
an amount equal to the retention payment (excluding bonuses) that
Officer would have received for the next 12 months following
termination adjusted up to take into consideration taxes that would
have to paid on the Termination Payment. For the purpose of
determining the amount of such termination payment, "retention
payment" shall be deemed to be the average level of Officer's
retention payment that is established in accordance with Section 3(a)
hereof for the 90 day period ending on the effective date of
termination. On the last day of service, the termination contemplated
herein shall be paid in cash on the date of expiration or the
termination. If Officer's retention hereunder terminates because of
the death of the Officer, all amounts that are due to him under the
terms of this Agreement shall be paid to his administrators, personal
representatives, heirs and legatees, as may be appropriate.
(c) Termination For Cause or Voluntary Termination. If the
retention relationship hereunder is terminated by Company for cause or
voluntarily by Officer, Officer shall not be entitled to any
termination payment, other than pursuant to the terms of paragraph 3.
(d) Survival. The provisions of Section 6 hereof shall
survive the termination of the retention relationship hereunder and
this Agreement to the extent necessary or reasonably appropriate to
effect the intent of the parties hereto as expressed in such
provisions.
7. Term. The stated term of this Agreement and the retention relationship
created hereunder shall be and remain in effect for a period of five
years from the date hereof. The Board, upon notice to Officer not less
that 60 days prior to the expiration of the term of this Agreement
shall have the option to extend this Agreement for successive 6 month
periods under terms and retention payment to be mutually agreed to by
Company and Officer unless this Agreement is sooner terminated in
accordance with Section 5 hereof.
8. Relocation Expense. In the event that the corporate office of the
Company is moved at the direction of the Board to a location which is
more that 100 miles away from Dallas, Texas, and, as a result and in
order to be able to effectively perform his services hereunder,
Officer relocates to the vicinity of such relocation, Company shall
reimburse Officer for all of his
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reasonable and documented relocation expenses.
9. Remedies. Each of the parties to this Agreement will be entitled to
enforce its rights under this Agreement specifically, to recover
damages by reason of any breach of the provisions of this Agreement
and to exercise all other rights existing in its favor. The parties
hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that any
party may in its sole discretion apply to any court of law or equity
of competent jurisdiction for specific performance and/or injunctive
relief in order to enforce or prevent any violations of the provisions
of this Agreement.
10. Attorney's Fees. If any action at law or equity, including any action
for declaratory or injunctive relief, is brought to enforce or
interpret the provisions of this Agreement, the prevailing party shall
be entitled to recover reasonable attorneys' fees from the
non-prevailing party, which fees may be set by the court in the trial
of such action, or may be enforced in a separate action brought for
that purpose, and which fees shall be in addition to any other relief
which may be awarded.
11. Assignment. This Agreement is personal to Officer and may not be
assigned in any way by Officer without the prior written consent of
Company. This Agreement shall not be assignable or delegated by
Company. Nothwithstanding the preceding sentence, this Agreement may
be assigned or delegated by Company to any subsidiary of Company. The
rights and obligations under this Agreement shall inure to the benefit
of and shall be binding upon the heirs, legatees, administrators and
personal representatives of Officer and upon the successors,
representatives and assigns of Company.
12. Severability and Reformation. The parties hereto intend all provisions
of this Agreement to be enforced to the fullest extent permitted by
law. If, however, any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future law, such
provision shall be fully severable, and this Agreement shall be
construed and enforced as if such illegal, invalid, or unenforceable
provision were never a part hereof, and the remaining provisions shall
remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its termination.
13. Notices. All notices and other communications required or permitted to
be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed by certified mail
(return receipt requested) or sent by overnight delivery service,
cable, telegram, facsimile transmission or telex to the parties at the
following addresses or at such other address as shall be specified by
the parties by like notice:
If to Company: Siena Holdings, Inc.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
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If to Officer: X. Xxxxxx Dryer
0000 Xxxxxxxxx Xxxxx
Xxxxx, Xxxxx 00000
Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
14. Further Actions. Whether or not specifically required under the terms
of this Agreement, each party hereto shall execute and deliver such
documents and take such further actions as shall be necessary in order
for such party to perform all of his or its obligations specified
herein or reasonably implied from the terms hereof.
15. GOVERNING LAW AND VENUE. THIS AGREEMENT IS MADE IN THE STATE OF TEXAS,
AND SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF SAID STATE.
16. Arbitration. Except for matters involving suits requesting injunctive
relief, any controversy or claim arising out of or relating to this
Agreement, or any breach hereof, shall be settled by arbitration. The
parties hereto agree that any such controversy shall be submitted to
three arbitrators in accordance with the Rules of Commercial
Arbitration of the American Arbitration Association. The arbitrators
shall be governed by and shall apply the substantive law of the State
of Texas in making their determination, and their ruling shall be
binding and conclusive upon the parties hereto. All arbitrations
(should any be required) shall occur in Texas.
17. Entire Agreement and Amendment. This Agreement contains the entire
understanding and agreement between the parties, and supersedes any
other agreement between Officer and Company, whether oral or in
writing, with respect to the subject matter hereof. This Agreement may
not be altered, amended, or rescinded, nor may any of its provisions
be waived, except by an instrument in writing signed by both parties
hereto or, in the case of an asserted waiver, by the party against
whom the waiver is sought to be enforced.
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18. Counterparts. This Agreement may be executed in counterparts, with the
same effect as if both parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together
and shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
Company:
Siena Holdings, Inc.
By:
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Name: Xxxx Xxxxxxxx
Title: Chairman of the Board and
Chief Executive Officer
Officer:
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X. Xxxxxx Dryer
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