Exhibit 10.7
TOTALLY RESTATED AND AMENDED
EMPLOYMENT AGREEMENT
THIS TOTALLY RESTATED AND AMENDED EMPLOYMENT AGREEMENT (the
"Agreement") is made and entered effective as of January 1, 2003 by and between
Vestin Group, Inc., a Delaware corporation (the "Corporation"), and Xxxxx
Xxxxxxxx (the "Executive") with reference to the following facts:
WITNESSETH:
WHEREAS, the Corporation previously entered into an employment
agreement (the "Initial Employment Agreement") with Executive; and
WHEREAS, the Corporation desires to totally amend and restate the
Initial Employment Agreement in order to retain the services of the Executive
and to maximize the period of his continued availability; and
WHEREAS, 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 January 1,
2003, and shall continue for a period of five (5) years until December 31, 2008
(the "Term"). After the initial five (5) year 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 his 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. Compensation.
a. As salary during the Term, the Corporation shall pay
the Executive, in accordance with its normal payroll,
a minimum annual salary of Two Hundred Thousand
Dollars ($200,000) such salary to be paid no less
than semi-monthly during the Term. The Executive
shall receive such additional salary as the Board of
Directors of the Corporation may from time to time
determine during the Term. Unless expressly agreed in
writing by the parties hereto, no such additional
compensation or benefits shall be deemed to modify or
otherwise affect the terms or conditions of this
Agreement. Notwithstanding the foregoing if Executive
is terminated other than for Cause Executive shall be
entitled to the lesser of six (6) months salary or
the salary due for the remaining Term of this
Agreement as severance as Executive's sole and
exclusive rights pursuant to this Agreement. In the
event Executive is terminated for Cause, this
Agreement shall terminate and Executive shall be
entitled to no compensation. Cause shall exist when
and only when Executive (i) after receipt of written
notification by the Board of Directors or the CEO has
wilfully failed and continues to fail after such
written notice for a period of thirty (30) days to
substantially perform his duties (other than failure
resulting from incapacity due to physical or mental
illness), (ii) is convicted of a crime constituting a
felony, or (iii) has been proven to be dishonest, has
embezzled or has committed common law fraud ("for
Cause").
b. Executive shall receive an automobile and living
allowance in the amount of One Thousand Dollars
($l,000) per month during the Term.
5. Other Benefits. During the Term the 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.
6. 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 his estate the
greater of (i) six (6) month's salary or (ii) such amount as is otherwise
set forth in a separate agreement concerning death and/or disability. Any such
payment made pursuant to (i) above shall be paid 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 his
physician incapable of performing his duties as specified in this Agreement. The
Corporation shall have the right to fund Executive's death and/or disability
benefit through life insurance.
7. Place of Performance. In connection with his 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.
8. 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 two
(2) years following termination of this Agreement,
Executive shall not, directly or indirectly, as an
employee, 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 but not be
limited to engaging in the mortgage business in the
Practice Territory. 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 8, 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 8, the court
may award reasonable attorneys' fees, costs, and
expenses to the prevailing party.
c. Survival. The provisions of this Article 8 shall
survive the termination of this Agreement for two (2)
years.
9. 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
ten (10) 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
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 9 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.
10. 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
Xxx Xxxxx, Xxxxxx 00000
If to Executive at:
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 his 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.
12 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.
13. 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 XXXXXXXX
----------------------------
Xxxxx Xxxxxxxx
VESTIN GROUP, INC.,
A DELAWARE CORPORATION
By:_________________________
Name:
Title:
