EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is dated as of
the 28th day of May, 1999, between xxxxxxxx.xxx, inc., a Florida corporation
(the "Company"), and Xxxx Xxxxx (the "Executive").
WHEREAS, the Company and the Executive are parties to a
certain Purchase Agreement (as hereafter defined) dated January 1, 1998,
pursuant to which the Company purchased and the Executive sold all of the
Executive's right, title and interests in and to the net profits of the
Company's Northern California Division; and
WHEREAS, the Executive is currently employed with the Company
pursuant to an Employment Agreement dated as of January 1, 1998, which
Employment Agreement the Executive has agreed to terminate upon execution of
this Agreement; and
WHEREAS, the Executive desires to commit himself to serve the
Company and the MBG (as hereafter defined) on the terms herein provided.
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes the Executive's potential contribution to the continued growth and
success of the Company and desires to assure the Company of the Executive's
employment in an executive capacity and to compensate him therefor;
WHEREAS, the Company recognizes that circumstances may arise
in which a change of control of the Company occurs, through acquisition or
otherwise, thereby causing a potential conflict of interest between the
Company's needs for the Executive to remain focused on the Company's business,
and for the necessary continuity in management prior to and following a change
of control, and the Executive's reasonable personal concerns regarding future
employment with the Company and economic protection in the event of loss of
employment as a consequence of a change of control;
WHEREAS, the Company and the Executive are desirous that any
proposal for a change of control of the Company will be considered by the
Executive objectively and with reference only to the best interests of the
Company and its shareholders;
WHEREAS, the Executive will be in a better position to
consider the Company's best interests if the Executive is afforded reasonable
economic security, as provided herein, against altered conditions of employment
which could result from any such change of control; and
WHEREAS, the Executive possesses intimate knowledge of the
business and affairs of the Company and has acquired certain confidential
information and data with respect to the Company which the Company desires to
protect.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the parties
hereto agree as follows:
1. Certain Definitions. For purposes of this Agreement, the following words and
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phrases shall have the following meanings. Terms capitalized herein but not
defined herein shall have the meanings given to them in the Purchase Agreement.
"Affiliate" has the same meaning as "affiliate" in Rule 144(a)
promulgated under the Securities Act of 1933, as amended.
"Beneficial Owner" shall have the same meaning as "beneficial
owner" in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as
amended.
"Cause" for termination shall mean (i) Executive's conviction
of a felony, (ii) acts of Executive which, in the judgment of the Board,
constitute fraud on the part of Executive, including but not limited to
misappropriation or embezzlement in the performance of duties as an employee of
the Company, or willful engagement in conduct materially injurious to the
Company, or (iii) gross misconduct, including but not limited to the willful
failure of Executive either to (a) obey lawful written instructions of the Board
after thirty (30) days notice in writing of Executive's failure to do so and the
Board's intention to terminate Executive if such failure is not corrected, or
(b) correct any conduct of Executive which constitutes a breach of this
Agreement after thirty (30) days notice in writing of Executive's failure to do
so and of the Board's intention to terminate Executive if such failure is not
corrected.
"Change of Control" shall be deemed to have occurred if, after
the effective date of this Agreement,
a. any one Person (or group of affiliated Persons or entities)
other than an Excluded Person or an underwriter temporarily holding
securities pursuant to an offer of such securities, becomes a
Beneficial Owner, directly or indirectly, of securities representing
50% or more of the total number of votes that may be cast for the
election of directors of the Company; or
b. the shareholders of the Company approve, and the Company
consummates, a merger, consolidation or share exchange of the Company
with any other corporation or approve the issuance of voting securities
of the Company in connection with a merger, consolidation or share
exchange of the Company, other than (i) a merger, consolidation or
share exchange which would result in the voting securities of the
Company outstanding immediately prior to such merger, consolidation or
share exchange continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity or
any parent thereof) at least 50% of the combined voting power of the
voting securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger, consolidation or
share exchange, or (ii) a merger, consolidation or share exchange
effected to implement a recapitalization of the Company (or similar
transaction) in which no Person other than an Excluded Person is or
becomes the Beneficial Owner, directly or indirectly, of securities of
the Company representing 50% or more of either the then outstanding
shares of common stock of the Company or the combined voting power of
the Company's then outstanding voting securities; or
c. the shareholders of the Company approve, and the Company
consummates, an agreement for the sale or disposition by the Company of
all or substantially all of the Company's assets (in one transaction or
a series of related transactions within any period of 24 consecutive
months), other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity at least 50% of
the combined voting power of the voting securities of which are owned
by Persons in substantially the same proportions as their ownership of
the Company immediately prior to such sale.
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Notwithstanding the foregoing, no "Change of Control" shall be
deemed to have occurred if there is consummated any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of the Company immediately prior to such transaction or series of
transactions continue to own, directly or indirectly, in the same proportions as
their ownership in the Company, an entity that owns all or substantially all of
the assets or voting securities of the Company immediately following such
transaction or series of transactions.
"Date of Termination" shall mean (i) if the term of this
Agreement expires, the expiration date as specified in Section 2 hereof, (ii) if
the Executive's employment is terminated by his death, the date of his death,
(iii) if the Executive's employment is terminated as a result of a disability
described in Section 9, the date on which the Executive is terminated in
accordance with Section 9, (iv) if the Executive's employment is terminated
pursuant to Sections 8(b) or 8(d), the date of the Notice of Termination (which
date shall not precede the date of mailing such Notice of Termination) and (v)
if the Executive's employment is terminated pursuant to Sections 8(c) or 8(e),
the date specified as the Date of Termination in the Notice of Termination
(which date shall not precede the date of mailing such Notice of Termination).
"Excluded Person" shall mean Xxxx Xxxxxx, Canaan Equity, L.P.,
Dominion Fund III, or affiliates of any of the foregoing.
"Good Reason" shall mean, if (i) the Company reduces the
Executive's Base Salary other than pursuant to an across the board reduction for
all executives of the Company made necessary by business conditions in the
judgment of the Board of Directors of the Company, (ii) the Company requires the
Executive to relocate more than 50 miles from Santa Xxxxx County, California
(iii) the Company fails to meet its obligations under Section 5, or engages in
any other material breach of the terms of this Agreement, (iv) there is a
material adverse change by the Board of the Executive's functions, duties,
authority or responsibilities without the Executive's written consent, and, as a
result of such change, the Executive's position with the Company shall be or
becomes one of less dignity, responsibility, authority or scope
"Notice of Termination" shall have the meaning set forth in
Section 8(f) hereof.
"Person" shall mean any individual, firm, partnership,
corporation or other entity, including any successor (by merger or otherwise) of
such entity, or a group of any of the foregoing acting in concert.
"Board" shall mean the Company's Board of Directors.
"Division" shall mean the Company's Northern California
Division.
"MBG" means the "MBG" or "Mortgage Banking Group" as such
terms are defined in the Purchase Agreement.
"MBG Shut Down" shall mean the closing by the Company of the
operations of the MBG by any means which results in the loss of 75% or more of
origination loan volume generated by the MBG during the most recent fiscal
quarter.
"Members" shall mean members of the Company's membership
network.
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NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
2. Employment. Unless earlier terminated pursuant to the provisions of
this Agreement, the employment of the Executive by the Company shall be for a
term of 3 years, commencing on the 1st day of January, 1999. This Agreement
shall thereafter automatically renew annually for successive one year terms
unless either the Company or the Executive shall give written notice to the
other at least 90 days prior to the end of the initial term hereof or any
subsequent one-year renewal term, as the case may be, of the Company's or the
Executive's election not to extend this Agreement, in which event the expiration
of the then current term of this Agreement shall constitute the Date of
Termination.
3. Position and Duties. The Executive shall serve as the President and
Chief Operating Officer of the Division and the MBG, as an Executive Vice
President of the Company, and in such additional management positions as the
Board and the Executive may mutually agree. Subject to the authority of the
Board, the Executive shall have supervision and control over, and responsibility
for, (i) the day-to-day operations of the Division pursuant to the policies
adopted by the Board from time to time, and (ii) the day-to-day operations of
the MBG pursuant to the policies adopted by the Board, all as overseen by the
Chief Executive Officer and President of the Company. Specifically, the
Executive's duties will include (i) the development of Division business and MBG
business; (ii) the recruitment of Members; (iii) the integration of the business
conducted in all offices and sites of the MBG (as currently existing and as may
be expanded in the future); (iv) the general growth and improvement of the
Division and the MBG; and (v) executive management of secondary marketing
activities and chairmanship of the Pricing Secondary Marketing Committee, which
committee has the authority to set and determine loan product offerings, pricing
and secondary marketing policies and procedures.
The Executive shall have such other powers and duties as may
from time to time be prescribed by the Board, provided that such duties are
consistent with the Executive's position as an executive officer in charge of
the general management of the Division and the MBG. The Executive shall devote
his entire working time and efforts to the business and affairs of the Division
and the MBG.
4. Place of Performance. In connection with his employment by the
Company, the Executive shall perform his duties from locations in Santa Xxxxx
County, California, or such other place as may be mutually agreed to by the
Company and the Executive.
5. Director's Seat. The Company shall nominate the Executive to
continue to serve as a Board member at each annual meeting of the Company's
shareholders occurring during the term of this Agreement.
6. Compensation.
a. Base Salary. The Executive shall receive during the first
year of his employment hereunder an annual base salary of Two Hundred
Fifty Thousand Dollars ($250,000) (the "Base Salary"). During the
remaining term of his employment (years two and three), there shall be
an annual review for merit by the Board at which time the Executive's
Base Salary shall be increased by eight percent (8%) of the Base Salary
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for the immediately preceding year. The Executive's Base Salary shall
be payable in periodic installments in accordance with the Company's
usual practice for executive officers of the Company.
b. Bonuses. In addition to Base Salary, during the term of his
employment hereunder, the Executive shall be paid bonuses as determined
from time to time by the Board. The Executive will be assigned a target
award, representing a percentage of his Base Salary (representing not
less than 35% nor more than 100% of his Base Salary) ("Target Award").
The Executive's bonus will be determined by multiplying the Target
Award by a percentage reflecting the financial performance of the
Company ("Percent of Target Award Earned"). The amount of any bonus
payable to the Executive shall be determined as promptly as practicable
after the determination of the Company's financial performance for the
year, but in any event such payment will be made not later than 30 days
after the Company's receipt of consolidated audited financial
statements, if audited, or if not audited, not later than April 30 of
such year.
c. Other Incentive Compensation. In addition to Base Salary,
the Executive shall be entitled to participate in the Company's Stock
Option Plan. During the term of the Executive's employment, he shall be
further entitled to stock options under the Company's Stock Option Plan
in an amount equal to one-half of the stock options granted to the
Company's Chief Executive Officer from time to time, such stock options
to be incentive stock options or non-qualified stock options, depending
on the type of stock options granted to the Company's Chief Executive
Officer. The Option Agreement evidencing the options granted pursuant
to this Section 6(c) (the "Options") shall contain customary
anti-dilution adjustments to the exercise price and number of
purchasable shares of common stock (e.g., stock splits, reverse splits,
stock dividends). Options which may not be eligible for incentive stock
option treatment as a result of yearly or other limits on the number of
shares eligible for such treatment shall be deemed to be non-qualified
stock options.
Notwithstanding any vesting schedule contained in any
Option Agreement evidencing Options, upon termination of the
Executive's employment pursuant to Section 8 for any reason other than
(i) by the Company for Cause or (ii) the Executive's retirement
pursuant to the Company's retirement policies, the Options shall become
one hundred percent (100%) vested on the Date of Termination and with
respect to non-qualified stock options, the deadline for exercising
such Options under the applicable Option Agreement shall be extended to
a date which is ten years from the date hereof.
d. Expenses. During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services hereunder
(according to the policies and procedures from time to time established
by the Board), provided that the Executive properly accounts therefor
in accordance with Company policy.
e. Fringe Benefits. During the term of his employment, the
Executive shall be entitled to participate in or receive benefits under
all the Company's employee benefits plans and arrangements, including
any retirement plan, stock option plan, profit-sharing plan, savings
plan, health-and-accident plan, disability plan, insurance programs or
other arrangements made available by the Company to its senior
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executives, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans and arrangements.
f. Vacations. The Executive shall be entitled to the number of
paid vacation days in each calendar year determined by the Company from
time to time for its senior executive officers but not less than four
(4) weeks in any calendar year (prorated in any calendar year during
which the Executive is employed for less than the entire year in
accordance with the number of days in such calendar year during which
he is so employed). The Executive shall also be entitled to all paid
holidays provided by the Company to its senior executive officers.
g. Car Allowance. During the term of his employment, the
Executive shall at the Executive's expense maintain an automobile
available for use in connection with the performance of his duties
hereunder and shall be entitled to a car allowance of $1,500 per month.
h. Insurance. The Company shall obtain and pay for and keep in
force at all times while Executive is employed by the Company and
thereafter as provided herein, an insurance policy on the life of the
Executive with a death benefit not less than the greater of (i) four
(4) times the Base Salary or (ii) $1,500,000; provided, that if the
Executive is not insurable at the insurer's lowest rates for healthy,
non-smoking males of the Executive's age (the "Non-Rated Premiums"),
then the Company shall obtain and pay for an insurance policy on the
life of the Executive in the face amount obtainable for such Non-Rated
Premiums. The Executive shall have the exclusive right to designate the
beneficiaries of any life insurance policy provided by the Company
hereunder and to change the beneficiaries from time to time. Such
policy and the proceeds and cash value thereof, if any, shall be the
sole property of the Executive and the Company shall not retain any
beneficial interest therein. Upon termination of the Executive's
employment by the Company for Cause, upon a disability described in
Section 9, as a result of his retirement pursuant to the retirement
policies of the Company, or by the Executive or the Company pursuant to
notice under Section 2, the Company's obligation to pay the premiums on
such insurance shall cease; in all other events the premiums shall be
paid for eighteen (18) months following the Date of Termination.
7. Unauthorized Disclosure.
a. During the period of his employment hereunder and following
termination thereof, the Executive shall not, without the written
consent of the Board or a person authorized thereby, disclose to any
Person, other than an employee of the Company or a Person to whom
disclosure is reasonably necessary or appropriate in connection with
the performance by the Executive of his duties as a senior executive of
the Company, any material confidential information obtained by him
while in the employ of the Company with respect to any of the Company's
products, improvements, formulas, designs or styles, processes,
customers, computer software and systems, computer programming or
methods of marketing, the disclosure of which would be materially
damaging to the Company; provided, however, that confidential
information shall not include any information known generally to the
public (other than as a result of unauthorized disclosure by the
Executive) or any information of a type not otherwise considered
confidential by Persons engaged in the same business or a business
similar to that conducted by the Company. Executive shall have no
obligation hereunder to keep confidential any confidential information
if and to the extent disclosure of any thereof is specifically required
by law; provided, however, that in the event disclosure is required by
applicable law, Executive shall provide the Company with prompt notice
of such requirement, prior to making any disclosure, so that the
Company may seek an appropriate protective order.
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b. The provisions of this Section 7 shall be binding upon the
Executive's heirs, successors and legal representatives.
8. Termination.
a. Death. The Executive's employment hereunder shall terminate
upon his death.
b. Termination by the Company for Cause. The Company may
terminate the Executive's employment hereunder at any time for Cause by
delivering a Notice of Termination to the Executive.
c. Termination by the Company without Cause. The Company may
terminate the Executive's employment hereunder for any reason by
delivering a Notice of Termination to the Executive at least 30 days
prior to the Date of Termination.
d. Termination by the Executive for Good Reason. The Executive
may terminate his employment hereunder for Good Reason by delivering a
Notice of Termination to the Company. For purposes of this Agreement,
"Good Reason" shall mean (i) a material breach of or default under this
Agreement or the Purchase Agreement by the Company which is not cured
by the Company within thirty (30) days after its receipt of notice
thereof by the Executive or (ii) an MBG Shut Down. A termination by the
Executive pursuant to this subsection d shall be treated for all
purposes as a termination by the Company pursuant to subsection c of
this Section 8.
e. Termination by the Executive Following Change of Control.
The Executive may terminate his employment hereunder for any reason
after the date which is 120 days after the date of a Change of Control,
by delivering a Notice of Termination to the Company at least 30 days
prior to the Date of Termination.
f. Notice of Termination. Any termination by the Company
pursuant to subsections b or c of this Section 8, and any termination
by the Executive pursuant to subsections d or e of this Section 8,
shall be communicated by a written notice delivered by certified mail,
return receipt requested, within the appropriate time periods, if any,
specified by such subsections, and such Notice of Termination shall
indicate the specific termination provision in this Agreement relied
upon. If the termination is pursuant to subsections b or d of this
Section 8, the Notice of Termination also shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
9. Disability. If, as a result of the Executive's incapacity due to
physical or mental illness, as determined in writing by a physician reasonably
acceptable to Executive, the Executive shall have been unable to perform his
duties hereunder on a full-time basis for the Disability Period (as defined
below), and the Executive is therefore incapable of performing such duties, and
within thirty (30) days after the Company notifies the Executive in writing that
it intends to replace him the Executive shall not have returned to the
performance of his duties hereunder on substantially a full-time basis, the
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Company may terminate the Executive and replace him without breaching this
Agreement. As used herein, the Disability Period shall mean the period of
disability required by the Company's disability insurance policies as a
condition to providing disability benefits to the Executive under such policies.
10. Compensation Upon Termination or During Disability.
a. Death or Disability. If the Executive's employment shall be
terminated by reason of his death or disability, the Executive or the
Executive's estate shall be entitled to all compensation and all fringe
benefits accrued and vested through the Date of Termination, all
accrued and vested retirement benefits; and in addition, in the event
of the death of the Executive all stock options granted prior to the
date of death shall become 100% vested. In addition, if the Executive's
employment is terminated as a result of a disability within the meaning
of Section 9, the Company shall provide such disability benefits to the
Executive as are made available to other senior executive officers of
the Company.
b. Termination by Company For Cause; Retirement. If the
Executive's employment shall be terminated for Cause, the Executive
shall be entitled to receive (A) his full Base Salary accrued through
the Date of Termination at the rate in effect at the time the notice of
termination is given and (B) only such Options as have vested prior to
the Date of Termination, and the Company shall have no further
obligations to the Executive under this Agreement.
If the Executive's employment shall be terminated as a result
of his retirement at an age of 60 years or older, the Executive shall
be entitled to receive (A) his full Base Salary accrued through the
Date of Termination at the rate in effect at the time the notice of
termination is given and (B) 100% vesting of Options he has been
granted prior to the Date of Termination, and the Company shall have no
further obligations to the Executive under this Agreement, other than
its obligations under the Company's retirement plans and policies if
the Executive's employment is terminated as a result of his retirement
pursuant to the Company's retirement policies.
c. Termination by Company Without Cause; Termination by
Executive for Good Reason. Subject to subsection (d) of this Section
10, if (A) the Company shall terminate the Executive's employment
pursuant to Section 8(c) or (B) the Executive terminates his employment
for Good Reason, then the Company shall pay to the Executive his full
Base Salary accrued through the Date of Termination at the rate in
effect on the Date of Termination. In addition, the Company shall pay
to the Executive, as liquidated damages, or severance pay, or both, on
the thirtieth (30th) day following the Date of Termination, a lump-sum
amount equal to (a) two times the Base Salary then in effect plus (b)
two times the annual car allowance provided for in this Agreement
(collectively, a "Severance Payment"). In addition, the Company shall
maintain in full force and effect, for the continued benefit of the
Executive for eighteen (18) months following the Date of Termination,
all employee benefit plans and programs in which the Executive was
entitled to participate immediately prior to the Date of Termination,
so long as the Executive's continued participation is possible under
the general terms and provisions of such plans and programs. To the
extent that the Executive's benefits from any pension, profit sharing
or other retirement plan or program (whether tax qualified or
otherwise) are not vested on the Date of Termination, the Company shall
pay to the Executive in 18 equal monthly installments following the
Date of Termination, the present value of the difference between the
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amounts which would have been paid to the Executive had he been fully
vested on the Date of Termination and the amounts actually paid or
payable to the Executive pursuant to such plans or programs.
In addition, if the Date fo Termination, as defined in Section
1, is the date the term of this Agreement expires as specified in
Section 2, all stock options granted prior to the Date fo Termination
shall become 100% vested.
d. Termination of Executive Upon Change of Control.
Notwithstanding subsection (c) of this Section 10, if
i. the Company shall terminate the Executive's employment
pursuant to Section 8(c) or the Executive terminates his employment for
Good Reason, in either case at any time within two years following a
Change of Control, or
ii. a Change of Control occurs and the Executive's employment
was terminated by the Company pursuant to Section 8(c) during the
period 180 days prior to the date on which the Change of Control
occurs, and if it is reasonably demonstrated by the Executive that such
termination of employment (A) was at the request of a third party who
had taken steps reasonably calculated to effect a Change of Control or
(B) otherwise arose in connection with or in anticipation of a Change
of Control,
then in lieu of the Severance Payment described in subsection (c) of Section 10,
the Company shall pay to the Executive, as liquidated damages, or severance pay,
or both, on the thirtieth (30th) day following the Date of Termination, a cash
lump-sum amount equal to the higher of the following amounts:
iii. Three (3) times Base Salary plus the average of the
bonuses paid to Executive during the prior three calendar years (or the
number of calendar years that bonuses have been paid to Executive if
bonuses have been paid for less than three calendar years) or
iv. Three (3) times Base Salary plus his Target Award bonus
for the then current calendar year, assuming the Percent of Target
Award Earned is 100%.
Notwithstanding subsection (c) of this Section 10, if the Executive terminates
his employment pursuant to Section 8(e) hereof, then in lieu of the Severance
Payment described in subsection (c) of Section 10, the Company shall pay to the
Executive, as liquidated damages, or severance pay, or both, on the thirtieth
(30th) day following the Date of Termination, a cash lump-sum amount equal to
the higher of the following amounts:
v. Three (3) times Base Salary plus the average of the bonuses
paid to Executive during the prior three calendar years (or the number
of calendar years that bonuses have been paid to Executive if bonuses
have been paid for less than three calendar years) or
vi. Three (3) times Base Salary plus his Target Award bonus
for the then current calendar year, assuming the Percent of Target
Award Earned is 100%.
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e. If Section 280G of the Internal Revenue Code of 1986, as
amended (the "Code") applies to payments made to the Executive upon a
Change of Control, the Company shall pay to the Executive an amount
necessary to negate the effect upon the Executive of any excise tax on
any portion of such payment pursuant to Section 280G of Code, as well
as the effect upon the Executive of any excise tax and income tax on
amounts required to be paid pursuant to this subsection (e), such
amounts under this subsection (e) to be paid to the Executive in four
equal installments, with the first installment due and payable on the
Date of Termination, and the remaining installments due and payable
every 90 days following the Date of Termination
11. Non-Competition. In recognition of the Company's substantial
relationships with business clients or prospects and its trade secrets and other
valuable, confidential business or professional information, the Executive
agrees that, in the event of any termination, except termination under Sections
8.c, 8.d or 8.e or the Executive shall not, for a period expiring three (3)
years after the Date of Termination, without the prior written approval of the
Board, participate in the management of, be employed by or own any business
enterprise at a location within the United States that engages in substantial
competition with the online mortgage origination business of the Company or its
affiliates, where such enterprise's revenues from any competitive activities
amount to 10% or more of such enterprise's net revenues or sales for its most
recently completed fiscal year. Nothing in this Section 11 shall prohibit the
Executive from owning stock or other securities of a competitor amounting to
less than five percent of the outstanding capital stock of such competitor. For
terminations under Section 8.c, 8.d or 8.e the Executive shall not, for a period
expiring one (1) year after the Date of Termination, without the prior written
approval of the Board, participate in the management of, be employed by or own
any business enterprise at a location within the United States that engages in
substantial competition with the online mortgage origination business of the
Company or its affiliates, where such enterprise's revenues from any competitive
activities amount to 10% or more of such enterprise's net revenues or sales for
its most recently completed fiscal year; provided, however, that nothing in this
Section 11 shall prohibit the Executive from owning stock or other securities of
a competitor amounting to less than five percent of the outstanding capital
stock of such competitor. In addition and notwithstanding anything herein to the
contrary, this section shall not apply if the Date of Termination as defined in
Section 1 is the date the term of this Agreement expires as specified in Section
2.
12. Non-Solicitation. In recognition of the Company's substantial
relationships with business clients or prospects and its trade secrets and other
valuable, confidential business or professional information, the Executive
agrees that during the term of his employment with the Company, and for a period
of two years following the termination of his employment by Company for Cause or
by the Executive voluntarily, he will not, directly or indirectly, for himself
or for any other commercial enterprise, directly or indirectly (i) solicit any
of the Company's customers, members, joint venture partners, or technology
partners, which relationships are in existence during the term of his employment
or at the time of termination of such employment, as the case may be, or (ii)
solicit or discuss with any employee of the Company the employment of such
Company employee by any commercial enterprise other than the Company, nor
recruit, attempt to recruit, hire or attempt to hire any such Company employee
on behalf of any commercial enterprise other than the Company. In addition and
notwithstanding anything herein to the contrary, this section shall not apply if
the Date of Termination as defined in Section 1 is the date the term of this
Agreement expires as specified in Section 2.
The Executive acknowledges that the enforcement of the provisions in
Section 11 and this Section 12 shall not result in unreasonable deprivation of
his right to earn a living and that if the provisions of Section 11 or this
Section 12 shall be determined by any court to be invalid or unenforceable to
any extent, then Section 11 or this Section 12, as applicable, shall be deemed
to be amended so as to be valid and enforceable to the fullest extent permitted
by law.
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13. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be deemed properly mailed, if
mailed to the following addresses:
If to the Executive:
Xxxx Xxxxx
00000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
If to the Company:
Xxxxxxxx.xxx, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
14. Successors; Binding Agreement. This Agreement and all rights of the
Executive hereunder shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If the Executive should
die while any amounts would still be payable to him hereunder if he had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the Executive's
estate.
15. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is approved
by the Board and agreed to in writing signed by the Executive and such officer
as may be specifically authorized by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Florida, exclusive of
conflicts of laws principles.
16. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
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17. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Florida (without regard to the
choice of law or conflict of laws provisions thereof).
18. Attorneys' Fees. In the event of any litigation arising out of this
Agreement, the prevailing party shall be entitled to reasonable attorneys' fees
and expenses from the losing party, whether incurred before suit is brought,
before or at trial, on appeal, or in insolvency proceedings.
19. Jurisdiction. Each party to this Agreement hereby irrevocably
submits to the jurisdiction of any Florida state court or federal court sitting
in Broward County, Florida in any action or proceeding arising out of or
relating to this Agreement, or any other related document, and each hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Florida state or federal court. The Company and
Executive agree that such jurisdiction and venue shall be exclusive and each
party to this Agreement hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of any inconvenient forum to the maintenance of
such action or proceeding.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year first above written.
XXXXXXXX.XXX, INC.,
("Company")
By: /s/ Xxxx Xxxxxx
-------------------
Xxxx Xxxxxx, Chief Executive Officer
/s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx ("Executive")
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