EXHIBIT 10.29
FIRST AMENDED CONFIDENTIAL SEPARATION AGREEMENT,
GENERAL RELEASE AND INDEPENDENT CONTRACTOR AGREEMENT
This First Amended Confidential Separation Agreement, General Release
and Independent Contractor Agreement ("Amended Agreement") is made as of this
10th day of March 2005 by and between, Xxxx Rome, a resident of the State of
Texas ("Employee") and Technical Olympic USA, Inc., a Delaware corporation (the
"Company"), all of its current and former parents, partnerships, joint ventures,
subsidiaries, related companies, affiliates, and each of them, as well as its
and their trustees, directors, officers, agents, employees, stockholders,
representatives, assignees, and successors, and each of them (collectively, the
"Company").
WHEREAS, Employee and the Company entered into that certain Employment
Agreement of January 1, 2003 (herein the "Employment Agreement"), and the
Employment Agreement is still in current force and effect between the parties;
WHEREAS, Employee and the Company agree to terminate the employment of
the Employee under the Employment Agreement as of March 11, 2005; and, agreed to
provide for a new and independent relationship between the Employee and Company
after March 11, 2005 on the terms and conditions as set forth in that certain
Confidential Separation Agreement and General Release ("Agreement") previously
executed between the Parties;
WHEREAS, Employee (sometimes referred to herein when appropriate as
Independent Contractor) and the Company agree to supersede the Agreement on the
terms provided herein to the extent they are inconsistent with the Agreement;
and, to terminate that certain Project Consulting Agreement with TOUSA Homes,
Inc. dated March 10, 2005; it is
THEREFORE, in consideration of the covenants undertaken by both
parties hereto, Employee and the Company agree as follows:
1. EMPLOYMENT SEPARATION. Employee, currently employed as Executive Vice
President of the Company's homebuilding entity, will separate from the
Company effective March 11, 2005 (the "Separation Date"). Employee and
the Company acknowledge that the parties have agreed to the employment
termination as of March 11, 2005 as set forth in this Amended
Agreement, and an electronic announcement of Employee's separation from
the Company will be distributed by the Company to pertinent employees
by March 14, 2005, provided that such announcement is approved by
Employee prior to distribution by the Company. This Amended Agreement
supersedes the terms of the Agreement to the extent that the revisions
of the Amended Agreement are inconsistent with the Agreement. The
Parties agree to terminate and treat as a nullity that certain Project
Consulting Agreement with TOUSA Homes, Inc. executed previously as of
March 10, 2005.
/s/ ER Employee
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/s/ CO Company
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2. FINAL SALARY AND BONUS PAYMENTS.
a) On March 15, 2005, the Company shall pay Employee his final
payroll check at his then-current base salary, less standard
deductions and withholdings, through March 15, 2005.
b) On March 15, 2005, the Company shall pay Employee the lump sum
of $82,500.00, less standard deductions and withholdings.
3. TRANSITION. Employee agrees to work in a diligent manner,
conscientiously, expediently, and in the best interest of the Company,
to effect a smooth transition of his job responsibilities to others up
to and through March 11, 2005.
4. ADDITIONAL CONTRACTUAL PAYMENTS. In consideration for the below
promises and covenants by Employee, the Company agrees to pay Employee
Contractual Payments and subsequent Special Payments (collectively
"Additional Contractual Payments").
a) CONTRACTUAL PAYMENTS. In consideration for the below recited
promises, the Company will pay Employee monthly Contractual
Payments in the amount of $38,666.66 (hereafter "Contractual
Payments") per month, with such Contractual Payments to
commence on March 15, 2005 (monthly payment for March 2005
shall be pro rata from March 15, 2005 until March 31, 2005)
and to continue through December 31, 2007. The monthly
Contractual Payments will be paid to Employee in two (2) equal
installment payments on the 1st and 15th days of each month in
Xxxxxx County, Texas, and shall be subject to standard
withholdings. Employee agrees that his entitlement to the
Contractual Payments is expressly conditioned on his execution
of this Amended Agreement. Unless the Employee revokes the
Amended Agreement, which he understands he may do within 7
days after signing as set forth in paragraph 12 below, he will
be entitled to receive his Contractual Payments commencing
seven (7) days following his execution of this Amended
Agreement, retroactive to March 15, 2005 with the Contractual
Payments continuing until paid in full through December 31,
2007.
b) SPECIAL PAYMENTS. In further consideration for the below
promises, Employee shall receive "Special Payments" from the
Company in the total lump sum of $1,286,000.00. The Company
will pay these Special Payments in four (4) equal installment
payments of $321,500.00 each to Employee in Xxxxxx County,
Texas on the 15th day after the completion of each calendar
quarter, commencing 1Q of Y2005. The first installment of
$321,500.00 shall be due on April 15, 2005, and the remaining
three (3) installment payments will be due on the 15th day of
the month following the end of each calendar quarter until the
total lump sum of $1,286,000.00 has been paid by the Company
to Employee.
/s/ ER Employee
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/s/ CO Company
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5. ADDITIONAL CONSIDERATION.
a) BENEFITS CONTINUATION. For the duration of this Amended
Agreement, Employee and his dependents shall be entitled to
elect to continue to participate in the Company's medical,
dental and vision insurance plans in accordance with the
Company's summary plan document
b) AUTO/TELEPHONE ALLOWANCE. Employee shall receive a monthly
perquisite allowance of $1725.00, to commence March 15, 2005
and continuing through December 31, 2007, as payment by the
Company for an automobile and telephone allowance to allay
Employee's expenses incurred related to the services to be
performed by Employee under paragraph 6 herein.
c) VACATION ALLOWANCE. Employee shall be paid for any accrued,
but unused vacation days, through his Separation Date on March
15, 2005.
6. INDEPENDENT CONTRACTOR'S OBLIGATIONS; COMPANY'S OBLIGATIONS AFTER MARCH
11, 2005. In consideration of the mutual agreements of the parties, the
Company and Independent Contractor agree to the following Independent
Contractor relationship after March 11, 2005:
a) COMPANY'S RIGHT OF FIRST REFUSAL. Independent Contractor shall
actively seek real property for acquisition in Company's
existing homebuilding markets, either as developed lots or to
be developed as lots. Independent Contractor shall dedicate
such time as is reasonably necessary to satisfy his job as
solely determined by Independent Contractor, but he shall
spend no less than 500 hours per annum in his overall pursuit
even though those hours may not necessarily result, or be
allocable, in an effort for the Company. Independent
Contractor shall offer the same to the Company and hereby
grants to Company the right of first refusal (the "ROFR") to
pursue acquisition of said property as follows:
(i) Independent Contractor shall provide written notice
to Company of the location of the property, the price
of the property, and the general terms and conditions
for the acquisition of the property ("ROFR Notice").
(ii) Within fifteen (15) days of receipt of the ROFR
Notice, the Company shall notify Independent
Contractor if Company elects to pursue such
opportunity. Company's failure to respond or failure
to respond timely shall be deemed its election not to
exercise its ROFR.
(iii) If Company and the seller of the property fail to
execute a purchase agreement within 60 days from the
ROFR Notice by Independent Contractor to the Company,
Independent Contractor shall be free to offer any of
said property to a third party.
(iv) Company's right to exercise the ROFR shall expressly
be subject to Company being in compliance with all
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provisions of this Amended Agreement at all times
from the time such ROFR is exercised until the
respective transaction is closed.
b) RIGHT OF FIRST REFUSAL PAYMENTS. With regard to any property
to which the Company exercises its ROFR and enters into a
purchase agreement as provided in paragraph 6(a) above,
whether during or after the term (the "ROFR Property"),
Independent Contractor shall be entitled to receive
consideration in addition to his monthly Contractual Payments
set forth in paragraph 4(a) above (herein "ROFR Payments"), as
follows:
(i) The Company shall pay to Independent Contractor ROFR
Payments equal to three percent (3%) of the base
purchase price of each developed lot (or the
equivalent thereof, if acreage) paid by the Company
to the seller as and when the acquisition of the
respective lot or group of lots (or acreage, if
applicable) is closed by the Company.
(ii) In addition, the parties acknowledge that the Asset
Committee of the Company will prepare a proforma (the
"Proforma") of the project in which the lots will be
acquired and homes will be constructed. Such Proforma
shall specify a projected gross profit margin
("PGPM") reflected in a percentage anticipated for
the project. The Company shall confirm the same to
Independent Contractor by a copy of its approval of
the project. If the actual gross profit margin
("AGPM") on completion of a project exceeds the PGPM
2.5%, but less than 5.0%, then the Company shall pay
to Independent Contractor an ROFR Payment equal to
two percent (2%) of the original base purchase price
of the lots. If the AGPM on completion of a project
exceeds the PGPM by 5%, then the Company shall pay to
the Independent Contractor an ROFR Payment equal to
three percent (3%) of the original base purchase
price of the lots. AS AN EXAMPLE OF THE PAYMENT
STRUCTION, IF THE PGPM OF A PROJECT IS 21.4% AND THE
AGPM IS 23%, NO ROFR PAYMENT SHALL BE DUE. IF THE
PGPM IS 21.4% AND THE AGPM IS 24% THEN INDEPENDENT
CONTRACTOR SHALL BE ENTITLED TO AN ROFR PAYMENT OF 2%
OF THE ORIGINAL BASE PURCHASE PRICE OF THE LOTS. IF
THE PGPM IS 21.4% AND THE AGPM IS 26.8%, THEN
INDEPENDENT CONTRACTOR SHALL BE ENTITLED TO AN ROFR
PAYMENT OF 3% OF THE ORIGINAL BASE PURCHASE PRICE OF
THE LOTS. The ROFR Payment shall be paid within
thirty (30) days after the completion of the project
within which the lots are located. "Completion" shall
mean construction and sale of homes on at least 90%
of the lots acquired under each contract or amendment
thereto.
(iii) The obligation of the Company to make the ROFR
Payments hereunder shall survive the termination or
expiration of the term of this Amended Agreement.
/s/ ER Employee
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/s/ CO Company
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c) INDEPENDENT CONTRACTOR'S HOMEBUILDING LIMITATIONS.
Unless Independent Contractor has received the prior written
consent of the Chief Executive Officer or the Board of
Directors of the Company, Independent Contractor agree as
follows:
(i) Independent Contractor agrees that during Y2005,
Independent Contractor will not, individually or in
connection with any third party business entity,
close and fund on more than 20 new construction homes
provided that (i) each such home has a total sales
price of not more than $375,000.00, and (ii) is
located in any current homebuilding market of the
Company.
(ii) Independent Contractor agrees that during Y2006,
Independent Contractor will not, individually or in
connection with any third party business entity,
close and fund on more than 75 new construction homes
provided that (i) each such home has a total sales
price of not more than $375,000.00, and (ii) is
located in any current homebuilding market of the
Company.
(iii) Independent Contractor agrees that during Y2007,
Independent Contractor will not, individually or in
connection with any third party business entity,
close and fund on more than 150 new construction
homes provided that (i) each such home has a total
sales price of not more than $375,000.00, and (ii) is
located in any current homebuilding market of the
Company.
Provided, however, and notwithstanding the foregoing, if Independent
Contractor gives the Company 60 days' notice of his intent to terminate
his obligations under this paragraph 6, then the Company's obligation
to make the Additional Contractual Payments (including both Contractual
Payments and Special Payments) under paragraph 4 shall likewise
terminate at the expiration of the 60-day notice of termination,
provided, however that any ROFR Payments due to Independent Contractor
from the Company under paragraph 6 will survive the termination of this
Amended Agreement.
7. STOCK OPTIONS. The Company and Employee acknowledge and agree that upon
execution of this Amended Agreement, Employee is fully vested in 20,000
options of the Company's stock that were granted to him during his
employment. The parties further acknowledge and agree that any other
options Employee has, but which have not been vested by the Separation
Date, shall terminate, pursuant to the terms and conditions of the
Associate Stock Option Agreement of March 3, 2003.
8. COMPANY PROPERTY. On or prior to March 11, 2005, Employee shall return
to the Company all property, including, but not limited to,
Company-issued credit cards, or information, including, without
limitation, all reports, files, memos, plans, lists, or other records
(whether electronically stored or not) belonging to the Company or its
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affiliates, including copies, extracts or other documents derived from
such property or information, provided however that the Company hereby
transfers and assigns Employee's cell phone and cell phone number to
Employee. Additionally, Employee will retain his computer, fax machine,
and printer.
9. NON-DISCLOSURE OF AMENDED AGREEMENT AND NON-DISPARAGEMENT. Employee and
the Company acknowledge and agree that each will not: (i) take any
action or make any statement, written or oral, which disparages or
defames the goodwill or reputation of the other; or (ii) discloses to
any third party or entity the terms or conditions of this Amended
Agreement without the prior written consent of the other party, except
the Employee may disclose the terms and conditions of this Amended
Agreement to his immediate family and his legal and financial advisors
provided they agree to be bound by this same obligations of
confidentiality to the Company. This subsection does not prohibit
disclosures to the extent necessary legally to enforce this Amended
Agreement, nor does it prohibit disclosures to the extent otherwise
legally required. The Company shall comply with its standard referral
and reference check policy, whereby the Company will verify, with
Employee's consent, his dates of employment and positions held and that
he is eligible for rehire.
10. NO-REEMPLOYMENT. Employee agrees not to seek reemployment with the
Company, and further agrees that any attempt to be rehired will be
deemed to be a nullity.
11. COMPLETE RELEASES BY THE PARTIES.
a) EMPLOYEE'S RELEASE. In consideration for the Additional
Contractual Payments stated above by the Company and for other
good and valuable consideration, Employee irrevocably and
unconditionally releases the Company from any and all known
and unknown claims, complaints, causes of action, or demands
("Actions") of whatever kind or nature arising out of any
action, conduct, decision, behavior, or event occurring prior
to the effective dates of this General Release, including, but
not limited to, actions under Title VII of the Civil Rights
Act of 1964; the Older Workers Benefit Protection Act as
amended, the Age Discrimination in Employment Act of 1967; the
Equal Pay Act of 1993; the Rehabilitation Act of 1973; Section
1981 of the Civil Rights of 1866; the Civil Rights Act of
1991; the Americans with Disabilities Act; the Family and
Medical Leave Act of 1993, the Worker's Adjustment and
Retraining Notification Act; any other federal, state or local
state or local statue or regulation regarding employment or
discrimination in employment or Separation of employment; and
any Actions under any theory of libel, slander, breach of
contract, wrongful discharge, detrimental reliance,
intentional or negligent infliction of emotional distress,
tort, or any other theory under the common law, and any
Actions for uncompensated expenses, incentive pay, separation
pay, vacation pay, or any other form of compensation, PROVIDED
THAT Employee is not releasing (a) any rights or benefits,
whether monetary or non-monetary, provided to him in this
Amended Agreement or (b) any vested rights Employee may
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currently have under the Company's: (i) Deferred Compensation
Plan or (ii) Savings (401k) Plan. The Employee covenants not
to xxx the Company or bring any Actions on any claims through
March 11, 2005, PROVIDED FURTHER THAT Employee may enforce the
terms and conditions of this Amended Agreement.
THIS MEANS THAT BY SIGNING THIS AMENDED AGREEMENT, EMPLOYEE WILL HAVE
WAIVED ANY RIGHT HE MAY HAVE HAD TO BRING A LAWSUIT OR MAKE ANY LEGAL
CLAIM AGAINST THE COMPANY THAT IN ANY WAY ARISES FROM OR RELATES TO HIS
EMPLOYMENT RELATIONSHIP WITH THE COMPANY OR THE SEPARATION OF HIS
EMPLOYMENT RELATIONSHIP WITH THE COMPANY EXCEPT AS RETAINED HEREIN.
b) THE COMPANY'S RELEASE. In consideration for Employee's Release
stated above and for other good and valuable consideration,
the Company irrevocably and unconditionally releases Employee
from his Employment Agreement, any and all known and unknown
claims, complaints, causes of action, or demands ("Actions")
of whatever kind or nature arising out of any action, conduct,
decision, behavior, or event occurring prior to the effective
dates of this General Release, PROVIDED that the Company is
not releasing (a) any rights or benefits, whether monetary or
non-monetary, provided to it in this Amended Agreement. The
Company covenants not to xxx the Employee or bring any
Actions, PROVIDED FURTHER THAT the Company may enforce the
terms and conditions of this Amended Agreement.
THIS MEANS THAT BY SIGNING THIS AMENDED AGREEMENT, THE COMPANY WILL
HAVE WAIVED ANY RIGHT IT MAY HAVE HAD TO BRING A LAWSUIT OR MAKE ANY
LEGAL CLAIM AGAINST THE EMPLOYEE THAT IN ANY WAY ARISES FROM OR RELATES
TO HIS EMPLOYMENT RELATIONSHIP WITH THE COMPANY OR THE SEPARATION OF
HIS EMPLOYMENT RELATIONSHIP WITH THE COMPANY EXCEPT AS RETAINED HEREIN.
12. REVOCATION PERIOD. Employee hereby acknowledges that he has been
advised to consult with an attorney and has been provided at least
twenty-one days for a full and complete opportunity to review this
Amended Agreement with his attorney. Employee waives any right to
additional time to consider this Amended Agreement. Employee may revoke
this Amended Agreement for a period of seven (7) days following his
signing of this Amended Agreement. The last day on which this Amended
Agreement can be revoked is called the "Last Revocation Day."
Revocation can only be made by delivering a written notice of
revocation to Xxxxx Xxxxx, Human Resources Director, Technical Olympic
USA, Inc., 0000 Xxxxxxxxx Xxxx., Xxxxx 000-X, Xxxxxxxxx, XX 00000. For
this revocation to be effective it must be received no later than the
close of business on the seventh day following its execution. If the
employee does not revoke this Amended Agreement it shall go into effect
on the eighth day following its execution.
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13. NON-ADMISSION OF WRONGDOING. The parties agree not to assert that this
Release is an admission of wrongdoing or liability of the other and the
parties acknowledge that neither has, believes or admits that it has
done anything wrong.
14. REASONABLE COOPERATION. Employee promises to cooperate with the Company
in any investigations that are initiated by the Company or any
government entitles or agencies into matters occurring during
Employee's employment with the Company. Employee agrees that in the
event he is requested to testify or subpoenaed in connection with any
proceeding or action involving the Company he will provide immediate
notice to the Company, to enable it to respond to any such request or
subpoena. The Company will reimburse Employee for reasonable expenses
incurred. This promise will not prohibit Employee from testifying
pursuant to a subpoena in connection with any inquiry they may be
conducting into the Company's business practice. In the course of any
investigation, he is not authorized to waive any attorney-client or
other privileges that belong to the Company.
15. NO PENDING CHARGES OR COMPLAINTS. Employee agrees that he has not
filed, initiated, or prosecuted (or caused to be filed, initiated, or
prosecuted) any lawsuit, complaint, charge, action, compliance review,
investigation, or proceeding with respect to any claim this Amended
Agreement purports to waive, and he promises never to do so in the
future, whether as a named plaintiff, class member or otherwise.
Employee promises to request any administrative agency or other body
assuming jurisdiction of any such lawsuit, etc. to withdraw from the
matter or dismiss it with prejudice. However, the two preceding
sentences shall not preclude him from filing or prosecuting a charge
with any administrative agency with respect to any such Claim as long
as he does not seek any damages, remedies, or other relief for himself
personally, which he promises not to do, and any right to which, he
hereby waives. If he is ever awarded or recovers any amount as to any
claim, he has purported to waive in this Amended Agreement, he agrees
that the amount of the award or recovery shall be reduced by the
amounts he was paid under this Amended Agreement, increased
appropriately for the time value of money, using an interest rate of 10
percent per annum. To the extent such setoff is not effective, he
promises to pay, or assign to the Company his right to receive the
amount that should have been set off. This paragraph shall not apply to
ADEA claims to the extent, if any, prohibited by applicable law.
16. ENTIRE AGREEMENT. This Amended Agreement is the entire agreement
between Employee and the Company relating to Employee's employment,
separation of employment, and supercedes the Employment Agreement
between the parties, except that the Employee is not releasing any
fringe benefit accounts or fringe benefit plans not specifically
released by the Employee herein. This Amended Agreement may not be
modified or canceled in any manner, nor may any provision of it or any
legal remedy with respect to it be waived, except by in writing signed
by both Employee and an authorized Company official. If any provision
in this Amended Agreement is found to be unenforceable all other
provisions will remain fully enforceable.
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17. APPLICABLE LAW; SEVERABILITY. This Amended Agreement shall be governed
by and construed under the laws of the State of Texas. In the event any
Arbitrator, Court of Law, or Agency should determine that any term or
provision of this Amended Agreement is unenforceable, such term or
provision shall be deemed to be deleted as though it had never been a
part of this Amended Agreement, and the validity, legality and
enforceability of the remaining terms and provisions shall not be in
any way affected or imperiled thereby.
18. NOTICES. All notices and other communications hereunder shall be
communicated to the parties in writing and shall be deemed to have been
given (a) when delivered personally or by telefax to the party
specified, or (b) provided that a written acknowledgment of receipt or
delivery is obtained, two (2) business days after delivery by certified
or registered mail, or when delivered by a nationally recognized
overnight courier to the address set forth below (or to such other
address or telecopier number for such party as shall be specified):
IF TO EMPLOYEE (ALSO CALLED INDEPENDENT CONTRACTOR HEREIN):
Mr. Xxxx Rome
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Telefax: (512) 328- 5158
IF TO THE COMPANY:
Xxxxxxx X. Mon, CEO
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx., Xxxxx 000-X
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
19. ARBITRATION.
a) Employee/Independent Contractor and the Company agree and
stipulate that the services rendered in this transaction
involve interstate commerce as defined in the Federal
Arbitration Act, 9 U.S.C.ss.1 ET SEQ., and that this
Arbitration Agreement is covered and governed pursuant to the
Federal Arbitration Act.
b) Employee/Independent Contractor and the Company agree that,
should a controversy arise, any and all claims shall be
resolved in arbitration under the then-current National Rules
for the Resolution of Employment Disputes ("Rules") of the
American Arbitration Association ("AAA") before an arbitrator
who is licensed to practice law in the state in which the
arbitration is convened ("the Arbitrator"). The arbitration
shall take place in Dallas, Texas.
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c) The Arbitrator shall be selected as follows: AAA shall give
each party a list of arbitrators drawn from its panel of
employment arbitrators pursuant to Rule 9 of the Rules. Each
party may strike two names on the list it deems unacceptable
in accordance with the Rules. If only one common name remains
on the lists of all parties, that individual shall be
designated as the Arbitrator. In the event no Arbitrator is
agreed to then AAA shall select the Arbitrator in accordance
with the Rules.
d) The Arbitrator shall apply the substantive law (and the law of
remedies, if applicable) of the state in which the claim
arose, or federal law, or both, as applicable to the claim(s)
asserted. The Federal Rules of Evidence shall apply. The
Arbitrator, and not any federal, state, or local court or
agency, shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability
or formation of this Amended Agreement, including but not
limited to any claim that all or any part of this Amended
Agreement is void or voidable. The arbitration shall be final
and binding upon the parties.
e) The Arbitrator shall have jurisdiction to hear and rule on
pre-hearing disputes and is authorized to hold pre-hearing
conferences by telephone or in person as the Arbitrator deems
necessary. The Arbitrator shall have the authority to
entertain a motion to dismiss and/or a motion for summary
judgment by any party and shall apply the standards governing
such motions under the Federal Rules of Civil Procedure.
f) Either party, at its expense, may arrange for and pay the cost
of a court reporter to provide a stenographic record of
proceedings.
g) Either party, upon request at the closing of hearing, shall be
given leave to file a post-hearing brief. The time for filing
such a brief shall be set by the Arbitrator.
h) Either party may bring an action in any court of competent
jurisdiction to compel arbitration under this Amended
Agreement and to enforce an arbitration award. A prevailing
party bringing suit to enforce an arbitration award shall
additionally be entitled to reasonable attorneys' fees for the
suit to enforce or confirm the arbitration award, whether or
not the arbitration award so specifically provides. Except as
otherwise provided in this Amended Agreement, both parties
agree that neither party will initiate or prosecute any
lawsuit or administrative action in any way related to any
claim covered by this Amended Agreement.
i) The Arbitrator shall render an award and opinion in the form
typically rendered in employment arbitrations.
j) The results of the arbitration, unless otherwise agreed by the
parties or ordered by the Arbitrator on motion, are not
confidential and may be reported by any news agency or legal
publisher or service.
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k) The parties shall equally share the deposits for fees and
costs of the Arbitration. Each party will deposit funds or
post other appropriate security for its share of the
Arbitrator's fee, in an amount and manner determined by the
Arbitrator, ten (10) days before the first day of the hearing.
Each party shall pay for its own costs and attorneys' fees, if
any. However, if any party prevails on a statutory claim which
affords the prevailing party attorneys' fees, or if there is a
written agreement providing for fees, the Arbitrator may award
reasonable fees to the prevailing party.
20. CHANGE IN CONTROL. A Change In Control will be deemed to have occurred
for purposes hereof, upon any one of the following events: (a) any
person (within the meaning of Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")),
other than the Company (including its subsidiaries, directors, and
executive officers) has become the beneficial owner, within the meaning
of Rule l3d-3 under the Exchange Act, of fifty percent (50%) or more of
the combined voting power of the Company's then outstanding Common
Stock or equivalent in voting power of any class or classes of the
Company's outstanding securities ordinarily entitled to vote in
elections of directors ("voting securities"); or (b) shares
representing fifty percent (50%) or more of the combined voting power
of the Company's voting securities are purchased pursuant to a tender
offer or exchange offer (other than an offer by the Company or its
subsidiaries or affiliates); or (c) as a result of, or in connection
with, any tender offer or exchange offer, merger or other business
combination, sale of assets, or contested election, or any combination
of the foregoing transactions (a "Transaction"), the persons who were
Directors of the Company before the Transaction shall cease to
constitute a majority of the Board of the Company or of any successor
to the Company; or (d) the Company is merged or consolidated with
another corporation and as a result of such merger or consolidation
less than fifty percent (50%) of the outstanding voting securities of
the surviving or resulting corporation shall then be owned in the
aggregate by the former shareholders of the Company, other than (i) any
party to such merger or consolidation, or (ii) any affiliates of any
such party; or (e) the Company transfers more than fifty percent (50%)
of its assets, or the last of a series of transfers results in the
transfer of more than fifty percent (50%) of the assets of the Company,
to another entity that is not wholly-owned by the Company or (vi) the
Board, approves a resolution that for purposes of this Amended
Agreement a Change In Control has occurred. For purposes of subsection
(e), the determination of what constitutes fifty percent (50%) of the
assets of the Company shall be made by the Board, as constituted
immediately prior to the events that would constitute a Change In
Control if fifty percent (50%) of the Company's assets were transferred
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in connection with such events, in its sole discretion. In the event of
a Change In Control, this Amended Agreement will terminate at the
election of the Employee, and the Company will immediately pay to
Employee, a lump sum payment in cash equal to all payment due to
Employee under paragraph 2, all Contractual Payments and Special
Payments as due to Employee from the Company as described under
paragraph 4 of this Amended Agreement, and all Additional Contractual
Payments due to Employee from the Company on the existing real estate
projects as described under paragraph 6(b).
21. TERMINATION ON DEATH. This Amended Agreement will terminate upon the
death of Employee/Independent Contractor, and the Company will
immediately pay to Employee/Independent Contractor's wife, if she has
not predeceased him and if she is married to Employee/Independent
Contractor on the date of his death, a lump sum payment (the "Widow
Payment") in cash equal to all remaining payment due to
Employee/Independent Contractor under paragraph 2, and all Contractual
Payments and Special Payments due to Employee/Independent Contractor
from the Company as described under paragraph 4 of this Amended
Agreement. If Employee/Independent Contractor is not married at the
time of his death or if Employee/Independent Contractor's wife has
predeceased Employee/Independent Contractor, the Company shall be
obligated to make the Widow Payment to Employee/Independent
Contractor's estate. Additionally, in the event of Employee/Independent
Contractor's death, the Company shall pay to Employee/Independent
Contractor's wife, or his estate if she has predeceased him or is not
married to him on the date of his death, Employee/Independent
Contractor's accrued but unpaid Additional Contractual Payments for any
uncompleted real estate projects under paragraph 6(b) and any amount
due (and not previously paid) to Employee/Independent Contractor under
paragraph 5. Additionally, Employee/Independent Contractor's
dependent(s) may elect upon written notice to the Company of their
decision to continue COBRA benefits for Employee/Independent
Contractor's dependent(s) as set forth in paragraph 5(a) at their own
expense within 60 days of the death of Employee/Independent Contractor.
22. EXECUTION. This Amended Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of
which shall constitute one instrument.
Dated: As of March 10, 2005 Employee/Independent Contractor:
/s/ XXXX ROME
----------------------------------
XXXX ROME
TECHNICAL OLYMPIC USA, INC.
Dated: As of March 10, 2005 By: /s/ XXXXX XXXXX
-------------------------------
Printed Name: XXXXX XXXXX
---------------------
Title: VP HR AND ADMINISTRATION
----------------------------
/s/ ER Employee
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/s/ CO Company
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