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EXHIBIT 10.3
EMPLOYMENT AND NONCOMPETITION AGREEMENT
This EMPLOYMENT AND NONCOMPETITION AGREEMENT is made and
entered into as of February 11, 1997, by and between HOME ASSET MANAGEMENT
CORP., a Delaware corporation ("EMPLOYER"), and Xxx Xxxxxx ("EMPLOYEE").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as an executive
officer of Employer and Employee wishes to accept such employment on the terms
and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties, conditions, acknowledgments and agreements
contained herein, Employer and Employee hereby agree as follows:
1. Employment. Employer hereby employs Employee and Employee
hereby accepts employment, upon the terms and conditions hereinafter set forth.
Employee warrants that he is free to enter into and fully perform this
Agreement. Upon execution of this Agreement, Employee shall execute and deliver
Employer's standard confidentiality and trade secrets agreement attached to this
Agreement as Exhibit A.
2. Term. The term of this Agreement (subject to the provisions
of Section 6) shall begin on the date hereof and shall continue for a period of
five years from the date hereof (the "TERM").
3. Compensation.
(a) Salary. For all Employee's services under this Agreement,
Employer shall pay Employee, or cause to be paid, a base salary, subject to
period review, at the rate of not less than $20,833 per month, less payroll and
withholding deductions required by law, payable in accordance with Employer's
payroll policy as constituted from time to time. If requested by Employee,
Employer shall consider the adoption of a plan to defer all or a portion of
Employee's cash compensation hereunder.
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(b) Other Duties. If Employee is elected or appointed a
director or an officer of Employer or of any parent, subsidiary or affiliate of
Employer, including American Residential Investment Trust, Inc., a Maryland
corporation ("NewREIT"), but excluding other portfolio companies of XxXxxx De
Leeuw & Co.(collectively, "AFFILIATES"), for any periods during his employment
by Employer, Employee will serve in such capacities without compensation in
addition to that specified in this Section 3.
(c) Fringe Benefits. Employee shall have the right, on the
same basis as other employees of Employer occupying positions with
responsibility and salary comparable to that of Employee, to participate in and
receive benefits under and in accordance with the provisions of any future
annual or long-term incentive or bonus plan. In addition, Employee shall be
entitled to such health, life and long-term disability insurance and benefits
which are made available to employees of Employer ("HEALTH BENEFITS"). In
addition, Employee shall be entitled to four weeks paid vacation and
reimbursement for travel and entertainment expenses incurred in connection with
his duties hereunder upon presentation of proper evidence thereof.
(d) Bonus. Bonuses during the first two years of this
Agreement shall be entirely within the discretion of the Board of Directors.
Bonuses thereafter will be subject to achievement of a targeted net income
budget established by management and approved by the Board of Directors of
Employer as set forth below. Employee shall be able to earn up to 100% of his
annual salary as a bonus.
Percent of Target Net Income Achieved Percent of Salary Payable as Bonus
------------------------------------- ----------------------------------
Less than 75% 0%
75% to 99.9% 33 1/3%
100% to 124.9% 66 2/3%
125% or more 100%
Bonuses earned pursuant to the table above shall be pro-rated
if results achieved fall between the thresholds above 75%.
(e) NewREIT Equity Ownership. Employer shall cause NewREIT to
provide the following equity ownership to Employee:
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(i) Employee shall be granted options to purchase up to
175,000 shares of Common Stock of NewREIT at an exercise price of $10.00 per
share under NewREIT's 1997 Stock Incentive Plan and pursuant to the stock option
agreements attached hereto as Exhibit B.
(ii) Employee shall also be granted a five-year cash
settlement stock appreciation right under the 1997 Stock Incentive Plan of
NewREIT covering 175,000 shares of NewREIT Common Stock at an exercise price of
$10.00 per share pursuant to the stock appreciation rights agreement attached
hereto as Exhibit C.
(iii) Employee agrees that he will become a party to the
Stockholders Agreement attached hereto as Exhibit D as a condition to the grant
of the options.
(iv) Upon the closing of a Qualified IPO of NewREIT (as
defined in the Stockholders Agreement), Employee shall be granted an additional
option to purchase 100,000 shares (as presently constituted on the date of this
Agreement) of NewREIT at an exercise price equal to the public offering price in
the Qualified IPO. The options granted in connection with a Qualified IPO of
NewREIT shall vest 20% on the closing of the Qualified IPO and 20% on each of
the next four anniversaries of the closing of a Qualified IPO by NewREIT.
(v) Options and stock appreciation rights granted pursuant
to clauses (i) and (ii) above shall become fully vested upon the closing of the
latest public offering of Common Stock of NewREIT pursuant to which NewREIT will
have cumulatively raised from public or private new offerings of its stock,
gross proceeds of at least $150 million. Options and stock appreciation rights
granted pursuant to clauses (i), (ii) and (iv) above shall become fully vested
upon consummation of a Change of Control Transaction (as defined in the
Stockholders Agreement). Vesting of options and stock appreciation rights shall
not be accelerated upon a Qualified IPO by NewREIT (except as set forth above)
and shall not be accelerated upon a termination of employment.
(vi) Options granted pursuant to the terms of this Section
3(e) shall be incentive stock options to the extent permitted by law. The
balance of the options shall be non-qualified stock options. To the extent the
terms of the option agreements conflict with the provisions of this Section 3,
the option agreements shall control.
(f) Golden Parachute Limitations. Notwithstanding anything
contained herein to the contrary, in the event that the payments to Employee
contemplated by this Agreement or the
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agreements referred to herein, either alone or together with other payments
Employee has a right to receive from Employer or NewREIT, would not be
deductible (in whole or in part) by Employer or NewREIT as a result of such
payments constituting a "parachute payment" (as defined in Section 280G of the
Internal Revenue Code, as amended (the "Code")), such payments shall be reduced
to the largest amount as will result in no portion of such payments not being
fully deductible by Employer or NewREIT as the result of Section 280G of the
Code. The determination of a valuation for purposes of Section 280G of
consulting, noncompetition or other agreements resulting in a reduction in the
payments pursuant to the foregoing sentence shall be made exclusively by
independent public accountants selected by mutual agreement of Employee and
Employer. If Employee and Employer are unable to agree upon a single firm to
make such determination, Employee and Employer shall each select one firm and
the firms selected shall appoint a third firm to make the determination. The
fees and expenses of any firm mutually agreed upon by Employee and Employer
shall be borne by Employer. The fees and expenses of firms selected by Employee
and Employer if no agreement is reached shall be borne by the party selecting
such firm, with the fees and expenses of the third firm selected being shared
equally by Employee and Employer. The determination of the accounting firm or
firms shall be conclusive and binding on Employer and Employee.
4. Position.
(a) Responsibilities. Subject to the provisions of Section 2
hereof and in accordance with the By-laws of Employer, Employee is engaged as
President and Chief Operating Officer of Employer and, subject to appointment by
the Board of Directors of NewREIT, President and Chief Operating Officer of
NewREIT. Employee promises to perform and discharge well and faithfully all
duties which may be assigned to him in his capacities described above by the
Board of Directors of Employer or NewREIT from time to time in accordance with
this Agreement, and Employee shall devote his best talents, efforts and
abilities to the performance of his duties hereunder. Employee shall perform his
duties subject to the direction and control of the Board of Directors of
Employer or NewREIT.
(b) Place of employment. Employee's place of employment during
the term of this Agreement shall be in the San Diego metropolitan area, with
such business travel outside the San Diego area as shall be necessary to the
performance of Employee's duties.
5. Exclusive Services. During the period in which Employee is
an employee of Employer, his services shall be completely exclusive to Employer
and its Affiliates and he
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shall devote his entire time, attention and energies to the business of Employer
and its Affiliates and the duties to which Employer shall assign him from time
to time. Employee agrees to perform his services to the best of his ability and
to carry out the reasonable policies and directives of Employer.
6. Termination. Employee's employment hereunder may be
terminated prior to the expiration of the Term specified in Section 2 above as
described below. Employee shall be entitled to the compensation provided in
Section 7 hereof in the event his employment is terminated as provided in this
Section 6.
(a) Death. Employee's employment hereunder shall terminate
upon his death.
(b) Disability. If, as a result of the Employee's
incapacity due to physical or mental illness, Employee shall have been absent
from his duties hereunder on a full-time basis for 180 consecutive calendar
days, and within 30 days after written Notice of Termination (as defined below)
is given (which may occur no earlier than 30 days before, but at any time after,
the end of such 180-day period), Employee shall not have returned to the
performance of his duties hereunder on a full-time basis, Employer may terminate
the Employee's employment hereunder.
(c) Without Cause. Employer, by appropriate action of the
Board of Directors, may terminate Employee's employment hereunder at any time
without Cause; provided, however, that Employer may terminate the Employee's
employment without Cause (as defined below) during any disability period only as
provided in Section 6(b). A Resignation for Good Reason shall be deemed a
termination without Cause for purposes of this Agreement. Resignation for Good
Reason shall mean Employee's resignation within six months of the occurrence of
any of the following: (i) material diminution of responsibilities with Employer
or NewREIT without the consent of Employee; (ii) relocation of his principal
office outside the San Diego area; (iii) material reduction in the compensation
provided in this Agreement or (iv) termination as President and Chief Operating
officer of Employer and NewREIT.
(d) Cause. Employer may terminate the Employee's employment
hereunder for Cause. For purposes of this Agreement, "Cause" shall mean
Employee's (i) embezzlement, theft or other misappropriation of any property of
Employer; (ii) gross or willful misconduct resulting in substantial loss to
Employer or substantial damage to the reputation of Employer; (iii) any act
involving moral turpitude which if the subject of a criminal proceeding could
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reasonably result in a conviction for a felony involving moral turpitude; (iv)
gross or willful neglect of his assigned duties to Employer or NewREIT, provided
that actions taken or not taken in good faith shall not be deemed to constitute
gross or willful neglect; (v) breach of his fiduciary obligations to Employer or
NewREIT or (vi) any chemical dependence certified by a licensed physician
resulting in impairment of Employee's abilities to perform his duties hereunder
or substantial damage to the reputation of Employer.
(e) Notice of Termination. Any termination, during the term
of this Agreement, of the Employee's employment hereunder (other than
termination pursuant to Subsection 6(a) above on account of death) shall be
communicated by a written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "NOTICE OF TERMINATION" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and, if applicable, shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated. In the case of a Notice of
Termination for Cause, Employee shall have 30 days following receipt of such
notice to correct or cure (if possible) any of the matters referred to in the
notice as the basis for such termination and during such period, Employee shall
be afforded the opportunity to make a presentation to the Board of Directors
regarding the matters referred to in such notice. Upon such correction or cure,
Employer's right to terminate this Agreement for Cause as specified in such
Notice of Termination shall cease as to such matters. Only one such notice need
be given.
(f) Date of Termination. The "DATE OF TERMINATION" shall,
during the Term of this Agreement, mean: (i) if Employee's employment is
terminated by his death, the date of his death; (ii) if Employee's employment is
terminated on account of disability pursuant to Subsection 6(b) above, 30 days
after Notice of Termination is given (provided that Employee shall not, during
such 30-day period, have returned to the performance of his duties on a
full-time basis); (iii) if Employee's employment is terminated by Employer
without Cause pursuant to subsection 6(c) above, the date upon which Notice of
Termination is given; and (iv) if Employee's employment is terminated by
Employer for Cause pursuant to Subsection 6(d) above, the date specified in the
Notice of Termination.
(g) Resignation. Notwithstanding any other provision hereof
to the contrary, Employee may, at any time during the term of this Agreement,
effective immediately upon the giving of a Notice of Termination, terminate his
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employment hereunder. For purposes of this Agreement, a Resignation For Good
Reason shall be deemed to be a termination without Cause.
7. Compensation Upon Termination or During Disability.
(a) Death. If Employee's employment shall be terminated by
reason of his death, Employer shall, within 90 days of death, pay a lump sum
death benefit to such person as he shall designate in a notice filed with
Employer or, if no such person shall be designated, to his estate. The amount of
such death benefit shall be equal to his salary, plus a bonus equal to the bonus
paid to Employee for the previous year multiplied by a fraction, the numerator
of which is the number of days in the current year prior to Employee's death and
the denominator is 365, and any amounts payable pursuant to Section 3(c) to the
date of his death which, at the date of death, are accrued and unpaid.
(b) Disability. During any period that Employee fails to
perform his duties hereunder as a result of incapacity due to physical or mental
illness, Employee shall continue to receive his salary and any amounts payable
pursuant to Section 3(c) until Employee's employment is terminated due to
disability pursuant to Subsection 6(b) hereof. Upon termination due to death
prior to a termination as specified in the preceding sentence, Subsection 7(a)
above shall apply. For periods of time after termination pursuant to Subsection
6(b) hereof, any disability payments which Employee may be entitled to receive
pursuant to any employee benefit plan or arrangement provided by Employer shall
be paid pursuant to the terms of such plan or arrangement.
(c) Without Cause. If Employee's employment shall be
terminated by Employer without Cause, (i) Employer shall, through the Date of
Termination, continue to pay Employee his salary and amounts payable or accrued
pursuant to Section 3(c) and (ii) Employer shall, after the date of Termination,
pay to Employee for a period of one year from the Date of Termination, his
salary (but, subject to applicable law, no additional payments contemplated by
Section 3) in effect on the Date of Termination, such payments to be made in
installments substantially similar to those made to Employee prior to the Date
of Termination; provided, however, if termination without Cause occurs within
six months of a Change of Control (as defined in the Stockholders Agreement)
Employee shall also be entitled to receive a lump sum payment equal to his bonus
for the immediately preceding year. Employee shall also continue to participate
in the Health Benefits programs of Employer during the one-year period following
the Date of Termination. Payments or other benefits received by Employee
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after the Date of Termination but during the period in which Employer is
obligated to continue to make payments to Employee as provided above which
result from or are in connection with any prior or future employment or business
activities of the Employee shall not reduce Employer's liability hereunder.
Failure to renew this Agreement upon expiration of the Term shall not be deemed
to constitute a termination without Cause.
(d) Cause. If Employee's employment shall be terminated for
Cause, Employer shall, through the Date of Termination, continue to pay Employee
his salary and amounts payable pursuant to Section 3(c), provided, however, that
Employee shall not be entitled to receive any bonus upon a termination for Cause
and shall not be entitled to receive any amounts payable with respect to the
period following the Date of Termination.
(e) Resignation. If Employee's employment shall be
terminated by reason of resignation pursuant to Subsection 6(g) hereof, Employer
shall continue to pay Employee his base salary through the Date of Termination,
but Employee shall not be entitled to receive any bonus if he resigns and shall
not be entitled to receive any amounts payable with respect to the period
following the Date of Termination. If Employee's employment is terminated by
reason of Resignation For Good Reason, the provisions of Subsection 7(c) shall
apply.
(f) Effect of Payments. The payments provided hereunder
shall fully discharge Employer's obligations under this Agreement. Employee
acknowledges and agrees that the provisions of this Agreement state his entire
and exclusive rights, entitlements and remedies against Employer and its
successors, assigns, affiliates and representatives for any termination of this
Agreement. As a material inducement to Employer to enter into this Agreement,
Employer represents to Employer that he will make no other claims in any such
event.
8. Noncompetition.
(a) During the period (the "NONCOMPETITION PERIOD") commencing
on the date hereof and ending on the earlier of (i) the fifth anniversary
hereof; (ii) the termination of employment of Employee without Cause or (iii)
the consummation of a Change of Control Transaction, Employee shall not,
directly or indirectly, own, manage, operate, join, advise, control or otherwise
engage or participate in or be connected as an officer, employee, partner,
creditor, guarantor, advisor of, or consultant to, any business which may
compete against the business (the "BUSINESS") of Employer and/or its Affiliates,
including, without limitation, the businesses of operating and managing a
mortgage real estate investment trust
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in the United States (the "MARKET AREA"). Notwithstanding the foregoing, (x)
Employee may work or perform services for Employer and its Affiliates, (y)
Employee may work or perform services for a financial institution or similar
entity which is involved in the mortgage business so long as such entity is not
engaged primarily in managing a real estate investment trust or originating and
selling mortgages and (z) Employee may own securities in any publicly held
corporation, but only to the extent Employee does not own of record or
beneficially more than 1% of the outstanding beneficial ownership of such
corporation. For purposes of the non-competition covenants set forth in Section
8 hereof, Affiliates of Employer shall not include XxXxxx De Leeuw & Co. or
Crescent or their portfolio companies other than Employer, NewREIT and their
subsidiary companies.
(b) Non-Solicitation of Employees. During the Noncompetition
Period, Employee shall not, either on his own account or for any person, firm or
company, solicit, interfere with, or endeavor to cause any employee of the
Business, Employer or any Affiliate to leave his or her employment or induce or
attempt to induce any such employee to terminate or breach his or her employment
agreement.
(c) Non-Solicitation of Customers. During the Noncompetition
Period, Employee shall not induce or attempt to induce any customer of the
Business, Employer or any Affiliate, to cease doing business in whole or in part
with Employer or any Affiliate.
(d) Payments for Noncompetition Covenants. In consideration of
the noncompetition and non-solicitation covenants contained in Sections 8(a) of
this Agreement, Employer shall pay to Employee an amount equal to 25% of
Employee's monthly salary in effect on the Date of Termination (the
"NONCOMPETITION PAYMENT") for each month during the Noncompetition Period
following the Date of Termination. Each Noncompetition Payment shall be made in
arrears on or before the last day of each month of the Noncompetition Period
following the Date of Termination. Each Noncompetition Payment shall be paid by
Employer by delivery of a check to Employee, or as may otherwise be agreed to by
Employer and Employee. All payments due to Employee under this Section 8(d)
shall be in addition to any payments due to Employee under Section 7 above.
Notwithstanding the forgoing, if Employer notifies Employee in writing in a
Notice of Termination or within ten business days of Employee's resignation that
it elects not to make the payments provided in this Section 8(d), then the
provisions of Section 8(a) shall cease to be enforceable against Employee
following the Date of Termination, subject, however, to Employee's fiduciary
obligations as an officer of Employer and the provisions of
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any Confidentiality and Non-Disclosure Agreements between Employee and Employer.
If Employer does not notify Employee as provided in the immediately proceeding
sentence, then Employer shall be obligated to continue to make monthly payments
hereunder for a minimum of six months. Employer may elect to terminate monthly
payments hereunder upon six months' written notice to Employee and upon
termination of such payments, the provisions of Section 8(a) shall cease be
enforceable against Employee following, subject, however, to Employee's
fiduciary obligations as an officer of Employer and the provisions of Employee's
Confidentiality Agreement previously executed and delivered.
9. Stay of Time. In the event Employee violates the provisions
of Section 8 of this Agreement, the running of the time period of such
provisions so violated shall be automatically suspended upon the date of such
violation and shall resume on the date such violation permanently ceases.
10. Injunctive Relief. The remedy at law for any breach of
this Agreement is and will be inadequate, and in the event of a breach or
threatened breach by Employee of the provisions of this Agreement, Employer or
its Affiliates shall be entitled to seek an injunction restraining Employee from
violating the provisions of this Agreement. Nothing herein contained shall be
construed as prohibiting Employer, its Parent or its Affiliates from pursuing
any other remedies available to it or them for such breach or threatened breach,
including without limitation, the recovery of damages from Employee.
11. Separate Covenants. The non-solicitation provisions of
this Agreement shall be deemed to consist of a series of separate covenants, one
for each line of business carried on by Employer and its Affiliates. The parties
expressly agree that the character and duration of such provisions in this
Agreement are reasonable in light of the circumstances as they exist on the date
upon which this Agreement has been executed. However, should a determination
nonetheless be made by a court of competent jurisdiction at a later date that
the character or duration of such provisions is unreasonable in light of the
circumstances as they then exist, then it is the intention and the agreement of
Employee and Employer that such non-solicitation provisions of this Agreement
shall be construed by the court in such a manner as to impose only those
restrictions on the conduct of Employee which are reasonable in light of the
circumstances as they then exist and as are necessary to
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assure Employer and its Affiliates of the intended benefits of this Agreement.
If, in any judicial proceeding, a court shall refuse to enforce all of the
separate covenants deemed included herein because, taken together they are more
extensive than necessary to assure Employer, its Parent and Affiliates of the
intended benefit of such non-solicitation provisions, it is expressly understood
and agreed between the parties hereto that those of such covenants which, if
eliminated, would permit the remaining separate covenants to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed eliminated from
the provisions hereof.
12. Employer's and Employee's Rights; Indemnification. This
Agreement shall not limit or prejudice in any manner whatsoever the rights which
Employer or Employee would have, in the absence of this Agreement, with respect
to any and all matters arising out of Employee's employment, except for such
matters that are specifically covered by the terms of this Agreement or are
mentioned herein. Employee shall be entitled to indemnification as an officer
and employee of Employer in accordance with the provisions of the Certificate of
Incorporation and Bylaws of Employer and applicable Delaware law.
13. Assignment/Sale. The rights and obligations of Employer
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Employer and any subsequent assignee. No assignment of
this Agreement by Employer shall relieve Employer of its obligations hereunder.
This Section shall be deemed to apply to any assignment by sale, merger,
consolidation, liquidation or otherwise.
14. Assignment by Employee. Employee may not assign this
Agreement or any of his rights hereunder except with the prior written consent
of Employer. This Agreement shall be binding upon Employee's heirs, executors,
administrators or other legal representatives and their legal assigns.
15. Benefits. If, in the sole and absolute discretion of the
Board of Directors of Employer, Employee is permitted to participate in any
other plan or agreement for eligible employees of Employer which is not
specifically referred to herein, or to receive any other employment benefits, it
is agreed that nothing contained in this Agreement shall affect the right of
Employer to terminate or modify any such plan or agreement, or other benefit in
whole or in part at any time and from time to time.
16. Entire Agreement; Modifications. This instrument, together
with the exhibits hereto, contains the entire agreement of the parties with
regard to matters covered herein. Standard policies of Employer applicable to
employees shall govern matters not set forth in this Agreement to the extent
they do not conflict with this Agreement. This
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Agreement may not be changed or modified, or released, discharged, abandoned or
otherwise terminated, in whole or in part, except by an instrument in writing
approved by the Board of Directors of Employer, and signed by an officer of
Employer and by Employee.
17. Applicable Law. This Agreement and all matters or issues
collateral hereto shall be governed by the laws of the State of California
applicable to contracts made and to be performed entirely within such State.
18. Waiver. A waiver by either party of any of the terms or
conditions of this Agreement in any one instance shall not be deemed or
construed to be a waiver of such term or condition for the future, or of any
subsequent breach thereof. All remedies, rights, undertakings, obligations and
agreements contained in this Agreement shall be cumulative, and none of them
shall be in limitation of any other remedy, right, undertaking, obligation or
agreement of either party.
19. Notices. All notices required to be given hereunder shall
be given in writing, and may be personally delivered (including by facsimile),
sent by overnight courier or deposited with the U.S. postal authorities, return
receipt requested, addressed as follows:
If to Employer: Home Asset Management Corp.
000 Xxxxxx Xxxx Xxxxxx, Xxxxx 000
Xxx Xxx, XX 00000
Attn: Chairman of the Board
with a copy to: XxXxxx De Leeuw & Co.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No.: (000) 000-0000
Attn: Xxxxx Xx Xxxxx
If to Employee Xxx Xxxxxx
0000 Xxxxxx Xxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
Telecopy No.: (000) 000-0000
or to such other address as the parties may from time to time designate in
writing. Notices shall be deemed delivered on the day personally delivered or
sent by facsimile (with appropriate confirmation of transmission), or on the
fourth business day following deposit in the U.S. mail, return receipt
requested.
20. Compliance with Laws and Policies. Employee agrees that he
will at all times comply strictly with all
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applicable laws and all current and future policies of Employer and its
Affiliates.
21. Employer Property. Upon termination or expiration of his
employment hereunder, Employee agrees to return to Employer all property of
Employer, any Parent and any Affiliate of which Employee has had custody and to
deliver to Employer all correspondence, management studies and other materials
and data relating to or connected with his employment hereunder.
22. Paragraph Headings. The paragraph headings in this
Agreement are for convenience only and shall not in any manner affect the
interpretation or construction of this Agreement or any of its provisions.
23. Attorneys Fees. If legal proceedings are required to
enforce this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees.
24. Survival of Certain Provisions. The rights and obligations
of the parties under Sections 8 through 10, 21, 23 and 27 shall survive the
termination of this Agreement.
27. Enforcement. Employer shall have the right to separately
enforce the terms of this Agreement against Employee with respect to any breach
or threatened breach by Employee of the provisions hereof as provided herein.
28. Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and both of which, taken
together, shall constitute one and the same instrument.
29. Arbitration. Any dispute or claim arising out of or
relating to this Agreement which cannot be settled by negotiation between the
parties shall first be submitted to mediation, conducted in San Diego,
California, by a single, neutral mediator in accordance with the Commercial
Mediation Rules of the American Arbitration Association. In the event such
dispute or claim is not resolved by mediation within 30 days from the inception
thereof, then such dispute or claim shall be submitted to and settled
exclusively by final and binding arbitration, conducted in San Diego, California
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association, as modified by any other instruments or agreements that the parties
hereto may execute at the time of or prior to the arbitration. The arbitration
shall be conducted by a single neutral arbitrator chosen by mutual agreement
between the parties; provided, however, that if the parties are unable to agree
upon an arbitrator, then the arbitration shall be conducted by a panel of three
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arbitrators, Employer and Employee each shall choose one arbitrator, and the
third arbitrator shall be selected by the two arbitrators so chosen. The fees of
the American Arbitration Association and of the arbitrator or arbitrators shall
be borne by Employer.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
HOME ASSET MANAGEMENT CORP.
By: _____________________________________
Xxxxx X. Xx Xxxxx,
President
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Xxx X. Xxxxxx, Employee
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FIRST AMENDMENT TO
EMPLOYMENT AND NON-COMPETITION AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AND NON-COMPETITION AGREEMENT (the
"Amendment") is entered into as of August ___, 1997 by and between Home Asset
Management Corp., a Delaware corporation ("Employer"), and Xxx X.
Xxxxxx ("Employee").
RECITALS
Employer and Employee entered into that certain Employment
and Noncompetition Agreement as of February 11, 1997 (the "Employment
Agreement");
Employer and American Residential Investment Trust, Inc., a
Maryland corporation (the "Company") entered into that certain Management
Agreement, dated February 11, 1997, and the First Amendment to Management
Agreement, dated August __, 1997 (collectively referred to hereinafter as the
"Management Agreement"), whereunder Employer agreed to provide certain
administrative services for the Company covered by the Employment Agreement;
The Company desires to employ, and Employee desires to be
employed by the Company, in order to provide certain services which Employer
must provide to the Company pursuant to the terms of the Management Agreement;
and
In consideration for Company's employment of Employee to
perform certain obligations of Employer under the Management Agreement, Employer
and Employee agree to amend the Employment Agreement on the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises herein
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Adjustments to Compensation.
Employer shall be entitled to reduce any payments due to
Employee under Paragraph 3 of the Employment Agreement by an amount equal to the
total compensation paid to Employee by the Company pursuant to the terms of the
Management Agreement.
2. Termination by the Company.
If Employee's employment should be terminated by the Company
at any time prior to termination of the Management Agreement, the provisions of
Paragraph 1 of this Amendment shall be of no further force or effect.
17
Except as expressly modified by this Amendment, all other terms and
provisions of the Employment Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
HOME ASSET MANAGEMENT CORP.
By: _______________________________________
Xxxxx X. Xx Xxxxx, President
EMPLOYEE
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Xxx X. Xxxxxx
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