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EXHIBIT 10.2
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 Xxxx Xxxxxxx ("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
periodic review, at the rate of not less than $25,000 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%.
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(e) NewREIT Equity Ownership. Employer shall cause NewREIT to
provide the following equity ownership to Employee:
(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.
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(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 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
Chairman of the Board and Chief Executive Officer of Employer and, subject to
appointment by the Board of Directors of NewREIT, Chairman of the Board and
Chief Executive 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.
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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 shall devote substantially 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. Notwithstanding the above, Employee may continue to
serve as a member of the board of directors of the companies listed on Exhibit E
hereto and may serve on any additional boards of directors approved by the Board
of Directors 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 Chairman and
Chief Executive officer of Employer and NewREIT.
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(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 reasonably result in a convection 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
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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 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
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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 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
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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 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
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Employee under Section 7 above. Notwithstanding the foregoing, 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 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
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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 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
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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 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 Xxxx Xxxxxxx
00000 Xxxxx Xxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
Telecopy No.: (000) 000-0000
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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 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
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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
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:
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Xxxxx X. Xx Xxxxx,
President
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Xxxx X. Xxxxxxx, Xx., 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 Xxxx X. Xxxxxxx
("Employee").
RECITALS
A. Employer and Employee entered into that certain Employment and
Noncompetition Agreement as of February 11, 1997 (the "Employment Agreement");
B. 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;
C. The Company desires to employ, and Employee desires to be
employed by the Company; and
D. 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.
3. Continued Employment.
Employee shall continue to be deemed employed by Employer so long
as he continues to provide services to the Company or Employer.
17
4. 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:
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Xxxxx X. Xx Xxxxx, President
EMPLOYEE
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Xxxx X. Xxxxxxx
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