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Exhibit 10(L)
This AGREEMENT is made as of this 17th day of July, 2000, between
Franklin Credit Management Corporation and Xxxx X. Xxxxx.
RECITALS
a. FCMC is a Corporation organized under the laws of the
State of Delaware.
b. FCMC desires to employ Employee, and Employee desires
to accept employment from FCMC.
c. The partiees desire to record the arrangements made
for such employment.
AGREEMENT
IT IS, THEREFORE, AGREED:
1. Definitions: For the purposes of this Agreement, the following
capitalized terms shall have the following meanings:
a. FCMC or Company shall mean Franklin Credit Management Company.
b. Employee shall mean Xxxx X. Xxxxx.
c. Competitor shall mean any person, company, firm or corporation
which: (1) actually competes with the Company, its
subsidiaries or affiliates; (2) is engaged in a business in
which the Company, its subsidiaries or affiliates are also
engaged; or (3) is engaged in a business which the Company,
its subsidiaries or affiliates have at the date of Employee's
termination of employment reasonably certain plans to enter
within twelve months of the Employee's termination.
d. Executive Bonus Pool shall mean that bonus pool established
pursuant to Company policy, for each fiscal year, equal to ten
(10%) percent of the after tax consolidated net earnings of
the Company in excess of $500,000. The after tax net earnings
shall be determined by the consolidated audited financial
statements of the Company.
2. Employment. Term Effective July 17, 0000, XXXX hereby employs
Employee as the Chief Executive Officer ("CEO") of FCMC. The term of employment
shall be for the period commencing July 17, 2000 and ending on the date the term
of employment is terminated pursuant to Section 11 of this Agreement.
a. Place of Employment. During the term of employment, Employee
shall be based at the Company's principal executive offices,
which shall be in New York City, subject to reasonable travel
required in the performance of Employee's duties.
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b. Board Participation. The Company shall use its best efforts to
cause Employee to be a member of its Board of Directors
throughout the term of employment, and shall include Employee
in the management slate for election during the term of
employment as a director at every shareholders' meeting at
which Employee's term as a director would otherwise expire.
3. Duties and Authority. The responsibilities of the CEO shall include
management, control, administration, and operation of the following aspects of
the business and affairs of the Company and its subsidiaries:
a. Employee's duties shall include those duties normally
customarily associated with position of CEO. Without
limitation, Employee shall be responsible for the general and
active management of the affairs of the Company, including but
not limited to the direct supervision and control over the
Chief Operating Officer.
b. Employee shall report directly to the Chairman of the Board of
Directors. All employees of the Company, other than the
Chairman of the Board, shall report directly or indirectly to
the Employee. Notwithstanding the foregoing, to the extent the
Chairman of the Board of Directors is also the President,
Employee shall report to the President.
c. Employee shall attend all meetings of the Board except when
the Board requests otherwise.
d. Employee shall submit to the Board of Directors from time to
time such recommendations and information concerning any phase
of Company policy or administration as may seem necessary to
Employee to be the best interests of the Company.
e. To oversee the development, implementation and regular
updating of the Company's Strategic Plan as may be directed by
the Board of the Directors.
4. Compensation. FCMC shall pay to Employee the following compensation:
a. Salary. Employee shall receive an annual salary, payable on a
semimonthly basis as follows:
i. July 17, 2000 through June 30, 2001: $175,000,
ii July 1, 2001 through June 30, 2002: $225,000,
iii. July 1, 2002 through the termination of this Agreement: An
amount to be determined by mutual agreement of the Company and
Employee, but not less than $225,000.
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b. Bonuses. In addition to the salary set forth above, Employee
shall receive an annual bonus based on the net profits of
FCMC. The annual bonus shall be determined as follows:
i. In the event Employee is employed by the Company on July 1,
2001, Employee shall receive a bonus in an amount to be
determined by the Board of Directors. However, in no event
shall the bonus payable pursuant to subparagraph (b)(i) of
this Paragraph be less than $25,000.
ii. In the event Employee is employed by the Company on April 15
of any year after January 1, 2002, Employee shall receive a
bonus equal to twenty five percent (25%) of the Executive
Bonus Pool for the period of January 1 through December 31 of
the immediately preceding calendar year. Such Bonus shall be
payable on or about that April 15.
c. Stock Options. As additional compensation for services
provided under this agreement, employee shall receive options
to purchase common stock of the Company as follows:
No. of Date Exercise Date
Shares Vested Price 1st Exercisable
------ ------ ----- ---------------
50,000 7/17/00 $35 7/17/00
50,000 7/1/01 $35 7/1/01
50,000 7/1/02 $.75 7/l/02
Employee acknowledges that the stock to be issued by the Company in the
event of the exercise of such options shall be restricted stock and
limitations shall apply to Employee's ability to trade such stock. The
options granted to Employee pursuant to this subparagraph shall be
issued pursuant to the terms and conditions of the Company's existing
Employee Stock Option Plan and such options shall be governed by the
terms and conditions of the existing Employee Stock Option Plan.
5. Vacation and other benefits. During each twelve-month period that
Employee is employed by FCMC, Employee shall be entitled to three weeks (i.e.,
fifteen days) of paid vacation plus regular personal days and holidays in
accordance with the policies of FCMC. Vacation days cannot be accrued or
aggregated from one twelve-month period to the next. In addition, Employee shall
be entitled to participate in all present and future benefit plans provided by
FCMC to its other executive officers.
6. Car Allowance. Throughout the term of employment, Employee shall
receive a car allowance of $400 per month and a paid parking space in the
vicinity of the Company's offices.
7. Acknowledgments. FCMC is in the business of purchasing, servicing
and disposing of residential mortgages and other secured financial assets, and
related services in both the New York City metropolitan area and on a national
basis. Employee acknowledges that:
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a. FCMC's services are highly specialized;
b. FCMC has a proprietary interest in its methods and processes;
and,
c. Documents and other information regarding FCMC's methods,
pricing and costs are highly confidential and constitute trade
secrets.
8. Trade secrets and confidential information. During the term of this
Agreement, Employee may have access to, and become familiar with, various trade
secrets and confidential information belonging to FCMC, its subsidiaries or
affiliates. Employee acknowledges that such confidential information and trade
secrets are owned and shall continue to be owned solely by FCMC, its
subsidiaries or affiliates. During the term of his employment and for thirty-six
(36) months after such employment terminates for any reason, regardless of
whether termination is initiated by FCMC or Employee, Employee agrees not to
use, communicate, reveal or otherwise make available such information for any
purpose whatsoever, or to divulge such information to any person, partnership,
corporation or entity other than Employer or persons expressly designated by
Employer, unless Employee is compelled to disclose it by judicial process.
9. Restrictive covenants.
a. Full time Employment. During the period of his employment,
Employee shall not, directly or indirectly, alone or as a
member of any partnership, or as an officer, director,
shareholder, or employee of any corporation, engage in or be
concerned with any other paid employment, except:
i. Subject to the provisions of subparagraph (b) of this
Paragraph 9, Employee may engage in other business activities,
including consulting services, service on boards of directors
and personal business activities, so long as such activities
do not require more than 10 hours of Employee's time per week
during normal working hours or are performed outside of normal
working hours; however, in no event shall such other business
activities materially interfere with the performance of
Employee's material duties under this Agreement; or
ii. as otherwise authorized in writing by the Company and agreed
to by the Employee.
b. Non-competition. Employee agrees that:
i. During both the period of Employee's employment by the Company
and the period in which Employee is entitled to receive
periodic severance payments pursuant to Paragraph 12(b) of
this Agreement, regardless of whether the termination was
initiated by FCMC or Employee, Employee will not accept
employment with, or act as a consultant, contractor, advisor,
or in any other capacity for, a Competitor, or enter into
competition with FCMC, its subsidiaries or affiliates, either
by himself or through any entity owned or managed in whole or
in part by the Employee, and Employee shall not make any
preparations to compete with the Company.
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ii. During the term of this Agreement and for a period of nine (9)
months after termination Employee's employment by the Company
for any reason, regardless of whether the termination is
initiated by FCMC or Employee, Employee shall not solicit or
make, or cause to make, any offer of employment to any
employee of the Company, its subsidiaries or affiliates, for
the purpose of inducing such employee to terminate his or her
employment with the Company, or its subsidiaries or
affiliates.
(1) Notwithstanding the foregoing subparagraph, following
termination of Employee's employment, Employee may
make an offer of employment to one or more "Exempt
Employees" of the Company, its subsidiaries or
affiliates. For the purpose of this subparagraph, an
Exempt Employee shall include those employees of
the Company, its subsidiaries or affiliates which:
(A) Employee played a substantial role in the hiring
of the Exempt Employee by the Company, its subsidiary
or affiliate; (B) as of the date of the offer of
employment to the Exempt Employee, Employee has not
accepted employment with, acted as a consultant,
contractor, or in any other capacity worked for a
Competitor; and, (C) the Exempt Employee is not
offered employment by a Competitor.
iii. For a period of twelve (12) months after termination of
Employee's employment by the Company for any reason,
regardless of whether the termination is initiated by the
Company or Employee, or for a period of time equal to the
length of Employee's employment with FCMC if such tenure is
less than twelve (12) months, Employee will not; directly or
indirectly, solicit any person, company, firm, or corporation
from whom the Company purchased financial assets or to whom
the Company sold assets originated by the Company during the
term of Employee's employment. Employee agrees not to so
solicit such customers on behalf of himself or any other
person, firm, company, or corporation, if such solicitation is
for the purchase or sale of the same or similar types of
financial assets purchased or sold by the Company.
(1) Notwithstanding the foregoing, nothing in the
foregoing subparagraph (iii) shall restrict or
preclude Employee, or his then current employer, from
purchasing financial assets as part of a competitive
bidding process in which the Company has a full and
fair opportunity to participate, so long as no
confidential information belonging to the Company is
used as part of the bidding process and the right to
bid does not represent a corporate opportunity of the
Company.
(2) Notwithstanding the foregoing, nothing in the
foregoing subparagraph (iii) shall restrict or
preclude Employee, or his then current employer,
from selling financial assets to customers of the
Company as part of a public sale of financial
assets, so long as no confidential information
belonging to the Company is used as part of the
sale process and the sale of such financial assets
not represent a corporate opportunity of the Company.
c. The parties have attempted to limit Employee's right to
compete only to the extent necessary to protect FCMC from
unfair competition. The parties recognize, however, that
reasonable people may differ in making such a determination.
Consequently, the parties hereby agree that, if the scope or
enforceability of the restrictive covenant is in any way
disputed at any time, a court or other trier of fact may
modify and enforce the covenant to the extent that it believes
the covenant is reasonable under the circumstances existing at
that time.
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d. Employee further acknowledges that: (1) in the event his
employment with FCMC terminates for any reason, regardless of
whether the termination is initiated by FCMC or Employee, he
will be able to earn a livelihood without violating the
foregoing restrictions; and (2) his ability to earn a
livelihood without violating such restrictions is a material
condition of his employment with FCMC.
10. Remedies. Employee acknowledges that: (1) compliance with
Paragraphs 8 and 9 herein is necessary to protect the FCMC' business and good
will; (2) a breach of those Paragraphs will irreparably and continually damage
FCMC; and (3) an award of money damages will not be adequate to remedy such
harm. Consequently, Employee agrees that, in the event he breaches or threatens
to breach any of these covenants, FCMC shall be entitled to both: (1) a prey or
permanent injunction in order to prevent the continuation of such harm; and (2)
money damages, insofar as they can be determined, including, without limitation,
all reasonable costs and attorneys' fees incurred by the FCMC in enforcing the
provisions of this Agreement if FCMC is successful in establishing Employee's
breach of these covenants Nothing in this Agreement, however, shall prohibit
FCMC from also pursuing any other remedy.
11. Termination.
a. Termination by Either Party. Either party may terminate
Employee's employment "without cause" by giving thirty (30)
days' written notice to the other.
b. Termination by Company. Employee's employment may be
terminated by the Company "for cause" if he:
(1) fails or refuses to perform each and all of his
material assigned duties to comply with one or more
policies of the Company;
(2) breaches any of the material terms of this Agreement;
or
(3) commits any criminal, fraudulent or dishonest act
related to his employment provided that cause shall
not be deemed to exist under subsections (1) or (2)
of this subparagraph unless the Employee has been
given written notice describing in reasonable detail
the alleged breaches and stating that such breaches
are grounds for termination for good reason under
this section, and the Employee fails to cure such
breaches within 10 days.
c. Termination by Employee. Employee shall have the right to
terminate his employment for "good reason." For the purposes
of this Agreement, good reason shall be limited to the
following:
i. The Company transfers the place of Employee's employment
violation of Paragraph 2(a) of this agreement;
ii. Employee is removed as the CEO of the Company;
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iii. Employee is not elected as a member of the Board of Directors
of the Company prior to December 31, 2000;
iv. Employee is removed as a member of the Board of Directors
during the term of his employment (however, good cause will
not exist if the Employee is removed from the Board of
Directors following notification by the Company to the
Employee of the Company's intent to terminate the Employees
employment); or,
v. The Company's breaches any of the material terms of Paragraphs
3, 4, 5 or 6 of this Agreement; provided that good reason
shall not be deemed to exist under subparagraphs (i) through
(v) unless the Company has been given written notice
describing in reasonable detail the alleged breaches and
stating that such breaches are grounds for termination for
good reason under this section, and the Company fails to cure
such breaches within 10 days.
d. Termination Due to Incapacity. In the event Employee is
unable to perform his material duties because of illness or
disability for a continuous period of 120 days, the Company
may terminate this Agreement without further notice.
12. Severance.
a. Conditions under which Severance is Paid. In the event the
Company terminates Employee's employment without cause or for
Employee's failure to perform assigned duties, the Employee
shall receive the severance pay provided in subparagraph (b)
of this Paragraph. Employee shall also be entitled to the
severance provided for in subparagraph (b) of this Paragraph
if the Employee terminates his employment for good reason.
b. Amount of Severance. To the extent severance is payable to
Employee pursuant to subparagraph (a) of this Agreement,
Employee shall be entitled to receive the severance payments
provided for in subparts (i) and (ii) of this subparagraph;
i. Lump Sum Payment Employee shall be entitled to receive payment
in a lump sum within ten days after termination of employment
in an amount equal to the sum of (1) a payment of base salary
in respect of all accrued and unused vacation, and (2) if
Employee's employment is terminated after July 1, 2001 and if
such termination occurs prior to the payment of the bonus
otherwise payable on July 1, 2001 as provided in Paragraph
4(b)(i), an amount equal to $25,000. If such termination
occurs after the end of any calendar year and before the
payment date of the bonus in respect of that year as provided
in Section 4(b)(ii), an amount equal to the bonus for such
calendar year calculated as provided in Section 4(b) shall be
paid to Employee on April 15 of the year of termination.
ii. Employee shall be entitled to receive an amount equal to his
base salary and car allowance for the periods set forth below
after such termination. In addition, if Employee is enrolled
in and covered by a medical insurance plan offered by the
Company on the date of termination of
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employment, Employee shall be entitled, at his election, to
receive either (x) continued health benefits for the periods
set forth below, or (y) an amount equal to the medical
insurance premiums paid by the Company on behalf of the
Employee for the periods set forth below.
(1) If the termination of Employment is effective prior
to January 1, 2001: 2 months.
(2) If the termination of Employment is effective on or
after January 1, 2001 but prior to July 1, 2001: 4
months.
(3) If the termination of Employment is effective on or
after July 1, 2001: 6 months.
Such payments shall be made semimonthly for the periods
specified above.
c. Effect of Severance Payments. The severance payments set forth
in this Paragraph are payments made as liquidated damages and
not as a penalty. In the event Employee's employment is
terminated and Employee is not entitled to severance in
accordance with subparagraph (a) of this Paragraph, Employee
shall be entitled to no further compensation or payments from
the Company.
13. Effect of Termination. Notwithstanding any other provision of this
Agreement, in the event Employee's employment is terminated pursuant to
Paragraph 11 of this Agreement or otherwise: (1) all stock options held by
Employee not exercised by the effective date of such termination shall expire in
accordance with the terms of the Employee Stock Option Plan maintained by the
Company pursuant to which such options were issued and (2) except as provided in
Paragraph 12, Employee's right to any bonuses and the Company's obligation to
pay such bonuses which are not paid as of the effective date of the termination
of Employee's employment shall terminate.
14. Return of the Company property. On termination of employment, the
Executive shall return to the Company all keys, correspondence, contracts,
reports, price lists, manuals, forms, mailing lists, customer lists, advertising
materials, ledgers, supplies, equipment, checks, xxxxx cash and all documents of
any form relating to the Company's or its subsidiaries' or affiliates'
business in his possession or control.
15. Any notice required to be given hereunder shall be in writing sent
by registered mail, return receipt requested, to FCMC at Xx. 0 Xxxxxxxx Xxxxxx,
Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxxx X. Xxxx, and to Employee
at 000 Xxxx Xxx Xxxxxx, Xxx 0X, Xxx Xxxx, Xxx Xxxx (with a copy to Xxxxxx X.
Xxxxxxx, Xxxx Xxxxxxxx Xxxxxxxx & Xxxxxx, LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 10022) or to such changed address as the parties may designate by like
notice. The effective date of such notice shall be its mailing date.
16. Entire Agreement. Except for the provisions of paragraph 13, this
Agreement supersedes all agreements previously made by the parties relating to
its subject matter. There are no other understandings or agreements between the
parties.
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17. No violation or default. The Employee hereby represents and
warrants that the execution of this Agreement by him will not violate the
provisions of or constitute a default under any other Agreement or arrangement
to which the Employee is party or otherwise bound.
18. Indemnification. The Company shall indemnify Employee under the
terms and conditions of the existing agreement between the Company and its other
Officers and Directors.
19. Non-Waiver. No delay or failure by either party to exercise any
right under this Agreement, and no partial or single exercise under it, shall
constitute a waiver of that or any other right.
20. Headings. Headings in this Agreement are for convenience only and
shall not be used to interpret or construe its provisions.
21. Governing law. This Agreement shall be construed in accordance with
and governed by the laws of the State of New York.
22. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
23. Binding effect. The provisions of this Agent shall be binding upon
and inure to the benefits of each of the parties and their respective successors
and assigns.
24. Legal Fees. The Company shall reimburse Employee an amount equal to
fifty (50%) percent of the reasonable legal fees and expenses of counsel for the
Employee paid by Employee in the negotiation and preparation of this Agreement.
In witness whereof, the parties hereto have signed this Agreement.
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Dated August , 2000.
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Xxxx X. Xxxxx
Xxxxxxxx Credit Management Corporation
______________________________________
By: Xxxxxx Xxxx
President
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