EXHIBIT 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of April 1, 2001, by and between
Ocwen Financial Corporation, a Florida corporation, with its principal office at
0000 Xxxx Xxxxx Xxxxx Xxxx. Xxxx Xxxx Xxxxx, Xxxxxxx 00000 (the "Company"), and
Xxxxxx X. Xxxxxxxx, residing at 000 Xxxxxx Xxx Xxxxxx, Xxxxxx, Xxxxxxxxxx 00000
("Executive").
WITNESSETH:
WHEREAS, the Company desires to employ Executive as Chief
Executive Officer of Ocwen Technology Xchange ("OTX");
WHEREAS, the Company and Executive desire to enter into this
agreement (the "Agreement") as to the terms of his employment by the Company;
NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
parties agree as follows:
1. Term of Employment. Except for earlier termination as
provided in Section 8 hereof, Executive's employment under this Agreement shall
be for a five (5) year term (the "Initial Employment Term") commencing on April
1, 2001 (the "Commencement Date") and ending on March 31, 2006. Subject to
Section 8 hereof, the Initial Employment Term shall be automatically extended
for additional terms of successive one (1) year periods (the "Additional
Employment Term") unless the Company or Executive gives written notice to the
other at least six (6) months prior to the expiration of the then Initial
Employment Term or Additional Employment Term of the termination of Executive's
employment hereunder at the end of such Initial Employment Term or Additional
Employment Term. The Initial Employment Term and the Additional Employment Term
shall be referred to herein as the "Employment Term."
2. Position and Duties. (a) Commencing April 1, 2001 and
throughout the Employment Term, Executive shall serve as the Chief Executive
Officer of OTX and all subsidiaries of OTX. In addition, OTX will elect
Executive during the Employment Term as a member of the Board of Directors of
OTX.
(b) Executive shall report directly to the Chairman of the
Board of Directors of the Company (the "Board") and shall have such duties and
authority consistent with his position as Chief Executive Officer and a Director
of OTX as shall be assigned to him from time to time by the Chairman of the
Board. Such duties shall include using diligent efforts to: (i) formulate and
achieve long-term goals and objectives; (ii) prepare, present and achieve the
OTX forecast and budget; (iii) lead and manage all personnel and direct all
operating activities and operations; (iv) establish, implement and upgrade major
strategic relationships, alliances, partnerships, and acquisitions; (v)
establish and formulate the overall vision, mission, product planning and
direction for OTX, jointly with the Chairman of the Board; and (vi) hire and
terminate all employees of OTX. Executive agrees that at all times he will be
bound by and comply with the provisions of the Company's Employee Guidebook. In
the event of a conflict between the terms of this Agreement and the terms of the
Employee Guidebook, this Agreement shall control.
(c) During the Employment Term, Executive shall devote his
business time and efforts to the performance of his duties hereunder; provided,
however, that Executive shall be allowed, to the extent that such activities do
not interfere with the performance of his duties and responsibilities hereunder,
to manage his personal financial and legal affairs and to serve on corporate,
civic, charitable and industry boards or committees. Notwithstanding the
foregoing, during the Employment Term, Executive shall only serve on boards of
directors of entities as may be approved by the Board of Directors of OTX from
time to time.
3. Base Salary. During the Employment Term, in exchange for
Executive's ongoing performance of his duties and obligations under this
Agreement, the Company shall pay Executive a base salary at the annual rate of
not less than $300,000. Base salary shall be payable in accordance with the
usual payroll practices of the Company. Beginning on the third anniversary of
this Agreement, the base salary shall be adjusted by multiplying the base salary
by a fraction, the numerator of which shall be the Consumer Price Index-All
Urban Consumers excluding food and energy issued by the U.S. Department of
Labor, Bureau of Labor Statistics as published on a monthly basis in the Wall
Street Journal (Eastern Edition) (the "Index") for January of the then-current
year, and the denominator of which shall be the Index for January of the prior
year. Notwithstanding the foregoing, in no event shall the base salary be
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reduced below $300,000 during the term of this Agreement. The base salary as
determined as aforesaid from time to time shall constitute "Base Salary" for
purposes of this Agreement.
4. Incentive Compensation. (a) Bonus. The Board shall
establish a performance-based annual bonus plan with targets and objectives
approved by the Board in consultation with Executive (the "Performance Bonus
Plan"), with a target bonus of $450,000 and a maximum bonus of $675,000. In any
event, the compensation to Executive under the Performance Bonus Plan shall not
be less than $150,000 in cash annually (the "Guaranteed Bonus"), payable in
equal monthly installments. Bonus payments above the Guaranteed Bonus shall be
paid in accordance with the payment structure specified in the 1998 Annual
Incentive Plan of the Company. In addition, Executive shall be eligible to
participate in any other annual bonus plan the Company may implement at any time
during Executive's Employment Term for senior executives at a level commensurate
with his position.
(b) Equity.
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(i) Initial Public Offering. Executive and OTX will enter into
an agreement by which OTX grants to Executive options (the
"Options") to purchase shares of the commonstock of OTX, on and
after the date of the Initial Public Offering ("IPO") of OTX, in
an amount equal to 3 % of the common stock shares of OTX
outstanding on the date of the IPO. The purchase price for each
share subject to the Option will be equal to 50% ofthe initial
per share offering price under the IPO. The term of the Option
will begin on the date of the IPO and will continue for a period
of ten (10) years unless earlier- terminated under this Agreement
or as provided in the standard Option agreement to purchase
shares in OTX. Executive must be employed by the Company on such
date in orderfor the relevant portion of the Option to vest.
One-half of the Options will be exercisable in whole or in part
on the date of the IPO, and one quarter of the Options will be
exercisable on each of the first and second anniversaries of the
relevant IPO. Upon termination of Executive by Company with Cause
or termination by Executive without Good Reason, Executive will
have sixty (60) days from the date of termination to exercise
Options that had vested on the date of termination. On a
termination of employment by Company without Cause or by
Executive with Good Reason or as a result of the expiration of
the Employment Term, Executive will have 180 days to exercise all
Options that had vested on the date of termination. Vesting shall
be accelerated such that upon a termination of Executive's
employment without Cause or a termination by Executive for Good
Reason, or in the event of a Change in Control of OTX, all
Options will immediately vest to the extent not then vested. The
Options will be subject to such other standard terms and
conditions placed on Options to purchase shares in OTX as
determined by the Board of Directors in its sole discretion.
(ii) Sale of OTX. In the event that, during the period in which
Executive is employed by Company pursuant to this Agreement and
prior to the IPO, the Company sells all of its interest in OTX or
all or substantially all of the assets of OTX to an unaffiliated
third party (a "Sale"), Executive shall be entitled to receive
compensation (the "Sale Compensation") in an amount equal to 1.5
% of the Aggregate Consideration received by OTX or the Company
in the Sale. For purposes of this Section 4(b), "Aggregate
Consideration" shall mean the total, net of expenses of sale, of
all cash and other property paid or payable, directly or
indirectly, to OTX or the Company, and any indebtedness assumed
or repaid by a buyer. In the event the Aggregate Compensation for
the Sale is cash, then Executive shall receive the Sale
Compensation in cash. In the event the Aggregate Consideration
for the Sale is in the form of shares of stock in the acquiring
company or other property, then Executive shall receive the Sale
Compensation in the form of shares in the acquiring company or
other property. In the event the Aggregate Consideration for the
Sale is a combination of both cash and shares of stock in the
acquiring company or other property, then Executive shall receive
the Sale Compensation in cash and shares of stock in the
acquiring company or other , property, in the same proportion as
was paid to the Company for the purchase of OTX. Executive shall
receive the Sale Compensation at the same time the Aggregate
Consideration or portions thereof are paid to the Company. If
Executive is entitled to receive Sale Compensation pursuant to
this Section 4(b)(ii) and Executive's employment pursuant to this
Agreement is terminated for any reason subsequent to a Sale,
Executive shall continue to receive his Sale Compensation for
portions of the Aggregate Consideration associated with such sale
that are paid to the Company after the date of Executive's
termination.
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(iii) Other. If, at the time Executive's employment under this
Agreement terminates (unless such termination is by the Company
for Cause or by Executive during the Employment Term without Good
Reason) there has been no IPO of the shares of OTX and the
Company has not sold its interest in OTX such that Executive is
entitled to receive compensation under Section 4(b)(ii),
Executive will be entitled to receive additional compensation
under this Section 4(b)(iii) if, and only if, the net income
after taxes ("IAT") for OTX for the twelve month period ending
the last day of the month immediately preceding the termination
of Executive's employment under this Agreement (the "Base Year")
exceeds the sum of $20,000,000 plus (A) 10 % of the amount
contributed by the Company to OTX as capital contributions from
January 1, 2002 until the date of expiration or termination of
Executive's employment under this Agreement, less (B) 10 %a of
the Aggregate Proceeds received by the Company for any sale of
less than its entire interest in OTX and less (C) 10% of any
amounts withdrawn from OTX by the Company in the form of a
dividend or in any other manner (the "Threshold"). If the IAT of
OTX in the Base Year meets or exceeds the Threshold, then
Executive will be entitled to receive additional compensation
equal to 1.5 % of the product of (x) the Base Year IAT multiplied
by (y) 10. Such compensation may be paid to Executive in the form
of cash and/or shares of stock in the Company or options for
shares of stock of the Company, at the sole discretion of the
Company. Such shares shall be immediately saleable in the public
market and shall have a fair market value equal to the amount of
such compensation, or, in the case of options, the options shall
be immediately exercisable into shares of stock of the Company,
such shares of stock shall be immediately saleable in the public
market and the net proceeds to Executive of payment of any
exercise price and sale of such shares shall be equal to the
amount of such compensation (assuming the immediate exercise of
such options and the immediate sale of such shares upon the
receipt of the options by Executive).
(iv) The provisions of Sections 4(b)(i), 4(b)(ii) and 4(b)(iii)
are mutually exclusive. The payment to Executive of additional
compensation under one of Sections 4(b)(i), 4(b)(ii)or 4(b)(iii)
shall terminate the right of Executive to receive additional
compensation pursuant to this Section 4(b).
5. Employee Benefits and Vacation. During the Employment
Term, Executive shall be entitled to participate in all benefit plans and
arrangements and fringe benefits and perquisite programs generally provided to
comparable senior executives of the Company, including, without limitation,
participation in a 401(k) plan, participation in a deferred compensation option
plan, life, health, and disability insurance, and retiree health coverage.
Executive shall be entitled to vacation, sick days and personal days in
accordance with Company policy as such may be in effect from time to time;
provided that in no event shall Executive be entitled to less than four (4)
weeks paid vacation per calendar year, regardless of Company policy concerning
vacation.
6. Business Expenses. The Company shall reimburse Executive
for the travel, entertainment and other business expenses incurred by Executive
in the performance of his duties hereunder, in accordance with the Company's
policies as in effect from time to time. Such reimbursement by the Company shall
include, without limiting the generality of the foregoing, the expenses for
business class or first class airfare on all business flights involving four
hours or more of air travel by Executive in a single day.
7. Moving Expenses. (a) The Company shall reimburse Executive
for all reasonable expenses and costs associated with relocating his family from
Orinda, California to the West Palm Beach area ("Relocation Expenses") in
accordance with the Company's Corporate Relocation Guide (the "Guide"), subject
to the adjustments in this Section 7. All Relocation Expenses shall be paid on a
fully grossed up basis such that on an after tax basis Executive shall have no
after tax cost for the relocation. In addition to the expenses described in the
Guide, "Relocation Expenses" shall include all costs of the following: (i) 2
points on a mortgage for the acquisition of a West Palm Beach area home; (ii)
all appraisal fees, credit report fees, lenders application and inspection fees,
recording fees, tax stamps, survey fees, title insurance and/or search fees,
attorney and notary fees and any other normal and customary fees associated with
the acquisition of a home in the West Palm Beach area; (iii) the packing,
partial unpacking and transportation of all household goods, automobiles, pets
and paintings and payment of appropriate insurance for same; and (iv) for a
cumulative period not to exceed 120 days, (x) the establishment and maintenance
of temporary housing for Executive and his family in the West Palm Beach area
and/or (y) in the event that Executive closes on a home in the West Palm Beach
area before closing on the sale of his home in Orinda, the lesser of all costs
associated with owning one of the two residences. In addition to Relocation
Expenses, in the event that Executive closes on a home in the West Palm Beach
area before closing on the sale of his home in Orinda, the Company shall provide
an interest-free loan for a maximum of 120 days equal to the contract sale price
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for the home in Orinda less the outstanding mortgage less $200,000 if the Orinda
home is subject to a sale contract, or, if there is no sale contract, the sum of
$1,800,000 shall be used as the contract sale price in the foregoing clause.
(b) In the event that Executive terminates his employment
hereunder without Good Reason (as hereinafter defined) on or prior to the second
anniversary of the date hereof, Executive shall repay a portion of the expenses
incurred by the Company under Section 7(a) in an amount equal to the total
expenses incurred by the Company under Section 7(a) multiplied by a fraction,
the numerator of which is twenty-four (24) less the number of months Executive
has been employed by the Company, and the denominator of which is twenty-four
(24).
8. Termination. (a) The employment of Executive under this
Agreement shall terminate upon the earliest to occur of any of the following
events:
(i) the death of Executive;
(ii) the termination of Executive's employment by the
Company due to Executive's Disability pursuant to Section
8(b) hereof;
(iii) the termination of Executive's employment by
Executive for Good Reason pursuant to Section 8(c) hereof;
(iv) the termination of Executive's employment by the
Company without Cause;
(v) the termination of Executive's employment by the
Company for Cause pursuant to Section 8(e), the voluntary
resignation of Executive without Good Reason or the
retirement of Executive; or
(vi) the expiration of the Employment Term.
(b) Disability. If by reason of the same or related physical
or mental illness or incapacity, Executive is unable to carry out his material
duties pursuant to this Agreement for more than six (6) consecutive months, the
Company may terminate Executive's employment for Disability. Such termination
shall be upon thirty (30) days written notice by a Notice of Disability
Termination, at any time thereafter while Executive consecutively continues to
be unable to carry out his duties as a result of the same or related physical or
mental illness or incapacity. A termination for Disability hereunder shall not
be effective if Executive returns to the full time performance of his material
duties within such thirty (30) day period.
(c) Termination for Good Reason. A termination for Good Reason
means a termination by Executive by written notice given within ninety (90) days
after the occurrence of the Good Reason event, unless such circumstances are
fully corrected prior to the date of termination specified in the Notice of
Termination for Good Reason (as defined in Section 8(d) hereof). For purposes of
this Agreement, "Good Reason" shall mean the occurrence or failure to cause the
occurrence, as the case may be, without Executive's express written consent, of
any of the following circumstances: (i) any material diminution of Executive's
positions, duties or responsibilities hereunder (except in each case in
connection with the termination of Executive's employment for Cause or
Disability or as a result of Executive's death, or temporarily as a result of
Executive's illness or other absence), or, the assignment to Executive of duties
or responsibilities that are inconsistent with Executive's position; (ii)
removal of, or the nonreelection of, Executive from officer positions with OTX
or its subsidiaries as specified herein without election to a higher position or
removal of Executive from any of his then officer positions; (iii) a relocation
of the OTX executive office in West Palm Beach, Florida to a location more than
fifty (50) miles from its current location prior to April 1, 2003 or to any
location outside of the United States; (iv) a failure by the Company (A) to
continue any bonus plan, program or arrangement in which Executive is entitled
to participate (the "Bonus Plans"), provided that any such Bonus Plans may be
modified at the Company's discretion from time to time but shall be deemed
terminated if plans providing Executive with substantially similar benefits are
not substituted therefor ("Substitute Plans") and any such Bonus Plan shall
include the Guaranteed Bonus described in Section 4(a), or (B) to continue
Executive as a participant in the Bonus Plans and Substitute Plans on at least
the same basis as to potential amount of the bonus as Executive participated in
prior to any change in such plans or awards, in accordance with the Bonus Plans
and the Substitute Plans; (v) any material breach by the Company of any
provision of this Agreement, including, without limitation, Section 12 hereof;
(vi) Executive's removal from or failure to be elected or reelected to the Board
of Directors of OTX; or (vii) failure of any successor to the Company (whether
direct or indirect and whether by merger, acquisition, consolidation or
otherwise) to assume in a writing delivered to Executive upon the assignee
becoming such, the obligations of the Company hereunder.
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(d) Notice of Termination for Good Reason. A Notice of
Termination for Good Reason shall mean a notice that shall indicate the specific
termination provision in Section 8(c) relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination for Good Reason. The Notice of Termination for Good Reason shall
provide for a date of termination not less than ten (10) nor more than sixty
(60) days after the date such Notice of Termination for Good Reason is given,
provided that in the case of the events set forth in Sections 8(c)(i) or (ii)
the date may be five (5) days after the giving of such notice.
(e) Cause. Subject to the notification provisions of Section
8(f) below, Executive's employment hereunder may be terminated by the Company
for Cause. For purposes of this Agreement, the term "Cause" shall be limited to
(i) willful misconduct by Executive with regard to the Company or OTX which has
a material adverse effect on the Company or OTX and which is not cured within
thirty (30) days of receipt of a written notice from the Board or the Chairman
of the Board which specifically identifies such purported misconduct by
Executive; (ii) the willful refusal of Executive to attempt to follow the proper
direction of the Board or the Chairman of the Board which is not cured within
thirty (30) days of receipt of a written notice from the Board or the Chairman
of the Board which specifically identifies such purported failure by Executive,
provided that the foregoing refusal by Executive shall not be "Cause" if such
direction is illegal, unethical or immoral and Executive promptly so notifies
the Board or the Chairman of the Board (whichever is applicable); (iii) material
and continuing willful failure by Executive to perform the duties required of
him hereunder (other than any such failure resulting from incapacity due to
physical or mental illness) which is not cured within thirty (30) days of
receipt of a written demand for substantial performance from the Board or the
Chairman of the Board which specifically identifies the manner in which it is
believed that Executive has substantially and continually refused to attempt to
perform his duties hereunder; (iv) Executive being convicted of a felony; (v) a
material breach of this Agreement, which breach is not cured within thirty (30)
days of receipt of a written notice of such breach from the Board or the
Chairman of the Board which specifically identifies the manner in which it is
believed that Executive has materially breached this Agreement, or (vi)
drunkenness or the possession of narcotics on Company's property, willful and
material damage to Company property or repeated and material violations of
Company's policies, provided that such violations have not been cured within
thirty (30) days of receipt of written notice which specifically identifies the
policies at issue. For purposes of this paragraph, no act, or failure to act, on
Executive's part shall be considered "willful" unless done or omitted to be
done, by him not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company or OTX.
(f) Notice of Termination for Cause. A Notice of Termination
for Cause shall mean a notice that shall indicate the specific termination
provision in Section 8(e) relied upon and shall set forth in reasonable detail
the facts and circumstances which provide for a basis for termination for Cause.
Further, a Notification for Cause shall be required to include a copy of a
resolution duly adopted by the Board at a meeting of the Board which was called
for the purpose of considering such termination and which Executive and his
representative had the right to attend and address the Board, finding that, in
the good faith judgment of the Board, Executive engaged in conduct set forth in
the definition of Cause herein and specifying the particulars thereof in
reasonable detail. The date of termination for a termination for Cause shall be
the date indicated in the Notice of Termination. Any purported termination for
Cause which is held not to have been based on the grounds set forth in this
Agreement or not to have followed the procedures set forth in this Agreement
shall be deemed a termination by the Company without Cause.
9. Consequences of Termination of Employment.
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(a) Death. If, Executive's employment is terminated by reason
of Executive's death, the employment period under this Agreement shall terminate
without further obligations to Executive's legal representatives under this
Agreement except for: (i) any compensation earned but not yet paid, including
and without limitation, any bonus if declared or earned but not yet paid for a
completed fiscal year, any amount of Base Salary earned but unpaid, any accrued
vacation pay payable pursuant to the Company's policies, and any unreimbursed
business expenses payable pursuant to Section 6 (collectively "Accrued
Amounts"), which amounts shall be promptly paid in a lump sum to Executive's
estate; (ii) any other amounts or benefits owing to Executive under the then
applicable employee benefit plans, long term incentive plans or equity plans and
programs of the Company in accordance with the terms of such plans and programs;
and (iii) continuation of Executive's health benefits for Executive's spouse and
dependent children for twelve (12) months at the same level and cost as if
Executive was an employee of the Company.
(b) Disability. If Executive's employment is terminated by
reason of Executive's Disability, Executive shall be entitled to receive the
payments and benefits to which his representatives would be entitled in the
event of a termination of employment by reason of his death plus, to the extent
not duplicative of the foregoing, Executive shall be entitled to continuation of
the benefits (including without limitation to health, life, disability and
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pension) for twelve (12) months as if Executive had been an employee of the
Company.
(c) Termination by Executive for Good Reason or Termination by
the Company without Cause. If (i) Executive terminates his employment for Good
Reason or (ii) Executive's employment with the Company is terminated by the
Company without Cause, Executive shall be entitled, provided that Executive
delivers to the Company a full release, on the Company's standard separation and
release form for executives, of the Company and its officers and directors of
all obligations under this Agreement, to receive a lump sum cash payment of
$750,000 and any amounts payable to Executive as of the date of termination
under Section 4(b); provided that, if such termination is after a Change in
Control of the Company, Executive shall receive (A) payment in a lump sum of the
greater of (x) $750,000 or (y) Base Salary and Guaranteed Bonus until the end of
the Employment Term; (B) any Accrued Amounts at the date of termination; (C) any
amounts payable to Executive as of the date of termination under Section 4(b);
(D) any other amounts or benefits payable to Executive under the then applicable
employee benefit, bonus, long term incentive or equity plans and programs of the
Company, which shall be paid or treated as if Executive were an employee of the
Company reaching the maximum performance targets until the end of the Employment
Term with regard to the such employee benefit, bonus, long term incentive or
equity plans and programs of the Company; and (E) continuation of the benefits
(including without limitation to health, life, disability and pension) for a
period of twelve (12) months from the Termination Date as if Executive were an
employee of the Company.
(d) Termination with Cause or Voluntary Resignation without
Good Reason or Retirement. If Executive's employment hereunder is terminated (i)
by the Company for Cause or (ii) by Executive without Good Reason, Executive
shall be entitled to receive only his Base Salary through the date of
termination, any unreimbursed business expenses payable pursuant to Section 6,
any pro-rated bonus amounts that were paid prior to the termination and any
amounts earned by Executive pursuant to Section 4(b)(ii) hereof but unpaid as of
the date of termination. Executive's rights under all benefits plans and equity
grants shall be determined in accordance with the Company's plans, programs and
grants.
(e) Expiration of Employment Term. If Executive's employment
hereunder comes to an end because of the expiration of the Employment Term,
Executive shall be entitled to receive (A) any Accrued Amounts at the date of
termination; (B) any amounts payable to Executive pursuant to Section 4(b)(iii)
hereof; and (C) any other amounts or benefits payable to Executive under the
then applicable employee benefit, bonus, long term incentive or equity plans and
programs of the Company, which shall be paid or treated in accordance with the
Company's plans, programs and grants.
10. No Mitigation; No Set-Off. In the event of any termination
of employment hereunder, Executive shall be under no obligation to seek other
employment and there shall be no offset against any amounts due Executive under
this Agreement on account of any remuneration attributable to any subsequent
employment that Executive may obtain; provided that Executive delivers to the
Company a full release, on the Company's standard separation and release form
for executives, of the Company and its officers and directors of all obligations
under this Agreement. The amounts payable hereunder shall not be subject to
setoff, counterclaim, recoupment, defense or other right which the Company may
have against Executive or others, except upon obtaining by the Company of a
final unappealable judgment against Executive.
11. Change in Control. (a) For purposes of this Agreement, the
term "Change in Control" shall mean, with respect to the Company or OTX, the
occurrence of any one of the following events:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company or OTX, as applicable, representing
fifty percent (50%) or more of the combined voting power of such entity's then
outstanding voting securities;
(ii) there is a consummated merger or consolidation of the
Company or OTX, as applicable, with any other corporation, other than (A) a
merger or consolidation which would result in the voting securities of such
entity outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving or parent entity) more than fifty percent (50%) of the combined voting
power of the voting securities of such entity or such surviving or parent equity
outstanding immediately after such merger or consolidation or (B) a merger or
consolidation effected to implement a recapitalization of such entity (or
similar transaction) in which no Person, directly or indirectly, acquired
twenty-five percent (25%) or more of the combined voting power of such entity's
then outstanding securities; or
(iii) the stockholders of the Company or OTX, as applicable,
approve a plan of complete liquidation of such entity or there is consummated an
agreement for the sale or disposition by such entity of all or substantially all
of such entity's assets (or any transaction having a similar effect), other than
a sale or disposition by such entity of all or substantially all of such
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entity's assets to an entity, at least fifty percent (50%) of the combined
voting power of the voting securities of which are owned by stockholders of the
Company or OTX, as applicable, in substantially the same proportions as their
ownership of the Company or OTX, as applicable, immediately prior to such sale.
(b) For purposes of this Section 11, the following terms shall
have the following meanings:
(i) "Affiliate" shall mean an affiliate of the Company, as
defined in Rule 12b-2 promulgated under Section 12 of the
Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act");
(ii) "Beneficial Owner" shall have the meaning set forth
in Rule 13d-3 under the Exchange Act;
(iii) "Person" shall have the meaning set forth in Section
3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term
shall not include (1) the Company, (2) a trustee or other
fiduciary holding securities under an employee benefit
plan of the Company or OTX, (3) an underwriter temporarily
holding securities pursuant to an offering of such
securities or (4) a corporation owned, directly or
indirectly, by the stockholders of the Company or OTX in
substantially the same proportions as their ownership of
shares of Common Stock of the Company or OTX.
12. Indemnification. The Company shall indemnify and hold
harmless Executive to the fullest extent permitted by Florida law for any action
or inaction of Executive while serving as an officer and director of the Company
or, at the Company's request, as an officer or director of any other entity or
as a fiduciary of any benefit plan. The Company shall cover Executive under
directors and officers liability insurance both during and, while potential
liability exists, after the Employment Term in the same amount and to the same
extent as the Company covers its other officers and directors.
13. Legal Fees.
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(a) The Company shall pay one-half of Executive's reasonable
legal and financial counseling fees and costs associated with this Agreement in
an amount not to exceed $6,000.
(b) All disputes and controversies arising under or in
connection with this Agreement shall be settled by arbitration conducted before
a single arbitrator sitting in West Palm Beach, Florida, or such other location
agreed by the parties hereto, in accordance with the rules for expedited
resolution of employment disputes of the American Arbitration Association then
in effect. The determination of the arbitrator shall be final and binding on the
parties. Judgment may be entered on the award of the arbitrator in any court
having proper jurisdiction. The arbitrator in such proceeding may award
reasonable attorney's fees and out-of-pocket costs to the prevailing party.
14. Miscellaneous.
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(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to principles of conflict of laws.
(b) Entire Agreement/Amendments. This Agreement and the
instruments contemplated herein, contain the entire understanding of the parties
with respect to the employment of Executive by the Company from and after the
Commencement Date and supersedes any prior agreements between the Company and
Executive. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein and therein. This Agreement
may not be altered, modified, or amended except by written instrument signed by
the parties hereto.
(c) No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
Any such waiver must be in writing and signed by Executive or an authorized
officer of the Company, as the case may be.
(d) Assignment. This Agreement shall not be assignable by
Executive. This Agreement shall be assignable by the Company only to an acquirer
of all or substantially all of the assets of the Company, provided such acquirer
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promptly assumes all of the obligations hereunder of the Company in a writing
delivered to Executive and otherwise complies with the provisions hereof with
regard to such assumption.
(e) Successors; Binding Agreement; Third Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees legatees and permitted assignees of the parties hereto.
(f) [intentionally omitted]
(g) Withholding Taxes. The Company may withhold from any and
all amounts payable under this Agreement such Federal, state and local taxes as
may be required to be withheld pursuant to any applicable law or regulation.
(h) Survivorship. The respective rights and obligations of the
parties hereunder, including without limitation Section 12 hereof, shall survive
any termination of Executive's employment to the extent necessary to the agreed
preservation of such rights and obligations.
(i) Counterparts. This Agreement may be signed in
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(j) Headings. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
15. Company Information. All information, materials or
documents in any way regarding or relating to Company or the Company's
Affiliates or their respective businesses including, without
limitation, all Developments (as defined below), all information
requested by or provided to Executive and all information learned or
obtained by Executive (i) will be and at all times remain the sole and
exclusive property of Company, (ii) will not be used by Executive for
any reason or purpose except in direct connection with Executive's
performance of his duties and obligations under this Agreement and
(iii) will not, without the express prior written consent and approval
of Company, be disclosed in whole or in part to any person or entity
except in direct connection with Executive's performance of his duties
and obligations under this Agreement. Executive acknowledges that money
damages would be an inadequate remedy for the injuries and damage that
would be suffered by Company in the case of Executive's breach of this
Section. The breach or threatened breach by Executive of the provisions
of this Section shall entitle Company, besides any other remedies it
may have at law or in equity, to injunctive relief to enforce the
provisions of this Section. Executive's duties and obligations under
this Section will survive the termination or expiration of this
Agreement. In recognition of the foregoing obligations, Executive
agrees that upon his separation from the Company, he will turn over to
Company all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all
transcriptions thereof relating to Company or the Company's Affiliates
which are in his possession or under his control. At the time of
termination, Executive will have an exit interview with Company wherein
Executive will certify that Executive has returned to Company all
tangible Confidential Information disclosed to him, and disclose all
Developments, as defined below, conceived or developed by him during
the Term. Executive's liability for any breach of this Section will not
be subject to any limitation of liability provision contained elsewhere
in this Agreement.
Executive has carefully read and considered the provisions of this Section, and
having done so, agrees that the restrictions set forth in this section are fair
and reasonably required for the protection of the interests of the Company.
16. Rights in Data. Executive hereby expressly assigns to
Company all of Executive's right, title and interest in and to all work product
produced by Executive during the Term including, without limitation, all
systems, reports, data, materials, ideas, concepts, methodologies, know-how,
information, knowledge, software, designs, specifications, plans, programs,
studies, techniques, procedures, methods, processes, formulae, inventions,
improvements, sketches, reports, diagrams, graphs, charts, notes, writings,
discoveries, models, flow charts and research, including without limitation all
patent, copyright, trademark, trade secret, design and other proprietary rights
that may now or in the future exist therein or be appurtenant thereto, whether
in oral, written, graphic, electronic, machine readable or any other form and in
whatsoever medium now known or hereafter developed, and all copies of the
foregoing and all information, data and knowledge incorporating, based upon or
derived from the foregoing (collectively, "Developments"). All Developments will
be and at all times remain the sole and exclusive property of Company. In the
event that Executive is ever deemed, by operation of law or otherwise, to retain
any rights in or to any Developments, Executive will assign all of Executive's
right, title and interest in and to such Developments to Company. Executive will
execute any documents of assignment or registration of proprietary or other
8
rights requested by Company and will perform any and all further acts deemed
necessary or desirable by Company in order to confirm, exploit, or enforce the
rights herein granted and assigned by Executive to Company. Executive's duties
and obligations under this Section will survive the termination or expiration of
this Agreement. Executive's liability for any breach of this Section will not be
subject to any limitation of liability provision contained elsewhere in this
Agreement. Executive has signed an Intellectual Property Agreement in favor of
Ocwen Financial Corporation and its affiliates in consideration for Executive's
employment by Company.
Section 17. Covenant Not to Compete.
----------- ------------------------
(a) Executive acknowledges that, in consideration of his
employment, and to induce Company to allow Executive
access to confidential information and Company's and OTX's
clients, customers and other with whom Company and OTX
have formed valuable business arrangements, he will not,
during such time as Executive is employed by Company and
for a period of one (1) year after expiration or
termination of Executive's employment, or, if later,
termination or expiration of a subsequent consulting
arrangement, regardless of whether Executive caused said
termination:
(i) In the event of voluntary termination by Executive,
directly or indirectly, perform any services
similar to his duties and obligations under this
Agreement, own an interest in, operate, join,
control, or participate in, or be connected as an
officer, employee, agent, independent contractor,
partner, shareholder or principal of any
corporation, partnership, proprietorship, firm,
association, person, or other entity producing,
designing, providing, soliciting orders for,
selling, distributing, or marketing products,
goods, equipment, or services that compete directly
or indirectly with -OTX's products and services or
OTX's business, without first obtaining the written
approval of OTX;
(ii) Take any action that would interfere with, diminish
or impair the valuable relationships that OTX
and/or OTX's Affiliates have with its or their
customers and clients and others with which OTX
and/or OTX's Affiliates have business relationships
or to which its services are rendered;
(iii) Directly or indirectly, for his own benefit or for
the benefit of any other person (whether as an
officer, director, owner, partner, investor,
consultant, employee, agent, manager, or other
participant in any business or venture) divert,
solicit or attempt to divert or solicit any of
OTX's customers or patrons with respect to products
or services offered by OTX;
(iv) Recruit or otherwise solicit, induce or influence
any person (natural or otherwise) who is or becomes
an employee or consultant of the Company or the
Company's Affiliates to terminate his or her
employment with, or otherwise cease his
relationship with, Company or the Company's
Affiliates or hire any such employee or consultant
who has left the employ of Company or the Company's
Affiliates within two (2) years after the
termination or expiration of such employee's or
consultant's employment with Company or the
Company's Affiliates, as the case may be; or
(v) Assist with others in engaging in any of the
foregoing.
(b) It is acknowledged and agreed by Executive that Company,
OTX and their respective affiliates have a legitimate
business interest justifying the restrictions contained
herein and that such restrictions are reasonably necessary
to protect such legitimate business interests, which
interests, including, without limitation, trade secrets;
other valuable confidential business information,
including but not limited to the information set forth in
Sections 15 and 16, that may not qualify as trade secrets,
but as to which Company, OTX and their Affiliates have
expended time and money in developing and as to which they
hold confidential and proprietary; substantial business
relationships with existing and prospective customers,
9
clients and others with whom Company, OTX and their
Affiliates have formed valuable relationships; customer
and client goodwill associated with the ongoing business
of Company, OTX and their Affiliates and evidenced by the
various trademarks, trade names, service marks and trade
dress used by Company, OTX and their Affiliates in
connection with their businesses, and an expectation of
continuing patronage from their existing customers,
clients and others with whom Company, OTX and their
Affiliates have formed valuable business relationships.
(c) Executive acknowledges and agrees that, in the event of a
breach or threatened breach of any of the terms of this
Section, Company and/or the Company's Affiliates, as the
case may be, would suffer irreparable harm for which
monetary damages would be inadequate. Accordingly, in
addition to any other remedies available, at law or in
equity, in the event of a breach or threatened breach by
the Executive of the provisions of this Section, Company
and/or the Company's Affiliates shall be entitled to seek
an injunction restraining Executive from such breach or to
seek specific performance of the terms hereof. The 1-year
period mentioned above shall be tolled for any period(s)
of violation or period(s) of time required for litigation
to enforce the covenants herein. In addition, any breach
or threatened breach of any of the terms of this Section
which is not curedwithin thirty (30) days of receipt of a
written notice from the Board or the Chairman of the Board
which specifically identifies such purported breach or
threatened breach by Executive shall constitute cause for
the termination of Executive's employment hereunder
notwithstanding any other term, provision or definition
contained in this Agreement.
(d) The provisions of this Section shall survive any
termination or expiration of this Agreement.
Executive has carefully read and considered the provisions of
this Section, and having done so, agrees that the restrictions set forth in this
Section (including, but not limited to, the time period of the restrictions) are
fair and reasonable and are reasonably required for the protection of the
interests of Company.
Section 18. Representations. Executive represents and warrants to Company
that (i) the execution, delivery and performance of this Agreement by Executive
does not and will not conflict with, breach, violate or cause a default under
any contract, agreement, instrument, order, judgement or decree to which
Executive is a party or by which he is bound, (ii) Executive is not a party to
or bound by any employment agreement, noncompetition agreement or
confidentiality agreement with any other person or entity that has not been
previously disclosed in writing to Company and (iii) upon the execution and
delivery of this Agreement by Company, this Agreement shall be the valid and
binding obligation of Executive, enforceable in accordance with its terms.
Section 19. Notices. No notice or other communication will be deemed given
unless sent in any of the manners, and to the persons, specified in this
Section. All notices and other communications hereunder will be in writing and
will be deemed given (a) upon receipt if delivered personally (unless subject to
clause (b)) or if mailed by registered or certified mail, (b) at noon on the
date after dispatch if sent by overnight courier or (c) upon the completion of
transmission (which is confirmed by telephone or by a statement generated by the
transmitting machine) if transmitted by telecopy or other means of facsimile
which provides immediate or near immediate transmission to compatible equipment
in the possession of the recipient, in any case to the parties at the following
addresses or telecopy numbers (or at such other address or telecopy number for a
party as will be specified by like notice):
10
If to Company:
Ocwen Financial Corporation
0000 Xxxx Xxxxx Xxxxx Xxxxxxxxx Xxxxx 0000
Xxxx Xxxx Xxxxx, XX 00000
Attention: Secretary
TelecopyNumber: (000)000-0000
Confirmation Number: (000) 000-0000
If to Executive:
00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxx Xxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Confirmation Number: (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
OCWEN FINANCIAL CORPORATION
By: /s/ XXXX X. XXXXX
--------------------------------------
Xxxx X.Xxxxx
Senior Managing Director
/s/ XXXXXX X. XXXXXXXX
--------------------------------------
XXXXXX X. XXXXXXXX
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