NON-COMPETITION AGREEMENT
This Non-Competition Agreement, dated as of January 17, 2000 (this
"Agreement"), is by and between American Home Mortgage Holdings, Inc., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxx (the "Executive").
WHEREAS the Company and the Executive have entered into that certain
Employment Agreement, dated as of the date hereof (the "Employment Agreement").
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the Company and the
Executive hereby agree as follows:
1. Definitions. Unless defined elsewhere in this Agreement,
capitalized terms contained herein shall have the meanings set forth or
incorporated by reference in Section 18 of the Employment Agreement.
2. Non-competition; Non-solicitation.
(a) In consideration of the Employment Agreement, the Executive
agrees that for the period ending on the sixth anniversary of the execution of
the Employment Agreement or for such longer period of time if the Executive is
employed by the Company in accordance with Section 3(b) of the Employment
Agreement (the "Non-Competition Period"), the Executive will not, directly or
indirectly (whether as a sole proprietor, partner or venturer, stockholder,
director, officer, employee, consultant or in any other capacity as principal or
agent or through any Person, subsidiary or employee acting as nominee or agent):
(i) conduct or engage in or be interested in or associated
with any Person which conducts or engages in the AHM Business within the
United States;
(ii) take any action, directly or indirectly, to finance,
guarantee or provide any other material assistance to any Person engaged
in the AHM Business;
(iii) solicit, contact or accept business of any client or
counterparty whom the Company served or conducted business with or whose
name became known to the Executive as a potential client or counterparty
while in the employ of the Company or during the Non-Competition Period;
or
(iv) influence or attempt to influence any Person that is a
contracting party with the Company at any time during the Non-Competition
Period to terminate any written or oral agreement with the Company.
For purposes of this Agreement, the term "AHM Business" shall mean
the residential mortgage lending or residential mortgage brokerage business as
conducted by the Company and any business involving the supply of services
substantially similar to services provided by the Company at the time of the
termination of the Executive's employment.
(b) The Executive shall not, whether for the Executive's own account
or in conjunction with or on behalf of any other Person, solicit or entice away
from the Company any officer, employee or customer of the Company or of American
Home Mortgage Sub II, Inc. during the term hereof or the Non-Competition Period
nor engage, hire, employ, or induce the employment of any such Person whether or
not such officer, employee or customer would commit a breach of contract by
reason of leaving service or transferring business.
(c) The restrictive provisions hereof shall not prohibit the
Executive from (i) having an equity interest in the securities of any entity
engaged in the AHM Business or any business with respect to which the Executive
obtained confidential or proprietary data or information, which entity's
securities are listed on a nationally-recognized securities exchange or
quotation system or traded in the over-the-counter market, to the extent that
such interest does not exceed 5% of the outstanding equity interests of such
entity or (ii) with the prior written consent of the Company, serving as a
director or other advisor to any other Person.
(d) The Executive agrees that the covenants contained in this
Section are reasonable covenants under the circumstances, and further agrees
that if in the opinion of a court of competent jurisdiction, such restraint is
not reasonable in any respect, such court shall have the right, power and
authority to excise or modify such provision or provisions of these covenants
which as to such court shall appear not reasonable and to enforce the remainder
thereof as so amended.
(e) Notwithstanding anything herein to the contrary, if the Company
shall terminate the Executive's employment during the term of the Employment
Agreement other than pursuant to Section 7(b) of the Employment Agreement, the
Executive shall be subject to restrictions set forth in this Agreement for a
period equal to the lesser of (i) the remaining Non-Competition Period or (ii)
two years from the Date of Termination.
(f) Notwithstanding anything herein to the contrary, if the
Executive shall terminate the Executive's employment during the term of the
Employment Agreement for Good Reason pursuant to Section 7(c) of the Employment
Agreement, the Executive shall be subject to restrictions set forth in this
Agreement for a period of nine months from the Date of Termination.
(g) Notwithstanding anything herein to the contrary, if the
Executive's employment terminates under any circumstance that does not entitle
the Executive to payments under Section 8(a) of the Employment Agreement
(including a termination by reason of the death or Disability of the Executive,
or by reason of the Company or the Executive electing not to extend or further
extend the term of this Agreement pursuant to Section 3(b)), the Executive shall
be subject to the restrictions set forth in this Agreement until the expiration
of the Non-Competition Period.
3. Notices. All notices, requests, demands and other communications
which are required to be or may be given under this Agreement to any of the
other parties shall be in writing and shall be deemed to have been duly given
when (a) delivered in person, the day following dispatch by an overnight courier
service (such as Federal Express or UPS, etc.) or (b) five (5) days after
dispatch by certified or registered first class mail, postage prepaid, return
receipt requested, to the party to whom the same is so given or made:
If to the Company,
addressed to: American Home Mortgage Holdings, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 000000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attn: Human Resources Officer
If to the Executive,
addressed to: First Home Mortgage Corp.
000 Xxxxxxxx Xxxx
Xx. Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
4. Amendments. This Agreement cannot be altered or otherwise amended
except pursuant to an instrument in writing signed by each of the parties.
5. Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of the other parties, provided the Company may assign or otherwise
transfer this Agreement to any succeeding entity without limitation, which
entity shall assume all rights and obligations hereunder.
6. Entire Agreement. This Agreement contains the entire agreement
between the parties with respect to the matters contemplated herein and
supersede all previous written or oral negotiations, commitments and
understandings.
7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
8. Headings. All headings are inserted for convenience of reference
only and shall not affect the meaning or interpretation of any such provisions
or of this Agreement, taken as an entirety.
9. Severability. If, and to the extent that any court of competent
jurisdiction holds any provision (or any part thereof) of this Agreement to be
invalid or unenforceable, such holding shall in no way affect the validity or
enforceability of the remainder of this Agreement, but shall be confined in its
operation to the jurisdiction in which made and to the provisions of this
Agreement directly involved in the controversy in which such judgment shall have
been rendered.
10. Governing Law. THIS AGREEMENT IS EXECUTED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY, AND BE ENFORCEABLE IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
American Home Mortgage Holdings, Inc.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxx
