AMENDMENT TO EMPLOYMENT AGREEMENT
This amendment is entered into on the 27th day of August, 1997 by and
between WESTMARK MORTGAGE CORPORATION, a California corporation ("Company"), and
XXXXXX STORY ("Executive").
WHEREAS, the Company and Executive entered into an Employment Agreement
on April 25, 1997 and;
WHEREAS, the Company and Executive desire to modify said Employment
Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, said
Employment Agreement is hereby modified in the following respects:
1. Paragraph 4. Compensation and Benefits During the Employment Term,
(c) Incentive Stock Options shall be modified to read in its entirety as
follows:
Immediately upon the execution of this Agreement, Westmark Group
Holdings, Inc. and Executive shall enter into a Stock Option
Agreement, pursuant to which Westmark Group Holdings, Inc. shall
issue options to Executive to acquire 500,000 shares of the common
stock of Westmark Group Holdings, Inc. Said options shall vest
immediately at an exercise price of $1.00. Said vested options may
be exercised on or after the following dates:
125,000 shares on March 31, 1998
75,000 shares on October 31, 1998
125,000 shares on March 31, 1999
75,000 shares on October 31, 1999
100,000 shares on March 31, 2000
In the event of a sale, divestiture, spin-off or transfer of all or
substantially all of the assets or stock of Westmark Mortgage
Corporation, all options granted hereunder to Executive shall
immediately become exercisable. Provided, however, that no option
shall be exercisable after the expiration of ten years from the
date said option was granted.
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2. Paragraph 7. Termination, (d) Good Reason, (v) shall be modified to
read in its entirety as follows:
In the event Executive terminates his employment for good reason as
hereinabove set forth, Executive shall be entitled to a lump sum
payment equal to the monthly compensation provided for in this
agreement multiplied by the number of months remaining in the term
of this agreement or any extension thereof, together with all
benefits, reimbursements or other rights to which Employee has
become entitled.
3. Paragraph 7. Termination, (e) Change of Control shall be added to
said agreement and shall read in its entirety as follows:
In the event of a change of control as set forth below, while
Executive is employed by the Company after the initial term of
employment, and in the further event Executive's employment is
terminated without cause, as defined herein above, the Company
shall pay to Executive a lump sum payment equal to the monthly
compensation provided for in this agreement multiplied by the
number of months remaining in the term of this agreement or any
extension thereof, together with all benefits, reimbursements or
other rights to which Executive has become entitled. Change of
control shall be defined as follows:
i. Any "person," including a "group" as determined in accordance
with Section 13, (d), (3) of the Securities Exchange Act of 1934
(the "Exchange Act'), becomes, in a single transaction or series
of transactions, the beneficial owner, directly or indirectly,
of securities representing a Control Percentage (as hereinafter
defined) of the combined voting power of the then outstanding
securities of the corporation not including a transaction caused
by or resulting from the affirmative vote of a majority of the
current members of the Board of Directors of Westmark Group
Holdings, Inc. (subject to Paragraph 3, ii);
ii. The membership of the board of directors as it exists at the
time of this Agreement changes such that the current members of
the board no longer constitute a majority of the board of
directors not including a change caused by or resulting from any
current board member's death or resignation pursuant to
Xxxxxxxxx 0, (x) hereinafter, or the affirmative vote of a
majority of the current members of the Board of Directors of
Westmark Group Holdings, Inc.;
iii. The corporation is merged or consolidated with other
corporations in a single transaction or series of transactions
and as a result of such merger or consolidation a Control
Percentage of the outstanding voting securities of the surviving
or resulting corporation shall no longer be owned in the
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aggregate by the stockholders who owned stock in the corporation
as of the date prior to the merger or consolidation not
including a merger or consolidation caused by or resulting from
the affirmative vote of a majority of the current members of the
Board of Directors of Westmark Group Holdings, Inc. (subject to
Paragraph 3, ii). The term "Control Percentage" shall mean at
least 35% in the event the applicable securities are registered
under the Securities Exchange Act of 1934, as amended ("Exchange
Act"), or at least 35% in the event the applicable securities
are not registered under the Exchange Act;
iv. The corporation transfers all of its assets to another
corporation or to any other person or entity, including but not
limited to the transfer of the mortgage operations through a
sale of assets or stock, spin-off, divestiture or initial public
offering not including a transfer of assets or stock caused by
or resulting from the affirmative vote of a majority of the
current members of the Board of Directors of Westmark Group
Holdings, Inc, (subject to Paragraph 3, ii);
v. In the event of a change of control as set forth above, and
Executive is requested to remain with the surviving or successor
corporation or business, with the same compensation and
commensurate duties as previously retained by Executive subject
to the same terms and conditions of this agreement, and
Executive rejects such request for continuing employment, said
Executive shall be entitled to a lump sum severance payment
equal to the compensation provided in Xxxxxxxxx 0, (x), (x)
regarding termination for good reason. Provided, however, that
Executive shall not reject such request for continuing
employment without a reasonable basis.
4. Paragraph 4. Compensation and Benefits During the Employment Term, (f)
Vacation shall be modified to read in its entirety as follows:
Executive will be entitled to four (4) weeks paid vacation per year
subject to the policies and procedures of the Company. Unused accrued
vacation time may be carried forward to subsequent years and/or will
be paid in full upon termination of this agreement.
5. Paragraph 7. Termination, (d) Voluntary Termination by Executive, Said
paragraph shall read in its entirety as follows:
Executive shall have the right to terminate this agreement for any
reason other than change of control or good reason as set forth
hereinabove upon sixty (60) days written notice to the Company. In the
event of voluntary termination by Executive other than for change of
control or good reason, Executive shall be
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entitled to any compensation or benefits due and owing to Executive up
to the date of termination.
6. Paragraph 6. The following miscellaneous paragraphs are incorporated
herein:
18. Loyal and Conscientious Performance of Duties: Executive agrees
that to the best of his ability and experience he will at all times
loyally and conscientiously perform all of the duties and obligations
required of him, either express or implied, by the terms of this
agreement.
19. Satisfaction of Performance of Duties: Executive's performance of
his duties hereunder shall at all times be rendered to the Company's
satisfaction, Executive expressly agrees that the Company shall
determine whether the services of Executive are satisfactory pursuant
to the performance guidelines established by the Board of Directors.
20. Adherence to Employer's Rules: At all times during the
performance of this contract, Executive shall strictly adhere to and
obey all of the Company's rules and regulations governing the conduct
of its Executives now in effect or as subsequently modified,
consistent with Executive's rights as set forth herein.
21. Devotion of Entire Time to Employer's Business: Executive shall
devote his full productive time, ability and attention to the business
of the Company during the term of this agreement. Furthermore, during
the term of this agreement, Executive shall not, whether directly or
indirectly, render any services of commercial or professional nature
to any other person or organization, whether for compensation or
otherwise, without the prior consent of the Company's President or
Chief Executive Officer. This agreement shall not be interpreted to
prohibit Executive from making passive personal investments or
conducting private business affairs if those activities do not in any
way interfere with the services required under this agreement.
However, Executive shall not directly or indirectly acquire, hold or
retain any interest in any business competing with or similar in
nature to the business of Employer.
22. Non-Competition during Term of Employment Contract: During the
term of this contract Executive shall not, directly or indirectly,
either as an employee, employer, consultant, agent, principal,
partner, stockholder, corporate officer, director or in any other
individual or representative capacity, engage or participate in any
business that is in competition in any matter whatsoever with the
business of the Company, unless approved, in advance, by the Company's
Board of Directors.
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23. Confidentiality: In the course of the performance of Executive's
duties hereunder, Executive recognizes and acknowledges that Executive
may have access to certain confidential and proprietary information of
Employer or any of its affiliates. Without the prior written consent
of the Company, Executive shall not disclose any such confidential or
proprietary information to any person or firm, corporation,
association, or other entity for any reason or purpose whatsoever, and
shall not use such information, directly or indirectly, for
Executive's own behalf or on behalf of any other party. Executive
agrees and affirms that all such information is the sole property of
the Company and that at the termination and/or expiration of this
agreement, at the Company's written request, Executive shall promptly
return to the Company any and all such information so requested by the
Company. Executive shall not be precluded from utilizing and
maintaining any contacts Executive may have with the capital, equity
and financial market industry.
The provisions of this section shall not, however, prohibit
Executive from disclosing to others or using in any manner information
that:
A. Has been published or has become part of the public domain;
B. Has been furnished or made known to Executive by third
parties (other than those acting directly or indirectly for or
on behalf of Executive) as a matter of legal right without
restriction on its use or disclosure;
C. Was in the possession of Executive prior to obtaining such
information from the Company in connection with the
performance of this agreement; or
D. Is required to be disclosed by law.
Except as hereinabove modified or amended, said Employment Agreement
shall continue in full force and effect.
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COMPANY:
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WESTMARK MORTGAGE CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
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Name: Xxxx Xxxxxxxxxx
Title: C.E.O.
EXECUTIVE:
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/s/ Xxxxxx Story III
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XXXXXX STORY III
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