Exhibit 10.1
EMPLOYMENT AGREEMENT
Agreement made, effective as of this 3rd day of November, 1998, by and
between Del Mar Mortgage, Inc., a Nevada corporation (hereinafter referred to as
"Company"), and Xxxxx Xxxxx (hereinafter referred to as "Employee").
RECITALS
The parties recite and declare:
A. Company desired to retain Employee as its Chief Loan Officer
for the operation of the mortgage broker business in the State
of Nevada.
B. Employee desires to act as such Chief Loan Officer for the
operation of a mortgage broker in the State of Nevada.
In consideration of the mutual covenants and agreements contained in
this agreement, the parties agree as follows'
SECTION ONE
APPOINTMENT OF EMPLOYEE
A. Company hereby employs Employee to serve as its Chief Loan
Officer for the operation of a mortgage broker business in the
State of Nevada and to perform such other duties as may be
determined from time to time.
B. Employee hereby accepts such appointment and agrees to observe
all terms and conditions of this agreement.
SECTION TWO
COMPENSATION
Company agrees to pay Employee for his services as follows:
A. A salary of $60,000.00 annually, paid in equal bi-monthly
installments.
B. A commission/incentive plan as follows: Three eighths of one
percent (0.375%) monthly on Nevada loan volume from
$3,000,000.00 and above. Incentives shall be paid to the
Employee monthly.
C. Health insurance for Employee within 90 days of employment.
D. All other benefits offered by employer to its other employees.
SECTION THREE
OBLIGATIONS OF COMPANY
A. Employer shall pay for all approved business development and
operating expenses of the business. All loans and contracts are subject to
acceptance of the employer at its discretion, and no loan or contract shall be
binding until so accepted and approved.
SECTION FOUR
DUTIES OF EMPLOYEE
A. Employee shall use his best efforts and entire time during usual
business hours to promote and solicit the business of employer actively and
diligently. Employee may maintain his interest in Cap Source, Inc., which is a
Nevada licensed mortgage company.
B. Employee shall maintain appropriate records and accounts as required
by governmental and licensing authorities and employer.
C. Employee shall return to employer immediately upon demand after the
termination of this agreement, in good condition, any and all documents and
accounts held or maintained for the benefit of the employer.
D. Employee shall conduct himself and his business activities at all
times so as to not detract from, or reflect adversely on the reputation of
employer and its services; and, after the termination of this agreement, not to
defame or disparage employer or its business, or services, or its officers) nor
engage in any unfair trade practices toward employer.
E. Employee shall treat as confidential any information obtained by him
concerning the customers or sales personnel of company or its business, lists of
investors and borrowers, services, products, techniques, methods, systems,
pricing, plans, or policies; and will not during his employment, or at any time
after such employment, disclose such information in whole or in part to any
person, firm, corporation, or other entity for any reason or purpose whatsoever.
SECTION FIVE
NON-COMPETITION
Employee agrees that during the term of this agreement and for a period
of two (2) years following the termination of this agreement, he will not,
directly or indirectly, either as an individual or on his own account, or as a
partner, employee, agent, manager, regional employee, employee, or salesperson
of or for any person, firm, association, corporation, or other entity, or as an
officer, director, or shareholder of a closely held corporation, as defined
below, engage in any or all of the following activities within Xxxxx County,
Nevada and within the distance of 100 miles from the nearest point to the outer
boundary of such location:
A. Enter into or engage in any business that competes with company's
business except as already performed by Cap Source. Company is primarily engaged
in the business of mortgage brokering or solicitation or collection of monies to
be secured by deeds of trust or other secured real estate related investments.
B. Solicit employer customers, business, patronage, or contacts for or
market or sell any services or products in the above-defined areas for himself
or for any person, firm, association, corporation, or other entity engaged in a
business that competes with employer's business as
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defined above, or supervise others engaged in such activities. Except customers
or clients of Cap Source which is a business owned and operated by Employee
prior to employment with employer.
C. Enter into or engage in any discussion or negotiation, or assist in
such actions to encourage clients, employees, agents, managers, or employees to
disassociate their relationship with employer in order to engage in any business
that competes with employer's business, except what is already performed by Cap
Source.
D. Promote or assist, financially or otherwise, any person, firm,
association, corporation, or other entity engaged in a business that competes
with employer's business, except what is already performed by Cap Source.
This covenant on the part of employee is of the essence of this
agreement; it shall be construed as independent of any other provision of this
agreement, and the existence of any claim or cause of action of employee against
company, whether predicated on this agreement or otherwise, shall not constitute
a defense to the enforcement by employer of this covenant.
SECTION SIX
TERMINATION
A. Within the first ninety (90) days of employment, either party
may terminate this agreement with one (1) day written notice.
B. After the initial ninety (90) day period, should Employer
terminate this agreement, Employer shall pay to Employee a
severance of equal to six (6) months salary from the date of
the written notice of termination, and any
commission/incentive due to Employee or any closed loan or
loan in process. A commission on a loan in process will not be
paid unless, and until, the loan closes.
C. Should Employer be sold to a third party entity, this
agreement shall be non-temimable by the new third party owners
for a period of three (3) years from the date of the sale. A
third party entity shall mean any entity which is not owned in
whole or in part by Xxxxxxx Xxxxxxx or his affiliate entities,
A third party entity shall specifically not include a public
offering by Employer or related, affiliated company or the
present merger/sale to CFI.
D. Either party shall have the right, at any time, to cancel and
terminate tills agreement by giving at least thirty (30) days
notice to the other party. Employee is an at will employee as
that term is defined under Nevada law.
SECTION SEVEN
ASSIGNMENT
The rights of each party under this agreement are personal to that
party and may not be assigned or transferred to any other person, firm,
corporation, or other entity without the prior, express, and written consent of
the other party.
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SECTION EIGHT
LAW TO GOVERN CONTRACT
It is agreed that this agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Nevada.
SECTION NINE
ENTIRE AGREEMENT
This agreement shall constitute the entire agreement between the
parties and any prior understanding or representation of any kind preceding the
date of this agreement shall not be binding upon either party except to the
extent incorporated in this agreement.
SECTION TEN
MODIFICATION OF
AGREEMENT
Any modification of this agreement or additional obligation assumed by
either party in connection with this agreement shall be binding only if
evidenced in writing signed by each party or an authorized representative of
each party.
SECTION ELEVEN
NO WAIVER
The failure of either party to this agreement to insist upon the
performance of any of the terms and conditions of this agreement, or the waiver
of any breach of any of the terms and conditions of this agreement, shall not be
construed as thereafter waiving any such terms and conditions, but the same
shall continue and remain in full force and effect as if no such forbearance or
waiver had occurred.
SECTION TWELVE
ARBITRATION OF
DISPUTES
All disputes, claims, and questions regarding the rights and
obligations of the parties under the terms of this agreement are subject to
arbitration. Either party may make a demand for arbitration by filing such
demand in writing with the other party after the dispute first arises.
Thereafter, arbitration shall be conducted by rules and procedures of the
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American Arbitration Association.
SECTION THIRTEEN
ATTORNEY FEES
In the event that any action is filed in relation to this agreement,
the unsuccessful party in the action shall pay to the successful party, in
addition to all the sums that either party may be called on to pay, a reasonable
sum for the successful party's attorney's fees.
SECTION FOURTEEN
EFFECT OF PARTIAL
INVALIDITY
The invalidity of any portion of this agreement will not and shall not
be deemed to affect the validity of any other provision. In the event that any
provision of this agreement is held to be invalid, the parties agree that the
remaining provisions shall be deemed to be in full force and effect as if they
had been executed by both parties subsequent to the expungement of the invalid
provision.
SECTION FIFTEEN
PARAGRAPH HEADINGS
The titles to the paragraphs of this agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this agreement.
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SECTION SIXTEEN
In witness whereof, each party to this agreement has caused it to be
executed at Las Vegas, Nevada on the date indicated below.
EMPLOYEE:
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XXXXX XXXXX
EMPLOYER:
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XXXX XXXXXXX - President
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