EXHIBIT 10.15
EMPLOYMENT AND COMPENSATION AGREEMENT
This Employment and Compensation Agreement (the "Agreement") is entered
into in Contra Costa County, California, as of the 5th day of March, 1999, by
and between Finet Holdings Corporation, a Delaware corporation ("Finet") and
collectively herein ("Employer") and Xxxxx Xxxxxxxxx ("Employee"), who agree as
follows:
1. EMPLOYMENT.
a. Employer hereby offers Employee employment with Employer, and
Employee hereby accepts employment, commencing on March 9, 1999 on the terms and
conditions contained in this Agreement.
b. Employee shall serve as EVP - Sales & Marketing of Finet Holdings
Corporation reporting directly to the company's Chief Executive Officer. In
that capacity, Employee shall faithfully and diligently carry out such duties
and have such responsibilities as are customary among persons employed in
substantially similar capacities for similar companies, provided that Employee
shall at all times be subject to the direction of the Board of Directors.
Employee agrees to the best of his ability and experience to perform loyally and
conscientiously all of the duties and responsibilities required of him, either
expressly or implicitly, by the terms of this Agreement.
c. Location of Employee's employment shall be in the San Francisco Bay
area.
d. Addendum A is hereby incorporated into this Agreement.
2. TERM OF EMPLOYMENT. Specified in Addendum A.
3. COMMITMENT. Except as is otherwise provided herein, during the Term of
Employment Employee shall devote one hundred (100%) percent of his entire
productive time, ability, and attention to the business of the Employer. Except
as is otherwise provided herein, Employee shall not render any services of a
commercial or professional nature to any other person or organization, whether
for compensation or otherwise. However, the expenditure of reasonable amounts of
time for educational, charitable, or professional activities shall not be deemed
a breach of this Agreement if those activities do not materially interfere with
the services required under this Agreement and shall not require prior written
consent. Notwithstanding the foregoing, this Agreement shall not be interpreted
to prohibit Employee from making passive personal investments or conducting
private business affairs if those activities do not materially interfere with
the services required under this Agreement.
4. COMPETITIVE ACTIVITIES.
a. During the Term of Employment, Employee shall not, directly or
indirectly, own an interest in (excluding passive investments in public
companies), 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 Employer's products and services or
Employer's business, without first obtaining the written approval of Employer.
Such approval may be rescinded by Employer if and when, in the opinion of
Employer, such activities materially inhibit Employee's performance under this
Agreement or place Employer at risk.
b. During the Term of Employment and the Post-termination Period (one
year following termination), Employee shall not, directly or indirectly, either
for himself or for any other person, firm, or corporation, divert or take away
or attempt to divert or take away (and during the Post-termination Period, call
on or solicit or attempt to call on or solicit) any of Employer's customers or
patrons, not including those on whom he called or whom he solicited or to whom
he catered or with whom he became acquainted prior to his engagement by
Employer. Nothing herein shall limit Employee's right during the
Post-termination Period, to call on or solicit or attempt to call on or solicit
any of Employee's customers or patrons on whom he called or whom he solicited or
to whom he catered or with whom he became acquainted during the period prior to
his engagement by Employer.
c. During the Term of Employment, Employee shall not undertake
planning for or organization of any business activity competitive with
Employer's business or combine or join with other employees or representatives
of Employer's business for the purpose of organizing any such competitive
business activity.
d. During the Term of Employment and the Post-termination Period,
Employee shall not, directly or indirectly or by action in concert with others,
induce or influence (or seek to induce or influence) any person who is engaged
(as an employee, agent, independent contractor, or otherwise) by Employer to
terminate his employment or engagement.
5. COMPENSATION.
(a) As compensation for the services to be rendered by Employee
hereunder during the Term of Employment, Employer shall pay Employee a Base
Salary and additional compensation based upon the performance of Employee, as is
more specifically set forth in Addendum A to this Agreement ("Adjusted Base
Salary"). Annual salary may be increased (but not decreased) by the company's
Board of Directors.
(b) Employee's Adjusted Base Salary, will be payable in accordance with
Employer's customary payroll practices.
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6. BENEFITS. In addition to the compensation described herein above, during
the Term of Employment, Employee shall be eligible to receive the following
benefits:
a. Such health insurance and other benefits that Employer may, from time
to time, make available to Employer's employees.
b. Vacation time, sick leave, holidays, and personal time in accordance
with Employer's vacation and absence policies, which Employer may, from time to
time, maintain for employees at Employee's level of employment.
c. Reimbursement of reasonable business expenses, upon submission of
documentation in accordance with Employer's regular expense reimbursement
policies, for reasonable business expenses incurred on behalf of Employer by
Employee.
d. Participation in any savings plan, 401(k) plan, profit sharing plan
or pension plan, which Employer may, from time to time, maintain for employees
at Employee's level of employment, subject to plan eligibility.
7. CONFIDENTIAL INFORMATION.
a. Employee recognizes that, during the course of his employment with
Employer, he will be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to Employer.
Such confidential information includes but is not limited to Employer's
investment plans or strategies, trade secrets, sources of supply, customer
lists, lists of potential customers, customer or consultant contracts and the
details thereof, pricing policies, operational methods, marketing and
merchandising plans or strategies, business acquisition plans, personnel
acquisition plans, unannounced products and services, research and development
activities, processes, formulas, methods, techniques, technical data, know-how,
inventions, designs, financial or accounting data, inventory reports, production
schedules, cost and sales data, strategies, forecasts, and all other information
that is not publicly available pertaining to the business of Employer or any of
its affiliates. Such confidential information is hereinafter referred to as
"Confidential Information".
b. Confidential Information shall not include (i) any information
which is or becomes publicly available other than through breach of this
Agreement, or (ii) any information which is or becomes known or available to
Employee on a non-confidential basis and not in contravention of applicable law
from a source which is entitled to disclose such information to Employee.
c. Employee agrees that he will not, while he is employed by Employer,
divulge Confidential Information to any person, directly or indirectly, except
to Employer or its officers and agents, or as reasonably required in connection
with his duties on behalf of the Employer, except as is required by law or court
order. Employee further agrees not to use, except on behalf of the Employer, any
Confidential Information acquired by Employee during the Term of Employment.
Employee agrees that he will not at any time after his employment with Employer
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has ended, divulge to any person, directly or indirectly, any Confidential
Information, except as is required by law or court order. Employee further
agrees that, if his relationship with the Employer is terminated for any reason,
he shall not take with him but will leave with Employer all records, papers, and
computer software and data, and any copies thereof relating to the Confidential
Information (or if such papers, records, computer software and data, or copies
are not on the premises of Employer, Employee agrees to return such papers,
records, and computer software and data immediately upon his termination).
Employee acknowledges that all such papers, records, computer software and data,
or copies thereof are and remain the property of Employer.
8. VOICE MAIL AND ELECTRONIC MAIL. All voice mail and electronic mail on
Employer's telephone or computer systems are the property of Employer and shall
be non-personal, non-private and non-privileged to Employee, and Employee shall
disclose to Employer all codes or passwords necessary for Employer to access
such voice mail or electronic mail.
9. COOPERATION. As a condition of his employment with Employer, Employee
agrees that he will not disrupt, damage, impair, or interfere with the business
of the Employer, such as by interfering with the duties of the Employer's
employees, disrupting relationships with Employer's customers, agents,
representatives, or vendors, or otherwise.
10. TERMINATION.
a. Employee may terminate this Agreement for any reason or for no
reason upon providing Employer with sixty (60) days prior written notice of his
intention to terminate.
b. Employer may terminate this Agreement upon written notice to
Employee prior to its expiration date for just cause or due to the Employee's
death or substantial physical impairment which prevents Employee from performing
his duties and responsibilities as set forth herein. For purposes of this
Section, "just cause" is defined as a violation of Section(s) 3., 4., 7., or 9.
hereof, fraud, misappropriation of funds, embezzlement, theft, physical assault
on another person, drunkenness on the job, possession or use of narcotics on
Employer's property, willful and material damage to Employer's property,
conviction of a felony, repeated or material violations of Employer's policies.
c. In the event Employee's employment is terminated, whether by
Employer for "just cause", as is defined herein, or Employee as provided herein,
Employer shall have no further obligation to pay any compensation to or benefits
on behalf of Employee, however all compensation accrued as of the date of
termination shall be paid to Employee within forty five (45) days of
termination.
d. In the event Employee's employment is terminated by Employer
without "just cause", or if a person or entity gains ownership of over 35% of
the outstanding shares of Finet, or if responsibilities of employee are
materially modified without Employee's consent, provisions and obligations in
Addendum A shall be applicable. The company shall continue to pay base salary
compensation for the remaining term. All share grants and options or warrants
shall fully
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vest upon the date of employment termination or acquisition of 35% of
outstanding shares. Employee shall have up to 90 days from termination date to
exercise such options or warrants.
e. Upon termination of his employment, Employee agrees to deliver
promptly to Employer all records, files, drawings, documents, specifications,
blueprints, letters, notes, reports and computer software, and all copies
thereof, and any and all materials relating to Employer's Confidential
Information that is in his possession or control. At the time of termination,
Employee will have an exit interview with Employer wherein Employee will certify
that Employee has returned to Employer all tangible Confidential Information
disclosed to him, and disclose Inventions conceived or developed by him during
the Term of Employment.
f. Sections 4., 7., 10., 11., 12., 13., 14., 15., and 16., hereof,
shall survive termination of this Agreement.
11. ASSIGNMENT. The rights and liabilities of the parties hereto shall bind
and inure to the benefit of their respective successors, executors and
administrators, as the case may be; provided that, as Employer has specifically
contracted for Employee's services, Employee may not assign or delegate his
duties and responsibilities under this Agreement either in whole or part without
the prior written consent of Employer.
12. SEVERABILITY OF PROVISIONS. In the event any provision of this Agreement
is held to be illegal, invalid, or unenforceable under any present or future
law, (a) such provision will be fully severable, (b) this Agreement will be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof, (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid, or unenforceable provision or by its severance herefrom, and
(d) in lieu of such illegal, invalid, or unenforceable provision, there will be
added automatically as a part of this Agreement a legal, valid, and enforceable
provision as similar in terms to such illegal, invalid, or unenforceable
provision as may be possible.
13. MEDIATION AND ARBITRATION. Initially all claims and controversies of any
kind relating to this Agreement shall be submitted to mediation pursuant to the
services of an established mediation service with the venue of the mediation
being San Francisco, CA. In the event the matter cannot be disposed of by
mediation, all claims and controversies of any kind relating to this Agreement
shall be finally settled by binding arbitration before a single arbitrator in
San Francisco, CA, in accordance with the rules then in effect from the American
Arbitration Association. All parties to this Agreement shall be bound by the
decisions in an any such arbitration, and judgment upon such arbitration may be
entered by any court of proper jurisdiction. Attorney's fees and costs shall be
allocated by agreement in mediation or by the arbitrator in arbitration.
14. NOTICES. Any notice provided for in this Agreement must be in writing
and must be either personally delivered, or mailed by certified mail (postage
prepaid and return receipt requested), or sent by reputable overnight courier
service, to the recipient at the address below indicated:
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To Employee: Xxxxx Xxxxxxxxx
00 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
To Employer: President
Finet Holdings Corporation
0000 Xxxxxx Xxxxxx, #000
Xxxxxx Xxxxx, XX 00000
,or such other address or to the attention of such other person as the
recipient party shall have specified by prior written notice to the sending
party. Any notice under this Agreement will be deemed to have been given when
so delivered or if mailed, five (5) days after deposit in a U.S. Postal
facility.
15. ENTIRE AGREEMENT: AMENDMENTS AND WAIVERS. This Agreement contains the
sole, complete, final, exclusive and entire agreement between the parties
pertaining to the employment of Employee by Employer and supersedes all prior
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties. No amendment, supplement, modification, rescission or
waiver of this Agreement shall be binding unless executed in writing by the
parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a continuing waiver unless otherwise expressly provided.
The parties expressly acknowledge that they have not relied upon any prior
agreements, understandings, negotiations or discussions, whether oral or
written.
16. CHOICE OF LAW. The rights and duties of the parties will be governed by
the law of the State of California, excluding any choice-of-law rules that would
require the application of laws of any other jurisdiction.
17. INSURANCE. Employee shall cooperate at no cost to him with Employer,
should Employer wish to purchase key-man insurance on Employee's life.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EMPLOYER EMPLOYEE
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx Xxxxxxxxx
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Xxxx X. Xxxxxx Xxxxx Xxxxxxxxx
Chairman &
Chief Executive Officer Finet
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ADDENDUM A
EMPLOYMENT TERM SHEET
This agreement between Xxxxx Xxxxxxxxx ("Xxxxxxxxx"), and Finet Holdings
Corporation ("Finet") shall define prospective terms of employment.
TERM - The term of this agreement shall be from 3/9/99 through 12/31/00. In the
event of termination of employment by Employer, other than for cause, Employer
agrees to pay Employee current base salary from the effective date of
termination, and thereafter until the earlier of Employee obtaining new
employment or six months from the effective date of termination. No severance
shall be paid if Employee voluntarily terminates or is terminated for cause.
POSITION - Xxxxxxxxx shall be named EVP - Sales & Marketing and shall report to
Finet's Chief Executive Officer, Xxxx Xxxxxx, or his designee.
COMPENSATION - $150,000 per annum as base salary. Performance incentive each
month shall equal payment of one half of one basis point (.005%) times loan
closings over $80 million per month in aggregate for iQualify, Interloan Group
and Monument Mortgage. To be paid quarterly.
OPTIONS - Xxxxxxxxx shall be granted 350,000 incentive stock options in Finet
at a strike price of $1.97 per share (3/4/99 close price), with 70,000 shares
vesting upon execution of this agreement and 70,000 additional shares vesting
12, 24, 36, and 48 months thereafter, and in accordance with Finet's corporate
stock option plan guidelines.
/s/ Xxxxx Xxxxxxxxx /s/ Xxxx X. Xxxxxx
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Xxxxx Xxxxxxxxx Xxxx X. Xxxxxx
Chairman & CEO
