EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is entered into as of the 8th day
of January, 1996 ("Effective Date") by and between First Nationwide Mortgage
Corporation (the "Company") and Xxxxxx X. Xxxxx, Xx. (the "Executive").
RECITALS
WHEREAS, the Company wishes to employ the Executive, and the Executive
wishes to accept such employment, on the terms and conditions set forth in
this Agreement.
NOW THEREFORE, the parties agree as follows:
I. Service.
A. DUTIES
The Company hereby offers to Executive, and Executive hereby accepts
Employment by the Company as its President. During his employment by
the Company, the duties of the Executive shall be as follows:
(1) Continuing oversight of the mortgage banking operations of the
Company, as defined by the Chairman ("Chairman") of the Board of
the Company or the President of First Nationwide Bank, A Federal
Savings Bank ("FNB").
(2) Providing future acquisition advisory and consulting services to
the Company as requested by the Board, the Chairman or the
President of FNB.
(3) Providing general Company advisory consultations to the Company
and/or its affiliates and their respective senior executive
officers, advisors and shareholders, as requested by the Chairman
or the President of FNB.
(4) At the direction of the Chairman or the President of FNB, serving
as an industry representative at appropriate functions.
(6) Such other duties as are reasonably assigned from time to time by
the Chairman or the President of FNB.
(7) Serve as a member of the Board of Directors of the Company.
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B. STANDARD OF CARE
Throughout the term of this Agreement, the Executive shall serve the
Company faithfully and to best of his abilities, and shall devote
substantially all of his time, energy, skill and best efforts to the
performance of his duties in a manner which will faithfully and
diligently promote the business of and interests of the Company.
C. SPECIAL DUTIES
From time to time, the Executive may be requested by the Chairman
and/or the President of FNB to undertake certain actions on behalf of
the Company which the Executive shall so undertake. The authority of
the Executive to act on behalf of the Company shall be limited to that
given to him by the Board of Directors, the Chairman and/or the
President of FNB, in accordance with the duties and responsibilities
requested of him.
D. TERM
(i) The term of the Agreement shall be from three years from the
Effective Date (the "Term").
(ii) On or before sixty (60) days prior to the end of the Term, the
Company shall provide Executive with notice of whether it will
continue Executive's employment following the Term and the general
terms of that continued employment.
II. Compensation.
A. SALARY AND BONUS
(i) The Company shall pay the Executive a salary at a rate of
$300,000 per year ("Base Salary") for each year of the Term.
Except as otherwise provided herein, the Base Salary shall be
paid by the Company in 24 equal bi-weekly installments on the
15th and last day of each month for each year of the Term.
(ii) In addition to the Base Salary, the Executive shall have the
opportunity to earn a bonus in an amount as set forth on Annex A
for this Agreement ("Bonus") payable on or before thirty (30)
days after the end of the applicable calendar year, for each year
of the Term so long as the Executive shall be employed by the
Company. The Bonus shall be paid in a lump sum payment, subject
to deductions required by law.
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(iii) If the Executive's employment is terminated at any time during
the Term other than for Cause, for Good Reason or pursuant to
Sections IIIB or F, Executive shall be entitled to receive a
prorated Bonus for that portion of the calendar year Executive
was employed.
B. SALE GUARANTEE
In the event that the Company sells or enters into a definitive
agreement to sell substantially all of its mortgage banking operations
to a non-affiliated party during the Term or within one hundred and
twenty (120) days of the date on which this Agreement is terminated
pursuant to Sections IIIB or F, Executive shall be entitled to a
payment equal to the greater of $1,350,000 or three times the prior
calendar year's Base Salary plus Bonus, and upon such payment by the
Company, this Agreement shall be terminated and Executive shall not be
entitled to further rights or payments hereunder.
C. BENEFITS AND PERQUISITES
The Executive shall be entitled to such benefits and perquisites as
are normally afforded to Executive Vice Presidents of FNB in
accordance with FNB's policy and practice as set forth on Annex B.
D. MANAGEMENT INCENTIVE PLAN
The Executive shall be eligible to participate in the First Nationwide
Holdings Inc. Management Incentive Plan ("Plan"). Participation shall
be subject to the terms of the Plan.
E. RELOCATION AND RELATED EXPENSES
The Executive shall be entitled to reimbursement by the Company
pursuant to its standard relocation policies in place from time to
time, for the following expenses:
(i) Reasonable commuting and temporary living expenses for a period
not to exceed six months;
(ii) Ordinary expenses for the transportation of household and
personal goods to the Frederick, Maryland area;
(iii) In lieu of any payments under the Company's Employee Relocation
Policy and/or practices relative to the sale or purchase of a
home by the Executive, the Company shall make a payment in the
amount of $100,000 at the time the Executive closes on the
purchase of a home in the Frederick, Maryland area.
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(iv) Such other reasonable and necessary expenses as shall be
approved by the appropriate senior Company officer or President
of FNB related to the Executive's relocation to the Frederick,
Maryland area.
III. Termination
A. TERMINATION
This Agreement may be terminated at any time ("Termination Date") in
accordance with this Section III of the Agreement.
B. EXECUTIVE'S ELECTION
The Executive may terminate this Agreement at any time by providing
written notice to the Chairman of his desire to so terminate this
Agreement.
C. DISABILITY
If, as a result of the Executive's incapacity due to physical or
mental illness, the Executive shall be unable to perform his duties
on a full time basis for four consecutive months, or for 180 days in
a 12 month period ("Permanently Disabled"), the Company shall have
the right any time thereafter, so long as the Executive is still
Permanently Disabled, to terminate this Agreement for disability
("Disability").
D. DEATH
This Agreement shall terminate upon the Executive's Death.
E. TERMINATION BY THE COMPANY
During the term of this Agreement, the Company may terminate the
Executive's employment at any time for Cause or without Cause.
"Cause" shall mean the Executive's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful
violation of any law or rule or regulation (other than traffic
violations or similar non-criminal or misdemeanor offenses), or final
cease-and-desist order, or material breach of any provision of this
Agreement by the Executive which has not been cured within 30 days of
written notice of such breach by the Company ("Cure Period").
F. TERMINATION UNDER BANKING LAWS
(i) If the Executive is suspended or temporarily prohibited from
participating in the conduct of the Company's affairs by a
notice served under Section 3(e) (3) or (g) (1) of Federal
Deposit Insurance Act (the "FDIA") (12 U.S.C. Section 1818
(e) (3) and (g) (1)) the Company's obligations under this
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Agreement shall be suspended as of the date of service unless
stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Company may in its discretion (i) pay the
Executive all or part of the compensation withheld while its
obligations hereunder were suspended, and (ii) reinstate (in
whole or in part) any of its obligations which were suspended.
(ii) If the Executive is removed or permanently prohibited from
participating in the conduct of the Company's affairs by an
order issued under Section 8(e) (4) or (g) (1) of the FDIA (12
U.S.C. Section 1818 (e) (4) or (g) (1)), all obligations of the
Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the
contracting parties shall not be affected.
(iii) If the Company is in default (as defined in Section 3(x)(1) of
the FDIA), all obligations under this Agreement shall terminate
as of the date of default, but this paragraph F(iii) shall not
affect any vested rights of the Company or of the Executive.
(iv) All obligations of the Company under this Agreement may be
terminated, except to the extent determined that continuation
of this Agreement is necessary for the continued operation of
the Company, (i) by the Director of the Office of Thrift
Supervision (the "Director") or his or her designee, at the
time Federal Deposit Insurance Corporation or Resolution Trust
Corporation entered into an agreement to provide assistance to
or on behalf of the Company under the authority contained in
Section 13 (c) of the FDIA; or (ii) by the Director or his or
her designee, at the time the Director or his or her designee
provides a supervisory merger to resolve problems related to
operation of the Company or when the Company is determined by
the Director to be in an unsafe or unsound condition. Any
rights of the parties that have already vested, however, shall
not be affected by such action.
IV. Payment Upon Termination.
A. TERMINATION FOR DISABILITY
During any period that the Executive is Permanently Disabled, the
Executive shall continue to receive his Base Salary at the rate in
effect until the Termination Date of this Agreement. If the Company
shall terminate the Executive's employment hereunder for Disability,
the Company shall pay the Executive (i) within 15 days from the
Termination Date, sixty percent (60%) of the Base Salary remaining for
the Term and benefits and prorated Bonus accrued through the
Termination Date,
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and the Company shall have no further obligations under this
Agreement, other than pursuant to Section VII.
B. TERMINATION FOR DEATH
If this Agreement is terminated as a result of the death of the
Executive, the Company shall pay the persons in the manner set forth
below within 15 days following the Termination Date, sixty percent
(60%) of the Base Salary remaining for the Term and the prorated Bonus
accrued through the date of the Executive's death. With respect to any
payments to be made pursuant to this Section IVB, such payments shall
be made to the Executive's estate.
C. TERMINATION FOR CAUSE OR GOOD REASON OR UNDER BANKING LAWS
If the Company shall terminate the Executive's employment hereunder
for Cause, or for Good Reason or the Executive's employment is
terminated pursuant to Section IIIF above, the Company shall pay the
Executive, within 15 days from the date of termination, the Base
Salary and benefits accrued through the Termination Date, and the
Company shall have no further obligations under this Agreement, other
than pursuant to Section VII. "Good Reason" shall mean: (i) the
Executive's acceptance of a position of employment with another
financial institution or its affiliate; or (ii) a breach by Executive
of any material provision of this Agreement and a failure to cure such
breach during the Cure Period. The basis for termination under this
Section IVC shall be set forth in writing by the Company and delivered
to the Executive.
D. TERMINATION WITHOUT CAUSE OR WITHOUT GOOD REASON
If the Company shall terminate the Executive's employment hereunder
without Cause or without Good Reason, and, at the time of such
termination, the Company does not have standing to terminate this
Agreement under Section IVC, then the Company shall pay to the
Executive, as severance pay in a lump sum within 15 days from
Termination Date, the following amounts, and the Company shall have no
further obligations under this Agreement, other than pursuant to
Section VII:
(i) his Base Salary, prorated Bonus, and benefits accrued through the
Termination Date; and
(ii) in lieu of any further payments of Base Salary for periods
subsequent to the Termination Date, an amount equal to the
balance of the Base Salary due for the balance of the Term.
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E. MITIGATION
(i) If the Executive commits a breach and fails to cure during the
Cure Period, or threatens to commit a breach of Section IVC(i),
of any of the provisions of Sections I or IV hereof, the Company
shall have the following rights and remedies;
(a) The right and remedy to have the provisions of this
Agreement specifically enforced by any court having equity
jurisdiction, it being acknowledge and agree that any such
breach or threatened breach will cause irreparable injury to
the Company and that money damages will not provide an
adequate remedy to the Company; and
(b) The right and remedy to require the Executive to account for
and pay over to the Company all compensation, profits,
monies, accruals, increments or other benefits (collectively
"Benefits") derived or received by the Executive as a result
of any transactions constituting a breach of any of the
provisions of the preceding paragraph, and the executive
hereby agrees to account for and pay over such Benefits to
the Company.
Each of the rights and remedies enumerated above shall be
independent of the other, and shall be severally
enforceable, and all of such rights and remedies shall be in
addition to, and not in lieu of, any other rights and
remedies available to the Company under law or in equity.
(ii) If any of the covenants contained in Sections I or IV, or any
part thereof, hereafter are construed to be invalid or
unenforceable, the same shall not affect the remainder of the
covenant or covenants, which shall be given full effect, without
regard to the invalid portions.
(iii) If any of the covenants contained in Sections I or IV, or any
part thereof, are held to be unenforceable because of the
duration of such provision or the area covered thereby, the
parties agree that the court making such determination shall
have the power to reduce the duration and/or area of such
provision and, in its reduced form, said provision shall then be
enforceable.
(iv) The parties hereto intend to and hereby confer jurisdiction to
enforce the covenants contained in Sections I or IV upon the
courts of any state within the geographical scope of such
covenants. In the event that the courts of any one or more of
such states shall hold such covenants wholly
7
unenforceable by reason of the breadth of such covenants or
otherwise, it is the intention of the parties hereto that such
determination not bar or in any way affect the Company's right
to the relief provided above in the courts of any other states
within the geographical scope of such covenants as to breaches
of such covenants in such other respective jurisdictions, the
above covenants as they relate to each state being for this
purpose severable into diverse and independent covenants.
(v) In the event that any action, suit or other proceeding in law or
in equity is brought to enforce the covenants contained in
Sections I or IV or to obtain money damages for the breach
thereof, and such action results in the award of a judgment for
money damages or in the granting of any injunction in favor of
the Company, all expenses (including reasonable attorneys' fees)
of the Company in such action, suit or other proceeding shall
(on demand of the Company) be paid by the Executive. In the
event the Company fails to obtain a judgment for money damages
or an injunction in favor of the Company, all expenses
(including reasonable attorney's fees) of the Executive in such
action, suit or other proceeding shall (on demand of the
Executive) be paid by the Company.
F. INVENTIONS AND PATENTS
(i) The Executive agrees that all processes, technologies and
inventions (collectively, "Inventions"), including new
contributions, improvements, ideas and discoveries, whether
patentable or not, conceived, developed, invented or made by him
during the Term shall belong to the Company, provided that such
Inventions grew out of the Executive's work with the Company or
any of its subsidiaries or affiliates, are related in any manner
to the business (commercial or experimental) of the Company or
any of its subsidiaries or affiliates or are conceived or made
on the Company's time or with the use of the Company's
facilities or materials. The Executive shall further: (a)
promptly disclose such Inventions to the Company: (b) assign to
the Company, without additional Compensation, all patent and
other rights to such Inventions for the United States and
foreign countries; (c) sign all papers necessary to carry out
the foregoing; and (d) give testimony in support of the
Executive's inventorship.
(ii} If any Invention is described in a patent application or is
disclosed to third parties, directly or indirectly, by the
Executive within two years after the termination of the
Executive's employment by the Company, it is to be presumed that
the Invention was conceived or made during the Term.
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(iii) The Executive agrees that the Executive will not assert any
rights to any Invention as having been made or acquired by the
Executive prior to the date of this Agreement, except for
Inventions, if any, disclosed to the Company in writing prior to
the date hereof.
G. INTELLECTUAL PROPERTY
The Company shall be the sole owner of all the products and proceeds
of the Executive's services hereunder, including, but not limited to,
all materials, ideas, concepts, formats, suggestions, developments,
arrangements, packages, programs and other intellectual properties
that the Executive may acquire, obtain, develop or create in
connection with and during the Term, free and clear of any claims by
the Executive (or anyone claiming under the Executive) of any kind or
character whatsoever (other than the Executive's right to receive
payments (hereunder). The Executive shall, at the request of the
Company, execute such assignments, certificates or other instruments
as the Company may from time to time deem necessary or desirable to
evidence, establish, maintain, perfect, protect, enforce or defend its
right, title or interest in or to any such properties.
V. Confidentiality.
Without the express prior written consent of the Company, the Executive
will not disclose to others, directly or indirectly, any confidential or
proprietary information relating to the Company or any of its affiliates,
including Mafco Holdings Inc., or any of their respective employees,
representatives, agents, stockholders, officers, directors or their
respective family members, including, but not limited to, trade secrets
and business know-how, as well as all analyses, compilations, studies or
other documents prepared by the Executive or his agents, affiliates and
other representatives containing or based in whole or in part on such
information (collectively, "Confidential Information"), except as may be
necessary to comply with any applicable law, governmental order or
regulation. In the event that the Executive is requested or becomes
legally compelled (by oral questions, interrogatories, requests for
information or documents, subpoena, civil investigative demand or similar
process) to disclose any such information to a third party, the Executive
agrees to provide prompt written notice of such request(s) so that the
Company may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Section V. In the event that
such protective order or other remedy is not obtained, or that the Company
waives compliance with the provisions of this Section V, the Executive
agrees that he will disclose only that portion of the Confidential
Information which is legally required to be disclosed and will use his best
efforts to obtain reliable assurance that such third party will accord
confidential treatment to that portion of the Confidential Information
that is being disclosed. The Executive will deliver promptly to the
Company on the termination of his employment by the Company, or at any
9
other time the Company may so request, all documents containing
Confidential Information.
VI. Non-Competition.
A. TERM OF NON-COMPETE
During the Term and, subject to the provisions of Section VIB, for a
period of one (1) year following the Term of this Agreement the
Executive shall not, directly or indirectly, whether acting
individually or through any person, firm, corporation, business or any
other entity, (i) own, manage, operate, control or participate in the
ownership, management, operation or control of, or be connected as an
officer, employee, partner, director or otherwise with, or have any
financial interest in, or aid or assist anyone else in the conduct of
any business which business activity is the same as, or similar to, or
competes with, any business conducted by the Company or by any group,
division or subsidiary of the Company (a "Company Operation"), or (ii)
for a period of two (2) years solicit, induce or influence, or seek to
induce or influence, any person who currently is, or from time to time
may be, engaged or employed by a Company Operation to terminate his or
her engagement or employment by the Company or such subsidiary.
Notwithstanding the foregoing, beneficial ownership not exceeding five
percent of the publicly held voting stock or other publicly held
equity interest of any entity shall not constitute a violation of this
Section VIA.
B. The provisions of Section VIA shall apply to and be binding upon the
Executive only in the event the Company shall terminate the
Executive's employment hereunder for Cause (other than personal
dishonesty or wilful violation of any law, rule or regulation) related
to Conflict of Interest, Good Reason, or the Executive's employment
hereunder is terminated pursuant to Section IIIB provided, however,
that the provisions of Section VIA(ii) shall be applicable to all
events of termination.
VII. Indemnification.
The Company shall indemnify and hold harmless the Executive, his heirs
and his legal or personal representatives, to the fullest extent
permitted by applicable law, from and against any and all losses,
claims, damages, liabilities and expenses (including reasonable
attorneys' fees and expenses), in connection with or arising out of any
pending or threatened judicial or administrative proceeding, whether
civil, criminal or otherwise, including any appeal or other proceeding
for review brought or threatened against the Executive that arises out of
the Executive serving as advisory director, officer, employee or agent
of the Company or of any other entity that the Company has requested the
Executive to serve as director, officer, agent of employer. To the
fullest extent permitted
10
by applicable law, the obligations of the Company set forth in this
Section VII shall survive the termination of this Agreement.
VIII. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
IX. Authority.
The Company represents and warrants to the Executive that the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been authorized by all necessary corporate
action on the part of the Company, and that this Agreement, assuming the
due execution and delivery of this Agreement by the Executive,
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent
that the enforceability hereof may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other
similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
X. Waivers; Amendment.
This Agreement may not be modified, amended or waived other than by a
written instrument executed by the parties hereto. Neither the failure nor
any delay on the part of either party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof.
XI. Notices.
All notices, requests, demands and other communications required or
permitted under the Agreement shall be in writing and shall be deemed to
have been duly given upon receipt when sent by telecopy (which is
confirmed) or delivered personally, three business days after being
mailed by registered or certified mail (return receipt requested) or one
business day after being sent by overnight couriers, addressed as set forth
below:
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(i) If to the Executive:
Xxxxxx X. Xxxxx, Xx.
000 X. Xxxxxxxx Xxxx
Xxxx Xxxxxx, XX 00000
(ii) If to the Company:
Xxxx X. Xxxx
President, Chief Operating Officer
First Nationwide Bank, A Federal Savings Bank
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx X. Xxxxxxxx, Esq.
Executive Vice President, General Counsel
First Nationwide Bank, A Federal Savings Bank
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
or such other address as either party shall have furnished to the other
party in writing in conformity with the provisions for the giving of
notice, which shall be effective only upon receipt.
XII. Enforceability.
If any other provisions of this Agreement shall be adjudicated to be
invalid or unenforceable, such provision shall be amended to delete
therefrom the portion thus adjudicated to be invalid or unenforceable,
such deletion to apply only with respect to the operation of such
provision in the particular jurisdiction in which such adjudication
is made. If any one or more of the provisions contained in Sections
IV, V or VI shall for any reason be held to be excessively broad as
to duration, activity or subject, it shall be construed by limiting
and reducing it so as to be enforceable to the maximum extent permitted
by applicable law as it shall then appear.
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XIII. Specific Performance.
The Executive acknowledges that failure on his part to comply with the
terms of Sections V and VI hereof shall cause the Company immediate and
irreparable harm that cannot be adequately compensated by the remedies
at law, and that in the event of such breach or violation, or
threatened breach or violation, the Company shall have such provisions
of this Agreement specifically enforced by preliminary and permanent
injunctive relief without having to prove the inadequacy of the
available remedies at law or any actual damages and without posting
bond or other security. Any remedy sought or obtained by the Company
shall not be considered either exclusive or a waiver of the rights of
the Company or any other person to assert any other remedies they have
in law or equity. In any proceeding upon a motion for any such
injunctive relief, the Executive's ability to answer in damages shall
not be a bar, or be interposed as a defense, to the granting of such
injunctive relief against the Executive. Any rights under this Section
XIII may be enforced in any appropriate court in the State of
California.
XIV. Effect of Merger, Transfer of Assets, or Dissolution.
A. This Agreement shall be terminated by any voluntary or involuntary
dissolution of the Company resulting from either a merger or
consolidation in which the Company is not the consolidated or
surviving corporation, or a transfer of all or substantially all of
the assets of the Company.
B. Termination under this section shall not be considered for Cause for
the purpose of this Agreement, and shall be deemed a termination upon
sale in accordance with the terms of Section IIB and the Executive
shall have all rights and remedies granted therein.
XV. Assignment.
This Agreement shall be binding upon and shall inure to the benefit of
the Company and its successors and assigns and the Executive, his heirs
and legal or personal representatives.
XVI. Entire Agreement.
This Agreement contains the entire understanding between the parties
hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings among the parties
hereto except as herein contained, which shall be deemed
13
terminated effectively immediately. The express terms hereof control and
supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof.
XVII. Headings.
The headings herein are included for convenience only and are not
intended to be a part of or affect the meaning or interpretation of any
provision of this Agreement.
XVIII. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of California without giving effect to the
principles of conflicts of law thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
XXXXXX X. XXXXX, XX.
/s/ Xxxxxx X. Xxxxx, Xx.
-------------------------
FIRST NATIONWIDE MORTGAGE CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------
Xxxxxx X. Xxxx
Chairman of the Board and Chief Executive Officer
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ANNEX A
Employee shall have the opportunity to earn a Bonus for each of calendar
years 1996, 1997 and 1998, to the extent that this Agreement remains in force
and effect, on the following basis:
(1) An amount equal to fifty percent (50%) of the Base Salary if the net
earnings ("Net Earnings") of the Company, as Net Earnings are defined by
the Board of Directors of the Company, are equal to or greater than the
targeted net earnings ("Targeted Net Earnings"), as established by the
Board, for the calendar years 1996, 1997 and 1998 at issue; plus;
(2) an additional amount, up to a limit of an additional fifty percent (50%)
of Base Salary, calculated as follows:
(a) one percent (1%) of the amount by which Net Earnings exceed Targeted
Net Earnings, capped at Targeted Net Earnings plus $1,000,000, for a
maximum payment of $10,000;
(b) two percent (2%) of the amount by which Net Earnings exceed Targeted
Net Earnings plus $1,000,000, capped at Targeted Net Earnings plus
$2,000,000, for a maximum of $20,000;
(c) three percent (3%) of the amount by which Net Earnings exceed
Targeted Net Earnings plus $2,000,000, capped at an amount of Targeted
Net Earnings plus $3,000,000, for a maximum payment of $30,000;
(d) four percent (4%) of the amount by which Net Earnings exceed Targeted
Net Earnings plus $3,000,000, capped at an amount of Targeted Net
Earnings plus $4,000,000, for a maximum payment of $40,000; and
(e) five percent (5%) of the amount by which Net Earnings exceed Targeted
Net Earnings by $4,000,000, capped at an amount of Targeted Net
Earnings plus $5,000,000, for a maximum payment of $50,000.
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