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EXHIBIT 10.3(a)
SECOND AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Second Amended and Restated Employment Agreement (this
"Agreement") is made and entered into as of May 8, 1997 by and between AAMES
FINANCIAL CORPORATION, a Delaware corporation (the "Company'), and XXXX X.
XXXXXXXX, an individual ("Executive").
W I T N E S S E T H:
WHEREAS, Executive and the Company entered into an Employment
Agreement as of March 11, 1996 (the "Original Agreement") as a material
inducement to Executive to accept employment with the Company;
WHEREAS, Executive and the Company entered into an Amended and
Restated Employment Agreement as of June 21, 1996 (the "First Amended
Agreement") to clarify the intent of the parties; and
WHEREAS, Executive and the Company desire to amend and restate the
First Amended Agreement for the primary purpose of reflecting Executive's
position as Chief Executive Officer and revised compensation arrangements.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and
Executive agree as set forth below.
1. Employment and Duties. The Company hereby employs Executive to
serve as Chief Executive Officer of the Company, with the powers and duties
customarily accorded to such position, including those powers and duties set
forth in the Bylaws of the Company for such office and such other duties
consistent therewith as may be assigned to Executive from time to time by the
Board of Directors of the Company (the "Board"). Executive shall report to the
Board. Executive shall endeavor in good faith to perform his duties in an
efficient, faithful and business-like manner. During the term of his employment,
it is intended that Executive also serve as a Director on the Board of the
Company, and the Company will take action within its powers to include Executive
among the slate of directors proposed to be nominated by the Board at any
applicable stockholders meeting.
2. Term. The initial term of this Agreement shall begin on March 15,
1996. The initial term shall expire on June 30, 2001 unless terminated earlier
as set forth in Section 6 hereof or by mutual agreement of the parties hereto
(the "Initial Term"). At
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the expiration of the Initial Term and each anniversary thereafter, the term of
this Agreement shall automatically be extended for an additional year (the
"Extension Term") unless either party shall have given written notice to the
other party at least ninety days prior to the end of the Initial Term or the
Extension Term, as the case may be, that it does not desire to extend the term
of this Agreement. If Executive's employment under this Agreement is extended
for an Extension Term, it shall thereafter or during any Extension Term be
terminable (other than upon expiration) only as provided in Section 6 or by
mutual agreement of the parties hereto.
3. Compensation.
(a) Base Salary. During the term of this Agreement, Executive
shall be paid a base salary (the "Base Salary"), payable in accordance with the
Company's normal payroll practices. During the first year of the term of this
Agreement and until March 31, 1997, Executive's Base Salary shall be $500,000.
Effective as of April 1, 1997, Executive's Base Salary shall be $900,000. The
annual Base Salary payable to Executive shall be reviewed by the Board at least
annually; provided, however, that Executive's Base Salary shall not be reduced
below $900,000 per annum during the term of this Agreement.
(b) Bonus.
(i) PERFORMANCE BONUS. During the first year of the
term of this Agreement and until March 31, 1997, Executive participated in the
Company's performance bonus plan for executive officers. Under such plan,
Executive was paid on a quarterly basis a performance bonus (the "Performance
Bonus") measured by return on average equity during the relevant period.
(ii) DISCRETIONARY BONUS. For fiscal years following
fiscal 1997, Executive shall be entitled to a bonus in any fiscal year in an
amount, if any, as shall be determined in the sole discretion of the Board and
may be subject to stockholder approval as determined by the Board. Any such
discretionary bonus shall be paid as soon as practicable following the
completion of the fiscal year for which such discretionary bonus was paid but
not before publication of the audited financial statements of the Company
covering such fiscal year.
(c) Stock Bonus. On the commencement of the Initial Term, the
Company shall grant Executive non-qualified options to purchase 500,000 shares
of the Company's Common Stock (the "Bonus Options"). Of such Bonus Options,
100,000 shall vest immediately upon grant and an additional 100,000 shall vest
on each anniversary of the commencement of the Initial Term. The Bonus Options
will be exercisable at an
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exercise price equal to $25-7/8 (the Closing Price of the Company's Common Stock
on the New York Stock Exchange on January 17, 1996, the date the Board of
Directors of the Company approved this offer of employment be made to
Executive). Once vested, the Bonus Options will remain exercisable by Executive,
whether or not Executive remains employed by the Company, until the tenth
anniversary of the date of the initial grant (subject to the effect, if any, of
Section 6(a)(x) below). The Company shall register the shares of Common Stock
issuable upon exercise of the Bonus Options and shall use its best efforts to
maintain a current registration statement under the Securities Act of 1933, as
amended, in respect of such shares. The Bonus Options shall be issued under the
Company's stock incentive plans maintained for its executives and shall contain
standard anti-dilution mechanisms to adjust for stock dividends, stock splits,
reverse stock splits, recapitalizations, consolidations and mergers as are
provided for therein. All references to number of shares of Common Stock and
exercise prices contained in this Section 3(c) refer to the Common Stock of the
Company as constituted on March 11, 1996 and the antidilution provisions
referred to in the preceding sentence shall apply to any event covered thereby
(including, but not limited to, the stock split (effected as a stock dividend)
in May 1996) occurring after such date.
(d) Options in Lieu of Tax Bonus. To assist Executive in
providing for federal and state income taxes payable as a result of the exercise
of the Bonus Options, and in recognition of the fact that the Company may
benefit from federal and state tax deductions as a result therefrom, and in lieu
of any cash bonus to provide for such taxes, the Company shall, on the date of
the First Amended Agreement, grant Executive non-qualified options to purchase
447,300 shares of the Company's Common Stock (the "Tax Bonus Options"). Of such
Tax Bonus Options, 89,460 shall vest immediately upon grant and an 89,460 shall
vest on each anniversary of the commencement of the Initial Term. The Tax Bonus
Options will be exercisable at an exercise price equal to $30.00 (the Closing
Price of the Company's Common Stock on the New York Stock Exchange on June 20,
1996). Once vested, the Tax Bonus Options will remain exercisable by Executive,
whether or not Executive remains employed by the Company, until the tenth
anniversary of the date of the initial grant (subject to the effect, if any, of
Section 6(a)(x) below); provided, however, this Option shall not be exercisable
in any tax year of the Company, to the extent that the deduction of any portion
of the compensation paid to the Executive during such year would be limited by
Section 162(m) of the Internal Revenue Code of 1986 as in effect as of the date
of this Agreement. The Company shall register the shares of Common Stock
issuable upon exercise of the Tax Bonus Options and shall use its best efforts
to maintain a current registration statement under the Securities Act of 1933,
as amended, in respect of such shares. The Tax Bonus Options shall be issued
outside the Company's stock incentive plans maintained for its executives but
shall be in a form substantially similar to, and contain standard anti-dilution
mechanisms to adjust for stock dividends, stock splits, reverse stock splits,
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recapitalizations, consolidations and mergers, as are provided in, the Company's
1995 Stock Incentive Plan. All references to number of shares of Common Stock
and exercise prices contained in this Section 3(d) refer to the Common Stock of
the Company as constituted on June 21, 1996 and the antidilution provisions
referred to in the preceding sentence shall apply to any event covered thereby
occurring after such date. The Bonus Options and the Tax Bonus Options are
sometimes referred to collectively in this Agreement as the "Options."
4. Other Executive Benefits. During the term of this Agreement, the
Company shall provide to Executive benefits commensurate with his position,
including each of the following benefits:
(a) Medical and Dental Coverage. The Company agrees to provide
coverage to Executive and dependent members of his family under the same medical
and dental plans as may be maintained from time to time in the discretion of the
Board.
(b) Vacation. Executive shall be entitled to four (4) weeks of
paid vacation during Executive's first year of employment with the Company and
shall be entitled to five (5) weeks during each year of employment with the
Company thereafter for the term of this Agreement. In each case, such
entitlement shall accrue pro rata over the contract year and shall be taken at
such time or times as shall not unreasonably interfere with the operations of
the Company.
(c) Business Expenses. The Company will pay or reimburse
Executive for any out-of-pocket expenses incurred by Executive in the course of
providing his services hereunder, which comply with the Company's travel and
expense policies adopted from time to time by the Board for the CEO. Such
reimbursement shall be made by the Company in the same manner and within the
same time period as applicable to the other executive officers of the Company.
(d) Automobile. The Company shall provide Executive with the
use of a luxury automobile that is selected by Executive and approved by the
Board. On the earlier of significant damage or destruction or attaining three
years of age, the Company shall replace such automobile with a new automobile
selected by Executive and approved by the Board. The Company shall pay all costs
of insurance, repair, maintenance and operation of such automobile.
(e) Benefit Plans. Executive shall be entitled to participate
in any pension, profit-sharing, stock option, stock purchase or other benefit
plan of the
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Company now existing or hereafter adopted for the benefit of employees generally
or the senior executives of the Company.
(f) Life Insurance. Provided the following policies may be
obtained at a reasonable cost, the Company shall provide Executive with a
$1,000,000 standard term life insurance policy and a $1,000,000 standard term
accidental death policy.
(g) Disability. Provided the following policy may be obtained
at a reasonable cost, the Company shall provide Executive with a long-term
disability policy which provides for an annual disability payment in an amount
equal to 125% of Executive's Base Salary.
5. Confidential Information.
(a) Non-Disclosure. Executive hereby agrees, during the term
of this Agreement, he will not disclose to any person or otherwise use or
exploit any proprietary or confidential information, including, without
limitation, trade secrets, processes, records of research, proposals, reports,
methods, processes, techniques, computer software or programming, or budgets or
other financial information, regarding the Company, its business, properties,
customers or affairs (collectively, "Confidential Information") obtained by him
at any time during the term, except to the extent required by Executive's
performance of assigned duties for the Company. Notwithstanding anything herein
to the contrary, the term "Confidential Information" shall not include
information which (i) is or becomes generally available to the public other than
as a result of disclosure by Executive in violation of this Agreement, (ii) is
or becomes available to Executive on a non-confidential basis from a source
other than the Company, provided that such source is not known by Executive to
be furnishing such information in violation of a confidentiality agreement with
or other obligation of secrecy to the Company, (iii) has been made available, or
is made available, on an unrestricted basis to a third party by the Company, by
an individual authorized to do so or (iv) is known by Executive prior to its
disclosure to Executive. Executive may use and disclose Confidential Information
to the extent necessary to assert any right or defend against any claim arising
under this Agreement or pertaining to Confidential Information or its use, to
the extent necessary to comply with any applicable statute, constitution,
treaty, rule, regulation, ordinance or order, whether of the United States, any
state thereof, or any other jurisdiction applicable to Executive, or if
Executive receives a request to disclose all or any part of the information
contained in the Confidential Information under the terms of a subpoena, order,
civil investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body or agency, whether of the United States
or any state thereof, or any other jurisdiction applicable to Executive.
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(b) Injunctive Relief. Executive agrees that the remedy at law
for any breach by him of the covenants and agreements set forth in this Section
5 may be inadequate and that in the event of any such breach, the Company may,
in addition to the other remedies that may be available to it at law, seek
injunctive relief prohibiting him (together with all those persons associated
with him) from the breach of such covenants and agreements.
6. Termination.
(a) Termination by Company for "Cause" or Voluntarily by
Executive. The Company may terminate this Agreement for "Cause" effective
immediately upon written notice thereof to Executive. For purposes of this
Agreement, "Cause" shall mean and be limited to the following events: (i) an act
of fraud, embezzlement or similar conduct by Executive involving the Company;
(ii) any action by Executive involving the arrest of Executive for violation of
any criminal statute constituting a felony if the Board reasonably determines
that the continuation of Executive's employment after such event would have a
adverse impact on the operations or reputation of the Company in the financial
community; or (iii) a continuing, repeated willful failure or refusal by
Executive to perform his duties; provided, however, that this Agreement may not
be terminated under this subclause (iii) unless Executive shall have first
received written notice from the Board advising Executive of the specific acts
or omissions alleged to constitute a failure or refusal to perform and such
failure or refusal to perform continues after Executive shall have had a
reasonable opportunity to correct the acts or omissions cited in such notice.
In the event of termination for "Cause," or voluntarily by Executive
other than as permitted in Sections 6(b)(i) and 6(b(ii) and 6(c), (x) Executive
shall be entitled to receive that portion of the Base Salary and all benefits
accrued through the date of termination and (y) all Options that have become
exercisable as of the date of termination shall remain so for a period of 90
days.
(b) Termination by Company Other Than for "Cause."
i) Death. Provided that notice of termination has not
previously been given under any Section hereof, if Executive shall die during
the term of this Agreement, this Agreement and all of the Company's obligations
hereunder shall terminate, except that Executive's estate or designated
beneficiaries shall be entitled to receive (A) all earned and unpaid Base Salary
through the date of termination; (B) the Base Salary and all benefits with
respect to the then current contract year which would have been payable or
provided to Executive had the term ended one year following the last day of the
month in which Executive's death occurred; and (C) all other benefits that may
be
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due to Executive or Executive's estate or beneficiaries under the general
provisions of any benefit plan, stock incentive plan or other plan in which
Executive is then a participant, which benefits shall continue to be provided
for a period of one year following the date of death. In addition, of the
Options which are scheduled to vest on the next anniversary of the commencement
of the Initial Term, a percentage of such number of Options shall vest at the
date of death determined by dividing the number of days which have elapsed since
the last such anniversary by the number 365 and multiplying the result by 100.
Further, all Options that have become exercisable as of the date of death
(including those which do so as a result of the provisions of the preceding
sentence) shall remain so for a period of twelve (12) months.
ii) Disability. Provided that notice of termination has
not previously been given under any Section hereof, if Executive becomes ill or
is injured or disabled during the term such that Executive fails to perform all
or substantially all of the duties to be rendered hereunder and such failure
continues for a period in excess of 26 consecutive weeks (a "Disability"), the
Company shall continue to employ Executive under this Agreement for one year
from the date of the Disability (which one year period shall commence at the
beginning of the 26 week period referred to herein) and shall continue to pay
Executive the Base Salary in effect on the date of the Disability (determined at
the beginning of the 26 week period referred to herein) and all benefits then in
effect; provided, that (A) the Company may relieve Executive of his duties and
responsibilities hereunder to the extent permitted by law and (B) any long-term
disability payments received by Executive under any disability insurance plan
made available to Executive by the Company if the premiums were paid by the
Company shall be deducted from the salary otherwise required to be paid to
Executive hereunder. If during the term and subsequent to the Disability
commencement date (which shall be at any time following the end of the 26 week
period referred to herein) Executive shall fully recover, the Company shall have
the right (exercisable within 60 days after receipt of notice from Executive of
such recovery), but not the obligation, to restore Executive to full-time
service at full compensation. If the Company elects not to restore Executive to
full-time service, Executive shall be entitled to obtain other employment. If
Executive is not restored to full-time employment with the Company, all Options
that have become exercisable as of the date of Disability (determined at the end
of the 26 week period referred to herein) shall remain so for a period of 12
months.
iii) Without Cause. If the Company elects to terminate
Executive for any reason whatsoever other than as provided in Section 6(a) or if
the Company causes a Defacto Termination of Executive (as defined below) (each a
"Severance Termination"), Executive shall receive the "Separation Package." As
used herein, the "Separation Package" shall consist of two years' Base Salary
(at the annual rate in effect at the date of the Severance Termination) plus an
amount equal to the
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Performance Bonus actually paid to Executive with respect to the eight fiscal
quarters preceding the date of the Severance Termination (or if Executive has
been employed for less than two years or participated in the performance bonus
plan for less than two years, the amount of Performance Bonus paid to Executive
for the entire period of employment or participation, as the case may be,
multiplied by a fraction, the numerator of which is the number eight and the
denominator of which is the actual number of fiscal quarters for which Executive
was employed by the Company or participated in such plan). In addition, all
Options which are scheduled to vest on the next anniversary of the commencement
of the Initial Term shall vest as of the date of the Severance Termination.
Further, all Options that have become exercisable as of the date of such
termination (including those which do so as a result of the provisions of the
preceding sentence) shall remain so for a period of 12 months. In the event of a
Severance Termination, Executive will also be provided with reasonable office
space and secretarial support as well as the same mailing address and telephone
number which Executive had during the term for up to six months, and the Company
shall pay the costs of out placement services with a provider of its choice at a
level appropriate to Executive's title and position as requested by Executive.
For purposes of this paragraph, a "Defacto Termination" shall include any of the
following events: (i) the Company shall fail to pay or shall reduce the Base
Salary or other benefits provided herein, except as permitted hereunder, or
shall otherwise breach any material provision hereof which breach is not cured
within 10 days after receipt of notice thereof from Executive; (ii) the Company
shall fail to cause Executive to remain the Chief Executive Officer of the
Company; (iii) Executive shall not be continuously afforded the authority,
powers, responsibilities and privileges contemplated in Section 1 above (whether
or not accompanied by a change in title); (iv) the Company shall require
Executive's primary services to be rendered in an area other than the Company's
principal offices in the Los Angeles metropolitan area; or (v) after a Change in
Control (as defined below), the Company increases the base salary for senior
executives of the Company generally without similarly increasing the Base Salary
of Executive. For purposes of clause (iii), Executive shall be deemed not to
have been continuously afforded the authority, powers, responsibilities and
privileges contemplated in Section 1 above if there shall occur any reduction in
the scope, level or nature of Executive's employment hereunder, or any demotion,
any phasing out or assignment to others, of the duties contemplated herein.
(c) Change in Control.
i) Following a Change in Control, this Agreement shall
continue to be binding upon the Company and Executive shall be entitled to the
payments provided for in this Section 6 in the event of termination resulting
from death, disability, cause, or a Severance Termination, all as provided for
in Section 6(a) and 6(b).
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ii) Executive may (but shall not be obligated to)
terminate this Agreement effective 30 days after the giving of such notice given
at any time within two years following a Change in Control. In the event that
Executive elects to terminate this Agreement pursuant to this Section 6(c)(ii),
Executive shall be entitled to the following payments:
(A) If the Change in Control is effected to
an Adverse Person (as defined below), then Executive shall be entitled to and
receive the Separation Package. In addition, all Options then held by Executive
which are not yet vested shall vest as of the date of such termination. Further,
all Options that have become exercisable as of the date of such termination
(including those which do so as a result of the provisions of the preceding
sentence) shall remain so for the entire remaining term of the Options.
(B) If the Change in Control is effected to
a person other than an Adverse Person, Executive shall be entitled to receive
the Separation Package. In addition, all Options which are scheduled to vest on
the next scheduled vesting date during the 12 months following the termination
date shall vest as of the date of such termination. Further, all Options that
have become exercisable as of the date of such termination (including those
which do so as a result of the provisions of the preceding sentence) shall
remain so for a period of 12 months.
(d) Payment of Termination Amounts. Executive may elect to
have all amounts to be paid to Executive pursuant to this Section 6 payable (i)
over the remaining term of this Agreement or for such shorter period as
expressly provided for herein, as applicable, or (ii) in a lump sum within 30
days following termination. In the event Executive elects to be paid pursuant to
clause (i), Executive agrees promptly to notify the Company in writing of
Executive's acceptance of full-time employment; within 15 days after receipt of
such notice, the Company shall pay Executive in a lump sum any amounts which
remain otherwise due to Executive hereunder.
(e) Stock and Similar Rights. Except with regard to the
vesting and exercise dates of Options as set forth in this Section 6,
Executive's rights under any other agreement or plan under which stock options,
restricted stock or similar awards are granted shall be determined in accordance
with the terms and provisions of such plans or agreements.
(f) No Mitigation or Offset. Payment of any sum under this
Section 6 shall not be subject to any claim of mitigation nor shall the Company
be entitled to any right of offset with respect thereto.
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(g) Other Insurance Policies. Upon any termination of
Executive's employment, and upon reimbursement of the Company of all amounts
paid by the Company in connection with such policies, Executive shall have the
right to purchase or otherwise direct the disposition or assignment of any
disability insurance policy on him held by the Company (excluding only group
disability insurance policies) upon the payment of One Dollar ($1.00) as the
total consideration for each such policy.
7. Change in Control. For purposes of this Agreement, a "Change in
Control" shall mean the occurrence of any of the following events which occur
after the date of the Original Agreement:
(a) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act ("Rule 13d-3")) of 20% or more of the
combined voting power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the "Outstanding Voting
Securities"); provided, however, that neither of the following acquisitions
shall constitute a Change in Control; (i) any acquisition by the Company or (ii)
any acquisition by any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; or
(b) Individuals who, as of the date of the Original Agreement,
constitute the Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any individual
becoming a director subsequent to the date of the Original Agreement whose
election, or nomination for election by the stockholders of the Company, shall
be approved by a vote of a least a majority of the directors then compromising
the Incumbent Board shall be considered as though such individual were a member
of the Incumbent Board; or
(c) Approval by the stockholders of the Company of a
reorganization, merger or consolidation, in each case, unless, following such
reorganization, merger or consolidation: (i) more than 60% of the combined
voting power of the then outstanding voting securities of the corporation
resulting from such reorganization, merger, or consolidation, which may be the
Company (the "Resulting Corporation") entitled to vote generally in the election
of directors (the "Resulting Corporation Voting Securities") shall then be owned
beneficially, directly or indirectly, by all or substantially all of the Persons
who were the beneficial owners of Outstanding Voting Securities immediately
prior to such reorganization, merger or consolidation, in substantially the same
proportions as their respective ownerships of Outstanding Voting Securities
immediately prior to such reorganization, merger, or consolidation; (ii) no
Person (excluding the Company, any employee benefit plan (or related trust) of
the
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Company, the Resulting Corporation, and any Person beneficially owning,
immediately prior to such reorganization, merger or consolidation, directly or
indirectly, 20% or more of the combined voting power of Outstanding Voting
Securities) shall own beneficially, directly or indirectly 20% or more of the
combined voting power of the Resulting Corporation Voting Securities; and (iii)
at least a majority of the members of the Board shall have been members of the
Incumbent Board at the time of the execution of the initial agreement providing
for such reorganization, merger or consolidation; or
(d) Approval by the stockholders of the Company of (x) a
complete liquidation or dissolution of the Company or (y) the sale or other
disposition of all or substantially all of the assets of the Company, other than
to a corporation (the "Buyer") with respect to which (i) following such sale or
other disposition, more than 60% of the combined voting power of securities of
Buyer entitled to vote generally in the election of directors ("Buyer Voting
Securities"), shall be owned beneficially, directly or indirectly, by all or
substantially all of the Persons who were the beneficial owners of the
Outstanding Voting Securities immediately prior to such sale or other
disposition, in substantially the same proportion as their respective ownership
of Outstanding Voting Securities, immediately prior to such sale or other
disposition; (ii) no Person (excluding the Company and any employee benefit plan
(or related trust) of the Company or Buyer and any Person that shall immediately
prior to such sale or other disposition own beneficially, directly or
indirectly, 20% or more of the combined voting power of Outstanding Voting
Securities), shall own beneficially, directly or indirectly, 20% or more of the
combined voting power or, Buyer Voting Securities; and (z) at least a majority
of the members of the board of directors of Buyer shall have been members of the
Incumbent Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition or assets of the
Company.
For purposes of this Agreement, an Adverse Person shall mean
any person which acquires control of the Company in a transaction involving a
Change in Control other than a transaction which, before the time of the
transaction, has been approved by the Board of Directors of the Company.
8. Insurance. During the term, the Company shall maintain, at no
cost to Executive, officers and directors liability insurance that would cover
Executive in an amount of no less than $45,000,000.
9. General Provisions.
(a) Notices. All notices, requirements, requests, demands,
claims or other communications hereunder shall be in writing. Any notice,
requirement, request, demand, claim or other communication hereunder shall be
deemed duly given
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(i) if personally delivered, when so delivered, (ii) if mailed, two (2) business
days after having been set by registered or certified mail, return-receipt
requested, postage prepaid and addressed to the intended recipient as set forth
below, (iii) if given by telecopier, once such notice or other communication is
transmitted to the telecopier number specified below, and the appropriate
telephonic confirmation is received, provided that such notice or other
communication is promptly thereafter mailed in accordance with the provisions of
clause (ii) above or (iv) if sent through an overnight delivery service under
circumstances by which such service guarantees next day delivery, the date
following the date so sent:
If to the Company, to:
AAMES FINANCIAL CORPORATION
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Executive Vice President -- Human Resources
If to Executive to:
Xxxx X. Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Any party may change the address to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
(b) Assignment. This Agreement and the benefits hereunder are
personal to the Company and are not assignable or transferable, nor may be the
services to be performed hereunder be assigned by the Company to any person,
firm or corporation; provided however, that this Agreement and the benefits
hereunder may be assigned by the Company to any corporation into which the
Company may be merged or consolidated, and this Agreement and the benefits
hereunder will automatically be deemed assigned to any such corporation,
subject, however, to Executive's right to terminate this Agreement to the extent
provided in Section 6. In the event of any assignment of this Agreement to any
corporation acquiring all or substantially all of the assets of the Company or
to any other corporation into which the Company may be merged or consolidated,
the responsibilities and duties assigned to Executive by such successor
corporation shall be the responsibilities and duties of, and compatible with the
status of, a senior executive officer of such successor corporation. The Company
may delegate any of its obligations hereunder to any subsidiary of the Company,
provided that such
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delegation shall not relieve the Company of any of its obligations hereunder.
Executive may not assign its rights hereunder or delegate his duties hereunder
to any Person.
(c) Complete Agreement. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes and cancels any and all previous written or oral negotiations,
commitments, understandings, agreements and any other writings or communications
in respect of such subject matter.
(d) Amendments. This Agreement may be modified, amended,
superseded or terminated only by a writing duly signed by both parties.
(e) Severability. Any provision of this Agreement which is
invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability, without affecting in any way the remaining provisions hereof
in such jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
(f) No Waiver. Any waiver by either party of a breach of any
provisions of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of either party to insist upon strict adherence to
any term of this Agreement on one or more occasions shall be considered a waiver
or to deprive such party of the right thereafter to insist upon strict adherence
to that term or any other term of this Agreement.
(g) Binding Effect. This Agreement shall be binding on, and
shall inure to the benefit of, the parties hereto and their permitted assigns,
successors and legal representatives.
(h) Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which when taken together shall constitute
one and the same document.
(i) Governing Law. This Agreement has been negotiated and
entered into in the State of California and shall be construed in accordance
with the laws of the State of California.
(j) Arbitration. The parties hereby expressly agree that any
controversy or claim relating to this Agreement, including the construction,
enforcement
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or application of the terms hereof, shall be submitted to arbitration in Los
Angeles, California by the American Arbitration Association in accordance with
the Commercial Arbitration Rules of such association. The arbitrator shall be a
retired judge of the Los Angeles Superior Court or other party acceptable to the
parties and the rules of evidence shall apply. The costs of the arbitrator shall
be borne equally. Each party shall be responsible for its own attorneys' fees
and costs. However, the arbitrator shall have the right to award costs and
expenses (including actual attorneys' fees) to the prevailing party as well as
equitable relief. The award of the arbitrator shall be final and binding and
shall be enforceable in any court of competent jurisdiction. Nothing in this
paragraph shall preclude the parties from seeking an injunction or other
equitable relief from a court of competent jurisdiction under appropriate
circumstances.
(k) Headings. The headings included in this Agreement are for
the convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officer and Executive has executed
the same as of the day and year first above written.
AAMES FINANCIAL CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxx
Its: President
----------------------------------
/s/ Xxxx X. Xxxxxxxx
---------------------------------------
Xxxx X. Xxxxxxxx
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