EMPLOYMENT AGREEMENT
AGREEMENT made as of the 9th day of July, 1999 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the "Corporation"), and
Xxxxxxxxxxx Xxxxxxxx (the "Executive").
W I T N E S S E T H:
In consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. POSITION AND RESPONSIBILITIES
1.1. The Executive shall serve in an executive capacity as
Executive Vice President of the Corporation. The Executive shall perform
such functions and undertake such responsibilities as are customarily
associated with such capacity. The Executive shall hold such directorships
and executive officerships in the Corporation and any subsidiary to which,
from time to time, he may be elected or appointed during the term of this
Agreement.
1.2. The Executive shall devote his full time and best efforts
to the business and affairs of the Corporation and to the promotion of its
interests.
2. TERM OF EMPLOYMENT
2.1. The term of employment shall be five years, commencing with
the date hereof, unless sooner terminated as provided in this Agreement. The
initial term of employment and any extension thereof is herein referred to as
the "Term."
2.2. Notwithstanding the provisions of Section 2.1 hereof, the
Corporation shall have the right, on written notice to the Executive, to
terminate the Executive's employment for Reasonable Cause, such termination
to be effective as of the date on which notice is given or as of such later
date otherwise specified in the notice.
2.3. For purposes of this Agreement, the term "Reasonable Cause"
shall mean any of the following actions by the Executive: (a) failure to
comply with any of the material terms of this Agreement; (b) engagement in
gross misconduct injurious to the Corporation or an affiliate of the
Corporation; (c) knowing and willful neglect or refusal to attend to the
material duties reasonably assigned to him by the Board of Directors or the
President of the Corporation; (d) intentional misappropriation of property of
the Corporation or an affiliate of the Corporation to the Executive's own
use; (e) the commission by the Executive of an act of embezzlement; (f)
Executive's conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or (g) Executive's engaging in any activity which would constitute a material
conflict of interest with the Corporation or an affiliate of the Corporation.
2.4. If the Executive's employment with the Corporation shall be
terminated by the Corporation other than pursuant to Sections 2.2, 4.1 or 4.2
hereof, then the Corporation shall pay: (a) if such termination occurs within
the first three (3) years of the Term of this Agreement, one (1) year's
salary, less withholding and payroll taxes; or (b) if such termination occurs
after the third year of the Term of this Agreement, fifty (50%) percent of
the remaining salary due under the balance of the Term of this Agreement,
less withholding and payroll taxes. Any payments made under this Section 2.4
shall (a) be paid in equal installments over the six months following any
such termination, and (b) be based upon the Executive's salary as it existed
immediately prior to such termination; provided, however that the Executive
shall only be entitled to such payments as long as he is in compliance with
the provisions of Section 5 below.
COMPENSATION
3.1. (a) The Corporation shall pay or cause Delta Funding
Corporation to pay to the Executive for the services to be rendered by the
Executive hereunder a salary at the rate of $200,000 per annum. The salary
shall be payable in equal installments in accordance with the Corporation's
normal payroll practices. Such salary will be reviewed at least annually and
shall be increased (but not decreased) by the Board of Directors of the
Corporation in such amount as determined in its sole discretion.
(b) In addition, the Company may also pay the Executive an
annual bonus with respect to each fiscal year of the Corporation, either on
an "ad hoc" basis or pursuant to a bonus plan or arrangement as may be
established at the Corporation's discretion for Executive Vice Presidents of
this Corporation. Nothing herein contained shall, however, obligate the
Corporation to pay any annual bonus to the Executive, it being understood
that any such bonus shall be in the sole discretion of the Board of Directors
and that the amount thereof, if any, may vary depending upon actual
performance of the Corporation and the Executive as determined in the
discretion of the Board.
(c) In consideration of entering into this Agreement, the
Executive shall be entitled to receive a sign-up bonus of (1) $25,000 in cash
(the "Cash Sign-up Bonus") and (2) subject to and effective upon the date of
the approval by the Corporation's Board of Directors, $50,000 worth of
shares of the Corporation's Common Stock, par value $.01 (the "Common
Stock"), based upon the average per share market value of the Common Stock on
the New York Stock Exchange over the last twenty trading days preceding the
date that the Corporation's Board of Directors approves the grant of such
shares of Common Stock to the Executive (the "Per Share Sign-Up Value"). The
sale and other voluntary and involuntary disposition of such Common Stock
(the "Bonus Stock") is prohibited for a period of three years (the
"Disposition Restriction"), provided, however, that such Disposition
Restriction shall cease to apply with respect to $16,666 worth of shares of
such Bonus Stock (based upon the Per Share Sign-Up Value) on the first
anniversary of the date hereof, $16,666 worth of shares of such Bonus Stock
(based upon the Per Share Sign-Up Value) on the second anniversary of the
date hereof, and the remaining $16,668 worth of shares of such Bonus Stock on
the third anniversary of the date hereof (all shares of Bonus Stock which,
pursuant to this sentence, are no longer subject to the Disposition
Restriction are sometimes referred to herein as "Vested Bonus Shares"). Any
disposition of shares of Bonus Stock in violation of this Section 3.1(c)
shall be null and void. Executive agrees that if he terminates his
employment for any reason, or if the Corporation terminates his employment
pursuant to Section 2.2 hereof, (i) within the first twelve months of the
date hereof, then he shall immediately reimburse the Corporation the amount
of the Cash Sign-Up Bonus, and (ii) if any such termination occurs prior to
the completion of the Term of Employment, all shares of Bonus Stock that are
not Vested Bonus Shares as of the date of such termination shall
automatically be canceled, without any further notice or action by the
Corporation. Should the Executive fail to make the reimbursement required in
clause (i) of the immediately preceding sentence within 15 days of his
termination, the Corporation may offset the reimbursement due to it against
any severance payments that may be owing to the Executive pursuant to Section
2.4.
3.2. The Executive shall be entitled to participate in, and
receive benefits from, any insurance, medical, disability, bonus, incentive
compensation (including grants of non- qualified stock options under Delta's
1996 Stock Option Plan, as determined by the Corporation) or other employee
benefit plan, if any are adopted, of the Corporation or any subsidiary which
may be in effect at any time during the course of his employment by the
Corporation and which shall be generally available to the Executive on terms
no less favorable than to other senior executives of the Corporation or its
subsidiaries.
3.3. Upon the occurrence of a Change in Control (as defined
herein), all stock options held by the Executive beneficially (in trust or
otherwise) and/or of record, and all shares of Common Stock granted to the
Executive pursuant to Section 3.1(c) that are not Vested Bonus Shares, shall
vest and become immediately free of the Disposition Restriction on the date
of the Change of Control. For purposes of this Section 3.3, the term "Change
of Control" shall be deemed to have occurred if (i) any "person" (as such
term is used in Section 13 (d) and 14 (d) (2) of the Securities Exchange Act
of 1934), becomes the beneficial owner, directly or indirectly, of securities
of the Corporation representing 50% or more of the combined voting power of
the Corporation's then outstanding securities, (ii) during any period of 12
months, individuals who at the beginning of such period constitute the Board
of Directors of the Corporation cease for any reason to constitute a majority
thereof unless the election, or the nomination for the election by the
Corporation's stockholders of each new director was approved by a vote of at
least a majority of the directors then still in office who were directors at
the beginning of the period or (iii) a person (as defined in clause (i)
above) acquires (or, during the 12-month period ending on the date of the
most recent acquisition by such person or group or persons, has acquired) all
or substantially all of the Corporation's assets.
3.4. The Corporation agrees to reimburse the Executive for all
reasonable and necessary business expenses incurred by him on behalf of the
Corporation in the course of his duties hereunder upon the presentation by
the Executive of appropriate vouchers therefor.
3.5. The Executive will be entitled each year of this Agreement
to a paid vacation of five weeks.
3.6. Upon termination of this Agreement for Reasonable Cause or
due to the death or incapacity of the Executive (as defined in Section 4.1),
the Executive shall be entitled to all compensation and benefits accrued and
unpaid up to the date of termination.
3.7. The Executive shall not be required to mitigate damages or
the amount of any payment provided to him under this Agreement by seeking other
employment or otherwise.
3.8. Nothing contained herein shall prohibit the Board of
Directors of the Corporation, in its sole discretion, from increasing the
compensation payable to the Executive pursuant to this Agreement and/or
making available to the Executive other benefits in addition to those to
which the Executive is entitled hereunder.
4. INCAPACITY; DEATH
4.1. If, during the period of employment hereunder, because of
illness or other incapacity, the Executive shall fail for a period of 90
consecutive days, or for shorter periods aggregating more than 90 days during
any twelve month period, to render the services contemplated hereunder, then the
Corporation, at its option, may terminate the term of employment hereunder,
upon not less than 30 days written notice from the Corporation to the
Executive, effective on the 30th day after giving of such notice; PROVIDED,
HOWEVER, that no such termination will be effective if prior to the 30th day
after giving such notice, the Executive's illness or incapacity shall have
terminated and he shall be physically and mentally able to perform the
services required hereunder and shall be performing such services.
4.2. In the event of the death of the Executive during the term hereof, the
employment hereunder shall terminate on the date of death of the Executive.
4.3. The Corporation (or its designee) shall have the right to
obtain for its benefit an appropriate life insurance policy on the life of
the Executive, naming the Corporation (or its designee) as the beneficiary.
If requested by the Corporation, the Executive agrees to cooperate with the
Corporation in obtaining such policy.
4.4. In the event the employment of Executive is terminated by
the Corporation as the result of the death or incapacity of the Executive,
the Corporation agrees to continue to pay the Executive (or his estate) his
then rate of salary for a period of one year after such termination.
5. OTHER ACTIVITIES DURING EMPLOYMENT; NON-COMPETITION; SOLICITATION.
5.1. The Executive shall not during the term of this Agreement
undertake or engage in other employment, occupation or business enterprise.
Subject to compliance with the provisions of this Agreement, the Executive
may engage in reasonable activities with respect to personal investments of
the Executive.
5.2. During the Term of Agreement, and for a period of one year
after the Executive leaves the employ of the Corporation, in the event that (a)
the Corporation terminates the Executive's employment with the Corporation
pursuant to Sections 2.1 or 4.1, or (b) the Executive terminates his
employment with the Corporation for any reason, neither the Executive nor any
entity in which he may be interested as a partner, trustee, director,
officer, employee, shareholder, option holder, lender of money, guarantor or
consultant, shall be engaged directly or indirectly in any business engaged
in by the Corporation in any area where the Corporation, or any subsidiary,
conducts such business at any time during this Agreement; provided however,
that the foregoing shall not be deemed to prevent the Executive from
investing in securities if such class of securities in which the investment
is so made is listed on a national securities exchange or is issued by a
company registered under Section 12(g) of the Securities Exchange Act of
1934, so long as such investment holdings do not, in the aggregate,
constitute more than 5% of the voting stock of any company's securities.
5.3. The Executive will not at any time during his employment
with the Corporation, and for a period of one year after Executive leaves the
Corporation's employ for any reason, solicit (or assist or encourage the
solicitation of) any employee of the Corporation or any of its subsidiaries
or affiliates to work for Executive or for any business, firm corporation or
other entity in which the Executive, directly or indirectly, in any capacity
described in Section 5.2 hereof, participates or engages (or expects to
participate or engage) or has (or expects to have) a financial interest or
management position.
5.4. The Executive shall not at any time during this Agreement
or after the termination hereof directly or indirectly divulge, furnish, use,
publish or make accessible to any person or entity any Confidential
Information (as hereinafter defined). Any records of Confidential
Information prepared by the Executive or which come into Executive's
possession during this Agreement are and remain the property of the
Corporation and upon termination of Executive's employment all such records
and copies thereof shall be either left with or returned to the Corporation.
5.5. The term "Confidential Information" shall mean information
disclosed to the Executive or known, learned, created or observed by him as a
consequence of or through his employment by the Corporation, not generally
known in the relevant trade or industry, about the Corporation's or any of
its subsidiaries' or affiliates' business activities, services and processes,
including but not limited to information concerning advertising, sales
promotion, publicity, sales data, research, finances, accounting, methods,
processes, business plans, broker or correspondent lists and records and
potential broker or correspondent lists and records.
6. ASSIGNMENT. The Corporation shall require any successor or
assign to all or substantially all the assets of the Corporation (whether by
merger or by acquisition of stock, assets or otherwise) prior to
consummation of any transaction therewith, to expressly assume and agree to
perform in writing this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession
or assignment had taken place. This Agreement shall inure to the benefit of
and be binding upon the Corporation, its successors and assigns, and upon
the Executive and his heirs, executors, administrators and legal
representatives. This Agreement shall not be assignable by the Executive.
8. NO THIRD PARTY BENEFICIARIES. This Agreement does not create,
and shall not be construed as creating, any rights enforceable by any person not
a party to this Agreement, except as provided in Section 7 hereof.
9. HEADINGS. The headings of the sections hereof are inserted for
convenience only and shall not be deemed to constitute a part hereof nor to
affect the meaning thereof.
10. INTERPRETATION. In case any one or more of the provisions
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein. If, moreover, any one or more of
the provisions contained in this Agreement shall for any reason be held by a
court of competent jurisdiction to be unenforceable because it is excessively
broad as to duration, geographical scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be enforceable to the extent
compatible with the applicable law as it shall then appear.
11. NOTICES. All notices under this Agreement shall be in
writing and shall be deemed to have been given at the time when mailed by
registered or certified mail, addressed to the address below stated party to
which notice is given, or to such changed address as such party may have
fixed by notice:
To the Corporation:
Delta Financial Corporation
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attn: President
And
To the Executive:
Xxxxxxxxxxx Xxxxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
provided, however, that any notice of change of address shall be effective
only upon receipt.
12. WAIVERS. If either party should waive any breach of any
provision of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision
of this Agreement.
13. COMPLETE AGREEMENT; AMENDMENTS. The foregoing is the
entire agreement of the parties with respect to the subject matter hereof and
may not be amended, supplemented, canceled or discharged except by written
instrument executed by both parties hereto.
14. EQUITABLE REMEDIES. The Executive acknowledges that he
has been employed for his unique talents and that his leaving the employ of
the Corporation would seriously hamper the business of the Corporation and
that the Corporation will suffer irreparable damage if any provisions of
Section 5 hereof are not performed strictly in accordance with their terms or
are otherwise breached. The Executive hereby expressly agrees that the
Corporation shall be entitled as a matter of right to injunctive or other
equitable relief, in addition to all other remedies permitted by law, to
prevent a breach or violation by the Executive and to secure enforcement of
the provisions of Section 5. Resort to such equitable relief, however, shall
not constitute a waiver or any other rights or remedies, which the
Corporation may have.
15. GOVERNING LAW. This Agreement is to be governed by and
construed in accordance with the laws of the State of New York, without
giving effect to principles of conflicts of law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as the date first above written.
DELTA FINANCIAL CORPORATION
By: /S/ XXXX XXXXXX
---------------------
Name: Xxxx Xxxxxx
Title: President and CEO
/S/ XXXXXXXXXXX XXXXXXXX
----------------------------
XXXXXXXXXXX XXXXXXXX
