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Consulting Agreement
This Consultation Agreement (the "Agreement") is entered into in Contra
Costa County, California, as of the first day of January, 1997, by and
between Finet Holdings Corporation ("Finet"), a Delaware corporation, and
Xxxxx Xxxxxxxx ("Consultant"), who agree as follows:
1. Description of Services
Consultant shall provide such consulting services as shall be requested
from time to time during the Consultation Period by Xxxxx X. Xxxxx,
President of Finet's Monument Mortgage, Inc., ("MMI") subsidiary, and
for such other consulting assignments as may be agreed upon in writing
between Consultant and Finet. Consulting services shall be provided
from Consultant's place of business, currently in Walnut Creek and from
such other location as may be agreed upon by Consultant and Finet from
time to time.
2. Term of Consultation
The Consulting Period shall be for an initial fixed term of three years
commencing January 1, 1997 and concluding on December 31, 1999.
Thereafter, the Consulting Period may be extended and altered upon
mutual agreement of the parties.
3. Competitive activities
During the Consulting Period, Consultant shall not actively participate
in any business directly in competition with MMI without the prior
consent of MMI. Permission for any activity which is not harmful to MMI
shall not be unreasonably withheld.
4. Compensation
As compensation for the services to be rendered by Consultant hereunder
during the Consulting Period, Finet shall cause MMI to pay Consultant
$15,000 per month. Consultant shall be paid once each month, in
advance.
5. Expenses
Finet shall cause MMI to reimburse Consultant, upon submission of
documentation in accordance with MMI's usual policy for consultants, for
reasonable business expenses incurred on behalf of MMI by Consultant.
Consultant agrees not to incur any expenses in excess of $100 without
prior approval from MMI.
6. Confidential Information
a.Consultant recognizes that, during the course of this Consultation
Period and as a direct result of his consultation work, MMI will cause
him to be exposed to certain nonpublic, confidential information, the
disclosure of which to third parties would cause competitive injury to
MMI. Such confidential information includes but is not limited to
MMI'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 not publicly available pertaining to the business of
Employer or any of its affiliates. Such 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 Consultant on a non-confidential basis and not in
contravention of applicable law from a source which is entitled to
disclose such information to Consultant.
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c.Consultant agrees that he will not divulge Confidential Information to
any person, directly or indirectly, except to MMI or its officers and
agents, or as reasonably required in connection with his duties on
behalf of MMI. During the Consultation Period, Consultant further
agrees not to use except on behalf of MMI, any Confidential
Information acquired by Consultant.
7. Voice Mail and Electronic Mail
All voice mail and electronic mail on MMI's telephone or computer
systems are the property of MMI and shall be non-personal, non-private
and non-privileged to consultant, and upon request Consultant shall
disclose to MMI all codes and passwords necessary for MMI to access such
voice mail and electronic mail.
8. Cooperation
As a condition of his Consulting Agreement, Consultant agrees that he
will not disrupt, damage, impair or interfere with the business of MMI,
such as by interfering with the duties of MMI's employees, disrupting
relationships with MMI's customers, agents, representatives, or vendors,
or otherwise.
9. Termination
a.Employer may terminate this Agreement immediately upon written notice
to Consultant prior to its expiration date only for just cause. For
Purposes of this section, "just cause" is limited to convictions of
fraud or grand theft, or drunkenness or use of illegal narcotics on
MMI's premises, or for physical assault of anyone or any damage to
property on MMI's premises.
x.Xx the event of termination pursuant to this paragraph, Consultant
agrees that he will return to MMI all records, papers and computer
software and data, and any copies thereof relating to the Confidential
Information. Consultant acknowledges that all such papers, records,
computer software and data, or copies thereof are and remain the
property of MMI.
x.Xx the time of termination pursuant to this paragraph, MMI will
conduct an exit interview wherein Consultant will certify that he has
returned to MMI all tangible Confidential Information disclosed to
him.
10. 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 MMI has
specifically contracted for Consultant's services, Consultant may not
assign or delegate his obligations under this agreement either in whole
or part without the prior written consent of MMI except that Consultant
may assign this contract to a not yet formed corporation, partnership or
other entity in which Consultant chooses to organize his post employment
activities. MMI may assign its rights and obligations to a successor in
interest to MMI, provided such successor assumes all obligations and
liabilities hereunder.
11. 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
here from, 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
legal, invalid or unenforceable provision as may be possible.
12. Injunctive relief
Consultant acknowledges that the breach of a covenant contained in
Section 3 and/or Section 6 of this Agreement may cause irreparable
damage to employer, the exact amount of which will be difficult to
ascertain, and that the remedies at law for any such breach will be
inadequate. Accordingly, Consultant acknowledges that the breach of a
covenant contained in Section 3 and/or Section 6 of this Agreement, in
addition to any other remedy that may be available at law or in equity,
Employer shall be entitled to specific performance and injunctive
relief.
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13. Arbitration
All claims and controversies of any kind relating to this Agreement
shall be finally settled by binding arbitration before a single
arbitrator in Walnut Creek, CA, in accordance with the rules then in
effect from the American Arbitration Association. All parties to this
Agreement shall be bound by the decision in 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 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:
To Consultant: Xxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxx Xxxxx, XX 00000
To MMI and Finet: Board of Directors
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 sent, or if mailed, five days after so
mailed.
15. Entire Agreement: Amendment and Waivers:
This agreement and any other agreement or document referred to herein
constitute the complete final and exclusive statement of the agreement
among the parties pertaining to the Consultation Agreement, and
supersede all prior agreement, 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 and discussions, whether oral
or written.
16. Choice of Law
The rights and duties of the parties will be governed by the laws of the
State of California, excluding any choice-or-law rules that would require
the application of laws of any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have cause this Agreement to duly
executed as of the day and year first above written.
Finet Holdings Corporation Consultant
By: /s/ L. Xxxxxx Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
Its: C.E.O
