EMPLOYMENT AGREEMENT
EXHIBIT
10.4
AGREEMENT
made as of the 24th day of
March,
2005, by and
between DELTA FINANCIAL CORPORATION, a Delaware corporation (the “Corporation”),
and Xxxxxxx Xxxxx (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 Chief Financial Officer and
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.
1.3 The
principal executive offices of the Corporation shall be maintained in either
Nassau or
Suffolk counties, New
York and the Executive shall not be required to relocate outside of Nassau or
Suffolk counties, New
York without his consent.
2. Terms
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.
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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, which shall not be cured within 30 days after
the Executive’s receipt of written notice from the Board of Directors; (b)
engagement in gross misconduct injurious to the Corporation or an affiliate of
the Corporation, which shall not be cured within 30 days after the Executive’s
receipt of written notice from the Board of Directors; (c) knowing and willful
neglect or refusal to attend to the material duties reasonably assigned to him
by the Board of Directors, which shall not be cured within 30 days after the
Executive’s receipt of written notice from the Board of Directors; (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
which shall not be cured within 30 days after the Executive’s receipt of written
notice from the Board of Directors. If the
provisions contained in subsections (a), (b), (c) or (g) above cannot be cured
within 30 days due to the nature of the breach, the cure period shall then be
extended for a reasonable period of time; provided, however, the Executive
undertakes and continues in good faith to cure the same.
2.4 No later
than six months prior to the end of the Term, the Corporation and the Executive
shall meet to discuss the terms and conditions of an extension of the Term. If
the Term of this Agreement shall not be extended, at the end of the Term the
Corporation shall pay as severance pay to the Executive (1) his annual salary at
the rate in effect as of the termination, plus (2) an amount equal to the
average of his annual bonuses over the last five years. All such payments shall
be made within fifteen days of such termination. In addition, for a period of
one year following such termination, the Corporation shall provide the Executive
all benefits (including medical coverage) which may be in effect at such time
which are generally available to other senior executives of the Corporation or
its subsidiaries. Health benefits otherwise receivable by the Executive pursuant
to this Section 2.4 shall be reduced to the extent comparable benefits are
actually available to the Executive during such period from a subsequent
Employer.
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2.5 If the
Executive’s employment with the
Corporation shall be
terminated prior to the expiration of the Term (a) by the Corporation other than
pursuant to Sections 2.2, 4.1 or 4.2 hereof or (b) by the Executive for Good
Reason (as defined herein), then the Corporation shall pay to the Executive as
severance an amount equal to the product of (1) the lesser of (A) the remaining
Term in years plus 1, multiplied by 100% or (B) 299%, multiplied by (2) the last
five years’average annual compensation as calculated in accordance with Section
280G of the Internal Revenue Code of 1986, as
amended (the “Code”). All such
payments shall be made within fifteen days of such termination. In
addition, for the balance of the Term following such termination (or for a
period of one year following such termination, if greater), the Corporation
shall provide the Executive all benefits (including medical coverage) which may
be in effect at such time which are generally available to other senior
executives of the Corporation or its subsidiaries; provided, however that the
Executive shall only be entitled to such payments and benefits as long as he is
in compliance with the provisions of Section 5 below, to the extent applicable.
Health
benefits otherwise receivable by the Executive pursuant to this Section
2.5 shall be
reduced to the extent comparable benefits are actually available to the
Executive during such period from a subsequent Employer. The
Executive shall have the right for a period of 30 days after he
becomes aware of a
Good Reason event to terminate this Agreement for Good Reason.
2.6 For
purposes of this Section, “Good Reason” shall mean any of the following,
which occurs subsequent to the date of this Agreement:
(i) any
material change is made to the
Executive’s duties,
responsibilities,
authority, reporting requirements or title to a
level materially below, or that
are otherwise inconsistent with, those
normally associated with the position held by the Executive on the date hereof;
(ii) a
reduction by the Corporation of the Executive’s base
salary as then
in effect,
without the Executive’s written consent;
(iii) a
relocation or an actual change in the Executive’s place of employment
or the
Corporation’s principal executive offices outside
of Nassau or
Suffolk counties, New
York, without
Executive’s prior consent;
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(iv) prior to
a Change in Control, failure of the Corporation to continue to maintain the same
medical or other
benefit
plans covering the Executive as are made available to other senior executives of
the Corporation;
(v) any
material breach by the Corporation of any provision of this Agreement which
shall not be cured to the
reasonable satisfaction of the Executive within 30
days after the Board of Directors’receipt of written notice from the
Executive;
(vi) any
failure by the Corporation to obtain the written
assumption
of this Agreement by any
successor entity.
3. 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 $350,000 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, at the discretion of the Compensation Committee of the Board of
Directors (the “Compensation Committee”), after consideration of the
Corporation’s actual performance relative to its financial and operational
objectives for any particular period, and the performance of the Executive, as
well as such other factors deemed appropriate by the Compensation Committee in
its discretion, the Corporation may also pay the Executive an annual bonus with
respect to each fiscal year of the Corporation. Such
Bonus, if any, may be paid in cash, in shares of Delta Financial Corporation’s
Common Stock, par value $.01 per share (the “Common
Stock”) or in
any combination of cash and shares of Common Stock, as determined in the
discretion of the Compensation Committee. 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 Compensation
Committee 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.
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(c) In
addition to the Bonus described in Section 3.1(b), the Corporation may pay the
Executive at the Board of Directors’discretion additional cash bonuses.
Nothing
set forth in this Section 3.1(c) shall, however, obligate the Corporation to pay
any bonus described in this Section 3.1(c) 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.
(d) On the
date of this Agreement, the Executive shall be granted non-qualified stock
options pursuant to Delta Financial Corporation’s 1996 Stock Option Plan (the
“1996 Option Plan”) to purchase 100,000 shares of Common Stock, at a price per
share equal to the per share closing price of the Common Stock on the date
hereof. The
foregoing options shall vest 1/3 on the grant date, and 1/3 on each succeeding
anniversary of the grant date, and have a term of seven years.
(e) Also on
the date of this Agreement, all of the Executive’s existing unvested stock
options shall immediately become exercisable.
3.2 The
Executive shall be entitled to participate in, and receive benefits from, any
insurance, medical, disability, bonus, incentive compensation (including
additional grants of non- qualified
stock options under any of Delta’s stock
option plans, 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. The
Corporation agrees to reimburse Executive for all medical costs and expenses
incurred by him which are not covered by the Corporation’s group medical plans,
up to an aggregate maximum amount of $100,000 per annum, upon submission of
appropriate and itemized documentation.
3.3 The
Corporation agrees to pay the Executive a car allowance of $1,000 per
month.
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.
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3.5 The
Executive will be entitled each year of this Agreement to a paid vacation
of five weeks, no more than half of which can be carried forward to future
years.
3.6 Upon
termination of this Agreement for Reasonable
Cause or
due to death or incapacity of the Executive (as defined in Section 4.1), the
Executive (or his estate) shall be entitled to all unpaid compensation
(including pro-rata Bonus) and benefits accrued 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 If the
Executive’s employment with the Corporation shall be terminated by the
Corporation due to death or incapacity of the Executive (as defined in Section
4.1), then, effective upon the date of termination, all stock options and
restricted stock held by the Executive beneficially (in trust or otherwise)
and/or of record, including, without limitation, all stock options and
restricted stock held in trust for the benefit of the Executive in any
stock
option plan or
similar plan as may
be established at the Corporation’s discretion, shall vest and become
immediately exercisable (and in the case of stock options, shall remain
exercisable by the Executive or his estate for one year following such
termination).
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 120 consecutive days, or
for shorter periods aggregating more than 120 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.
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.
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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 make a
payment to the Executive (or his estate) within 15 days of such termination
equal to the Executive’s annual salary in effect as of the date of 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 this 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
2.2 or 4.1, (b) the Executive terminates his employment with the Corporation for
any reason other than Good Reason, or (c) the Term of this Agreement shall not
be extended in accordance with Section 2.4 hereof and Executive receives
severance pay as set forth therein, then:
5.2.1 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, or any subsidiary, 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 (“Exchange Act”), so long as such investment holdings do not, in the
aggregate, constitute more than 5% of the voting stock of any company’s
securities; and
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5.2.2 The
Executive shall not 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.
5.3 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.
5.4 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. Change
in Control.
6.1 For
purposes hereof, a “Change in Control” shall be deemed to have occurred if (a)
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 all of
the
directors then still in office who were directors at the beginning of the
period, (b) a person or group of persons acting in concert (as defined in
Section 13 (a) of the Exchange Act), other than one or more members of the
Xxxxxx Family (hereinafter defined), acquires beneficial ownership, within the
meaning of Rule 13 (d) (3) of the Rules and Regulations of the United States
Securities and Exchange Commission promulgated pursuant to the Exchange Act, of
a number of voting shares of the Corporation which constitutes 35% or more
of the Corporation’s outstanding voting shares,
(c) the
Corporation
is merged, consolidated or reorganized into or with another corporation or
another legal entity and, as a result of such merger, consolidation or
reorganization, less than 50% of the combined voting power of the
then-outstanding securities of such corporation or entity immediately after such
transaction is held in the aggregate by the holders of the combined voting power
of the securities of the Corporation entitled to vote generally in the election
of directors of the
Corporation immediately prior to such transaction, or (d)
the Corporation undergoes a liquidation or dissolution or, in one or more
related
transactions or one or more transactions
occurring within a consecutive 12-month period, a sale of all or substantially
all of the assets of the Corporation. No
merger, consolidation or corporate reorganization in which the owners of the
combined voting power of the Corporation’s then outstanding voting securities
entitled to vote generally prior to said combination, own 50% or more of the
resulting entity’s outstanding voting securities shall, by itself, be considered
a Change in Control.
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6.1.1 For
purposes of this Agreement, the term “Xxxxxx Family” shall mean Xxxx Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxx Xxxxxx and Xxx Xxxxxx, any of their respective spouses or
lineal descendants, or any trust (a)
the
beneficial interests of which are directly
or indirectly held by
such persons or (b)
of which any of such persons serves as a trustee.
6.2 If, upon
a Change in Control, as defined under Section 6, the Executive’s employment with
the Corporation is terminated by the Corporation, or the Executive terminates
his employment with the Corporation for Good Reason (as defined in Section
2.5), in
each case within a twenty-four (24) month period following a Change in Control
(each a “Change in Control Termination”), the Executive shall be entitled to the
following severance compensation and benefits in lieu of any payments which
would otherwise be payable under Section 2.5:
(a) within 15
days of the date of the Change in Control Termination the “Change in Control
Termination Date”), the Corporation shall pay the Executive all amounts of
earned or accrued compensation through the Executive’s termination date,
including reasonable business expenses;
(b) within 15
days of the Change in Control Termination Date, the Corporation shall pay the
Executive as severance and in lieu of any further compensation for periods
subsequent to the Change in Control Termination Date an amount equal to the
product of (1) 299%, multiplied by (2) the last five years’average annual
compensation as calculated in accordance with Section 280G of the Code;
and
(c) the
Corporation shall continue on behalf of the Executive and his dependents and
beneficiaries the life insurance, disability, medical, dental, prescription drug
and hospitalization coverages and benefits provided to the Executive immediately
prior to the Change in Control Termination Date or, if greater, the coverages
and benefits generally provided at any time thereafter by the Corporation to its
senior officers for the remaining Term of this Agreement following the Change in
Control Termination Date. Health
benefits otherwise receivable by the Executive pursuant to this Section 6.2
shall be reduced to the extent substantially
comparable
benefits are actually provided to the
Executive during such period from a subsequent Employer.
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6.3 Executive
shall not be required to mitigate the amount of any payment provided
for in this Section 6 by seeking employment or otherwise.
6.4 Upon the
occurrence of a Change in Control, all stock options and restricted stock
(and any
other equity-linked award that may be granted by the Corporation in the future)
held by
the Executive beneficially (in trust or otherwise) and/or of record, including,
without limitation, all such
awards held in
trust for the benefit of the Executive in any share
option plan or
similar plan, as may be established at the Corporation’s discretion, shall vest
and become immediately exercisable on the date of the Change in Control (and in
the case of stock options, shall remain exercisable by the Executive until the
termination date stated in the related award
documentation), and the Corporation shall take all such actions as may be
necessary to release any then existing restrictions imposed by the Corporation
and waive any rights to repurchase such awards.
6.5
(a)
Anything
in this Agreement to the contrary notwithstanding, in the event that it shall be
determined that any payment, distribution, acceleration of vesting of equity
awards, continuation of benefits, or other compensation from the Corporation to
or for the benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (each, a
“Payment”, and in the aggregate, the “Payments”), would constitute an “excess
parachute payment” within the meaning of Section 280G of the Code, and thus be
subject to the excise tax imposed by Section 4999 of the Code, and that it would
be economically advantageous to the Executive on an after-tax basis to reduce
the Payments to avoid or reduce the excise tax on excess parachute payments
under Section 4999 of the Code, the aggregate present value of amounts payable
or distributable to or for the benefit of the Executive pursuant to this
Agreement (such payments or distributions pursuant to this Agreement being
hereinafter referred to as “Agreement Payments”) shall be reduced (but not below
zero) to the Reduced Amount. The “Reduced Amount” shall be an amount expressed
in present value which maximizes the aggregate net amount available to the
Executive from Agreement Payments after reduction for all Federal, state and
local income and payroll taxes, Social Security taxes (including Medicare) and
the excise tax under Section 4999. In applying this Subsection (a), except as
may otherwise be mutually agreed upon by the Corporation and the Executive, the
Agreement Payments under Section 6.2(b) shall be reduced before reducing any
other Payments to be made to the Executive. For purposes of this Section 6.5,
present value shall be determined in accordance with Section 280G(d)(4) of the
Code.
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(a) All
determinations to be made under this Section 6.5 shall be made by the
Corporation’s independent public accountant immediately prior to the Change in
Control (the “Accounting Firm”), which firm shall provide its determinations and
any supporting calculations both to the Corporation and the Executive within 10
days of the Change in Control Termination Date. Any such determination by the
Accounting Firm shall be binding upon the Corporation and the Executive. Within
five days after this determination, the Corporation shall pay (or cause to be
paid) or distribute (or cause to be distributed) to or for the benefit of the
Executive such amounts as are then due to the Executive under this
Agreement.
(b) As a
result of the uncertainty in the application of Section 280G of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Agreement Payments, as the case may be, will have been made by the
Corporation which should not have been made (“Overpayment”) or that additional
Agreement Payments which have not been made by the Corporation could have been
made (“Underpayment”), in each case, consistent with the calculations required
to be made hereunder. Accordingly, within two years after the Change in Control
Termination Date, the Accounting Firm shall review the determination made by it
pursuant to Subsection (b), above. In the event that the Accounting Firm
determines that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan by the Corporation to the Executive, which
the Executive shall repay to the Corporation, together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the Code (the
“Federal Rate”); provided, however, that no amount shall be payable by the
Executive to the Corporation if and to the extent such payment would not reduce
the amount which is subject to the excise tax under Section 4999 of the Code. In
the event that the Accounting Firm determines that an Underpayment has occurred,
any such Underpayment shall be promptly paid by the Corporation to or for the
benefit of the Executive together with interest at the Federal
Rate.
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All of
the fees and expenses of the Accounting Firm in performing the determinations
referred to in Subsections (b) and (c), above, shall be borne solely by the
Corporation. The Corporation agrees to indemnify and hold harmless the
Accounting Firm of and from any and all claims, damages and expenses resulting
from or relating to its determinations pursuant to Subsections (b) and (c),
above, except for claims, damages or expenses resulting from the gross
negligence or willful misconduct of the Accounting Firm.
7. 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.
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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 given as set forth
herein:
To the
Corporation:
Delta
Financial Corporation
0000
Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx,
XX
00000
Attn:
General
Counsel
And
To the
Executive:
Xxxxxxx
Xxxxx
00
Xxxxxxx 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. This
Agreement shall supersede and replace any and all prior agreements between the
parties, including that certain
agreement dated
February 27, 2002 .
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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.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as the date
first above written.
|
DELTA
FINANCIAL CORPORATION | ||
| |
|
|
| By: | /s/ XXXX XXXXXX | |
|
| ||
| Title: President | ||
| Date: March 30, 2005 | By: | /s/ XXXXXXX XXXXX |
|
| ||
| Title: | ||
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