Exhibit 10.141
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement"), is made as of this 24th day of
May, 2004, by and between American Business Financial Services, Inc., a Delaware
corporation, with its corporate headquarters located at The Xxxxxxxxx Building,
000 Xxxx Xxxxxx Xxxx, Xxxxxxxxxxxx, XX 00000, its successors and assigns
(hereinafter collectively referred to as "ABFS"), and Xxxxxxx X. Xxxxxx, an
individual residing at 00 Xxxxxxxx Xxxxx, Xxxxxxxx, XX 00000 ("Executive").
BACKGROUND
WHEREAS, ABFS currently employs Executive in the positions of Executive
Vice President, General Counsel and Corporate Secretary. ABFS and Executive
desire to provide for the future employment of the Executive as more fully set
forth below; and
NOW, THEREFORE, in consideration of the facts, mutual promises, and
covenants contained herein and intending to be legally bound hereby, the parties
hereto agree as follows:
1. Employment. ABFS hereby employs Executive and Executive
hereby accepts employment by ABFS, for the period and upon the terms and
conditions set forth in this Agreement, subject to earlier termination pursuant
to Section 6 below.
2. Office and Duties.
(a) During the term of this Agreement, Executive shall
serve as Executive Vice President, General Counsel and Corporate Secretary of
ABFS and shall report directly to the Chairman of ABFS and at the election of
the Chairman of ABFS, Xx. Xxxxxxx X. Xxxxx, Executive Vice President of ABFS,
and be subject to their supervision, control and direction.
(b) In his capacities as Executive Vice President,
General Counsel and Corporate Secretary of ABFS, Executive shall have such
authority, perform such duties, discharge such responsibilities and render such
services as are customary to, and consistent with his position, subject to the
authority and direction of the Chairman of ABFS and at the election of the
Chairman of ABFS, Xx. Xxxxxxx X. Xxxxx, Executive Vice President of ABFS, and
the Board of Directors of ABFS, and shall perform such additional duties and
responsibilities as may be from time to time assigned to him by them.
(c) The Executive shall render his services diligently,
faithfully and to the best of his ability, and shall devote all of his working
time, energy, skill and best efforts to the performance of his duties hereunder,
in a manner that will further the business and interests of ABFS.
(d) During the term of this Agreement, Executive shall
not be engaged in any business activity which, in the reasonable judgment of the
Chairman of ABFS or Board of Directors of ABFS, conflicts with Executive's
duties hereunder, whether or not such activity is pursued for pecuniary
advantage.
3. Term. This Agreement shall be effective immediately
("Effective Date") for a rolling twelve month period, unless sooner terminated
as hereinafter provided or further extended by the mutual written agreement of
ABFS and Executive (the "Term").
4. Compensation.
(a) Base Salary. In consideration of the services
rendered by Executive to ABFS during the Term hereof, Executive shall receive an
annual base salary of $300,000 ("Base Salary"), payable in equal periodic
installments in accordance with ABFS's regular payroll practices. Executive's
Base Salary shall be reviewed annually by the CEO of ABFS and approved by the
Compensation Committee of the ABFS Board of Directors in accordance with the
compensation policies and guidelines of ABFS, and may be increased as a result
of such review. At no time, may ABFS reduce the Executive's Base Salary.
(b) Bonus Plans/Incentive Compensation Programs. In
addition, Executive shall be entitled to a yearly bonus in accordance with the
Company's Management Incentive Plan; provided, however, such bonus potential is
equal to 50% of Executive's earned Base Salary.
(i) Stock Grant. ABFS shall grant Executive options
to purchase shares of ABFS common stock (the "Common Stock") in accordance with
ABFS' Stock Option Plan ("Plan") upon the effective date of the Plan. ABFS, in
its sole discretion, shall determine the number of shares to grant pursuant to
such options. ABFS and Executive shall sign a separate agreement, which will
govern the terms of such options. The terms of that Agreement are hereby
expressly incorporated.
(c) Benefits. During the Term, Executive also shall be
entitled to participate in all fringe benefits, if any, as may be in effect from
time to time which are generally available to executive officers and employees
of ABFS, and such other fringe benefits as the Board of Directors of ABFS shall
deem appropriate, subject to eligibility requirements thereof (collectively, the
"Benefits").
(d) Vacation. During the Term, Executive shall be
entitled to four (4) weeks paid vacation in each calendar year. Vacation days
which are not used during any calendar year may not be accrued or carried-over
to the next year, nor shall Executive be entitled to compensation for unused,
earned vacation days except on termination of this Agreement.
(e) Business Expenses. During the Term, ABFS shall pay or
reimburse Executive for all reasonable expenses incurred or paid by Executive in
the performance of Executive's duties hereunder, upon timely presentation of
expense statements or vouchers and such other information as ABFS may reasonably
require and in accordance with the generally applicable policies and practices
of ABFS.
(f) Car Allowance. During the Term, ABFS shall provide
Executive with a car allowance of $600 a month.
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(g) Withholding. All payments made pursuant to this
Agreement shall be subject to such withholding taxes as may be required by any
applicable law.
5. Representations of Executive. Executive represents to ABFS
that: (a) there are no restrictions, agreements or understandings whatsoever to
which Executive is a party that would prevent, or make unlawful, his execution
of this Agreement and his employment hereunder; (b) his execution of this
Agreement and his employment hereunder shall not constitute a breach of any
contract, agreement or understanding, oral or written, to which he is a party,
or by which he is bound; and (c) he is of full capacity, free and able to
execute this Agreement and to enter into this Employment Agreement with ABFS.
6. Termination. This Agreement shall be terminated as provided
herein. If this Agreement is terminated, the provisions contained in Section 7,
Payments Upon Termination, shall apply.
(a) Termination by ABFS for Cause. ABFS shall have the
right to terminate this Agreement at any time for "Cause." For purposes of this
Agreement, the term "Cause" shall mean the following:
(i) Executive commits fraud or theft against ABFS or
any of its subsidiaries, affiliates, joint ventures and related organizations,
including any not-for-profit affiliates or not-for-profit joint ventures
(collectively referred to as "Affiliates"), or is indicted, convicted of, or
pleads guilty or nolo contendere to, a felony; or
(ii) In carrying out his duties hereunder, the
Executive engages in conduct that constitutes gross neglect or willful
misconduct and that results, in either case, in material economic harm to ABFS
or its Affiliates; or
(iii) Executive materially breaches any provision of
this Agreement (including but not limited to the restrictive covenants contained
in Section 8 below) or breaches any fiduciary duty or duty of loyalty owed to
ABFS or its Affiliates; or
(iv) Executive engages in conduct tending to bring
ABFS, or its Affiliates into public disgrace or disrepute; or
(v) Executive repeatedly neglects or refuses to
perform duties or responsibilities as directed by Chairman of ABFS or the Board
of Directors of ABFS, or violates any express direction of any lawful rule or
regulation established by ABFS which is consistent with the scope of Executive's
duties under this Agreement; or
(vi) Executive commits any acts or omissions
resulting in or intending to result in direct personal gain to the Executive at
the expense of ABFS or its Affiliates; or
(vii) Executive compromises trade secrets or other
confidential and proprietary information of ABFS or its Affiliates.
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"Cause" shall not include a bona fide disagreement over a
corporate policy, so long as Executive does not willfully violate on a
continuing basis specific written directions from the Board of Directors of
ABFS, which directions are consistent with the provisions of this Agreement.
Action or inaction by Executive shall not be considered "willful" unless done or
omitted by him intentionally and without his reasonable belief that his action
or inaction was in the best interests of ABFS or its Affiliates, and shall not
include failure to act by reason of total or partial incapacity due to physical
or mental illness.
(b) Termination by ABFS upon the Death or Disability of
Executive. ABFS shall have the right to terminate this Agreement at any time
upon the death or Disability of Executive. The term, "Disability", as used
herein, means any physical or mental illness, disability or incapacity which
prevents Executive from performing the essential functions of his job, with or
without reasonable accommodations, hereunder for a period of not less than one
hundred fifty (150) consecutive days or for an aggregate of one hundred eighty
(180) days during any period of twelve (12) consecutive months. During any
period of Disability, Executive agrees to submit to reasonable medical
examinations upon the reasonable request, and at the expense, of ABFS.
(c) Termination By ABFS Without Cause. ABFS shall have
the right to terminate this Agreement at any time without "Cause" and/or without
the occurrence of Executive's death or Disability upon thirty (30) days written
notice to Executive.
(d) Termination by Executive: Executive may terminate
this Agreement at any time, for any reason, by providing at least 30 days prior
notice.
(e) Notice of Termination. Any termination, except for
death, pursuant to this Section 6 shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination" shall
mean a written notice which shall indicate those specific termination provisions
in this Agreement relied upon and which sets forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of the
Executive's employment under the provisions so indicated. The Notice of
Termination shall also set forth Executive's employment is terminated and be
delivered in accordance with the terms of this Agreement.
Notwithstanding anything to the contrary set forth herein, the
provisions of Sections 8 and 9 shall survive the termination of Executive's
employment hereunder for any reason, and shall remain in full force and effect
thereafter.
7. Payments Upon Termination.
(a) Termination for Cause. In the event Executive's
employment hereunder is terminated for Cause, all of Executive's rights to his
Base Salary, Benefits and Bonus, if any, shall immediately terminate as of the
date of such termination, except that Executive shall be entitled to any earned
and unpaid portion of his Base Salary and accrued Benefits up to the date of
termination, less all deductions or offsets for amounts owed by Executive to
ABFS. ABFS shall not be required to pay the remainder of Executive's Base Salary
for time in which the Executive did not perform any services, nor shall ABFS
have any further obligations to Executive under the Agreement.
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(b) Termination Due to Death or Disability. In the event
Executive's employment hereunder is terminated due to his death or Disability,
all of Executive's rights to his Base Salary, Benefits and Bonus, if any, shall
immediately terminate as of the date of such termination, except that Executive
(or, in the event that Executive's employment hereunder is terminated due to
Executive's death, Executive's heirs, personal representative or estate) shall
be entitled to any earned and unpaid portion of his Base Salary and accrued
Benefits up to the date of termination less all deductions or offsets for
amounts owed by Executive to ABFS. ABFS shall not be required to pay the
remainder of Executive's Base Salary for time in which the Executive did not
perform any services, nor shall ABFS have any further obligations to Executive
under the Agreement.
(c) Termination by ABFS Without Cause. If ABFS terminates
Executive's employment without cause in accordance with Section 6 ABFS shall pay
Executive an amount equal to one year of the Executive's Base Salary at the
highest rate paid by ABFS during the twelve month period prior to the date of
termination, plus one-hundred percent of the greatest annual bonus paid within
the five past fiscal years. ABFS shall pay amounts due under this subsection in
twelve equal monthly payments.
(d) Termination or Resignation by Executive for Any
Reason: If Executive resigns from his employment for any reason, Executive shall
receive any earned and unpaid portion of his Base Salary and earned Benefits up
to the date of his resignation, less all deductions or offsets for amounts owed
by Executive to ABFS. ABFS shall have not further obligations to Executive under
the Agreement except as specifically provided below.
(e) Recognition. Executive recognizes and accepts that
ABFS shall not, in any case, be responsible for any additional amount, severance
pay, termination pay, severance obligation or other damages whatsoever arising
from the termination of Executive's employment, above and beyond those
specifically provided for herein.
8. Restrictive Covenants.
(a) Non-Competition. During the Term, and for a period of
twelve (12) months thereafter if Executive's employment is terminated pursuant
to section 7(c) Executive will not, in the capacity of consultant, advisor,
financier, agent, employee, officer, director, manager or legal counsel,
establish, engage in, work for, or be connected with, except as an employee of
ABFS, any business in direct competition with the Business of Companies (as
defined in Section 8(i)below), if such business competes with the Business of
Companies in any State, county, or municipality where ABFS or its Affiliates
conduct business, are preparing to conduct business or have conducted business
during the Term. The foregoing does not apply to law firms or to banks or other
insured depository institutions.
(b) Non-Solicitation/Non-Piracy. During the Term, and for
a period of twelve (12) months thereafter, Executive will not, directly or
indirectly, for his own account or for the benefit of any Person or entity
solicit, aid in solicitation of, induce, contact for the purpose of, encourage
or in any way cause any employee of the legal department of ABFS or its
Affiliates to leave the employ of ABFS or its Affiliates, or interfere with such
employee's relationship with ABFS or its Affiliates.
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(c) Non-Disclosure. Other than in furtherance of the
Business of Companies, in the ordinary course in his capacity as an employee
hereunder, Executive will not, at any time, except with the express prior
written consent of the Board of Directors of ABFS, directly or indirectly,
disclose, communicate or divulge to any Person or entity, or use for the benefit
of any Person or entity, any secret, confidential or proprietary knowledge or
information with respect to the conduct or details of the Business of Companies
including, but not limited to, customer and client lists, customer and client
accounts and information, prospective client, customer, contractor and
subcontractor lists and information, services, techniques, methods of operation,
pricing, costs, sales, sales strategies and methods, marketing, marketing
strategies and methods, products, product development, research, know-how,
policies, financial information, financial condition, business strategies and
plans and other information of ABFS or its Affiliates which is not generally
available to the public and which has been developed or acquired by ABFS or its
Affiliates with considerable effort and expense. Upon the expiration or
termination of Executive's employment under this Agreement, Executive shall
immediately deliver to ABFS all memoranda, books, papers, letters, and other
data (whether in written form or computer stored), and all copies of same, which
were made by Executive or otherwise came into his possession or under his
control at any time prior to the expiration or termination of his employment
under this Agreement, and which in any way relate to the Business of Companies
as conducted or as planned to be conducted by ABFS or its Affiliates on the date
of the expiration or termination.
(d) Intellectual Property. Executive will promptly
communicate to ABFS, in writing when requested, all software, designs,
techniques, concepts, methods and ideas, other technical information, marketing
strategies and other ideas and creations pertaining to the Business of Companies
which are conceived or developed by Executive alone or with others, at any time
(during or after business hours) while Executive is employed by ABFS or its
Affiliates. Executive acknowledges that all of those ideas and creations are
inventions and works for hire, and will be the exclusive property of ABFS.
Executive will sign any documents which ABFS deems necessary to confirm its
ownership of those ideas and creations, and Executive will cooperate with ABFS
in order to allow ABFS to take full advantage of those ideas and creations.
(e) Non-Disparagement. Executive will not, at any time,
publish or communicate disparaging or derogatory statements or opinions about
ABFS or its Affiliates, including but not limited to, disparaging or derogatory
statements or opinions about ABFS's, or its Affiliates' management, products or
services, to any third party. It shall not be a breach of this section for
Executive to testify truthfully in any judicial or administrative proceeding or
to make statements or allegations in legal filings that are based on Executive's
reasonable belief and are not made in bad faith.
(f) Enforcement. Executive acknowledges that the
covenants and agreements of this Section 8 ("Covenants") herein are of a special
and unique character, which give them peculiar value, the loss of which cannot
be reasonably or adequately compensated for in an action at law. Executive
further acknowledges that any breach or threat of breach by him of any of the
Covenants will result in irreparable injury to ABFS for which money damages
could not be adequate to compensate ABFS. Therefore, in the event of any such
breach or threatened breach, ABFS shall be entitled, in addition to all other
rights and remedies which ABFS may have at law or in equity, to have an
injunction issued by any competent court enjoining and restraining Executive
and/or all other Persons involved therein from committing a breach or continuing
such breach. The remedies granted to ABFS in this Agreement are cumulative and
are in addition to remedies otherwise available to ABFS at law or in equity. The
Covenants contained in this Section 8 are independent of any other provision of
this Agreement, and the existence of any claim or cause of action which
Executive or any such other Person may have against ABFS shall not constitute a
defense or bar to the enforcement of any of the Covenants. If ABFS is obliged to
resort to litigation to enforce any of the Covenants which has a fixed term,
then such term shall be extended for a period of time equal to the period during
which a material breach of such Covenant was occurring, beginning on the date of
a final court order (without further right of appeal) holding that such a
material breach occurred, or, if later, the last day of the original fixed term
of such Covenant.
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(g) Acknowledgements. Executive expressly acknowledges
that the Covenants are a material part of the consideration bargained for by
ABFS, and, without the agreement of Executive to be bound by the Covenants, ABFS
would not have agreed to enter into this Agreement. Executive further
acknowledges and agrees that the Business of Companies and its services are
highly competitive, and that the Covenants contained in this Section 8 are
reasonable and necessary to protect the legitimate business interests of ABFS.
In addition, Executive acknowledges that in the event his employment with ABFS
terminates, he will still be able to earn a livelihood without violating this
Agreement, and that the Covenants contained in this Section 8 are material
conditions to his employment and continued employment with ABFS.
(h) Scope. If any portion of any Covenant or its
application is construed to be invalid, illegal or unenforceable, then the
remaining portions and their application shall not be affected thereby, and
shall be enforceable without regard thereto. If any of the Covenants is
determined to be unenforceable because of its scope, duration, geographical area
or similar factor, then the court or other trier of fact making such
determination shall modify, reduce or limit such scope, duration, area or other
factor, and enforce such Covenant to the extent it believes is lawful and
appropriate.
(i) Business of Companies. The term "Business of
Companies", as used herein, shall mean the provision by ABFS or its Affiliates
of originating, selling, and servicing home equity loans and small business
loans.
(j) Indemnification. Executive shall indemnify, defend
and hold harmless ABFS in respect of all liabilities, charges, damages, losses,
expenses, fees, and costs of any nature (including reasonable attorney's fees
and costs of litigation) that result from a failure by Executive to fully
perform or comply with any Covenant contained in this Section 8.
9. Change of Control.
(a) If there is a Change of Control (as hereafter
defined) and it results in the Executive's loss of position or a comparable
position within twelve months of the Change of Control, Executive shall be
entitled to severance payment equal to one year base salary at the highest rate
paid by ABFS during the twelve month period prior to the date of termination,
plus one-hundred percent of the greatest annual bonus paid within five past
fiscal years. Executive shall not be entitled to any money due if Executive
rejects continued employment in a comparable position at substantially
equivalent compensation and benefits after Change of Control, unless such a
position requires an office relocation which increases Executive's one-way
commute by more than 50 miles.
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(b) A "Change of Control" shall be deemed to have
occurred upon the happening of any of the following events:
(i) a change within a two year period in a majority
of the members of the Board of Directors of ABFS (other than as a result of
voluntary resignation or death); or
(ii) a person or group acting in concert as described
in Section 13(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") acquires beneficial ownership within the meaning of Rule
13(d)(3) promulgated under the Exchange Act of a number of voting shares of ABFS
which constitute either (i) more than fifty percent (50%) of the total votes
which were voted in the election of directors of ABFS at the shareholders'
meeting immediately preceding such determination or (ii) more than twenty-five
percent (25%) of the total votes which may be cast by all of the ABFS's
outstanding voting shares; provided however that the holding or acquisition of
additional shares by existing officers or directors of Company shall not
constitute a Change of Control.
10. Miscellaneous.
(a) Indulgences, Etc. Neither the failure, nor any delay,
on the part of either party to exercise any right, remedy, power or privilege
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power or privilege preclude any other or
further exercise of the same, or of any other right, remedy, power or privilege,
nor shall any waiver of any right, remedy, power or privilege with respect to
any occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be effective
unless it is in writing and is signed by the party asserted to have granted such
waiver.
(b) Controlling Law; Consent to Arbitration; Service of
Process.
(i) This Agreement and all questions relating to its
validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Pennsylvania
(notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary), and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
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(ii) Except to the extent provided for in Section 8
above (relating to injunctive relief and other equitable remedies), ABFS and
Executive agree that any claim, dispute or controversy arising under or in
connection with this Agreement, or otherwise in connection with Executive's
employment by ABFS or termination of his employment (including, without
limitation, any such claim, dispute or controversy arising under any federal,
state or local statute, regulation or ordinance or any of ABFS's employee
benefit plans, policies or programs) shall be resolved solely and exclusively by
binding, confidential, arbitration. The arbitration shall be held in
Philadelphia, Pennsylvania (or at such other location as shall be mutually
agreed by the parties). The arbitration shall be conducted in accordance with
the National Rules for the Resolution of Employment Disputes (the "Rules") of
the American Arbitration Association ("the AAA") in effect at the time of the
arbitration, except that the arbitrator shall be selected by alternatively
striking from a list of five arbitrators supplied by the AAA. All fees and
expenses of the arbitration, including a transcript if either requests, shall be
borne equally by the parties, however, all costs for the services of the
arbitrator shall be borne solely by ABFS. Each party is responsible for the fees
and expenses of its own attorneys, experts, witnesses, and preparation and
presentation of proofs and post-hearing briefs (unless the party prevails on a
claim for which attorney's fees are recoverable under law). In rendering a
decision, the arbitrator shall apply all legal principles and standards that
would govern if the dispute were being heard in court. This includes the
availability of all remedies that the parties could obtain in court. In
addition, all statutes of limitation and defenses that would be applicable in
court, will apply to the arbitration proceeding. The decision of the arbitrator
shall be set forth in writing, and be binding and conclusive on all parties. Any
action to enforce or vacate the arbitrator's award shall be governed by the
Federal Arbitration Act, if applicable, and otherwise by applicable state law.
If either ABFS or Executive improperly pursues any claim, dispute or controversy
against the other in a proceeding other than the arbitration provided for
herein, the responding party shall be entitled to dismissal or injunctive relief
regarding such action and recovery of all costs, losses and attorney's fees
related to such action.
(iii) Each of the parties hereto hereby consents to
process being served in any suit, action or proceeding of any nature, by the
mailing of a copy thereof by registered or certified first-class mail, postage
prepaid, return receipt requested, to them at their respective addresses set
forth in Section 10(c) hereof. Each of parties hereto hereby irrevocably waives,
to the fullest extent permitted by applicable law, all claims of error by reason
of any such service pursuant to the terms hereof (but does not waive any right
to assert lack of subject matter jurisdiction) and agrees that such service (A)
shall be deemed in every respect effective service of process in any such suit,
action or proceeding and (B) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service.
(iv) Nothing in this Section 10 (b) shall affect the
right of any party hereto to serve process in any manner permitted by law or
affect the right of any party to bring proceedings against any other party in
the courts of any jurisdiction or jurisdictions.
(c) Notices. All notices, requests, demands and other
communications required or permitted under this Agreement shall be in writing
and shall be deemed to have been duly given, made and received only when
delivered (personally, by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or certified
mail, postage prepaid, return receipt requested, addressed as set forth below:
(i) If to Executive:
Xxxxxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
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(ii) If to ABFS:
American Business Financial Services, Inc.
The Xxxxxxxxx Building
000 Xxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
With a copy to:
Xxxxxxxx X. Xxxxx, XX
Blank Rome LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000.
In addition, notice by mail shall be by air mail if posted outside of
the continental United States.
Any party may alter the addresses to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this Section for the giving of notice.
(d) Assignment of Agreement. The rights and obligations
of both parties under this Agreement shall inure to the benefit of and shall be
binding upon their heirs, successors and assigns. ABFS may assign or otherwise
transfer its rights under this Agreement, including but not limited to all
Covenants contained in Section 8 above, to any successor or affiliated business
or corporation whether by sale of stock, merger, consolidation, sale of assets
or otherwise. This Agreement may not, however, be assigned by Executive to a
third party, nor may Executive delegate his duties under this Agreement.
(e) Execution in Counterparts. This Agreement may be
executed in any number of counterparts, including by facsimile, each of which
shall be deemed to be an original as against any party whose signature appears
thereon, and all of which shall together constitute one and the same instrument.
This Agreement shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all of the parties
reflected hereon as the signatories.
(f) Provisions Separable. The provisions of this
Agreement are independent of and separable from each other, and no provision
shall be affected or rendered invalid or unenforceable by virtue of the fact
that for any reason any other or others of them may be invalid or unenforceable
in whole or in part.
(g) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings between the parties, inducements or conditions, express or
implied, oral or written, except as herein contained. The express terms hereof
control and supersede any course of performance and/or usage of the trade
inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
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(h) Section Headings. The Section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(i) Gender, Etc. Words used herein, regardless of the
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
(j) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which entities which are
provincially regulated are or may elect to be closed, then the final day shall
be deemed to be the next day which is not a Saturday, Sunday or such holiday.
(k) Costs, Expenses in the Event of Breach. In the event
that either Executive or ABFS breaches this Agreement, the non-breaching party
shall be entitled to reimbursement for all costs and expenses associated with
enforcing such non-breaching party's rights and remedies under this Agreement,
including but not limited to legal fees and costs of litigation.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement, intending to be legally bound hereby, as of the date first above
written.
AMERICAN BUSINESS FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chairman
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
XXXXXXX X. XXXXXX
[Signature Page to Employment Agreement of as Xxxxxxx X. Xxxxxx]
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