EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made as of January 1,
2003 (the "Effective Date"), by and between Technical Olympic USA, Inc., a
Delaware corporation (the "Employer") and Xxxx Rome, an individual (the
"Employee").
BACKGROUND
The Employer is the surviving corporation of the merger of Newmark
Homes Corp. ("Newmark") and Xxxxx Holdings Corp. (the "Merger"). Employee and
Newmark previously entered into that certain Employment Agreement dated January
1, 1998 (the "Prior Agreement"). As a result of the Merger, the Employer
succeeded to all of Newmark's rights, privileges and obligations pursuant to the
Prior Agreement. The term of the Prior Agreement expires on December 31, 2002.
The parties now desire to enter into this Agreement setting forth the terms and
conditions of the continued employment relationship of the Employee and the
Employer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements set forth below, and intending to be legally bound hereby, it is
hereby agreed as follows:
1. DEFINITIONS. For the purposes of this Agreement, capitalized terms
shall have the meanings defined herein or on Exhibit A attached hereto unless
the context otherwise requires.
2. EMPLOYMENT, TERM AND DUTIES.
2.1 EMPLOYMENT TERM. The Employer hereby employs the Employee, and
the Employee hereby accepts employment by the Employer, upon the terms and
conditions set forth herein for an initial period to begin on the Effective Date
and to end on December 31, 2005, unless terminated earlier in accordance with
the provisions of Section 4 (the "Employment Period"); provided, however, that
the Employment Period shall automatically be extended for an additional one (1)
year period at the end of the initial employment period (until December 31,
2006) and then again after the renewal period (until December 31, 2007), unless
either the Employer or Employee delivers written notice to the other of the
non-extension of the Employment Period at least three (3) months prior to the
end of the initial Employment Period or successive renewal periods, as then
applicable.
2.2 DUTIES.
(a) The Employee will serve as Executive Vice President
of the Employer's home building operating entity, which entity is or shall be a
wholly-owned subsidiary of the Employer. In this capacity, Employee will act as
president of the Texas and Tennessee Division of the Employer during the
Employment Period and will have such duties and responsibilities as are
reasonably consistent with such position or as may be assigned or delegated to
the Employee from time to time by the Board of Directors, the Chief Executive
Officer of the Employer, or a
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senior executive of the Employer identified by the Chief Executive Officer to
the Employee. The Employee will devote his full business time, attention, skill
and energy exclusively to the business of the Employer, will use his best
efforts to promote the success of the Employer's business and will cooperate
fully with the senior management of the Employer and the Board of Directors in
the advancement of the best interests of the Employer.
(b) Notwithstanding the provisions of Section 2.2(a)
hereof, the Employee may engage in the following activities during the
Employment Period: (i) serve on such corporate, civic, religious, educational
and/or charitable boards or committees that have been disclosed to, and approved
by, the Board of Directors in writing; (ii) deliver lectures, fulfill speaking
engagements or teach at educational institutions without receiving any
compensation other than reimbursement of expenses, nominal stipends or similar
forms of compensation; and (iii) manage his personal investments, provided that
such investments do not conflict with the Employee's duties and responsibilities
under this Agreement. If the Employee is appointed or elected an officer or
director of the Employer or any Affiliate, the Employee will fulfill his duties
as such officer or director without additional compensation; provided that such
appointment may not be made without the Employee's prior consent. Upon
termination of this Agreement for any reason, the Employee hereby automatically
resigns as of such date as an officer and director of the Employer and each
Affiliate of which he is an officer or director, if any.
2.3 LOCATION. The Employee's primary place of employment hereunder
shall be at the Employer's offices in the greater Austin, Texas metropolitan
area, unless the Employee consents otherwise in writing; provided, however, that
the Employee shall travel as reasonably necessary to perform his obligations and
duties to the Employer.
3. COMPENSATION AND BENEFITS. The compensation and benefits payable and
provided to the Employee under this Agreement shall constitute the full
consideration to be paid to the Employee for all services to be rendered by the
Employee to the Employer and its Affiliates in all capacities.
3.1 BASE SALARY. Commencing on the Effective Date and ending on
the third (3rd) anniversary thereof, the Employee will be paid an initial annual
salary of Four Hundred Twenty Thousand Dollars ($420,000.00) (with annual
increases, if any, the "Base Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll practices.
Thereafter, the Base Salary shall be reviewed at least annually and may be
increased at any time and from time to time; provided, however, that in no event
shall such increases on an annual basis be less than the higher of (i) that
percentage by which the Index as of December 31 of the immediately preceding
calendar year (the "Base Year") exceeds the Index as of December 31 of the
calendar year immediately preceding the Base Year, or (ii) five percent (5%).
3.2 BENEFITS. The Employee (and the Employee's spouse and
dependents, where applicable) shall be permitted to participate in such 401(k)
plan (or similar qualified plan) and any welfare benefit plan, program or fringe
benefit made available to, and on the terms at least as favorable to, other
similarly situated employees of the Employer or its Affiliates, that may be in
effect from time to time, subject to the Employee (and the Employee's spouse and
dependents, where applicable) meeting the eligibility requirements under the
terms of each of those plans
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(collectively, the "Benefits"). Nothing herein shall prevent the Employer from
modifying or terminating any employee benefit plan in the Employer's sole
discretion, so long as such modification or termination equally affects all of
the Employer's similarly situated employees.
3.3 ANNUAL BONUS. So long as the Employee has been employed by the
Employer throughout the Employment Period, the Employee shall be eligible to
receive a cash bonus ("Bonus") substantially equivalent to the opportunity set
forth in Exhibit B attached hereto, as the same may be amended from time to time
by the parties.
3.4 STOCK OPTION PLAN PARTICIPATION. The Company may adopt a
policy for the granting of stock options to certain officers and senior managers
of the Company. In the event that such a policy is adopted, contingent upon
specific approval of the Compensation and Benefits Committee and the Board of
Directors, the Employee may be granted stock options on terms and conditions
appropriate to his position and consistent with other similarly situated
employees.
3.5 BUSINESS EXPENSES. In accordance with the rules and policies
that the Employer may establish from time to time for its executives, the
Employer shall reimburse the Employee for business expenses reasonably incurred
by him in the performance of his duties hereunder. Requests for reimbursement
must be accompanied by appropriate documentation.
3.6 VACATION. The Employee shall be entitled to four (4) weeks
vacation per calendar year (prorated for less than a full year). Unused vacation
time not to exceed an aggregate of two (2) weeks for all prior years may be
accumulated or carried over from year to year. Notwithstanding, the Employee
shall not be entitled to any compensation for unused vacation time except as
provided in Section 4.
3.7 CAR ALLOWANCE. During the Employment Period, the Employee
shall be provided an automobile for his use and the Company shall pay the costs
relating to the maintenance and operation of such automobile consistent with
past practices. Alternatively, Employee shall be paid a car allowance in the
amount of $1,000 per month, plus a maximum of $475 per month for actual and
reasonable expenses incurred in connection with the maintenance or operation of
Employee's car.
3.8 OFFICE AND SUPPORT STAFF. During the Employment Period, the
Employee shall be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistants, as
provided at any time with respect to other similarly situated employees of the
Employer and its Affiliates and/or as reasonably necessary to perform the
Employee's duties and obligations as set forth herein.
4. TERMINATION.
4.1 DEATH; DISABILITY. This Agreement will terminate automatically
upon the death or Disability of the Employee.
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4.2 TERMINATION NOTICE. Any termination of the Employee's
employment other than a termination pursuant to Section 4.1 hereof shall be by
written notice to the other party, indicating the specific termination provision
in this Agreement relied upon, if any, and shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for the termination of
the Employee's employment under the provision so indicated. The date of the
Employee's termination of employment shall be specified in such notice;
provided, however, that such date may not be earlier than any applicable cure
periods as set forth herein. If a termination is being effected by the Employee,
such date shall not be less than three (3) months from the date the written
notice is given to the Employer (the "Required Notice"). Failure to provide the
Required Notice shall be deemed a breach of this Agreement by the Employee for
which the Employee will be liable to the Employer as provided herein and for any
damages caused by such breach.
4.3 TERMINATION PAY. Upon termination of the Employee's
employment, the Employer will be obligated to pay or provide the Employee or the
Employee's estate, as the case may be, only such compensation and Benefits as
are provided in this Section 4.3 and, if applicable, in Section 5.3 hereof.
(a) TERMINATION BY THE EMPLOYER FOR CAUSE; RESIGNATION OF
THE EMPLOYEE WITHOUT GOOD REASON OR REQUIRED NOTICE. If (i) the Employer
terminates the Employee's employment for Cause; (ii) the Employee terminates his
employment for any reason other than Good Reason; or (iii) the Employee
terminates his employment for any reason without the Required Notice, the
Employee shall be entitled to receive the Accrued Obligations from the Employer,
payable via wire transfer to an account designated by the Employee within thirty
(30) Business Days after the date of termination. Except as specifically
provided herein, the Employee shall not be entitled to any other payments or
Benefits pursuant to this Agreement.
(b) TERMINATION DUE TO DISABILITY. If the Employee's
employment is terminated due to Disability, the Employee shall be entitled to
receive from the Employer the sum of the following, payable via wire transfer to
an account designated by the Employee's legal representative within thirty (30)
Business Days after the date of termination: (i) the Accrued Obligations and
(ii) the Pro-Rata Bonus.
(c) TERMINATION UPON DEATH. If this Agreement is
terminated because of the Employee's death, the Employee's estate shall be
entitled to receive from the Employer the sum of the following, payable via wire
transfer to an account designated by the Employee's legal representative within
thirty (30) Business Days after the date of termination: (i) the Accrued
Obligations and (ii) the Pro-Rata Bonus.
(d) TERMINATION BY THE EMPLOYEE DUE TO GOOD REASON OR BY
THE EMPLOYER WITHOUT CAUSE. If the Employee's employment is terminated by the
Employer without Cause or by the Employee for Good Reason, the Employee shall be
entitled to receive from the Employer the following, payable via wire transfer
to an account designated by the Employee within thirty (30) Business Days after
the date of termination: (i) the Termination Payment and (ii) if the Employee
timely elects continuation coverage under the Employer's group health plan, an
amount equal to the monthly premium charge for such coverage, for the
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lesser of the then remaining term of the Employment Period or the period of such
continued health coverage, at the active employee premium rate for similar
coverage.
4.4 RELEASE AND WAIVER. Notwithstanding anything in Section 4.3 to
the contrary, the Employee shall not be entitled to any payment or Benefit
pursuant to Section 4.3, except for Accrued Obligations as required by law,
unless the Employee has delivered to the Employer an executed form of general
release, in a form reasonably acceptable to the Employer, that releases the
Employer and its Affiliates, and all their respective officers, directors,
employees and agents from any and all claims of any kind that the Employee may
have arising out of the Employee's employment with the Employer or the
termination of such employment, but excluding any claims arising under this
Agreement, and such release has become irrevocable.
4.5 NO MITIGATION; NO OFFSET. In the event of any termination of
the Employee's employment under this Agreement, the Employee shall be under no
obligation to seek other employment, and there shall be no offset against
amounts due under this Agreement on account of any remuneration attributable to
any subsequent employment that the Employee may obtain. The Employer's
obligation to make the payments provided for in this Agreement and otherwise to
perform its obligations hereunder shall not be affected by any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Employer or any Affiliate may have against the Employee or others.
4.6 CERTAIN ADDITIONAL PAYMENTS BY THE EMPLOYER.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by the Employer to or for the
benefit of the Employee (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 4.6) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code or any
interest or penalties are incurred by the Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest or penalties imposed with respect
thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments. Notwithstanding the foregoing provisions of this Section 4.6(a), if it
shall be determined that the Employee is entitled to a Gross-Up Payment, but
that the Payments do not exceed 110% of the greatest amount (the "Reduced
Amount") that could be paid to the Employee such that the receipt of Payments
would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to
the Employee and the Payments, in the aggregate, shall be reduced to the Reduced
Amount.
(b) Subject to the provisions of Section 4.6(c) hereof,
all determinations required to be made under this Section 4.6, including whether
and when a Gross-Up payment is required and the amount of such Gross-Up Payment
and the assumptions to be utilized in
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arriving at such determination, shall be made by the Employer's independent
certified accountant or such other certified public accounting firm as may be
designated by the Employer (the "Accounting Firm") which shall provide detailed
supporting calculations both to the Employer and the Employee within fifteen
(15) Business Days of the receipt of notice from the Employee that there has
been a Payment, or such earlier time as is required by the Employer. All fees
and expenses of the Accounting Firm shall be borne solely by the Employer. Any
Gross-Up Payment, as determined pursuant to this Section 4.6, shall be paid by
the Employer to the Employee within five (5) Business Days of the receipt of the
Accounting Firm's determination. Any determination by the Accounting Firm shall
be binding upon the Employer and the Employee. As a result of the uncertainty in
the application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments which will not have been made by the Employer should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Employer exhausts its remedies pursuant to
Section 4.6(c) hereof and the Employee thereafter is required to make a payment
of any Excise Tax, the Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Employer to or for the benefit of the Employee.
(c) The Employee shall notify the Employer in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Employer of the Gross-Up Payment. Such notification shall be
given as soon as practicable but no later than ten (10) Business Days after the
Employee is informed in writing of such claim and shall apprise the Employer of
the nature of such claim and the date on which such claim is requested to be
paid. The Employee shall not pay such claim prior to the expiration of the
thirty (30) day period following the date on which the Employee gives such
notice to the Employer (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If the Employer notifies
the Employee in writing prior to the expiration of such period that it desires
to contest such claim, the Employee shall:
(i) give the Employer any information reasonably
requested by the Employer relating to such claim;
(ii) take such action in connection with
contesting such claim as the Employer shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Employer;
(iii) cooperate with the Employer in good faith in
order effectively to contest such claim; and
(iv) permit the Employer to participate in any
proceedings relating to such claim;
provided, however, that the Employer shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Employee harmless, on an
after-tax basis, for any Excise Tax or income
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tax (including interest and penalties with respect thereto) imposed as a result
of such representation and payment of costs and expenses. Without limitation of
the foregoing provisions of this Section 4.6(c), the Employer shall control all
proceedings taken in connection with such contest and at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Employee to pay the tax claimed and xxx for a
refund or contest the claim in any permissible manner, and the Employee agrees
to prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Employer shall determine; provided, however, that if the Employer directs the
Employee to pay such payment to the Employee, the Employer shall advance the
amount of such payment to the Employee on an interest-free basis and shall
indemnify and hold the Employee harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto) imposed
with respect to such advance or with respect to any imputed income with respect
to such advance; and further provided that any extension of the statue of
limitations relating to payment of taxes for the taxable year of the Employee
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Employer's control of the
contest shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Employee shall be entitled to settle or
contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
(d) If, after the receipt by the Employee of an amount
advanced by the Employer pursuant to Section 4.6(c) hereof, the Employee becomes
entitled to receive any refund with respect to such claim, the Employee shall
(subject to the Employer complying with the requirements of Section 4.6(c)
hereof) promptly pay to the Employer the amount of such refund (together with
any interest paid or credited thereto). If, after the receipt by the Employee of
an amount advanced by the Employer pursuant to Section 4.6(c) hereof, a
determination is made that the Employee shall not be entitled to any refund with
respect to such claim and the Employer does not notify the Employee in writing
of its intent to contest such denial of refund prior to the expiration of thirty
(30) days after such determination, then such advance shall be forgiven and
shall not be required to be repaid and the amount of such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid.
5. NON-COMPETITION AND NON-INTERFERENCE.
5.1 ACKNOWLEDGEMENTS. The Employee acknowledges that (a) the
services to be performed by him under this Agreement are of a special, unique,
unusual, extraordinary and intellectual character and (b) the provisions of this
Section 5 are reasonable and necessary to protect the Confidential Information,
goodwill and other business interests of the Employer.
5.2 COVENANTS OF THE EMPLOYEE. The Employee covenants that he will
not, directly or indirectly:
(a) during the Non-Compete Period, without the express
prior written consent of the Board of Directors, as owner, officer, director,
employee, stockholder, principal, consultant, agent, lender, guarantor,
cosigner, investor or trustee of any corporation, partnership,
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proprietorship, joint venture, association or any other entity of any nature,
engage, directly or indirectly, in the Business in (i) in any county in any
state, or any county contiguous with a county, in which the Employer or any of
its Affiliates is conducting Business activities or has conducted Business
activities in the prior twelve (12) months, and (ii) any county in which the
Employer of any of its Affiliates is conducting other business; provided,
however, that the Employee may purchase or otherwise acquire for passive
investment up to three percent (3%) of any class of securities of any such
enterprise under Section 12(g) of the Securities Exchange Act of 1934;
(b) whether for the Employee's own account or for the
account of any other person at any time during his employment with the Employer
or its Affiliates (except for the account of the Employer and its Affiliates)
and the Non-Compete Period, solicit Business of the same or similar type being
carried on by the Employer or its Affiliates, whether or not the Employee had
personal contact with such person or entity during the Employee's employment
with the Employer;
(c) whether for the Employee's own account or the account
of any other person and at any time during his employment with the Employer or
its Affiliates and the Non-Compete Period, (i) solicit, employ, or otherwise
engage as an employee, independent contractor or otherwise, any person who is an
employee of the Employer or an Affiliate, or in any manner induce, or attempt to
induce, any employee of the Employer or its Affiliates to terminate his or her
employment with the Employer or its Affiliate; or (ii) interfere with the
Employer's or its Affiliate's relationship with any person or entity that, at
any time during the Employment Period, was an employee, contractor, supplier or
customer of the Employer or its Affiliate; or
(d) at any time after the termination of his employment,
disparage the Employer or its Affiliates or any shareholders, directors,
officers, employees, or agents of the Employer or any of its Affiliates, so long
as the Employer does not disparage the Employee;
provided, however, that notwithstanding the foregoing, paragraphs (a) and (b) of
this Section 5.2 shall not apply if the Employee's employment is terminated
pursuant to Section 4.3(d) hereof. If any covenant in this Section 5.2 is held
to be unreasonable, arbitrary or against public policy, such covenant will be
considered to be divisible with respect to scope, time and geographic area, and
such lesser scope, time or geographic area, or all of them, as a court of
competent jurisdiction may determine to be reasonable, not arbitrary and not
against public policy, will be effective, binding and enforceable against the
Employee. The Employee hereby agrees that this covenant is a material and
substantial part of this Agreement and that: (i) the geographic limitations are
reasonable; (ii) the term of the covenant is reasonable; and (iii) the covenant
is not made for the purpose of limiting competition per se and is reasonably
related to a protectable business interest of the Employer. The period of time
applicable to any covenant in this Section 5.2 will be extended by the duration
of any violation by the Employee of such covenant.
5.3 COVENANTS OF THE EMPLOYER. The Employer covenants and agrees
that, during the Non-Compete Period, the following provisions shall apply:
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(a) if the Employee's employment is terminated due to the
death or Disability of the Employee, for Cause by the Employer or by the
Employee without having provided the Required Notice, no additional compensation
shall be payable or Benefits provided to the Employee during the Non-Compete
Period except as specifically provided for in Section 4.3 hereof.
(b) In addition to the compensation payable or Benefits
to be provided to the Employee as provided in Section 4.3 hereof, if the
Employee's employment is terminated for any reason other than as set forth in
Section 5.3(a) hereof, the Employer shall continue to (i) pay to the Employee
during the Non-Compete Period the Base Salary as provided herein as if the
Employee remained employed by the Employer during the Non-Compete Period and
(ii) provide all the Benefits to the Employee (and the Employee's spouse and
dependents, as applicable) that the Employer would have provided pursuant to
this Agreement, as if the Employee remained employed by the Employer during the
Non-Compete Period, unless the Employer is prohibited from providing any such
Benefits pursuant to applicable law.
(c) Notwithstanding the foregoing provisions of this
Section 5.3, the Employer may pay to the Employee the cash equivalent of any
Benefit that the Employer is otherwise obligated to provide the Employee in lieu
of providing such Benefit.
(d) Notwithstanding the foregoing provisions of this
Section 5.3, the Employer shall have the right, at any time, to release the
Employee from the covenants contained in this Section 5, at which time the
Employee's right to receive and the Employer's obligation to make any payments
under this Section 5.3 shall terminate upon the payments by the Employer to the
Employee of all amounts due under this Section 5.3 up to and including the date
of such release.
6. NON-DISCLOSURE COVENANT
6.1 ACKNOWLEDGMENTS BY THE EMPLOYEE. The Employee acknowledges
that (a) during the Employment Period the Employee will be afforded access to
Confidential Information; (b) public disclosure of such Confidential Information
could have an adverse effect on the Employer and its business; and (c) the
provisions of this Section 6 are reasonable and necessary to prevent the
improper use or disclosure of Confidential Information.
6.2 COVENANTS OF THE EMPLOYEE. The Employee covenants as follows:
(a) CONFIDENTIALITY. During and after his employment with
the Employer and its Affiliates, the Employee will hold in confidence the
Confidential Information and will not disclose such Confidential Information to
any person other than in connection with the performance of his duties and
obligations hereunder, except with the specific prior written consent of the
Board of Directors or the Chief Executive Officer; provided, however, that the
parties agree that this Agreement does not prohibit the disclosure of
Confidential Information where applicable law requires, including, but not
limited to, in response to subpoenas and/or orders of a governmental agency or
court of competent jurisdiction. In the event that the Employer is requested or
becomes legally compelled under the terms of a subpoena or order
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issued by a court of competent jurisdiction or by a governmental body to make a
disclosure of Confidential Information, the Employee agrees that he will (i)
immediately provide the Employer with written notice of the existence, terms and
circumstances, surrounding such request(s) so that the Employer may seek an
appropriate protective order or other appropriate remedy, (ii) cooperate with
the Employer in its efforts to decline, resist or narrow such requests, and
(iii) if disclosure of such Confidential Information is required in the opinion
of counsel, exercise reasonable efforts to obtain an order or other reliable
assurance that confidential treatment will be accorded to such disclosed
information.
(b) TRADE SECRETS. Any and all trade secrets of the
Employer will be entitled to all the protections and benefits under the federal
and state trade secret and intellectual property laws and any other applicable
law. If any information that the Employer deems to be a trade secret is found by
a court of competent jurisdiction not to be a trade secret for purposes of this
Agreement, such information will, nevertheless, be considered Confidential
Information for the purposes of this Agreement, so long as it otherwise meets
the definition of Confidential Information. The Employee hereby waives any
requirement that the Employer submit proof of the economic value of any trade
secret or post a bond or other security.
(c) REMOVAL. The Employee will not remove from the
Employer's premises (except to the extent such removal is for purposes of the
performance of the Employee's duties at home or while traveling, or except
otherwise specifically authorized by the Employer) any document, record,
notebook, plan, model, component, device, or computer software or code, whether
embodied in a disk or in any other form belonging to the Employer or used in the
Employer's business (collectively, the "Proprietary Items"). All of the
Proprietary Items, whether or not developed by the Employee, are the exclusive
property of the Employer. Upon termination of his employment, or upon the
request of the Employer during the Employment Period, the Employee will return
to the Employer all of the Proprietary Items and Confidential Information in the
Employee's possession or subject to the Employee's control, and the Employee
shall not retain any copies, abstracts, sketches, or other physical embodiments
in electronic form or otherwise, of any such Proprietary Items or Confidential
Information.
(d) DEVELOPMENT OF INTELLECTUAL PROPERTY. Any and all
writings, inventions, improvements, processes, procedures and/or techniques
which the Employee (i) made, conceived, discovered or developed, either solely
or jointly with any other person or persons, at any time when the Employee was
an employee of the Employer whether pursuant to this Agreement or otherwise,
whether or not during working hours and whether or not at the request or upon
the suggestion of the Employer, which relate to or were useful in connection
with any business now or hereafter carried on or contemplated by the Employer,
including developments or expansions of its fields of operations, or (ii) may
make, conceive, discover or develop, either solely or jointly with any other
person or persons, at any time when the Employee is an employee of the Employer,
whether or not during working hours and whether or not at the request or upon
the suggestion of the Employer, which relate to or are useful in connection with
any business now or hereafter carried on or contemplated by the Employer,
including developments or expansions of its present fields of operations, shall
be the sole and exclusive property of the Employer. The Employee shall make full
disclosure to the Employer of all such writings, inventions, improvements,
processes, procedures and techniques, and shall do
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everything necessary or desirable to vest the absolute title thereto in the
Employer. The Employee shall write and prepare all specifications and procedures
regarding such inventions, improvements, processes, procedures and techniques
and otherwise aid and assist the Employer so that the Employer can prepare and
present applications for copyright or patent therefor and can secure such
copyright or patent wherever possible, as well as reissues, renewals, and
extensions thereof, and can obtain the record title to such copyright or patents
so that the Employer shall be the sole and absolute owner thereof in all
countries in which it may desire to have copyright or patent protection. The
Employee shall not be entitled to any additional or special compensation or
reimbursement regarding any and all such writings, inventions, improvements,
processes, procedures and techniques.
7. GENERAL PROVISIONS OF SECTIONS 5 AND 6.
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Employee
acknowledges that the injury that would be suffered by the Employer as a result
of a breach of the provisions of Sections 5 and 6 of this Agreement would be
irreplaceable and that an award of monetary damages to the Employer for such a
breach may be an inadequate remedy. Consequently, the Employer will have the
right, in addition to any other rights it may have, to obtain a temporary
restraining order and/or injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any provision of this Agreement. The
Employee waives any requirement that the Employer secure or post any bond in
conjunction with any such remedies. The Employee further agrees to and hereby
does submit to in personam jurisdiction before each and every court for that
purpose. Without limiting the Employer's rights under this Section 7 or any
other remedies available to the Employer, if the Employee breaches any other
provisions of Sections 5 and 6 and such breach is proven in a court of competent
jurisdiction, the Employer will have the right to cease making any payments or
providing Benefits otherwise due to the Employee under this Agreement.
7.2 COVENANTS OF SECTIONS 5 AND 6 ARE ESSENTIAL AND INDEPENDENT
COVENANTS. The covenants of the Employee in Sections 5 and 6 hereof are
essential elements of this Agreement, and without the Employee's agreement to
comply with such covenants, the Employer would not have entered into this
Agreement or continued the employment of the Employee. The Employer and the
Employee have independently consulted their respective counsel and have been
advised in all respects concerning the reasonableness and propriety of such
covenants, with specific regard to the nature of the business conducted by the
Employer. In addition, the Employee's covenants in Sections 5 and 6 are
independent covenants and the existence of any claim by the Employee against the
Employer under this Agreement or otherwise will not excuse the Employee's breach
of any covenant in Sections 5 or 6. Notwithstanding anything in the Agreement to
the contrary, (i) the covenants and agreements of the Employee in Sections 5 and
6 shall survive the termination of the Agreement, except as provided below, and
(ii) the covenants and agreements in Section 5.2(a) shall be effective as of the
Effective Date.
8. GENERAL PROVISIONS.
8.1 INDEMNIFICATION. The Employer shall indemnify and hold
harmless the Employee to the fullest extent permitted by applicable law against
all costs (including reasonable
11
attorneys' fees and costs), judgments, penalties, fines, amounts paid in
settlements, interest and all other liabilities incurred or paid by the Employee
in connection or in any way associated with the investigation, defense,
prosecution, settlement, or appeal of any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, including actions pursuant to the Xxxxxxxx-Xxxxx Act of 2002, and
to which the Employee was or is a party or is threatened to be made a party by
reason of the fact that the Employee is or was an officer, employee or agent of
the Employer, or any of its subsidiaries or Affiliates, including any property
owner or condominium association that the Employee has been asked to serve on by
the Employer, or by reason of anything done or not done by the Employee in any
such capacity or capacities, provided that the Employee acted in good faith, and
in a manner the Employee reasonably believed to be in or not opposed to the best
interests on the Employer, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
Employer also shall pay any and all expenses (including reasonable attorney's
fees) incurred by the Employee as a result of the Employee being called as a
witness in connection with any matter involving the Employer and/or any of its
officers or directors. Nothing herein shall limit or reduce any rights of
indemnification to which the Employee might be entitled under the organizational
documents of the Employer or as allowed by applicable law.
8.2 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by either party in exercising any right, power or privilege under this Agreement
will operate as a waiver of such right, power or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power or privilege or the exercise of any
other right, power or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be discharged by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right for the party giving such
notice or demand or take further action without notice or demand as provided in
this Agreement.
8.3 SUCCESSORS.
(a) This Agreement is personal to the Employee and
without the prior written consent of the Employer shall not be assignable by the
Employee otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Employee's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Employer and its successors and assigns.
(c) The Employer will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Employer to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Employer would be required to perform it if no such succession
had taken place. As used in this Agreement "Employer" shall mean the Employer as
12
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
8.4 NOTICES. All notices, consents, waivers and other
communication required under this Agreement must be in writing and will be
deemed to have been duly given when (a) delivered by hand (with written
confirmation of receipt), (b) sent by facsimile (with written confirmation of
receipt), provided that a copy is mailed by certified mail, return receipt
requested, the same day or the next Business Day, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service, in
each case to the appropriate addresses and facsimile numbers set forth below (or
to such other addresses and facsimile numbers as a party may designate by notice
to the other parties):
If to the Employer:
Technical Olympic USA, Inc.
0000 Xxxxxxxxx Xxxx., Xxxxx 000-X
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Mon, CEO
Facsimile No.: (000) 000-0000
With a copy to Xxxxxxxx Xxxxxxxx, General Counsel, at the same address.
If to the Employee:
Xxxx Rome
0000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
8.5 ENTIRE AGREEMENT; SUPERSEDURE. This Agreement contains the
entire agreement between the parties with respect to the subject matter hereof,
and expressly terminates, rescinds, replaces and supersedes all prior and
contemporaneous agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof, including, without
limitation, the Prior Agreement.
8.6 GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT WILL
BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE STATE AND FEDERAL COURTS IN BROWARD COUNTY, FLORIDA, FOR THE
PURPOSES OF ANY PROCEEDINGS ARISING OUT OF THIS AGREEMENT.
8.7 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any court or competent jurisdiction, the other
provisions of this Agreement will remain in full force and effect, unless the
absence of such invalid or unenforceable provision materially alters the rights
or obligations of either party hereto. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held
13
invalid or unenforceable, unless the absence of such invalid or unenforceable
portion of such provision materially alters the rights or obligations of either
party hereto.
8.8 TAX WITHHOLDING AND REPORTING. The Employer shall withhold
from all payments hereunder all applicable taxes that it is required to withhold
with respect to payments and Benefits provided under this Agreement and shall
report all such payments and withholdings to the appropriate taxing authorities
as required by applicable law.
8.9 AMENDMENTS AND WAIVERS. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Employee and a member of the Board of
Directors authorized by the Board of Directors to execute the same. No waiver by
either party hereto at any time of any breach by the other party hereto of, or
in compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
8.10 SURVIVAL. The provision of provisions of Sections 4, 5, 6, 7,
and 8 shall survive the termination of this Agreement.
8.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, by original or facsimile signatures, each of which shall
constitute an original and all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as at April 1, 2003, effective as of the Effective Date.
TECHNICAL OLYMPIC USA, INC.
By: /s/ Xxxxxxx X. Mon /s/ Xxxx Rome
---------------------------- -------------------------------
Name: Xxxxxxx X. Mon Xxxx Rome
Title: Chief Executive Officer
14
EXHIBIT A
DEFINITIONS
"Accrued Obligations" means, at the relevant date, the sum of the following: (i)
the Employee's earned or accrued, but unpaid, Base Salary through the date of
termination of the Employee's employment as provided herein; (ii) any Bonus
earned or accrued and vested, but unpaid (together with accrued interest or
earnings credited thereon); (iii) the economic value of any of the Employee's
accrued, but unused, vacation time; and (iv) any unreimbursed business expenses
incurred by the Employee.
"Affiliate" means a person or entity who or which, (i) with respect to an
entity, directly or indirectly through one or more intermediaries, controlled,
is controlled by or is under common control with, such entity; or (ii) with
respect to the Employee, is a parent, spouse or issue of the Employee, including
persons in an adopted or step relationship.
"Board of Directors" means the board of directors of the Employer.
"Business" means the business of developing land for, and the design and
construction of, and the promotion, marketing and sale of, single-family
residences, townhouses, and condominiums.
"Business Day" shall mean any day other than a Saturday, Sunday or bank holiday
recognized in Hollywood, Florida.
"Cause" means:
(a) an act of fraud, misappropriation or personal dishonesty taken
by the Employee and intended to result in the substantial personal enrichment of
the Employee at the expense of the Employer or an Affiliate, including, but not
limited to, the willful engaging by the Employee in illegal conduct or gross
misconduct that is materially and demonstrably injurious to the Employer;
(b) the material violation by the Employee of a material
obligation of the Employee under this Agreement, including but not limited to,
the willful and continued failure of the Employee to perform substantially the
Employee's duties with the Employer or one of its Affiliates (other than such
failure resulting from incapacity due to physical or mental illness) which
violation or failure is not remedied within ten (10) Business Days (or such
additional reasonable period of time if additional time is necessary to remedy)
after receipt of written notice or demand for substantial performance or
corrective action is delivered to the Employee by the Board of Directors or the
Chief Executive Officer of the Employer which specifically identifies the manner
in which the Board of Directors or the Chief Executive Officer believes that the
Employee has not substantially performed the Employee's duties or violated an
obligation under this Agreement;
(c) the conviction, or plea of nolo contendere, of the Employee
for any felony or any misdemeanor involving moral turpitude; or
15
(d) a material violation of any express direction of the Board of
Directors or the Chief Executive Officer of the Employer or a material violation
of any rule, regulation, policy or plan established by the Board of Directors
from time to time regarding the conduct of the Employer's employees and/or its
business, which violation is not remedied within ten (10) Business Days (or such
additional reasonable period of time if additional time is necessary to remedy)
after receipt of written notice from the Employer of such failure.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to
time.
"Confidential Information" means any and all intellectual property of the
Employer (or any of its Affiliates), including but not limited to:
(a) trade secrets concerning the business and affairs of the
Employer (or any of its Affiliates), product specifications, data, know-how,
formulae, compositions, processes, designs, sketches, photographs, graphs,
drawings, samples, inventions and ideas, past, current and planned research
development, current and planned manufacturing or distribution methods and
processes, customer lists, current and anticipated customer requirements, price
lists, market studies, business plans, computer software and programs (including
object code and source code), computer software and database technologies,
systems, structures, and architectures (and related formulae, compositions,
processes, improvements, devices, know-how, inventions, discoveries, concepts,
ideas, designs, methods and information), and any other information, however
documented, that is a trade secret under federal, state or other applicable law;
and
(b) information concerning the business and affairs of the
Employer (or any of its Affiliates) (which includes historical financial
statements, financial projections and budgets, historical and projected sales,
capital spending budgets and plans, the names and backgrounds of key personnel,
personnel training and techniques and materials), however documented; and notes,
analysis, compilations, studies, summaries, and other material prepared by or
for the Employer (or any of its Affiliates) containing or based, in whole or in
part, on any information included in the foregoing.
Notwithstanding the foregoing, Confidential Information shall not include
information otherwise lawfully known generally by or readily accessible to the
trade or general public other than by the improper disclosure by the Employee.
"Disability" means, for all purposes of this Agreement, the inability of the
Employee, due to the injury, illness, disease, or bodily or mental infirmity, to
engage in the performance of substantially all of the usual duties of employment
with the Employer as contemplated by Section 2.2 herein, such Disability to be
determined by the Board of Directors of the Employer upon receipt and in
reliance on competent medical advice from one (1) or more individuals, selected
by the Board, who are qualified to give such professional medical advice. The
Employee must submit to a reasonable number of examinations by the medical
doctor making the determination of Disability, and the Employee hereby
authorizes the disclosure and release to the Employer of such determination and
all supporting medical records. If the Employee is not legally competent, the
Employee's legal guardian or duly authorized attorney-in-fact will act in
16
the Employee's stead for the purposes of submitting the Employee to the
examinations, and providing the authorization of disclosure required hereunder.
It is expressly understood that the Disability of the Employee for a period of
one hundred twenty (120) calendar days or less in the aggregate during any
period of twelve (12) consecutive months, in the absence of any reasonable
expectation that his Disability will exist for more than such a period of time,
shall not constitute a failure by him to perform his duties hereunder and shall
not be deemed a breach or default and the Employee shall receive full
compensation for any such period of Disability or for any other temporary
illness or incapacity during the term of this Agreement.
"Employment Period" means the term of the Employee's employment under this
Agreement.
"Fiscal Year" means the fiscal year of Employer on the Effective Date or as it
may change from time to time.
"Good Reason" means:
(a) that without the Employee's prior written consent and in the
absence of Cause, one or more of the following events occur:
(i) any materially adverse change in the Employee's
authority, duties or responsibilities as set forth in Section 2 or any
assignment to the Employee of duties and responsibilities materially and
substantially inconsistent with those normally associated with such position;
(ii) the Employer requiring the Employee to be primarily
based at any office more than fifty (50) miles outside the greater Austin, Texas
metropolitan area, excluding travel reasonably required in the performance of
the Employee's responsibilities and excluding the fulfillment of
responsibilities at the Employer's corporate headquarters located in Hollywood,
Florida;
(iii) any failure by the Employer to comply with and
satisfy Section 8.3(c) of this Agreement; or
(iv) the material violation by the Employer of a material
obligation of the Employer under this Agreement, which violation or failure is
not remedied within ten (10) Business Days (or such additional reasonable period
of time if additional time is necessary to remedy) after receipt of written
notice or demand for substantial performance or corrective action is delivered
to the Employer and the Chief Executive Officer of the Employer by the Employee
which specifically identifies the manner in which Employee believes that the
Employer has not substantially performed the Employer's duties or violated an
obligation under this Agreement; and
(b) within sixty (60) Business Days learning of the occurrence of
any such event, and in the absence of any circumstances that constitutes Cause,
the Employee terminates
17
employment with the Employer by written notice to the Chief Executive Officer of
the Employer; provided, however, that the events set forth in subparagraphs
(a)(i, ii or iii) shall not constitute Good Reason for purposes of this
Agreement unless, within twenty (20) Business Days of Employee's learning of
such event, the Employee gives written notice of the event to the Employer and
the Employer fails to remedy such event within thirty (30) Business Days (or
such additional reasonable period of time if additional time is necessary to
remedy) of receipt of such notice.
"Index" shall mean the Consumer price Index for the Austin, Texas area published
by the United States government or, if publication of the Index is discontinued,
any comparable statistics on the cost of living for the Austin, Texas area as
computed and published by an agency of the United States government or by any
regularly published national financial periodical that does compute and publish
such statistics.
"Non-Compete Period" means the period beginning on the Effective Date and ending
on the first anniversary of the Employee's termination of employment with the
Employer.
"Pro Rata Bonus" shall mean a pro rata Bonus for the year in which the
Employee's employment terminates based on the performance of the Employer for
the year during which such termination occurs.
"Termination Payment" shall mean a lump sum payment in cash equal to the sum of
the following: (A) an amount equal to the aggregate Base Salary (as it may be
increased from time to time pursuant to this Agreement) that would have been
payable to the Employee if his employment had continued for the then remaining
term of the Employment Period, (B) the Pro Rata Bonus, (C) an amount equal to
the aggregate Bonus that would have been payable to the Employee if his
employment had continued for the then remaining term of the Employment Period
(other than the year in which the Employee's employment terminates), calculated
by multiplying the highest Bonus paid to the Employee in the prior three (3)
fiscal years by the number of years remaining in the Employment Period, (D) the
Accrued Obligations, and (E) the fair market value of any Benefits and
perquisites (other than health benefits, if paid to the Employee pursuant to
subparagraph (ii) of Section 4.3(d) of this Agreement to be provided to the
Employee for the then remaining term of the Employment Period.
18
EXHIBIT B
BONUS PLAN
In accordance with Article 3.3 of the Agreement, the Employee shall be eligible
to receive an annual cash bonus calculated in accordance with this Exhibit B.
The bonus to be paid to Employee shall be based upon a combination of Regional
Results and Consolidated Results. Consolidated results shall represent 30% of
bonus and regional results (earnings of the Newmark operations in Texas and
Tennessee) shall represent 70% of bonus.
2003 Annual Bonus
For 2003, the total bonus to Employee shall be guaranteed in the amount of
$1,030,000.
Consolidated Results (30% of total):
For 2004 and 2005, bonus based upon consolidated results shall be calculated on
a return on equity basis, where "return" is after tax earnings of TOUSA and
consolidated entities, adding back corporate bonuses, net, and unusual charges,
and "equity" is the average of the quarterly ending equity balance beginning
with the prior year's ending equity. Employee's bonus payment shall be earned by
incremental XXX, as follows:
XXX % of Bonus Earned
--- -----------------
0 to 6% = 0
>6% to 9% = 1/3
>9% to 12% = 1/3
> 12% = 1/3
Regional Results (70% of total):
For 2004 and 2005, bonus based upon regional results shall be calculated as 1.3%
of regional earnings.
Payment of Bonus
The annual bonus shall be payable in quarterly installments. For 2003, the
quarterly installments shall be payable within 15 days of the end of each fiscal
quarter. For 2004 and 2005, the quarterly installments shall be payable within
15 days following final calculation of the bonus, which shall occur upon the
financial closing of each fiscal quarter. All bonus payments shall be subject to
income and payroll taxes in accordance with applicable requirements and shall be
paid in accordance with company payroll policies.
19
