AMENDMENT TO EMPLOYMENT AGREEMENT
This amendment is entered into on the 27th day of August, 1997 by and
between WESTMARK GROUP HOLDINGS, INC., a Delaware corporation, and WESTMARK
MORTGAGE CORPORATION, California corporation (hereinafter collectively referred
to as "the Company"), and XXXX XXXXXXXXXX ("Executive").
WHEREAS, the Company and Executive entered into an Employment Agreement
on April 25, 1997 and;
WHEREAS, the Company and Executive desire to modify said Employment
Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, said
Employment Agreement is hereby modified in the following respects:
1. Paragraph 4. Compensation and Benefits During the Employment Term,
(c) Incentive Stock Options shall be modified to read in its entirety as
follows:
Immediately upon the execution of this Agreement, the Company and
Executive shall enter into a Stock Option Agreement, pursuant to
which the Company shall issue options to Executive to acquire
600,000 shares of the common stock of Westmark Group Holdings,
Inc. Said options shall vest immediately at an exercise price of
$1.00. Said vested options may be exercised on or after the
following dates:
150,000 shares on March 31, 1998
75,000 shares on October 31, 1998
150,000 shares on March 31, 1999
75,000 shares on October 31, 1999
150,000 shares on March 31, 2000
In the event of a sale, divestiture, spin-off or transfer of all
or substantially all of the assets or stock of Westmark Mortgage
Corporation, all options granted hereunder to Executive shall
immediately become exercisable. Provided, however, that no option
shall be exercisable after the expiration of ten years from the
date said option was granted.
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2. Paragraph 7. Termination, (d) Good Reason, (v) shall be modified to
read in its entirety as follows;
In the event Executive terminates his employment for good reason
as hereinabove set forth, Executive shall be entitled to a lump
sum payment equal to the monthly compensation provided for in
this agreement multiplied by the number of months remaining in
the term of this agreement or any extension thereof, together
with all benefits, reimbursements or other rights to which
Employee has become entitled.
3. Paragraph 7. Termination, (e) Change of Control shall be added to
said agreement and shall read in its entirety as follows:
In the event of a change of control as set forth below, while
Executive is employed by the Company after the initial term of
employment, and in the further event Executive's employment is
terminated without cause, as defined herein above, the Company
shall pay to Executive a lump sum payment equal to the monthly
compensation provided for in this agreement multiplied by the
number of months remaining in the term of this agreement or any
extension thereof, together with all benefits, reimbursements or
other rights to which Executive has become entitled. Change of
control shall be defined as follows:
i. Any "person," including a "group" as determined in
accordance with Section 13, (d), (3) of the Securities
Exchange Act of 1934 (the "Exchange Act"), becomes, in a
single transaction or series of transactions, the beneficial
owner, directly or indirectly, of securities representing a
Control Percentage (as hereinafter defined) of the combined
voting power of the then outstanding securities of the
corporation not including a transaction caused by or
resulting from the affirmative vote of a majority of the
current members of the Board of Directors of Westmark Group
Holdings, Inc. (subject to Paragraph 3, ii);
ii. The membership of the board of directors as it exists at
the time of this Agreement changes such that the current
members of the board no longer constitute a majority of the
board of directors not including a change caused by or
resulting from any current board member's death or
resignation pursuant to Xxxxxxxxx 0, (x) hereinafter, or the
affirmative vote of a majority of the current members of the
Board of Directors of Westmark Group Holdings, Inc.;
iii. The corporation is merged or consolidated with other
corporations in a single transaction or series of
transactions and as a result of such merger or consolidation
a Control Percentage of the outstanding voting securities of
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the surviving or resulting corporation shall no longer be
owned in the aggregate by the stockholders who owned stock
in the corporation as of the date prior to the merger or
consolidation not including a merger or consolidation caused
by or resulting from the affirmative vote of a majority of
the current members of the Board of Directors of Westmark
Group Holdings, Inc. (subject to Paragraph 3, ii). The term
"Control Percentage" shall mean at least 35% in the event
the applicable securities are registered under the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), or at least 35% in the event the applicable
securities are not registered are not registered under the
Exchange Act;
iv. The corporation transfers all of its assets to another
corporation or to any other person or entity, including but
not limited to the transfer of the mortgage operations
through a sale of assets or stock, spin-off, divestiture or
initial public offering not including a transfer of assets
or stock caused by or resulting from the affirmative vote of
a majority of the current members of the Board of Directors
of Westmark Group Holdings, Inc. (subject to Paragraph 3,
ii).
v. In the event of a change of control as set forth above,
and Executive is requested to remain with the surviving or
successor corporation or business, with the same
compensation and commensurate duties as previously retained
by Executive subject to the same terms and conditions of
this agreement, and Executive rejects such request for
continuing employment, said Executive shall be entitled to a
lump sum severance payment equal to the compensation
provided in Xxxxxxxxx 0, (x), (x) regarding termination for
good reason. Provided, however, that Executive shall not
inject such request for continuing employment without a
reasonable basis.
4. Paragraph 4. Compensation and Benefits During the Employment
Term, (f) Vacation shall be modified to read in its entirety as follows:
Executive will be entitled to four (4) weeks paid vacation
per year subject to the policies and procedures of the
Company. Unused accrued vacation time may be carried forward
to subsequent years and/or will be paid in full upon
termination of this agreement.
5. Paragraph 7. Termination, (d) Voluntary Termination by Executive:
Said paragraph shall read in its entirety as follows:
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Executive shall have the right to terminate this agreement
for any reason other than change of control or good reason
as set forth hereinabove upon sixty (60) days written notice
to the Company. In the event of voluntary termination by
Executive other than change of control or good reason,
Executive shall be entitled to any compensation or benefits
due and owing to Executive up to the date of termination.
6. Paragraph 6. The following miscellaneous paragraphs are
incorporated herein:
18. Loyal and Conscientious Performance of Duties: Executive
agrees that to the best of his ability and experience he
will at all times loyally and conscientiously perform all of
the duties and obligations required of him, either express
or implied, by the terms of this agreement.
19. Satisfaction of Performance of Duties: Executive's
performance of his duties hereunder shall at all times be
rendered to the Company's Satisfaction. Executive expressly
agrees that the Company shall determine whether the services
of Executive are satisfactory pursuant to the performance
guidelines established by the Board of Directors.
20. Adherence to Employer's Rules: At all times during the
performance of this contract, Executive shall strictly
adhere to and obey all of the Company's rules and
regulations governing the conduct of its Executives now in
effect or as subsequently modified, consistent with
Executive's rights as set forth herein.
21. Devotion of Entire Time to Employer's Business:
Executive shall devote his full productive time, ability and
attention to the business of the Company during the term of
this agreement. Furthermore, during the term of this
agreement, Executive shall not, whether directly or
indirectly, render any services of commercial or
professional nature to any other person or organization,
whether for compensation or otherwise, without the prior
consent of the Company's President or Chief Executive
Officer. This agreement shall not be interpreted to prohibit
Executive from making passive personal investments or
conducting private business affairs if those activities do
not in any way interfere with the services required under
this agreement. However, Executive shall not directly or
indirectly acquire, hold or retain any interest in any
business competing with or similar in nature to the business
of Employer.
22. Non-Competition during Term of Employment Contract:
During the term of this contract Executive shall not,
directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder,
corporate officer, director or in any other individual or
representative capacity, engage or participate in any
business that is in competition in any matter whatsoever
with the business of the Company, unless approved, in
advance, by the Company's Board of Directors.
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23. Confidentiality: In the course of the performance of
Executive's duties hereunder, Executive recognizes and
acknowledges that Executive may have access to certain
confidential and proprietary information of Employer or any
of its affiliates. Without the prior written consent of the
Company, Executive shall not disclose any such confidential
or proprietary information to any person or firm,
corporation, association, or other entity for any reason or
purpose whatsoever, and shall not use such information,
directly or indirectly, for Executive's own behalf or on
behalf of any other party. Executive agrees and affirms that
all such information is the sole property of the Company and
that at the termination and/or expiration of this agreement,
at the Company's written request, Executive shall promptly
return to the Company any and all such information so
requested by the Company. Executive shall not be precluded
from utilizing and maintaining any contacts Executive may
have with the capital, equity and financial market industry.
The provisions of this section shall not, however,
prohibit Executive from disclosing to others or using in
any manner information that:
A. Has been published or has become part of the public
domain;
B. Has been furnished or made known to Executive by
third parties (other than those acting directly or
indirectly for or on behalf of Executive) as a matter
of legal right without restriction on its use or
disclosure;
C. Was in the possession of Executive prior to
obtaining such information from the Company in
connection with the performance of this agreement; or
D. Is required to be disclosed by law.
Except as hereinabove modified or amended, said Employment Agreement
shall continue in full force and effect.
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COMPANY:
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WESTMARK MORTGAGE CORPORATION WESTMARK GROUP HOLDINGS, INC.
By:/s/ Xxxxxx Story III By: /s/ X. X. Xxxxx
---------------------- --------------------------
Name: Xxxxxx Story III Name: CFO
Title: President Title: X. X. Xxxxx
EXECUTIVE:
/s/ Xxxx Xxxxxxxxxx
------------------------------
Xxxx Xxxxxxxxxx
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XXXXX X. XXXXXXXX
ATTORNEY AT LAW
Twin Palms Financial Center
0000 00xx Xxxxxx, Xxxxx X
Xxxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000, FAX (000) 000-0000
FAX COVER SHEET
DATE: Match 16, 1998 TIME: 10:00 a.m. PST
TO: XXXXXXX XXXX
CO: Westmark Group Holdings, Inc.
FAX NO: (000) 000-0000
PAGES: 7 (INCLUDING COVER PAGE)
COPY SENT BY U.S. MAIL ( ) YES (X) NO
IF TRANSMISSION IS INCOMPLETE, PLEASE CALL XXXXXXX AT 000-000-0000.
COMMENTS:
Dear Xxxxxxx:
Following this fax cover sheet, please find Mark's Amendment to Employment
Agreement dated August 27, 1997. According to the list you gave me, you have the
most current agreements and/or amendments for the other executives, Please feel
free to call me if you have any questions.
Thank you,
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
Secretary to Xxxxx Xxxxxxxx
PLEASE NOTE: The information contained in this facsimile message is attorney
privileged and confidential information intended only for the use of the
individual named above. If the reader of this message is not the intended
recipient, or the employee or agent responsible to deliver it to the intended
recipient, you are hereby notified that dissemination, distribution or copying
of this communication is strictly prohibited. If you have received this
communication in error, please immediately notify us by telephone, and return
the original message to us at the above address via the U.S. Postal Service.
Thank You.
