EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is executed as of August 1,
1998, by and between American National Financial, Inc. (ANFI), a California
corporation and its successors (herein called the "Employer"), and Xxxxxx X.
Xxxxx, an individual, residing at 00000 Xxxxxxxxx Xxxxxx, Xxxxx Xxxxx, XX
(herein called the "Employee"). The effective date of this Agreement
("Effective Date") shall be August 1, 1998.
WITNESSETH:
WHEREAS, the Employer wishes to employ the Employee and the Employee
wishes to be employed by the Employer; and
WHEREAS, the Employee is willing to accept employment, perform such
services and duties, and serve the Employer for the compensation hereinafter
set forth during the term of this Agreement and the Employer is willing to
pay such compensation during such term.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained and other good and valuable consideration,
the parties hereto agree as follows:
1) EMPLOYMENT TERM AND LOCATION OF EMPLOYMENT. Subject to the
conditions hereinafter set forth, the Employer shall employ the Employee and
the Employee shall remain in the employment of, and serve the Employer for a
period of three (3) years commencing the Effective Date ("Xxx Xxxx").
Following the expiration of the Term, employment may continue on an "at will"
basis. At the end of each year of this Agreement, the term of this Agreement
shall automatically be extended for an additional one (1) year, unless ANFI
or the Employee provide the other with written notice prior to the expiration
of such year of their intent not to extend the term for an additional year;
provided, however, that ANFI shall only be entitled to elect to not extend
the term if ANFI or any of its subsidiaries fails to perform in accordance
with the budgeted expectations for such entities in the year in which such
extension relates. Such budgeted expectations shall be determined by the
Board of Directors of ANFI in the exercise of reasonable discretion. Any
notice to the Employee by ANFI not to extend the term shall set forth in
reasonable detail the basis for the decision not to extend. The term of this
Agreement, including any extensions thereof in accordance with this Section
1, shall hereinafter be referred to as the "Term."
2) DUTIES. The Employee agrees that, during the specified period of
his employment, he shall use his best efforts, skills, and abilities to:
(a) Act as Executive Vice President; and
(b) serve as a member of Employer's Board of Directors.
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3) DEVOTION OF TIME. Employee agrees to devote his entire working
time, which in no event shall be less than forty (40) hours per week, to the
business and affairs of the Employer during the term of this Agreement.
4) COMPENSATION DURING EMPLOYMENT. During the period of his
employment under this Agreement, Employee's compensation and consideration
for the performance of his services hereunder shall be as follows, all of
which shall be paid or given by Employer:
(a) BASE SALARY. Employee shall receive a base salary ("Base
Salary") of $160,000 for each twelve (12) months of his employment with
such Base Salary paid ratably each month over each twelve month period
(after appropriate deductions for taxes, benefits and other customary
items). Such base salary may be reviewed and increased at the discretion
of the Chief Executive Officer.
b) INCENTIVE COMPENSATION. Employee shall be entitled to receive
Incentive Compensation in the sole discretion of Employer's Chief Executive
Officer and in an amount to be set by Employer's Board of Directors in its
sole discretion.
c) The standard Company benefits enjoyed by the Company's other
top executives.
d) Company shall pay Employee's membership dues in a social
and/or recreational club as deemed necessary and appropriate by Employee to
maintain various business relationships on behalf of the Company; provided
however, that the company shall not be obligated to pay for any of
Employee's personal purchases and expenses at such clubs.
e) Company shall provide medical and insurance coverage to
employee and his dependants commencing on the date of the execution hereof
and so long as this Agreement and all renewals of same are in force and
effect.
f) Supplemental disability insurance sufficient to provide
two-thirds of pre-disability base salary as base salary has been defined in
Section 4.
g) Annual merit bonus based on Employee's performance during the
preceding year will be determined by the Board of Directors of the Company.
The Company shall deduct from all compensation payable under this
Agreement to Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between
the parties.
5) VACATION, HOLIDAYS AND SICK TIME. Employees shall be entitled to
paid vacation time for a period of time comparable to Employer's other
executive employees and on terms comparable to Employer's other executive
employees. Employees shall be entitled to the applicable number of paid sick
days and holidays as determined by Employer for all employees of Employer.
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6) TERMINATION. Termination of this Agreement shall occur upon the
earlier of the following events.
(a) The expiration of the term of this Agreement;
(b) Mutual written consent of all Parties hereto;
(c) FOR CAUSE. The company may terminate this Agreement
immediately for cause upon written notice to the Employee, in which event
the Company shall be obligated to pay the Employee that portion of the
minimum base compensation set forth in Section 4 due him through the date
of termination. Cause shall be limited to gross and willful neglect of
duties or criminal or other illegal activities as determined by a court of
competent jurisdiction.
(d) WITHOUT CAUSE. Either party may terminate this Agreement
immediately without cause by giving written notice to the other. If the
Company terminates hereunder, it shall pay to the Employee an amount equal
to the product of (A) the Employee's minimum base annual salary rate in
effect as of the date of termination plus the total bonus paid or payable
to the employee for the most recently ended calendar year, multiplied by
(B) the greater of the number of years (including partial years) remaining
in the term of employment hereunder or the number 2. Such payment to be
made in a lump sum on or before the fifth day following the date of
termination or as otherwise directed by Employee. The Company shall
maintain in full force and effect, for the continued benefit of the
Employee for the greater of the number of years (including partial years)
remaining in the term of employment hereunder or the number 2, all employee
benefit plans and programs in which the Employee was entitled to
participate immediately prior to the date of termination provided that the
Employee's continued participation is possible under the general terms and
provisions of such plans and programs. In the event that the Employee's
participation in any such plan or program is prohibited, the Company shall,
at the Company's expense, arrange to provide the Employee with benefits
substantially similar to those which the employee would otherwise have been
entitled to receive under such plans and programs from which his continued
participation is prohibited. If the Employee terminates hereunder, the
Company shall be obligated to pay the Employee the minimum base
compensation and a prorated minimum annual bonus as set forth in Sections 3
and 4 due him through the date of termination.
(e) DISABILITY. If the Employee fails to perform his duties
hereunder on account of illness or other incapacity for a period of nine
(9) consecutive months, the Company shall have the right upon written
notice to the Employee to terminate this Agreement without further
obligation by paying Employee the minimum base salary without offset for
the remainder of the term of this Agreement in a lump sum or as otherwise
directed by Employee.
(f) DEATH. If the Employee dies during the term of this
Agreement, this Agreement shall terminate immediately, and the Employee's
legal representatives shall be entitled to receive the base salary for the
remainder of the term of this Agreement and the minimum annual bonus
without offset prorated throughout the
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date of termination in a lump sum or as otherwise directed by Employee's
legal representative.
(g) EFFECT OF TERMINATION. Termination for any cause shall not
constitute a waiver of the Company's rights under this Agreement nor a
release of employee from any obligation hereunder except his obligation to
perform his day-to-day duties as an employee.
7) COMPLETE AGREEMENT. This Agreement together with the Stock Option
Agreement contain the entire agreement of the parties and, except as
specifically referred to herein, all prior obligations, proposals and
agreements relating to the subject matter hereof have been merged herein
except as otherwise set forth in the Stock Option Agreement. This Agreement
shall not be modified or amended except by agreement in writing duly executed
by all the parties hereto.
8) REPRESENTATIONS. Each party represents that neither the execution
and delivery of this Agreement, nor the transactions and activities
contemplated hereby, will violate any agreement or other arrangement by which
such party is bound. Each party hereby acknowledges that he and the other
parties have not made any warranties, representations or assurances with
respect to the subject matter of this Agreement except as are contained
herein, and that in the execution hereof and in creating this Agreement, he
has made such legal or factual inquiries or determinations as he deems
necessary or desirable and has relied thereon.
9) HEADINGS. The article and section headings in no way define,
limit, extend or interpret the scope of this Agreement or of any particular
article or section hereof.
10) ADDITIONAL DOCUMENTS. Each party hereto agrees to execute with
acknowledgment or affidavit, if required, any and all other documents and
writings which may be necessary or expedient to achieve the purpose of this
Agreement.
11) NUMBER AND GENDER. When the context in which the words used in
this Agreement indicate that such is the intent, words in the singular number
shall include the plural and vise versa. References to any gender shall
include any other gender as may be applicable under the circumstances.
12) SEVERABILITY. In the event that any provision of this Agreement
shall be held invalid, illegal, or unenforceable, the same shall not affect
in any respect whatsoever the validity of any other provisions of this
Agreement.
13) BINDING ON SUCCESSORS. The provisions of this Agreement subject
to the terms and conditions hereof, shall be binding upon and inure to the
benefit of (i) Employer's successors and assigns, and (ii) Employee's heirs,
executors, and administrators to the extent there are any obligations
hereunder following Employee's death.
14) GOVERNING LAW. This Agreement has been entered into in the State
of California, and all questions with respect to the Agreement and the rights
and liabilities of the parties hereto shall be governed by the laws of the
State. Any action to enforce any rights or to pursue any claims under this
Agreement and any related agreements shall be brought only in
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the Federal or State Courts in County of Orange, State of California and the
Parties hereto expressly and irrevocably consent to personal jurisdiction and
venue in such courts.
15) TIME PERIOD. Time is of the essence in this Agreement.
16) RIGHTS AND REMEDIES ARE CUMULATIVE. The rights and remedies
provided in this Agreement are cumulative, and the use of any one right or
remedy by any party shall not preclude or waive such party's right to use any
or all other remedies. Said rights and remedies are given in addition to any
other rights which any party may have by laws, statute, ordinance, or
otherwise.
17) WAIVER. No consent or waiver, express or implied, by any party to
or of any breach or default by the others in the performance of their
obligations hereunder shall be deemed or construed to be a consent or waiver
to or of any other breach or default in the performance by such other parties
hereunder. Failure on the part of any party to complain of any act or
failure to act of any of the other parties or to declare such other parties
in default, irrespective of how long such failure to continues, shall not
constitute a waiver by such party of his or its rights hereunder.
18) COUNTERPARTS. This Agreement may be executed simultaneously or in
one or more counterparts, all of which, together, shall constitute one and
the same instrument.
19) CORPORATE AUTHORITY. Each individual executing this Agreement on
behalf of Employer represents and warrants that he is duly authorized to
execute and deliver this Agreement on behalf of said corporation in
accordance with a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the By-Laws of said corporation, and that
this Agreement is binding upon Employer in accordance with its terms.
20) NOTICE. Any approval, disapproval, demand or other notice which
any party may desire to give to another party must be in writing and may be
given by personal delivery, telecopy, air courier or by mailing the same by
registered or certified mail, return receipt requested, to the party
hereinafter set forth, or such other address as the parties may hereafter
designate:
TO EMPLOYEE: Xxxxxx X. Xxxxx
00000 Xxxxxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
TO EMPLOYER: American National Financial, Inc.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
21) LIFE INSURANCE. Employee shall be entitled to participate in any
executive life insurance program and shall receive benefits in such program
comparable to other employees of Employer at the same management level.
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22) JOINT PREPARATION. All parties to this Agreement have been
represented by competent counsel. This Agreement has been jointly prepared
by the Parties, and any uncertainties or ambiguities existing in it shall not
be interpreted against any of the Parties under the presumptions of
California Civil Code Section 1654, but rather shall be interpreted according
to the rules generally governing the interpretation of contracts.
Dated:
-----------------------
EMPLOYER
AMERICAN NATIONAL FINANCIAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its: Chief Executive Officer
Dated:
-----------------------
EMPLOYEE
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Xxxxxx X. Xxxxx
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