EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the
25th day of April, 1997, by and between WESTMARK GROUP HOLDINGS, INC., a
Delaware corporation and WESTMARK MORTGAGE CORPORATION, a California corporation
(hereinafter collectively the "Company"), and XXXX XXXXXXXXXX ("Executive").
W I T N E S S E T H:
WHEREAS, Company desires to employ Executive as provided herein; and
WHEREAS, Executive desires to accept such employment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. Company hereby employs Executive and Executive hereby
accepts employment with Company upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Company to
elect and remove officers, Executive will serve Westmark Mortgage Corporation as
its Chief Executive Officer and Westmark Group Holdings, Inc. as its President
and Chief Executive Officer and will faithfully and diligently perform the
services and functions relating to such offices or otherwise reasonably incident
to such offices, provided that all such services and functions will be
reasonable and within Executive's area of expertise. Executive will, during the
term of this Agreement (or any extension thereof), devote his full business
time, attention and skills and best efforts to the promotion of the business of
Company. The foregoing will not be construed as preventing Executive from making
investments in other businesses or enterprises provided that (a) Executive
agrees not to become engaged in any other business activity that interferes with
his ability to discharge his duties and responsibilities to Company and (b)
Executive does not violate any other provision of this Agreement.
3. TERM. Subject to the terms and conditions hereof, the term of
employment of Executive will commence as of the date hereof (the "Commencement
Date") and will end on that date in the year, 2000, unless earlier terminated by
either party pursuant to the terms hereof. The term of this Agreement is
referred to herein as the "Term." Assuming all conditions of this Agreement have
been satisfied and there has been no breach of the Agreement during its initial
term, the Company may offer to extend the term for additional one (1) year terms
at its election ("Extended Term"), written notice of which must be given at
least sixty (60) days prior to the end of such preceding term. In the event the
Company does not offer to extend the Term of this Agreement, Executive shall be
entitled to severance pay equal to six months Salary as defined below.
4. COMPENSATION AND BENEFITS DURING THE EMPLOYMENT TERM.
(a) SALARY. Commencing upon the date of this Agreement,
Executive will be paid the first year an annual base salary of $150,000, the
second year an annual base salary of $162,000, the
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third year an annual base salary of $174,000, payable in accordance with the
then current payroll policies of Company or as otherwise agreed to by the
parties (the "Salary"). At any time and from time to time the Salary may be
increased for the remaining portion of the term if so determined by the Board of
Directors of Company after a review of Executive's performance of his duties
hereunder. Executive will not be entitled to receive sales commissions.
(b) AUTOMOBILE ALLOWANCE. In addition to the Executive's
salary, the Executive shall receive a $400 per month car allowance. The Company
shall also pay all expenses and insurance relevant to the use of the automobile.
The Company shall provide the Executive with the use of a cellular telephone and
the use of a home personal computer.
(c) INCENTIVE STOCK OPTIONS. On the Commencement Date, the
Company and the Executive shall enter into a Stock Option Agreement (the "Stock
Option Agreement") pursuant to which the Company shall grant to the Executive
options (the "Options") as follows:
(i) 150,000 shares of Common Stock at the exercise
price of $1.00 per share after the first year provided, however, that said stock
option grant is expressly conditioned upon and subject to either the achievement
by the Company of net income for said period of $2,150,000 or an average closing
bid price for the common stock of the Company of $2.00 or more for the thirty
days prior to the vesting date of one year.
(ii) 75,000 shares of Common Stock at the exercise
price of $1.25 per share after eighteen months provided, however, that said
stock option grant is expressly conditioned upon and subject to either the
achievement by the Company of net income for months 13 through 18 of $1,343,750
or an average closing bid price for the common stock of the Company of $2.25 or
more for the thirty days prior to the vesting date of eighteen months.
(iii) 150,000 shares of Common Stock at the exercise
price of $1.50 per share after twenty-four months provided, however, that said
stock option grant is expressly conditioned upon and subject to either the
achievement by the Company of net income for months 13 through 24 of $2,687,500
or an average closing bid price for the common stock of the Company of $2.50 or
more for the thirty days prior to the vesting date of twenty-four months.
(iv) 75,000 shares of Common Stock at the exercise
price of $1.75 per share after thirty months provided, however, that said stock
option grant is expressly conditioned upon and subject to either the achievement
by the Company of net income for months 25 through 30 of $1,679,687 or an
average closing bid price for the common stock of the Company of 2.8125 or more
for the thirty days prior to the vesting date of thirty months.
(v) 150,000 shares of Common Stock at the exercise
price of $2.00 after thirty-six months provided, however, that said stock option
grant is expressly conditioned upon and subject to either the achievement by the
Company of net income for months 25 through 36 of $3,359,375 or an average
closing bid price for the common stock of the Company of 3.125 or more for the
thirty days prior to the vesting date of thirty-six months. The Options shall be
issued pursuant to the Company's 1994 Stock Option Plan (the "Plan"), a copy of
which is attached hereto, marked Exhibit "A" and by this reference made a part
hereof.
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(vi) NET INCOME. For the purpose of this paragraph,
the term "net income" shall be defined to mean gross revenue less current
expenses in accordance with G.A.A.P. (Generally Accepted Accounting Principles).
(d) EXPENSES. Upon submission of a detailed statement and
reasonable documentation, Company will reimburse Executive in the same manner as
other executive officers for all reasonable and necessary or appropriate
out-of-pocket travel and other expenses incurred by Executive in rendering
services required under this Agreement.
(e) BENEFITS; INSURANCE.
(i) MEDICAL, DENTAL AND VISION BENEFITS. During this
Agreement, Executive and his dependents will be entitled to receive such group
medical, dental, and vision benefits as the Company is providing to its other
executives and employees. Additionally, the Company shall obtain and maintain a
Key Man Life Insurance policy in the amount of $500,000 on Executive, naming the
Company as beneficiary thereof.
(ii) BENEFIT PLANS. The Executive will be entitled to
participate in any benefit plan or program of the Company which may currently be
in place or implemented in the future.
(iii) OTHER BENEFITS. During the Term, Executive will
be entitled to receive, in addition to and not in lieu of base salary, bonus or
other compensation, such other benefits and normal perquisites as Company
currently provides or such additional benefits as Company may provide for its
executive officers in the future. The board of directors of the Company shall
promulgate a bonus plan for Executive and key personnel of the Company within
thirty days of the date of this Agreement or the close of the pending capital
raise transaction, whichever event shall first occur.
(f) VACATION. Executive will be entitled to four weeks of paid
vacation per year.
5. 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 Company or any of
its affiliates. Without the prior written consent of 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 Company and that at
the termination and/or expiration of this Agreement, at Company's written
request, Executive shall promptly return to Company any and all such information
so requested by Company.
The provisions of this Section 5 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
other than by acts, omissions or fault of Executive;
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(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 Company in connection with the performance of this Agreement;
or
(d) is required to be disclosed by law.
6. INDEMNIFICATION. The Corporation shall to the full extent permitted
by law indemnify, defend and hold harmless Executive from and against any and
all claims, demands, liabilities, damages, losses and expenses (including
reasonable attorney's fees, court costs and disbursements) arising out of the
performance by him of his duties hereunder except in the case of his gross
negligence.
7. TERMINATION. A termination of this Agreement is either (i) for the
death or disability under section 7 (a) or 7 (b); (ii) with cause under Section
7 (c); or (iii) for good reason under Section 7 (d). All other terminations
shall be considered a breach of this Agreement.
(a) DISABILITY. The Company shall have the right to terminate
the employment of the Executive under this Agreement for disability in the event
Executive suffers an injury, illness, or incapacity of such character as to
substantially disable him from performing his duties without reasonable
accommodation by the Company hereunder for a period of more than one hundred
eighty (180) consecutive days upon the Company giving at least thirty (30) days
written notice of termination; provided, however, that if the Executive is
eligible to receive disability payments pursuant to a disability policy paid for
by the Company, the Executive shall assign such benefits to the Company for all
periods as to which he is receiving full payment under this Agreement.
(b) DEATH. This Agreement will terminate on the Death of the
Executive.
(c) WITH CAUSE. The Company may terminate this Agreement at
any time because of (i) Executive's material breach of any term of this
Agreement, or (ii) the willful engaging by the Executive in misconduct which is
materially injurious to the Company provided, in each instance, that the Company
shall not terminate this Agreement pursuant to the foregoing, unless the Company
shall first have delivered to the Executive a notice which specifically
identifies such breach or misconduct and the Executive shall have cured the same
within thirty days after receipt of such notice. In addition, the Company may
terminate this Agreement at any time in the event the Executive is convicted of
committing any acts of dishonesty or is determined by a court or jury either in
a criminal or civil proceeding, to have committed any fraudulent acts.
(d) GOOD REASON. The Executive may terminate his employment
for "Good Reason" if:
(i) he is assigned, without his express written
consent, any duties inconsistent with his positions, duties, responsibilities,
or status with the Company as of the date hereof, or a change in his reporting
responsibilities or titles in effect as of the date hereof.
(ii) his compensation is reduced;
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(iii) the Company shall file a petition in bankruptcy
or re-organization under the federal bankruptcy statutes or an involuntary
petition is filed against the Company and not removed or withdrawn within thirty
(30) days, or the Company does not pay any salary or expense due hereunder and
then fails either to pay such amount within thirty days after written notice
from Executive, or to contest in good faith such notice. Further, if such
contest is not resolved within thirty (30) days, the Company shall submit such
dispute to arbitration under Section 13;
(iv) the Company commits any material breach of this
agreement, which breach is not cured by the Company within thirty (30) days of
written notice of said breach from Executive;
(v) in the event Executive terminates his employment
for good reason as herein above set forth, Executive shall be entitled to six
months severance pay equal to six months salary as defined herein above,
together with any other compensation or benefits which may have accrued up to
and including the date of termination.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
9. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
10. NOTICES. Any notices, consents, demands, requests, approvals and
other communications to be given under this Agreement by either party to the
other will be deemed to have been duly given if given in writing and personally
delivered or within two days if sent by mail, registered or certified, postage
prepaid with return receipt requested, as follows:
If to Company: Westmark Group Holdings, Inc.
000 X. X. Xxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxxx, Xxxxxxx 00000
Attention: Board of Directors
If to Executive: Xxxx Xxxxxxxxxx
000 X.X. Xxxxx Xxxxxx, Xxxxx 0
Xxxxxx Xxxxx, Xxxxxxx 00000
Notices delivered personally will be deemed communicated as of actual receipt.
11. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
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12. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision there will be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
13. ARBITRATION. If a dispute should arise regarding this Agreement,
all claims, disputes, controversies, differences or other matters in question
arising out of this relationship shall be settled finally, completely and
conclusively in accordance with the substantive law of the State of Florida by
arbitration, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "Rules"). A decision of the arbitrator shall be
final, conclusive and binding on the Company and Executive. Any arbitration held
in accordance with this paragraph shall be private and confidential and no
person shall be entitled to attend the hearings except the arbitrator,
Executive, Executive's attorneys, a representative of the Company, the Company's
attorneys, and advisors to or witnesses for any party. The matters submitted to
arbitration, the hearings and proceedings and the arbitration award shall be
kept and maintained in the strictest confidence by Executive and the Company and
shall not be discussed, disclosed or communicated to any persons except as may
be required for the preparation of expert testimony. On request of any party,
the record of the proceeding shall be sealed and may not be disclosed except
insofar, and only insofar, as may be necessary to enforce the award of the
arbitrator and any judgement enforcing an award. The prevailing party shall be
entitled to recover reasonable and necessary attorneys' fees and costs from the
non-prevailing party and the determination of such fees and costs and the award
thereof shall be included in the claims to be resolved by the arbitrator
hereunder.
14. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
15. GENDER AND NUMBER. When the context requires, the gender of all
words used herein will include the masculine, feminine and neuter and the number
of all words will include the singular and plural.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
17. VENUE, JURISDICTION, AND GOVERNING LAW. This Agreement has been
negotiated and entered into in the State of Florida. The validity,
interpretation, construction, and enforcement of this Agreement shall be
construed, interpreted, and governed pursuant to Florida law. Venue, in the
event of any arbitration proceeding, shall be the County of Palm Beach, State of
Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
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COMPANY:
WESTMARK MORTGAGE CORPORATION WESTMARK GROUP HOLDINGS,INC.
By: _________________________ By: _________________________
Name: _______________________ Name: _______________________
Title: ______________________ Title: ______________________
EXECUTIVE:
_____________________________
XXXX XXXXXXXXXX
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