EX-10.7
EMPLOYMENT AGREEMENT
AGREEMENT, made as of the 13th day of October, 1995, by and between
Mortgage Plus Equity and Loan Corporation, a New York limited liability company,
having an office at 0000 Xxxxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxx Xxxx 00000
(the "Company"), and Xxx X. Xxxxx, an individual residing at 0 Xxxxxx Xxxxx,
Xxxx Xxxxxx, Xxx Xxxxxx 00000 (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to retain the services of the Employee; and
WHEREAS, the Employee is willing to serve as employee of the Company upon
the terms and conditions as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, and the mutual covenants
herein contained, the parties hereby agree as follows:
ARTICLE I: EMPLOYMENT
1.1 Capacity. Throughout the Term, as defined hereunder, the Company shall
employ the Employee and the Employee shall render services to the Company. The
Employee shall have such responsibilities and duties as are delegated to him by
the Officers and Board of Directors of the company.
1.2 Time and Attention. Throughout the Term, the Employee shall devote
substantially all of his time, attention, knowledge and skills, faithfully,
diligently and to the best of his ability, to the active performance of his
duties hereunder.
ARTICLE II: TERM OF EMPLOYMENT
2.1 Initial Term. The term of this Agreement ("Initial Term") shall be one
(1) year commencing October 16th, 1995.
2.2 Renewal Term. Upon expiration of the Initial Term, this Employment
Agreement shall be automatically renewed for successive one-year periods
thereafter (each such one-year period being referred to as a "Renewal Term") on
the same terms and conditions contained herein, unless at least thirty (30) days
prior to the expiration of the Initial Term or any Renewal Term thereof, written
notice of termination is delivered by either party to the other, or unless
earlier terminated as hereinafter provided.
2.3 Term. The Initial Term and any Renewal Term shall collectively be
referred to hereunder as the "Term".
2.4 Termination for Cause. At any time, at the option of the Company, this
Agreement may be terminated by the Company for Cause, as hereinafter defined,
effective upon written notice of termination to the Employee. As used herein,
the term "Cause" shall mean:
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(A) any act committed by the Employee constituting, (i) fraud, (ii)
misappropriation of corporate opportunity, (iii) self-dealing, (iv)
embezzlement of funds, (v) felony conviction for conduct involving moral
turpitude or other criminal conduct, (vi) serious misconduct or gross
negligence arising out of the Employee's performance of his duties, (vii)
any act that exceeds the authority given to the Employee by the Company, or
(viii) the repeated and unexcused absence from work;
(B) the breach or default by the Employee in the performance of any
covenant on the part of the Employee to be performed hereunder; or
(C) chronic alcoholism or any other form of addiction or substance
abuse.
2.5 Death and Disability. This Agreement shall terminate upon written
notice to the Employee or his personal representative upon the following: (i)
the death of the Employee; and (ii) in the event that the Employee shall be
physically or mentally disabled or impaired so as to prevent him from continuing
the normal and proper performance of his duties and responsibilities hereunder
for a period of sixty (60) consecutive days or for more than one hundred (100)
days in any twelve (12) month period.
2.6 30-Day Severance Payments. If this Agreement is terminated for any
reason within 30 days of the date of this Agree-
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ment, other than for Cause as specified in Section 2.4, or as a result of the
Employee's voluntary termination, the Company shall pay to the Employee the
Compensation, as defined below, remaining to be paid, less any appropriate
withholding taxes, as provided pursuant to Section 3.1 hereunder.
2.7 Payments in Case of Termination For Cause. Upon any termination of this
Agreement by the Company for Cause pursuant to Section 2.4 hereunder, neither
the Company nor any subsidiary or affiliate thereof shall be liable for or shall
pay or cause to be paid to the Employee any further compensation or other
benefits hereunder.
ARTICLE III: COMPENSATION
3.1 Compensation. In compensation for the Employee's services rendered
hereunder during the first four (4) weeks of the Term of this Agreement, the
Company shall pay to the Employee compensation ("Compensation) of Twelve
Thousand Five Hundred Dollars ($12,500), less appropriate withholding taxes, in
installments in accordance with the standard payroll practices of the Company in
effect.
3.2 Commissions. The Company shall pay to Employee commissions
("Commission") based upon the closing and funding of each Non-Conforming Loan
by the Company, provided such loans are originated by Employee and as
acknowledged by Company to be attributable to Employee's efforts. Such
commission shall be fifteen percent (15%) of the gross income generated by each
Non-
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Conforming Loan closed and funded, provided that the total Commission paid to
the Employee annually, measured as of the date of this Agreement, shall not
exceed Forty-Seven Thousand Five Hundred Dollars ($47,500). The Commission
payable, upon determination by the Company, shall be paid monthly, less the
appropriate withholding taxes, if applicable, within fifteen (15) days after the
end of such month in which such Commission is determined by the Company.
3.3 Fringe Benefits. The Company shall also make available to the Employee
throughout the Term, such benefits (including any disability, hospitalization,
medical benefit plans, pension plan or similar benefits) that are offered to
other employees holding similar positions in the Company.
3.4 Vacations. The Employee shall be entitled to four (4) weeks vacation
during the applicable Term hereunder, provided the timing of such vacations is
consistent with the then applicable policy of the Company.
3.5 Expenses. The Company shall reimburse Employee for the reasonable
expenses incurred by him in promoting the Company's business, including expenses
for entertainment and travel, automobile and similar items, upon presentment of
proper vouchers and otherwise in accordance with established company policy as
in effect during the Term.
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ARTICLE IV: PERFORMANCE REQUIREMENTS
4.1 As a condition of continued employment hereunder, Employee shall
achieve the performance requirements as set forth below;
(A) For the period beginning December 1, 1995 and ending April 31, 1996, a
total of Five Million Dollars ($5,000,000) of non-conforming loans shall have
been closed and funded by the Company, such loans attributable, at the Company's
determination, to Employee's origination efforts.
(B) For the period beginning May 1, 1995 and ending July 31, 1996, a total
of Four Million Five Hundred Thousand Dollars ($4,500,000) of non-conforming
loans shall have been closed and funded by the Company, such loans attributable,
at the Company's determination, to Employee's origination efforts.
(C) For the period beginning August 1, 1996 and ending October 31, 1996, a
total of Six Million Dollars ($6,000,000) of non-conforming loans shall have
been closed and funded by the Company, such loans attributable, at the Company's
determination, to Employee's origination efforts.
4.2 The Company, upon the failure of Employee to attain any of the
performance requirements set forth in paragraphs A through C of Section 4.1
hereof, shall have the option, exercisable at its sole discretion, to terminate
this Agreement. The exercise
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of such option shall be made by company by providing two (2) weeks notice to
Employee.
ARTICLE V: NON-COMPETITION: CONFIDENTIALITY
5.1 Non-Competition. The Employee agrees that, throughout the Term, the
Employee shall not directly or indirectly engage, participate, or have any
interest or be involved in any capacity, whether as an owner, agent, stockholder
(excluding ownership of not more than 5% of the outstanding shares of a publicly
held corporation provided such ownership does not involve any managerial or
operational responsibility), officer, director, manager, partner, joint
venturer, employee, consultant or otherwise, in any business enterprise that is,
or shall be, at any time during the Term, engaged in any manner in the
conforming or non-conforming mortgage loan business in States in which the
Company is then currently engaged in such mortgage loan business.
5.2 Renewal of Non-Competition Agreement.
(A) At the end of the Term hereunder, provided the end of the Term
occurs less than two (2) years from the date of this Agreement, the
non-competition provisions of Section 5.1 shall continue an additional six
(6) months unless the Company shall waive its rights to such
non-competition continuation.
(B) At the end of the Term hereunder, provided the end of the Term
occurs greater than two (2) years from the date of this Agreement, the
non-competition provisions of Section
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4.1 shall continue an additional three (3) months unless the Company shall
waive its rights to such non-competition continuation.
(C) The provisions of this Section 5.2 shall not apply in the event of
termination by the Company for no Cause.
5.3 Confidential Information Personal Relationships. The Employee shall not
divulge, transmit or otherwise disclose to any person or entity any confidential
or proprietary information relating to the business conducted by the Company
(including, but not limited to, any technology, "know-how," trade secrets,
supplier lists, customer lists, details of client, subcontractor or consultant
contracts, business contacts, funding services, services, pricing policies,
operational methods, marketing plans or strategies, marketing techniques,
project development, acquisition or bidding techniques or plans, business
acquisition plans, new personnel acquisition plans, technical processes,
procedures, inventions and research projects) known to the Employee, unless the
Employee is directed by the Board of Directors or a court of competent
jurisdiction to disclose such confidential information.
5.4 Property of the Company.
(A) All lists, records and other non-personal documents or papers
(and all copies thereof), including such items stored in computer memories,
on microfiche or by any other means, made or compiled by or on behalf of
the Employee, or made available to the Employee, relating to the
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Company or its business or any part thereof, are and shall be the property
of the Company and shall be delivered by the Employee to the Company on the
date of termination of this Agreement.
(B) All inventions, including any procedures, formulas, methods,
processes, uses, apparatuses, patterns, designs, devices or configurations
of any kind, any and all improvements to them which are developed,
discovered, made, or produced, trade secrets, or information used by the
Company shall be the exclusive property of the Company, and shall be
delivered to the Company, on the date of termination of this Agreement.
5.5 Specific Performance. Employee hereby acknowledges and agrees that any
breach by him, directly or indirectly, of the foregoing restrictive covenants
set forth in this Article may cause the Company irreparable injury for which
there is no adequate remedy at law. Accordingly, Employee expressly agrees that
in the event of any such breach or any threatened breach by Employee hereunder,
the Company shall be entitled, in addition to any and all other remedies
available, to seek and obtain injunctive and/or other equitable relief to
require specific performance of or prevent a breach under the provisions of this
Agreement, without proof of any actual damages that have been or may be caused
by such actual or threatened breach. Nothing contained in this Agreement shall
be construed to prohibit the Company from
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pursuing any other available remedies against Employee for such breach or
threatened breach.
5.6 Severability of Covenants. The Employee acknowledges and agrees that
the provisions of this Article are reasonable and valid in all respects. If any
tribunal having jurisdiction determines that any of the provisions of this
Article or any part thereof is invalid or unenforceable because of the duration
of such provision, such tribunal shall have the power to reduce the duration
and/or scope of such provision and in its reduced form, such provision shall
then be enforceable.
ARTICLE VI: MISCELLANEOUS
6.1 Entire Agreement. This Agreement constitutes the entire understanding
between the parties hereto concerning the subject matter hereof and may not be
altered, amended or otherwise changed or modified except in a writing signed by
all parties.
6.2 Joint Preparation. This Agreement is to be deemed to have been prepared
jointly by the parties hereto, and if any inconsistency or ambiguity exists
herein, it shall not be interpreted against any party, but according to the
application of rules of interpretation of contracts, if such an uncertainty or
ambiguity exists.
6.3 Severability. If any part of this Agreement is void or otherwise
invalid and, hence, unenforceable, such invalid or void
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portion shall be deemed to be separate and severable from the other portions of
this Agreement, and the other portions shall be given full force and effect as
though said void and invalid portions or provisions had never been a part of
this Agreement.
6.4 Successors; Assigns. This Agreement shall inure to the benefit of, be
enforceable by, and bind the parties hereto and their respective heirs,
executors, successors, permitted assigns and personal representatives. The
parties hereby agree it is intended that this Agreement be assigned at a later
date by the Company to JMB Equity & Mortgage Company, LLC. Notwithstanding the
foregoing, in no event shall this Agreement be assignable by the Employee.
6.5 Notices. Any notice, request, instruction or other document to be given
hereunder shall be in writing and, except as otherwise provided for herein,
shall be delivered personally or sent by facsimile (with a duplicate copy sent
by ordinary mail, postage prepaid) or by registered or certified mail, return
receipt requested, postage prepaid, as follows:
To Employee:
Xxx X. Xxxxx
0 Xxxxxx Xxxxx
Xxxx Xxxxxx, Xxx Xxxxxx 00000
To the Company:
Mortgage Plus Equity and Loan Corporation
0000 Xxxxxxx Xxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
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With a copy to:
Muchriick, Golieb & Golieb, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
or such other address as any party hereto hereinafter designates in writing to
the other party in accordance with the provisions of this paragraph. Notice
shall be deemed effective hereunder as of the date of delivery in the case of
personal delivery, or three (3) days after mailing if mailed in accordance with
the foregoing provisions
6.6 Governing Law. The parties hereby agree that this Agreement and its
validity, effect and performance shall be governed by and construed and enforced
in accordance with the substantive laws of the State of New York applicable to
contracts made and to be performed entirely within said State, without reference
to choice or conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and
as of the date first set forth above.
Mortgage Plus Equity and Loan
Corporation
By:
------------------------- -------------------------
/s/ XXX X. XXXXX
------------------------- -------------------------
XXX X. XXXXX, Employee
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