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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made as of the 13th day of
October, 1998 (the "Effective Date"), by and between First Sierra Financial,
Inc., a Delaware corporation (the "Employer"), and Xxxxx Xxxxxxx (the
"Employee"). Employer and Employee may be referred to herein collectively as
the "Parties" and individually as a "Party."
ARTICLE I
TERM
Employer hereby employs Employee and Employee hereby accepts
employment with employer for a period beginning on the Effective Date and
ending on the third anniversary of the Effective Date (the "Term"). This
Agreement replaces all prior agreements between the parties, oral or written,
regarding employment of Employee by Employer and all such prior agreements are
void of the effective date of this Agreement.
ARTICLE II
DUTIES OF EMPLOYEE
2.01 Duties. Employee is engaged to be the Senior Vice President -
Treasurer Planning. Employee's duties in such capacities shall be determined
from time to time by the Chief Executive Officer of Employer or designee.
Employee shall perform and discharge his duties in a businesslike manner and
faithfully as an officer of Employer, and shall be subject to the supervision
and direction of the Chief Executive Officer of Employer.
2.02 Full-Time Employment. Subject to the provisions set forth below,
Employee shall devote his productive time, ability and attention to the
business of Employer during the Term. Employee shall not, directly and
indirectly, during the Term render any services of a business, commercial or
professional nature to any other person, corporation, firm or organization,
whether for compensation or otherwise, without the prior written consent of the
Chief Executive Officer of Employer.
ARTICLE III
COMPENSATION AND BENEFITS
3.01 Base Salary. As compensation for services rendered and Employee's
covenants and agreements under this Agreement, Employee shall be entitled to
receive a base salary of one-hundred thirty thousand ($130,000) dollars per
year, payable in equal semi-monthly installments. The base salary of Employee
may be increased from time to time at the sole discretion of Employer.
3.02 Benefit Plans. During the Term, and thereafter, to the extent
provided in the applicable plan or under applicable law, Employer agrees to
include Employee in any retirement, insurance and health benefit plans adopted
by Employer for the benefit of the senior employees of Employer. Employer may
enter into and revise these plans in its sole discretion.
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3.03 Expenses. Employer, in accordance with the rules and regulations
Employer shall issue and may revise from time to time, shall reimburse Employee
for business expenses directly and reasonably incurred in the performance of
his duties. Employer acknowledges that Employee will require a travel and
entertainment budget and reimbursement for reasonable travel and entertainment
expenses. Any amounts advanced or reimbursed by Employer to Employee for travel
and entertainment expenses shall be in addition to any other amounts payable to
Employee hereunder.
3.04 Incentive Compensation Programs. Employee shall be entitled to
participate in all incentive compensation programs of the Company from time to
time in effect and as adopted by the Compensation Committee of the Company's
Board of Directors for the general benefit of the employees of Employer, as the
terms of such programs may be modified, amended or terminated from time to time
by and at the sole discretion of such Compensation Committee.
ARTICLE IV
TERMINATION
This Agreement shall terminate prior to the expiration of its Term
upon the occurrence of any one of the following events:
4.01 Disability. In the event that Employee is unable fully to perform
his duties and responsibilities with reasonable accommodation hereunder to the
full extent required by Employer due to illness, injury or incapacity for
ninety (90) consecutive days (during such ninety (90) day period Employee shall
continue to be compensated as provided in Section 3.01 hereof), this Agreement
may be terminated by Employer, and Employer and Employee shall have no further
liability or obligations hereunder; provided, however, that Employer shall
continue to pay employee the base salary specified in Section 3.01 for the
duration of the Term at the same times specified in Section 3.01 (as reduced by
any payments received by Employee under any Employer-sponsored disability
benefits plan in which Employee was participating). In the event of any dispute
under this Section 4.01, Employee shall submit to a physical examination by a
licensed physician selected by Employer, and acceptable to Employee. If the
physician retained by Employer is not acceptable to employee, then physicians
selected by Employer and Employee shall jointly select a third physician to
perform the examination. Employer shall pay all costs related to the physical
examination of Employee.
4.02 Death. In the event that Employee dies during the Term, Employer
shall pay to Employee's executors, legal representatives or administrators the
base salary specified in Section 3.01 for the remainder of the Term at the same
times specified in Section 3.01 (as reduced by any payments received by such
executors, legal representatives or administrators under any Employer-sponsored
death or disability benefits plan in which Employee was participating).
4.03 Termination With Cause by Employer. Notwithstanding anything in
this Agreement to the contrary, Employer may terminate this Agreement at any
time for Cause by written notice to Employee. In the event of termination with
Cause, Employee's employment shall terminate immediately upon receipt of such
notice, and the Parties shall have no further duties or obligations to each
other, provided, however, that Employee shall remain subject to all of the
provisions of Article V and Employer shall pay to Employee all sums due to
Employee through the date of termination. For purposes of this Agrement, the
term "Cause" shall mean and be strictly limited to: (i) conviction of a crime
constituting a felony under federal or state laws;
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(ii) determination by Employer that Employee has committed any material act of
dishonesty against Employer, (iii) gross negligence by Employee in carrying out
Employee's duties; (iv) intoxication on the job, insubordination, or other
misconduct which could have an adverse effect on the business or operations of
Employer; or (vi) Employee's breach of any of the provisions of Article V of
this Agreement.
4.04 Termination Without Cause by Employer. Employer, in its
discretion and for any reason, may terminate this Agreement at any time by
delivering written notice to employee at least thirty (30) days prior to such
intended termination ("Termination Date"). This Agreement shall terminate on
the Termination Date and, except as provided under this section the Parties
shall have no further duties or obligations to each other hereunder. Employer
shall pay to Employee all amounts accrued under Section 3.01, 3.03 and 3.04
through the date of such termination but not previously paid to Employee and
shall further pay to Employee (i) an amount equal to one-hundred twenty five
percent (125%) of twelve months of the Base Compensation then in effect.
Employer shall also continue employee's benefits as set forth in Section 3.02
for twelve months after the Termination Date.
4.05 Termination by Employee. Employee may terminate this Agreement at
any time by delivering written notice to Employer of Employee's intent to
terminate at least thirty (30) days prior to such intended termination
("Departure Date"). This Agreement shall terminate on the Departure Date and
the Parties shall have no further duties or obligations to each other,
provided, however, that Employee shall remain subject to all of the provisions
of Article V and Employer shall pay to Employee all sums due to Employee
through the Departure Date.
ARTICLE V
PROPERTY RIGHTS
5.01 Non-Competition. During the Term of this Agreement and for a
period of one year after the termination of this Agreement or the expiration of
the Term, as the case may be (the "Non-Compete Period"), Employee shall not,
directly or indirectly, either as an employee, employer, consultant, agent,
lender, principal, partner, stockholder (other than ownership of not more than
five percent (5%) of the securities of a publicly held corporation purchased
through a broker on an established stock exchange or the Nasdaq system),
corporate officer, director, or in any other individual or representative
capacity, engage or participate in an operating capacity in any business in the
leasing sector that is in competition in any manner whatsoever with the
business engaged in by Employer or any of its subsidiaries or affiliates;
provided however, that during the Non-Compete Period Employee may participate
in the leasing sector as an employee of an investment banking firm.
5.02 Solicitation. For a two year period from the Termination Date
Employee agrees not to, directly or indirectly, (i) call on or solicit, with
respect to the activities prohibited by Section 5.01 of this Agreement, any
person, firm, corporation or other entity who or which as of the date hereof,
or within two years prior hereto, is or was a customer, referral source or
distributor of Employer or any of its subsidiaries or affiliates, or (ii)
solicit, influence or recommend the employment of any person who was employed
by Employer or any of its subsidiaries or affiliates on a full or part-time
basis during the Term; provided, however, that if requested by any employee of
Employer or any of its subsidiaries or affiliates, Employee shall have the
right to give a reference with respect to such employee.
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5.03 Confidentiality. In return for Employee's promises under this
Article V, Employee shall receive and be entrusted with certain confidential
and/or secret information of a proprietary nature, including without limitation
names and addresses of customers of Employer and its subsidiaries and
affiliates, and business plans of Employer and its subsidiaries and affiliates.
Employee shall not directly or indirectly disclose or use, during the Term or
at any time thereafter, any such information, which is not otherwise publicly
available.
5.04 Reasonableness of Restrictions. Employee agrees that (i) the
covenants contained in Section 5.01, 5.02 and 5.03 hereof are necessary for the
protection of Employer's business goodwill, (ii) a portion of the compensation
paid to Employee under this Agreement is paid in consideration of the covenants
herein contained, the sufficiency of which consideration is hereby
acknowledged, (iii) Employee is not, and under this Agreement will not be,
engaged in a common calling, and (iv) if the scope of any restriction contained
in Section 5,01, 5.02 and 5.03 restriction shall be enforced to the maximum
permitted by law, and the Parties consent that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction. The
existence of any claim or cause of action of Employee against Employer, whether
predicated on this Agreement or otherwise, shall not constitute a defense to
the enforcement by Employer of these convenants.
5.05 Copy of Covenants. Until the expiration of the applicable
restrictions, Employee will provide, and Employer similarly may provide, a copy
of the covenants contained in Sections 5.01, 5.02 and 5.03 of this Agreement to
any business or enterprise which Employee may (I) directly or indirectly own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing, or control of, (ii) serve as an officer,
director, employee, partner, principal, agent, representative, consultant
leader or otherwise, or (iii) with which he may use or permit his name to be
used.
ARTICLE VI
GENERAL PROVISIONS
6.01 Arbitration. Employee and Employer agree that all disputes
concerning the terms of this Agreement or Employee's employment with Employer
will be subject solely to binding arbitration. The arbitration selection and
conduct of the arbitration will be pursuant to the Commercial Arbitration Rules
of the American Arbitration Association. The place of the arbitration shall be
Houston, Texas and shall be governed by the laws of the State of Texas.
6.02 Notices. Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by mail,
registered or certified, postage prepaid with return receipt requested.
If to Employer:
First Sierra Financial, Inc.
Chase Tower
000 Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
If to Employee:
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Xxxxx Xxxxxxx
0000 Xxxx Xxxxxxxxxx Xxxx
Xxxxxxxx, Xx 00000
Mailed notices shall be addressed to the parties at the addresses set
forth above, but each party may change his address by written notice in
accordance with this Section 6.02. Notices delivered personally shall be deemed
communicated as of actual receipt; mailed notices shall be deemed communicated
as of ten (10) days after mailing.
6.03 Entire Agreement. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Employee by Employer and contains all of the covenants and
agreements between the Parties with respect to such employment in any manner
whatsoever.
6.04 Certain Acknowledgements. Employee by his execution and delivery
of this Agreement represents to Employer as follows:
(i) Employee has been advised by Employer to have this Agreement
reviewed by an attorney representing Employee, and Employee
has either had this Agreement reviewed by such attorney or
has chosen not to have this Agreement reviewed because
Employee, after reading the entire Agreement, fully and
completely understands each provision and has decided not to
obtain the services of any attorney.
(ii) Employee either on his own or with the assistance and advice
of his attorney has in particular reviewed Article V and
understands and accepts (a) the restrictions imposed by
Article V and Sections 5.01, 5.02 and 5.03 and (b) the
restrictions imposed upon Employee pursuant to these sections
are reasonable and necessary for the protection of the
property rights of Employer and its affiliates.
6.05 Headings. The headings or titles to Sections or Articles in this
Agreement are intended solely for convenience of the parties and no provision
of this Agreement is to be construed by reference to the heading or title of
any section.
6.06 Amendment or Modification; Waiver. No provision of this Agreement
may be amended, modified or waived unless such amendment, modification or
waiver is authorized by Employer and is agreed to in writing, signed by
Employee and by the Chief Executive Officer of Employer. Except as otherwise
specifically provided in this Agreement, no waiver by any party hereto of any
breach by any other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or at any prior or
subsequent time; nor shall the receipt or acceptance of Employee's employment
be deemed a waiver of any condition or provision hereof. Employee
acknowledges that from time to time Employer may establish, maintain and
distribute employee manuals or handbooks or personnel policy manuals, and
officers or other representatives of Employer may make written or oral
statements relating to personnel policies and procedures. Such manuals,
handbooks, and statements are intended only for general guidance. No
policies, procedures, or statements of any nature by or on behalf of Employer
(whether written or oral, and whether or not contained in any employee manual
or handbook or personnel policy manual), and no acts or practices of any
nature shall be construed to modify this Agreement or to create express or
implied obligations of Employer.
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6.07 Assignability. Employee shall not assign, pledge or encumber any
interest in this Agreement or any part thereof without the express written
consent of Employer, this Agreement being personal to Employee. This
Agreement shall, however, inure to the benefit of Employee's estate,
dependents, beneficiaries and legal representatives. This Agreement shall not
be assignable by Employer to any entity that is not an affiliate of Employer
without the written consent of Employee.
6.08 Governing Law. THIS AGREEMENT HAS BEEN NEGOTIATED, EXECUTED AND
DELIVERED IN THE STATE OF TEXAS, AND SHALL IN ALL RESPECTS BE INTERPRETED,
CONSTRUED AND VOERNED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS.
6.09 Severability. Each provision of this Agreement constitutes a
separate and distinct undertaking, covenant and/or provision hereof. In the
event that any provision of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed severed from this Agreement, but
every other provision of this Agreement shall remain in full force and
effect, and in substitution for any such provision held unlawful, there shall
be substituted a provision of similar import reflecting the original intent
of the parties hereto to the maximum extent permissible under law.
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6.10 No Duress. Employee acknowledges that no force, fear or threats
or duress of any kind have been used to obtain the agreements and covenants
and covenants contained in this Agreement.
IN WITNESS WHEREOF, this Agreement is executed in Houston, Texas on
the day and year first above written.
FIRST SIERRA FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXXXX
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Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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