EMPLOYMENT AGREEMENT
Exhibit
10.1
AGREEMENT
(“Agreement”) made as of the 29th
day of
March, 2007 by and between DELTA FINANCIAL CORPORATION, a Delaware corporation
(the “Corporation”), and Xxxx Xxxxxx (the “Executive”).
W
I T
N E S S E T H:
In
consideration of the representations, warranties and conditions contained
herein, the parties hereto agree as follows:
1. Position
and Responsibilities.
1.1. The
Executive shall serve in an executive capacity as Chief Executive Officer
and
President of the Corporation. In such capacity, the Executive shall report
to
and be subject to the direction of the Board of Directors of the Corporation.
The Executive shall perform such functions and undertake such responsibilities
as are customarily associated with such capacity. The Executive shall hold
such
directorships and executive officerships in the Corporation and any subsidiary
to which, from time to time, he may be elected or appointed during the term
of
this Agreement.
1.2. The
Executive shall devote his full time and best efforts to the business and
affairs of the Corporation and to the promotion of its interests.
1.3. The
principal executive offices of the Corporation shall be maintained in Long
Island, New York and the Executive shall not be required to relocate outside
of
Long Island, New York without his consent.
2. Term
of Employment.
2.1. The
term
of employment shall be five years, commencing with the date hereof, unless
sooner terminated as provided in this Agreement. The initial term of employment
and any extension thereof is herein referred to as the “Term.”
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2.2. Notwithstanding
the provisions of Section 2.1 hereof and subject to the terms of this Agreement,
(a) the Corporation shall have the right, on written notice to the Executive
(setting forth with reasonable specificity, in the event of a termination
which
the Corporation asserts to be for Cause, the event(s) or circumstance(s)
that
constitute Cause) to terminate the Executive’s employment with or without Cause,
such termination to be effective as of the date specified in the notice;
but in
no event earlier than 30 days from the date of the notice in the event the
Executive’s employment is terminated by the Corporation without Cause and (b)
the Executive shall have the right, on written notice to the Corporation
(setting forth with reasonable specificity, in the event of a resignation
which
the Executive asserts to be for Good Reason, the event(s) or circumstance(s)
that constitute Good Reason), to resign with or without Good Reason, in
accordance with Sections 2.6(a) and (b) hereof.
2.3. No
later
than one year prior to the end of the Term (including any previous extension
of
the Term under this Section 2.3), the Corporation and the Executive shall
meet
to discuss the terms and conditions of an extension of the Term of this
Agreement or entering into a new employment agreement at the end of the Term.
If
the Term of this Agreement shall not be extended by the Corporation (and
the
Executive and the Corporation shall not have entered into a new employment
agreement) for at least one year under fair and reasonable terms, having
due
regard for industry employment practices relating to executives of corporations
of the size and character of the Corporation, then, upon the Executive’s
termination of employment, the Corporation shall pay as severance pay to
the
Executive an amount equal to (i) annual salary at the rate in effect as of
the
Executive’s date of termination, plus (ii) the aggregate annual bonus (including
any Performance Bonus and Discretionary Bonus) paid or payable to the Executive
for the three calendar years prior to the date of termination divided by
3 (the
“Applicable Bonus”). All such payments shall be made within fifteen days of such
termination. In addition, following such termination, the Corporation shall
provide the Executive benefit coverage continuation to the same extent and
subject to the same conditions as provided in Section 2.5 hereof; provided
further, that the Executive shall only be entitled to such health and welfare
benefits as long as he is in compliance with the provisions of Section 5
below,
to the extent applicable. Health benefits otherwise receivable by the Executive
pursuant to this Section 2.3 shall be reduced to the extent comparable benefits
are actually available to the Executive during such period from a subsequent
employer.
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2.4. For
purposes of this Agreement, the term “Cause” shall mean any of the following
actions or failure to act by the Executive:
(a)
failure to comply with any of the material terms of this Agreement, which
shall
not be cured within 30 days after the Executive’s receipt of written notice from
the Board of Directors;
(b)
engagement in gross misconduct injurious to the Corporation or an affiliate
of
the Corporation, which shall not be cured within 30 days after the Executive’s
receipt of written notice from the Board of Directors;
(c)
knowing and willful neglect or refusal to attend to the material duties
reasonably assigned to him by the Board of Directors, which shall not be
cured
within 30 days after the Executive’s receipt of written notice from the Board of
Directors;
(d)
intentional misappropriation of property of the Corporation or an affiliate
of
the Corporation to the Executive’s own use;
(e)
the
commission by the Executive of an act of embezzlement;
(f)
Executive’s conviction for a felony or if criminal penalties are imposed on
Executive relating to any individual income taxes due and owing by Executive;
or
(g)
Executive’s engaging in any activity, which would constitute a material conflict
of interest with the Corporation which shall not be cured within 30 days
after
the Executive’s receipt of written notice from the Board of Directors;
If
the
Executive’s termination is based on any event(s) or circumstance(s) set forth in
subsections (a), (b), (c) or (g) above and such event cannot be cured within
30
days due to the nature of the breach, the cure period shall then be extended
for
a reasonable period of time; provided, however, the Executive undertakes
and
continues in good faith to cure the same. In the event the Executive’s
termination is based on any event(s) or circumstance(s) set forth in subsections
(a), (b), (c), (d), (e) or (g), the Executive shall have 10 days after the
date
written notice has been given to the Executive in which to address the Board
regarding any such alleged act or failure to act.
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2.5. If
the
Executive’s employment with the Corporation shall be terminated (a) by the
Corporation, other than for Cause or as a result of the Executive’s death or
Incapacity or (b) by the Executive for Good Reason, then (i) the Corporation
shall pay to the Executive as severance an amount equal to the product of
(1)
the lesser of (A) the remaining Term (in whole years and fractions rounded
to
the next highest one-twelfth) plus 1 or (B) 3, multiplied by (2) the sum
of the
Executive’s annual salary at the rate in effect as of the termination plus the
Applicable Bonus, such payment to be made within fifteen days of the Executive’s
date of termination, and (ii) effective upon the date of termination, all
stock
options and restricted stock held by or for the Executive beneficially (in
trust
or otherwise) including, without limitation, all stock options and restricted
stock granted under 2005 Stock Plan or any similar plan, as may be established
at the Corporations’ discretion, shall vest, and in the case of stock options
shall become immediately exercisable and shall remain exercisable by the
Executive (or his estate in the event of his death) for one year following
such
termination. In addition, (i) for the five year period following the Executive’s
date of termination, the Corporation shall provide the Executive (and, if
applicable, his spouse and eligible dependents) health and welfare coverage
as
are generally available to other senior executives of the Corporation or
its
subsidiaries on the same basis and at the same cost as such benefits are
provided to such other senior executives and (ii) after such five year period,
the Executive (and, if applicable, his spouse and eligible dependents) shall
have the option to elect to participate in health and welfare coverage as
are
generally available to other senior executives of the Corporation or its
subsidiaries at the Executive’s full expense; provided, however, that the
Executive shall only be entitled to such payments and benefits as long as
he is
in compliance with the provisions of Section 5 below, to the extent applicable.
Health benefits otherwise receivable pursuant to this Section 2.5 shall be
reduced to the extent comparable benefits are actually available to the
Executive during such period from a subsequent employer.
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2.6. (a)
The
Executive shall have the right to resign without Good Reason at any time
effective 30 days after delivery of written notice of such resignation to
the
Corporation.
(b) The Executive shall, subject to the cure periods in this Section 2.6(b),
have the right within 30 days of the occurrence of a Good Reason event, to
resign for Good Reason. Such resignation must be upon at least 30 days’ prior
written notice of termination to the Corporation and be in accordance with
Section 2.2. For purposes of this Agreement, “Good Reason” shall mean any of the
following:
(i)
the
Corporation materially changes the Executive’s duties and responsibilities to a
level materially below those normally associated with the position held by
the
Executive on the date hereof;
(ii) a reduction by the Corporation of the Executive’s base salary as then in
effect, without the Executive’s written consent;
(iii)
a
relocation or an actual change in the Executive’s place of employment outside of
Long Island, New York without Executive’s prior consent;
(iv)
failure of the Corporation to continue to maintain the same medical coverage
for
the Executive as are made available to other senior executives of the
Corporation;
(v)
any
material breach by the Corporation of any provision of this Agreement;
or
(vi)
any
failure by the Corporation to obtain the assumption of this Agreement by
any
successor entity.
Notwithstanding
the above, the Corporation shall have 30 days following the delivery of the
written notice to cure such event(s) or circumstance(s); provided, further,
that
if such events cannot be reasonably cured within 30 days but the Corporation
commences reasonable steps within said 30 day period to cure such breach
and
diligently continues such steps thereafter, the cure period shall be extended
for an additional 30 day period.
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3. Compensation.
3.1.
(a)
The Corporation shall pay or cause Delta Funding Corporation to pay to
the
Executive for the services to be rendered by the Executive hereunder a
salary at
the rate of $600,000 per annum. The salary shall be payable in equal
installments in accordance with the Corporation’s normal payroll practices. Such
salary will be reviewed at least annually and may be increased (but not
decreased) by the Board of Directors of the Corporation in such amount
as
determined in its sole discretion.
(b)
In
addition, the Compensation Committee of the Board of Directors (the
“Compensation Committee”) shall, at the beginning of each year, determine
whether the Executive will be eligible for a performance based bonus (the
“Performance Bonus”) for such year. The Performance Bonus shall be based on the
achievement of objective performance targets and such other factors as
determined by the Compensation Committee at the beginning of each year to
which
such Performance Bonus relates in accordance with Section 162(m) of the Internal
Revenue Code (the “Code”) and shall be based on the Corporation’s actual
performance relative to its financial and operational objectives for any
particular period, and the performance of the Executive. The Performance
Bonus,
if any, may be paid in cash, in shares of the Corporation’s common stock, par
value $.01 per share (the "Common Stock") or in any combination of cash and
shares of Common Stock, as determined in the discretion of the Compensation
Committee. It being understood that whether the Executive shall be eligible
for
the award of any such bonus for any given year shall be in the sole discretion
of the Compensation Committee and that the amount thereof, if any, may vary
depending upon actual performance of the Corporation and the
Executive.
(c)
In
addition to the Performance Bonus, the Corporation may pay the Executive,
at the
Board of Directors’ (or Compensation Committee’s) discretion, additional cash
bonuses (the “Discretionary Bonus”). Nothing set forth in this Section 3.1(c)
shall, however, obligate the Corporation to pay any Discretionary Bonus
described in this Section 3.1(c) to the Executive, it being understood that
any
such bonus shall be in the sole discretion of the Board of Directors (or
Compensation Committee) and that the amount thereof, if any, may vary depending
upon actual performance of the Corporation and the Executive as determined
in
the discretion of the Board.
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(d)
On
the date of this Agreement, the Executive shall be granted 72,500 shares
of
restricted stock of Delta Financial Corporation's Common Stock, par value
$0.01
per share, pursuant to Delta Financial Corporation's 2005 Stock Incentive
Plan
(the "2005 Stock Plan"). Except as otherwise provided in this Agreement,
the
foregoing restricted stock shall vest 25% per year commencing on the date
of
grant and each of the next three anniversaries of the date of grant and be
subject to the terms of the 2005 Stock Plan.
3.2. The
Executive shall be entitled to participate in, and receive benefits from,
any
insurance, medical, disability, incentive compensation (including additional
grants of non-qualified stock options or other equity awards under any of
the
Corporation’s stock option and equity plans, as determined by the Corporation)
or other employee benefit plan, if any are adopted, of the Corporation or
any
subsidiary which may be in effect at any time during the course of his
employment by the Corporation and which shall be generally available to the
Executive on terms no less favorable than to other senior executives of the
Corporation or its subsidiaries, unless such participation would, in the
discretion of the Compensation Committee, be duplicative of the Executive’s
bonus entitlements under Section 3.1.
3.3. The
Corporation agrees to reimburse the Executive for all reasonable and necessary
business expenses incurred by him on behalf of the Corporation in the course
of
his duties hereunder upon the presentation by the Executive of appropriate
vouchers therefor.
3.4. The
Executive will be entitled each year of this Agreement to a paid vacation
of
five weeks, no more than half of which can be carried forward to future
years.
3.5. The
Corporation agrees to obtain life insurance for the Executive in an amount
of at
least $2,000,000, with the Executive to have the right to name the
beneficiary(ies) thereof. Upon termination of this Agreement, the Executive
shall have the right to cause the Corporation to assign such life insurance
policy to the Executive or his designee at no cost to the Executive, except
that
Executive shall pay the Corporation an amount equal to the cash surrender
value
of the policy, if any, and Executive shall be responsible for any premiums
due
thereon after the balance of the Term of this Agreement.
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3.7. The
Executive shall not be required to mitigate damages or the amount of any
payment
provided to him under this Agreement by seeking other employment or
otherwise.
4. Incapacity;
Death.
4.1. If,
during the period of employment hereunder, the Board reasonably determines
that
the Executive has failed for a period of 120 consecutive days, or for shorter
periods aggregating more than 120 days during any twelve month period, to
render
the services contemplated hereunder because of illness or other incapacity
(“Incapacity”), then the Corporation, at its option, may terminate the term of
employment hereunder, upon not less than 30 days written notice from the
Corporation to the Executive; provided, however,
that no
such termination will be effective if prior to the 30th
day
after giving such notice, the Executive’s illness or incapacity shall have
terminated and he shall be physically and mentally able to perform the services
required hereunder.
4.2. In
the
event of the death of the Executive during the term hereof, the employment
hereunder shall terminate on the date of death of the Executive.
4.3. The
Corporation (or its designee) shall have the right to obtain for its benefit
an
appropriate life insurance policy on the life of the Executive, naming the
Corporation (or its designee) as the beneficiary. If requested by the
Corporation, the Executive agrees to cooperate with the Corporation in obtaining
such policy.
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4.4. In
the
event the employment of Executive is terminated by the Corporation as the
result
of the death or Incapacity of the Executive, the Corporation agrees to make
a
payment to the Executive (or his estate) within 15 days of such termination
in
an amount equal to the Executive’s annual salary in effect as of the date of
such termination plus the Applicable Bonus, less the amount of employer-paid
disability insurance received by Executive under a disability benefit plan
maintained by the Corporation (or any of its subsidiaries). In addition,
if
termination occurs as a result of Executive’s Incapacity, the Corporation will
continue to pay for a period of time equal to the remaining Term of this
Agreement the premiums on the $2,000,000 of life insurance policies presently
maintained by the Corporation on Executive’s life for the benefit of Executive’s
designated beneficiary(ies). Further, (i) for the five year period following
the
Executive’s date of termination, the Corporation shall provide the Executive
(and, if applicable, his spouse and eligible dependents) health and welfare
coverage as are generally available to other senior executives of the
Corporation or its subsidiaries on the same basis and at the same cost as
such
benefits are provided to such other senior executives and (ii) after such
five
year period, the Executive (and, if applicable, his spouse and eligible
dependents) shall have the option to participate in health and welfare coverage
as are generally available to other senior executives of the Corporation
or its
subsidiaries at the Executive’s full expense; provided, however, that the
Executive shall only be entitled to such payments and benefits as long as
he is
in compliance with the provisions of Section 5 below, to the extent applicable.
4.5
If
the
Executive’s employment with the Corporation shall be terminated by the
Corporation due to death or Incapacity of the Executive, then, effective
upon
the date of termination, all stock options and restricted stock held by or
for
the Executive beneficially (in trust or otherwise) including, without
limitation, all stock options and restricted stock granted under the 2005
Stock
Plan or any similar plan, as may be established at the Corporation’s discretion,
shall vest, and in the case of stock options shall become immediately
exercisable and shall remain exercisable by the Executive or his estate for
one
year following such termination.
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5. Other
Activities During Employment; Non-Competition; Solicitation.
5.1. The
Executive shall not, during the Term of this Agreement, undertake or engage
in
other employment, occupation or business enterprise. Subject to compliance
with
the provisions of this Agreement, the Executive may engage in reasonable
activities with respect to personal investments of the Executive.
5.2. During
the Term of this Agreement, and for a period of one year after the Executive
leaves the employ of the Corporation, in the event that, before a Change
in
Control, (a) the Corporation terminates the Executive’s employment with the
Corporation with or without Cause, (b) the Executive terminates his employment
with or without Good Reason or (c) the Term of this Agreement (as it may
have
previously been extended under Section 2.3) is not extended in accordance
with
Section 2.3, then:
(a)
Neither the Executive nor any entity in which he may be interested as a partner,
trustee, director, officer, employee, shareholder, option holder, lender
of
money, guarantor or consultant, shall be engaged directly or indirectly in
any
business engaged in by the Corporation, or any subsidiary, in any area where
the
Corporation, or any subsidiary, conducts such business at any time during
this
Agreement; provided however, that the foregoing shall not be deemed to prevent
the Executive from investing in securities if such class of securities in
which
the investment is so made is listed on a national securities exchange or
is
issued by a company registered under Section 12(g) of the Securities Exchange
Act of 1934 (“Exchange Act”), so long as such investment holdings do not, in the
aggregate, constitute more than 5% of the voting stock of any company’s
securities; and
(b)
The
Executive shall not solicit (or assist or encourage the solicitation of)
any
employee of the Corporation or any of its subsidiaries or affiliates to work
for
Executive or for any business, firm, corporation or other entity in which
the
Executive, directly or indirectly, in any capacity described in Section 5.2
hereof, participates or engages (or expects to participate or engage) or
has (or
expects to have) a financial interest or management position.
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5.3. The
Executive shall not at any time during this Agreement or after the termination
hereof directly or indirectly divulge, furnish, use, publish or make accessible
to any person or entity any Confidential Information other than in the
performance of his duties hereunder. Notwithstanding the foregoing, the
Executive shall be authorized to disclose confidential information (a) as
may be
required by law or legal process after providing the Corporation with prior
written notice and an opportunity to respond to such disclosure (unless such
notice is prohibited by law), (b) in any criminal proceeding against him
after
providing the Corporation with prior written notice and an opportunity to
seek
protection for such confidential information and (c) with the prior written
consent of the Corporation. Any records of Confidential Information prepared
by
the Executive or which come into Executive’s possession during this Agreement
(including, but not limited to, electronic data or information) are and remain
the property of the Corporation and upon termination of Executive’s employment
all such records and copies thereof shall be either left with or returned
to the
Corporation.
5.4. The
term
“Confidential Information” shall mean information disclosed to the Executive or
known, learned, created or observed by him as a consequence of or through
his
employment by the Corporation, not generally known in the relevant trade
or
industry, about the Corporation’s or any of its subsidiaries’ or affiliates’
business activities, services and processes, including but not limited to
information concerning advertising, sales promotion, publicity, sales data,
research, finances, accounting, methods, processes, business plans, broker
or
correspondent lists and records and potential broker or correspondent lists
and
records.
5.5 Upon
Executive’s termination of employment for any reason, the Executive shall
promptly surrender and deliver to the Corporation all property of the Company
and all documents, correspondence and any other information, of any type
whatsoever, from the Corporation or any of its agents, servants, employees,
suppliers, and existing or potential customers, that came into the Executive’s
possession by any means whatsoever, during the course of the Executive’s
employment.
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6. Change
in Control.
6.1. For
purposes hereof, a “Change in Control” shall be deemed to have occurred if (a)
during any period of 12 months, individuals who at the beginning of such
period
constitute the Board of Directors of the Corporation cease for any reason
to
constitute a majority thereof unless the election, or the nomination for
the
election by the Corporation’s stockholders of each new director was approved by
a vote of at least a majority of the directors then still in office who were
directors at the beginning of the period, (b) a person or group of persons
acting in concert (as defined in Section 13 (a) of the Exchange Act), other
than
one or more members of the Xxxxxx Family (hereinafter defined), acquires
beneficial ownership, within the meaning of Rule 13 (d) (3) of the Rules
and
Regulations of the United States Securities and Exchange Commission promulgated
pursuant to the Exchange Act, of a number of voting shares of the Corporation
which constitutes 50% or more of the Corporation’s outstanding voting shares,
(c) the Corporation is merged, consolidated or reorganized into or with another
corporation or another legal entity and, as a result of such merger,
consolidation or reorganization, less than 50% of the combined voting power
of
the then-outstanding securities of such corporation or entity immediately
after
such transaction is held in the aggregate by the holders of the combined
voting
power of the securities of the Corporation entitled to vote generally in
the
election of directors of the Corporation immediately prior to such transaction,
or (d) the Corporation undergoes a liquidation or dissolution or, in one
or more
transactions occurring within a consecutive 12-month period, sells all or
substantially all of the assets of the Corporation.
For
purposes of this Agreement, the term “Xxxxxx Family” shall mean Xxxx Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxx Xxxxxx and Xxx Xxxxxx, any of their respective spouses
or
lineal descendants, or any trust the beneficial interests of which are held
by
such persons.
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6.2. If,
on or
after a Change in Control, as defined under Section 6, the Executive’s
employment with the Corporation is terminated by the Corporation without
Cause,
or the Executive terminates his employment with the Corporation for Good
Reason
(as defined in Section 2.6), in each case within a 24 month period following
a
Change in Control (each a “Change in Control Termination”), the Executive shall
be entitled to the following severance compensation and benefits in lieu
of any
payments which would otherwise be payable under Section 2.5:
(a)
within 15 days of the date of the Change in Control Termination (the “Change in
Control Termination Date”), the Corporation shall pay the Executive all amounts
of earned or accrued compensation through the Executive’s termination date,
including reasonable business expenses;
(b)
within 15 days of the Change in Control Termination Date, the Corporation
shall
pay the Executive as severance and in lieu of any further compensation for
periods subsequent to the Change in Control Termination Date an amount equal
to
the product of (1) 3, multiplied by (2) the sum of the Executive’s annual salary
at the rate in effect as of the termination plus the Applicable Bonus; and
(c)
the
Corporation shall continue on behalf of the Executive and his dependents
and
beneficiaries the life insurance, disability, medical, dental, prescription
drug
and hospitalization coverages and benefits provided to the Executive immediately
prior to the Change in Control Termination Date or, if greater, the coverages
and benefits generally provided at any time thereafter by the Corporation
to its
senior officers for the remaining Term of this Agreement following the Change
in
Control Termination Date. Health benefits otherwise receivable by the Executive
pursuant to this Section 6.2 shall be reduced to the extent comparable benefits
are actually available to the Executive during such period from a subsequent
employer.
6.3. Executive
shall not be required to mitigate the amount of any payment provided for
in this
Section 6 by seeking employment or otherwise.
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6.4. Upon
the
occurrence of a Change in Control, all stock options and restricted stock
held
by or for the Executive beneficially (in trust or otherwise), including without
limitation, all stock options and restricted stock granted under the 2005
Stock
Plan or any similar plan, as may be established at the Corporation’s discretion,
shall vest, and in the case of stock options shall become immediately
exercisable on the date of the Change in Control and shall remain exercisable
by
the Executive until the termination date stated in the related stock option
certificates.
6.5. In
the
event that any payment or benefit received or to be received by the Executive
in
connection with a Change in Control of the Corporation or the termination
of the
Executive’s employment (whether pursuant to the terms of this Agreement or any
other plan, arrangement or agreement with the Corporation, any person whose
actions result in a Change in Control or any person affiliated with the
corporation or such person) (collectively the “Total Payments”) would not be
deductible (in whole or in part) as a result of Section 280G of the Code,
by the
Corporation, an affiliate or other person making such payment or providing
such
benefit, the payments or benefits shall be so reduced until no portion of
the
Total Payments is not deductible. The Executive shall be entitled to elect
which
payments or benefits shall be so reduced. For purposes of this limitation,
(1)
no portion of the Total Payments, the receipt or enjoyment of which the
Executive shall have effectively waived in writing prior to the date of payment
shall be taken into account, (2) no portion of the Total Payments shall be
taken
into account which in the opinion of tax counsel selected by the Corporation
and
acceptable to the Executive does not constitute a “parachute payment” within the
meaning of Section 280G (b) (2) of the Code (and the regulations thereunder),
and (3) the value of any noncash benefit or deferred payment or benefit included
in the Total Payments shall be determined by the Corporation’s independent
auditors in accordance with the principles of Sections 280(d) (3) and (4)
of the
Code (and the regulations thereunder).
7. Payment.
Notwithstanding anything in this Agreement to the contrary, if at the time
any
severance payments are due and payable under this Agreement the Executive
is a
“specified employee” (as such term is defined in Section 409A of the Code, and
the regulations thereunder (“Section 409A”)) and the Corporation reasonably
determines that the payment is not exempt from Section 409A, payment of such
severance (plus interest at the Corporation’s then applicable short term
borrowing rate) shall be made on the first day following the sixth month
anniversary of the Executive’s “separation from service” (as defined in Section
409A) with the Corporation (or such other time as specified by Section 409A).
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8. Assignment.
The
Corporation shall require any successor or assign to all or substantially
all
the assets of the Corporation (whether by merger or by acquisition of stock,
assets or otherwise) prior to consummation of any transaction therewith,
to
expressly assume and agree to perform in writing this Agreement in the same
manner and to the same extent that the Corporation would be required to perform
it if no such succession or assignment had taken place. This Agreement shall
inure to the benefit of and be binding upon the Corporation, its successors
and
assigns, and upon the Executive and his heirs, executors, administrators
and
legal representatives. This Agreement shall not be assignable by the Executive.
9. No
Third Party Beneficiaries.
This
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any person not a party to this Agreement, except as provided
in
Section 8 hereof.
10. Headings.
The
headings of the sections hereof are inserted for convenience only and shall
not
be deemed to constitute a part hereof nor to affect the meaning thereof.
11. Interpretation.
In case
any one or more of the provisions contained in this Agreement shall, for
any
reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. If,
moreover, any one or more of the provisions contained in this Agreement shall
for any reason be held by a court of competent jurisdiction to be unenforceable
because it is excessively broad as to duration, geographical scope, activity
or
subject, it shall be construed by limiting and reducing it, so as to be
enforceable to the extent compatible with the applicable law as it shall
then
appear.
15
12. Notices.
All
notices under this Agreement shall be in writing and shall be deemed to have
been given at the time when mailed by registered or certified mail, addressed
to
the address below stated party to which notice is given, or to such changed
address as such party may have fixed by notice given as set forth herein:
To
the
Corporation:
Delta
Financial Corporation
0000
Xxxxxxxx Xxxx
Xxxxx
000
Xxxxxxxx,
Xxx Xxxx 00000
Attn:
General Counsel
and
To
the
Executive:
Xxxx
Xxxxxx
00
Xxxxx Xxx
Xxxxxx
Xxx Xxxx, XX 00000
provided,
however, that any notice of change of address shall be effective only upon
receipt.
13. Waivers.
If
either party should waive any breach of any provision of this Agreement,
he or
it shall not thereby be deemed to have waived any preceding or succeeding
breach
of the same or any other provision of this Agreement.
14. Complete
Agreement; Amendments.
The
foregoing is the entire agreement of the parties with respect to the subject
matter hereof and may not be amended, supplemented, canceled or discharged
except by written instrument executed by both parties hereto.
15. Equitable
Remedies.
The
Executive acknowledges that he has been employed for his unique talents and
that
his leaving the employ of the Corporation would seriously hamper the business
of
the Corporation and that the Corporation will suffer irreparable damage if
any
provisions of Section 5 hereof are not performed strictly in accordance with
their terms or are otherwise breached. The Executive hereby expressly agrees
that the Corporation shall be entitled as a matter of right to injunctive
or
other equitable relief, in addition to all other remedies permitted by law,
to
prevent a breach or violation by the Executive and to secure enforcement
of the
provisions of Section 5. Resort to such equitable relief, however, shall
not
constitute a waiver or any other rights or remedies, which the Corporation
may
have.
16
16. Governing
Law.
This
Agreement is to be governed by and construed in accordance with the laws
of the
State of New York, without giving effect to principles of conflicts of law.
17. Tax
Withholding.
The
Corporation may withhold from any amounts payable under this Agreement such
federal, state and local income and employment taxes as the Corporation shall
determine are required to be withheld pursuant to any applicable law or
regulation.
18. Section
409A.
It is
the Corporation’s and the Executive’s intention that any compensation under this
Agreement avoid additional tax under Section 409A to the extent applicable.
If
either party believes, at any time, that any compensation or benefits provided
for under this Agreement is subject to but does not comply with Section 409A,
it
will promptly advise the other party and both parties will negotiate reasonably
and in good faith to amend the terms of this Agreement such that it does
comply
(or is exempt from) Section 409A and that amendment will have the most limited
possible economic effect on the Executive and the Corporation.
19. Survival.
The
provisions of Sections 2.5, 3.2, 4.4 and 5 and any other provisions of this
Agreement that by their meaning are intended to survive shall survive
termination of this Agreement or termination of the employment of the Executive
for any reason.
[Signature
Page Immediately Follows]
17
IN
WITNESS WHEREOF, the parties
hereto have executed this Agreement as the
date
first above written.
DELTA
FINANCIAL
CORPORATION
By:
/s/
XXXXXXX XXXXX
Name:
Xxxxxxx
Xxxxx
Title:
Executive Vice
President
/s/
XXXX
XXXXXX
XXXX
XXXXXX
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