EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the
_____ day of April, 1997, by and between WESTMARK GROUP HOLDINGS, INC., a
Delaware corporation (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
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 at may 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 elect 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 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 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 and home fax machine.
(b) 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: 150,000 shares of Common Stock at the
exercise price of $1.00 per share, 75,000 shares of Common Stock at the exercise
price of $1.25 per share ,150,000 shares of Common Stock at the exercise price
of $1.50 per share, 75,000 shares of Common Stock at the exercise price of $1.75
per share and 150,00 shares of Common Stock at the exercise price of $2.00. The
Options shall be issued pursuant to the Company's 1996 Stock Option Plan (the
"Plan").
(c) 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.
(d) 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 Company may provide to its
other Executives, provided such coverage is reasonably available, or be
reimbursed if Executive is carrying his own similar insurance.
Additionally, the Company shall obtain and maintain a Key Man Life
Insurance Policy in the amount of $500,000 on Executive.
(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.
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(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.
(e) 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;
(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, loses 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 willful
misconduct.
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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 the Agreement, or (ii)
the willful engaging by the Executive in misconduct which is materially
injurious to the Company, monetarily; provided, in each case, however, that the
Company shall not terminate this Agreement pursuant to this Section 7(c) unless
the Company shall first have delivered to the Executive, a notice which
specifically identifies such breach or misconduct and the executive shall not
have cured the same within fifteen (15) days after receipt of such notice.
(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 as in effect as of the date hereof;
(ii) his compensation is reduced;
(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 material amount of compensation due
hereunder and then fails either to pay such amount within the ten (10) day
notice period required for termination hereunder 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.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of
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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.
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
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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.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
COMPANY:
WESTMARK GROUP HOLDINGS, INC.
By________________________________
Name:_____________________________
Title: ___________________________
EXECUTIVE:
XXXX XXXXXXXXXX
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