AGREEMENT
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THIS AGREEMENT made and entered into as of the 10th day of November by and
among Intervest Mortgage Corporation, (hereinafter "Intervest") and Xxxx X.
Xxxxxxxx, (hereinafter "Executive");
WITNESSETH:
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WHEREAS, the Board of Directors of Intervest recognizing value of the
experience and knowledge of Executive to business of Intervest, desires to
retain the valuable services and business counsel of Executive, it being in the
best interest of Intervest to arrange terms of employment for Executive so as to
reasonably induce Executive to remain in his capacities with Intervest for
Executive's term hereof; and
WHEREAS, Executive is willing to provide services to Intervest in
accordance with the terms and conditions hereinafter set forth;
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. During Executive's Employment, Intervest agrees to employ
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Executive and Executive agrees to accept such employment and to perform such
duties and functions as the Board of Directors of Intervest, and/or Intervest's
officers as designated by the Board of Directors, may assign to Executive from
time to time, but only administrative and managerial functions commensurate with
Executive's past experience and performance level. As directed by the Board of
Directors, he shall perform such duties at the offices of Intervest in New York
City.
Responsibility for the supervision of Executive shall rest with the Board
of Directors of Intervest and its Executive Committee, which shall
review Executive's performance regularly. The Board of Directors of Intervest
shall have the authority to terminate Executive, subject to the provisions
outlined in Section 6 of this Agreement.
2. TITLE. Executive shall serve as Vice President of Intervest.
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3. TERM OF EMPLOYMENT. Executive's Employment referred to in Section 1
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hereof shall commence on January 1, 2005, and, subject to the termination
provisions set forth below, shall end December 31, 2005, provided, however, that
if (a) Executive advises Intervest in writing on or before September 1, 2005, of
his desire to extend the term of the Agreement and (b) Intervest communicates
its consent to such extension in writing to Executive on or before September 30,
2005, then the Agreement shall continue upon the same terms and conditions for a
further one-year period until December 31, 2006, renewable by the parties from
year to year thereafter pursuant to the same procedure described herein. If
Intervest shall decide not to extend this Agreement, the denial shall not be
construed as a termination pursuant to Paragraph 6 below.
4. ANNUAL COMPENSATION.
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4.1 Base Salary. During Executive's Employment, Executive shall be paid an
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annual base salary (hereinafter "Base Salary") which shall be paid in equal
installments in accordance with Intervest's
/s/ LSD /s/ JH
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LSD Executive
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normal pay practices, but not less frequently than monthly. Executive's annual
Base Salary shall be $95,000. Any increases to the Base Salary during
Executive's Employment are at the discretion of the Board of Directors of
Intervest.
4.2 Bonus. During Executive's Employment and in addition to Executive's
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Base Salary, Executive may receive a bonus payment payable prior to the end of
each applicable calendar year. The granting of any such bonus is at the sole
discretion of the Board of Directors of Intervest.
4.3 Additional Benefits. During Executive's Employment, Executive shall be
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provided with such employee benefits and benefit levels, including health and
life insurance, etc. as may be provided by the Board of Directors of Intervest.
The employee benefits shall be provided and maintained at a level of not less
than what is in effect at the time this Agreement is executed. Executive shall
be entitled to participate in any qualified or unqualified pension, profit
sharing or other employee benefit plan adopted by Intervest hereinafter.
Throughout Executive's Employment, Executive shall also be entitled to
reimbursement for reasonable business expenses incurred by him in the
performance of his duties hereunder, as approved from time to time by the Board
of Directors of Intervest.
5. CHANGE IN CONTROL OF INTERVEST.
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(a) In the event of a "change in control" of Intervest, as defined herein,
Executive shall be entitled, for a period of one (1) year from the date of
closing of the transaction effecting such change in control and at his election,
to give written notice to Intervest of termination of this Agreement and to
receive a lump sum cash payment as follows:
In the event of a change of control during the first six (6) months of the
Agreement, Executive will be entitled to an amount equal to compensation, as
outlined in Section 4 of this Agreement, at Executive's then current
compensation level, for the balance of the Agreement through December 31, 2005
plus a bonus of six (6) months compensation and, in the event of change of
control following the first six (6) month period, Executive shall be entitled to
an amount equal to compensation for the balance of the Agreement through
December 31, 2005 plus a bonus of three (3) months compensation.
(b) The severance payments provided for in this Section 5 shall be paid by
Intervest not later than ten (10) days after the date of notice of termination
by Executive under this Section 5 or ten (10) days after the date of closing of
the transaction effecting the change in control of Intervest, whichever is
later.
(c) For purposes of this Section 5, "change in control" of Intervest shall
mean:
(i) any transaction, whether by merger, consolidation, asset sale,
tender offer, reverse stock split or otherwise, which results in
a reduction in the combined ownership of the Dansker and Xxxxxxx
families to less than 10% of the aggregate outstanding shares of
all classes of stock and warrants of Intervest's Holding Company;
or
(ii) if none of Xxxxxxxx X. Xxxxxxx, Xxxxxx Xxxxxxx or Xxxxxx X.
Xxxxxxx is a member of the Board of Directors of Intervest or of
Intervest's Holding Company; or
/s/ LSD /s/ JH
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LSD Executive
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(iii) the sale of all or substantially all of the assets of Intervest
or Intervest's Holding Company; or
(iv) the liquidation of Intervest or Intervest's Holding Company.
6. TERMINATION.
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6.1 For Cause. This Agreement may be terminated by the Board of Directors
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of Intervest without notice and without further obligation other than for
accrued and unpaid compensation, for any of the following reasons:
(a) failure of Executive to follow reasonable directions or policies of the
Board of Directors of Intervest or its Executive Committee; or
(b) gross negligence or willful misconduct of Executive materially damaging
to the business of Intervest during the Executive's Employment; or
(c) conviction of the Executive during the Executive's Employment of a
crime involving breach of trust or moral turpitude.
In the event that Intervest discharges Executive alleging "cause" under
this Section 6.1 and it is subsequently determined judicially that the
termination was "without cause", then such discharge shall be deemed a discharge
without cause subject to the provisions of Section 6.2 hereof.
6.2 Without Cause. Intervest may, upon thirty (30) days written notice to
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Executive, terminate this Agreement without cause at any time during the
Executive's Employment upon the condition that Executive shall be entitled, as
liquidated damages in lieu of all other claims, to a severance payment as
follows:
In the event of termination without cause during the first six (6) months
of the Agreement, Executive will be entitled to an amount equal to compensation,
as outlined in Section 4 of this Agreement, at Executive's then current
compensation level, for the balance of the Agreement through December 31, 2005,
plus a bonus of six (6) months compensation and, in the event of termination
without cause following the first six (6) month period, Executive shall be
entitled to an amount equal to compensation for the balance of the Agreement
through December 31, 2005, plus a bonus of three (3) months compensation. The
severance payment provided for in this Section 6.2 shall be paid by Intervest
not later than thirty (30) days after the actual date of termination of
employment of Executive.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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between the parties hereto regarding the employment of Executive, and supersedes
and replaces all prior agreements and understandings, whether written or
unwritten, relating thereto.
8. ASSIGNMENT. Neither of the parties hereto may assign this Agreement
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without the prior written consent of the other party hereto.
9. SEVERABILITY. Each section and subsection of this Agreement constitutes
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a separate and distinct understanding, covenant and provision hereof. In the
event that any provision of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed to be severed from this Agreement, but
every other provision of this Agreement shall remain in full force and effect.
/s/ LSD /s/ JH
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LSD Executive
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10. GOVERNING LAW. This Agreement shall in all respects be interpreted,
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construed and governed by and in accordance with the laws of the State of New
York.
11. RIGHTS OF THIRD PARTIES. Nothing herein expressed or implied is
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intended to or shall be construed to confer upon or give to any person, firm or
other entity, other than the parties hereto and their permitted assigns, any
rights or remedies under or by reason by this Agreement.
12. AMENDMENT. This Agreement may not be amended orally but only by an
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instrument in writing duly executed by the parties hereto.
13. NOTICES. Any notice or other document or communication permitted or
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required to be given to Executive pursuant to the terms hereof shall be deemed
given if personally delivered to Executive or sent to him postage prepaid, by
registered or certified mail, at New York, New York, or any such other address
as Executive shall have notified Intervest in writing. Any notice or other
document or other communication permitted or required to be given to Intervest
pursuant to the terms hereof shall be deemed given if personally delivered or
sent to Chairman of the Board, 0 Xxxxxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxx, Xxx
Xxxx 00000-0000, postage prepaid, by registered or certified mail or at such
other address as Intervest shall have notified Executive in writing.
14. WAIVER. The waiver by either party hereto of a breach of any provision
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of this Agreement by the other shall not operate or be construed as a waiver of
any subsequent breach of the same or any other provision of this Agreement by
the breaching party.
INTERVEST
/s/ Xxxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
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Attest Xxxxxx X. Xxxxxxx, President
Xxxxx Xxxx
EXECUTIVE
/s/ Xxxxx Xxxx /s/ Xxxx X Xxxxxxxx
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Attest Xxxx X. Xxxxxxxx
Xxxxx Xxxx
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