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EXHIBIT 10.53
FIRST AMENDMENT AND RESTATEMENT OF CONTINGENCY
FEE COMPENSATION ARRANGEMENT
This First Amendment And Restatement is entered into as of the 1st day
of April, 1998, by and between IMC MORTGAGE COMPANY, a Florida corporation (the
"Company") and XXXXXXXX X. XXXXXX ("Xxxxxx").
Recitals
A. The Company and Xxxxxx (through his wholly owned
professional association, Xxxxxxxx X. Xxxxxx, P.A.) entered into a transaction
contingency fee arrangement as of October 25, 1996 which is reflected in the The
Company/Xxxxxx-Transaction Contingency Fee Term Sheet attached to the minutes of
the Company's board of directors meeting of that same date (the "Existing
Agreement") which the parties wish to amend and restate as provided herein
effective as to all Transactions (as defined below) which close after July 30th,
1997.
B. The amendment to the Existing Agreement is intended (i) to
limit the amount of cash paid to Xxxxxx in any calendar year with respect to
Transactions, (ii) to provide for payment of any additional amounts due to
Xxxxxx under the existing arrangement to be made in unregistered shares of the
Company's common stock (the "Common Stock"), (iii) to place an annual limit on
the aggregate compensation (both cash and Common Stock) due under the Existing
Agreement as modified hereby with respect to Transactions, (iv) to clarify the
formula for calculation of the contingency fee, (v) incorporate the monthly
retainer fee arrangement into the contract, and (vi) provide a term for the
Agreement.
C. The Company acknowledges that Xxxxxx has been required to
give up representation of a number of clients and to decline to accept new
representations in order to have the resources available to address the legal
needs of the Company.
AGREEMENT
NOW THEREFORE, in consideration of the mutual benefits to be
derived herefrom, the parties hereto agree that the matters set forth as
recitals are true and correct and do further agree that the Existing Agreement
is hereby amended and restated in its entirety as set forth herein:
1. Engagement. The Company has engaged Xxxxxx, and Xxxxxx has
accepted the engagement (the "Engagement"), for Xxxxxx to perform the following
duties as an independent contractor and not as an employee of the Company:
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A. General Counsel Duties. To provide the services of outside
general counsel including performing legal work for the Company to the extent of
Xxxxxx'x expertise and to supervise legal work performed by other counsel to the
Company including the supervision and training of the Company's employee
attorneys as they exist from time to time; and
B. Acquisitions & Alliances Duties. To assume a lead role in
negotiating and closing of transactions with other entities ("Targets") in the
nature of acquisitions of assets, businesses, equity positions and Strategic
Alliances (as defined below) as well as mergers, all as approved by The Company
(the "Transactions"). A Strategic Alliance is a Transaction where The Company
provides financing and/or other benefits for a minority interest (or options or
warrants to obtain a minority interest) in a Target.
2. Fees. Xxxxxx will be compensated for work hereunder as follows
(collectively called "Compensation"):
A. Base Retainer. For Xxxxxx'x services in connection with
Xxxxxx'x Engagement as General Counsel, the Company will pay a retainer (the
"Base Retainer") of $32,500 per month commencing April 1, 1998 and continuing
during the Term; and
B. Contingent Fee. For Xxxxxx'x services in connection with
Xxxxxx'x Engagement in connection with Acquisitions and Strategic Alliances, for
each Transaction a contingency fee (the "Contingent Fee") which is intended to
provide an incentive for Xxxxxx to negotiate the most favorable transaction for
The Company as a function of a Transaction's effect on (i) the increase in The
Company's earnings per share ("EPS"), and (ii) the amount paid by The Company as
a multiple of the Target's after tax earnings. The fee will be calculated by
multiplying 6.45% times the "Incremental Value Increase" of The Company as a
result of all Transactions the negotiation of which commenced on or after
October 25, 1996. The Company will also reimburse Xxxxxx for out of pocket
expenses incurred by Xxxxxx in connection with possible and completed
Transactions.
C. Time of Payment. The Base Retainer will be paid monthly. As
to Transactions other than Strategic Alliances, the Contingent Fee will be paid
in two installments: (i) the "Initial Contingent Fee Payment" will be paid
within thirty days following the closing of a Transaction based on the Target's
performance prior to the closing of the Transaction, and (ii) the Final
Contingent Fee will be recalculated at the end of four full calendar quarters
following the effective date of the closing of a Transaction based on actual
post-closing performance and the balance, if any, of the Final Contingency Fee
over the Initial Contingent Fee Payment will be paid within sixty days following
the end of those four quarters. As to Strategic Alliances, the entire Contingent
Fee will be paid within sixty days following the expiration of twelve full
calendar quarters following the closing of a Strategic Alliance.
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D. Incremental Value Increase. The parties agree that the
Incremental Value Increase is to be calculated as a function of the increase in
The Company's earnings per share during the Calculation Period (as defined
below) resulting from the earnings contribution of the business unit involved in
the Transaction (the "Business Unit") with such earnings calculated as
determined by The Company in good faith from time to time.
E. Incremental Value Increase. The Incremental Value Increase
from a Transaction is equal to the sum of the total net income increase derived
from the Business Unit as described above (all calculations are determined based
on the four quarters following the effective date of the Transaction as to the
final payment [or twelve quarters as to a Strategic Alliance] and based on the
four quarters prior to the initial closing for the Initial Contingent Fee
Payment (the "Calculation Period") and on an after-tax basis:
Net income contributed by the Business Unit being the sum of:
(i) the actual net income generated by the Business Unit, and
(ii) the net income to be contributed to The Company if the
loan volume of the Business Unit were to be securitized.
F. Cap on Contingency Fee Payments. The parties agree that (i)
the total cash compensation received by Xxxxxx in any calendar year as
Contingent Fees pursuant to this Agreement (but not including other compensation
to Xxxxxx including, without limitation, regular legal fees, retainer payments
and payments to "gross-up" taxes on any Common Stock issued to Xxxxxx, called
"Other Compensation") shall not exceed an average of $750,000 per year in any
two calendar year periods (the "Cash Cap"), and (ii) the total cash and Common
Stock received by Xxxxxx as Contingent Fees under this Agreement (but not
including Other Compensation) in any calendar year will not exceed the lesser of
(i) an average of $1.3 million per year in any two calendar year periods, or
(ii) an amount equal to the total compensation (excluding compensation resulting
from the exercise of stock options) paid to the lowest paid of the Company's
Chief Executive Officer, Chief Operating Officer and Chief Financial Officer
(the "Total Cap"). All compensation due to Xxxxxx as Contingent Fees pursuant to
this Agreement in any calendar year will be paid first in cash up to the Cash
Cap and any fee in excess of that amount in any calendar year shall be paid to
Xxxxxx in Common Stock up to the Total Cap. The Common Stock payable shall be
issued to Xxxxxx with the number of shares of common stock issued to Xxxxxx (i)
as to any shares issued for the initial payment being determined by dividing the
compensation then due to Xxxxxx with respect to the Transaction in question (in
excess of any cash paid with respect thereto) by the price per share by the
average closing price for the Company's common shares on NASDAQ for the ten
trading days preceding the closing of the Transaction in question, and (ii) as
to any shares delivered on the first anniversary of each closing, at the closing
price for the ten trading days ending on the fourth full quarter after the
closing of the Transaction of the Company's shares on such anniversary date. In
addition, to the extent the Company realizes a reduction in its income taxes
payable as a result of the payment of the Common Stock, an amount equal to that
actual reduction in income taxes will be paid to the Xxxxxx as an additional
cash bonus to aid the Xxxxxx in paying the Xxxxxx'x taxes created by such Common
Stock.
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3. Term of Engagement. The initial term of this Agreement
shall be effective as of October 25, 1996, (the "Commencement Date") and
continue through December 31, 2001, subject to extension or earlier termination
as otherwise set forth in this Agreement.
A. Termination of Engagement by the Company for Cause.
The Company may terminate Xxxxxx'x Engagement upon giving written notice
thereof, if such termination is for "Cause" (as defined herein) and Cause is not
cured by Xxxxxx within any available cure period provided below. Such notice
must set forth in reasonable detail the facts underlying the claim of Cause. For
the purposes of this Agreement, "Cause" shall be defined as any of the
following, which act or omission is made or omitted by Xxxxxx without a
reasonable belief that such act or omission would benefit the Company:
(1) a default or breach by Xxxxxx of any of the
provisions of this Agreement materially detrimental to the Company which is not
cured within fifteen (15) days following written notice thereof;
(2) actions by Xxxxxx constituting fraud,
embezzlement or dishonesty which result in a conviction of a criminal offense
not yet overturned on appeal;
(3) actions by Xxxxxx in intentionally furnishing
materially false, misleading, or omissive information to the Company, its Board
of Directors or any committee of the Board of Directors that is materially
detrimental to the Company;
(4) actions constituting a breach of the
confidentiality of the Business and/or trade secrets of the Company which is
materially detrimental to the Company;
(5) acts or omissions which constitute willful
failure to follow reasonable and lawful directives of the Company's Chief
Executive Officer or President, which are consistent with Xxxxxx'x Engagement
and performance which is not cured within fifteen (15) days following written
notice thereof.
Negligence in performance of legal services hereunder will not constitute Cause
unless such actions constituted bad faith. If any conviction pursuant to Section
3(A)(2) above is overturned on appeal, Xxxxxx will be deemed to have been
terminated without Cause as of the effective date of his earlier termination.
B. Termination Without Cause. The Company shall have
the right to terminate this Xxxxxx'x Engagement without Cause on thirty (30)
days written notice, subject to payment by the Company of all amounts then due
to Xxxxxx under this Agreement and payment of the Deferred Compensation
described in Section 4 below. In such event, the Engagement of Xxxxxx will cease
immediately upon the expiration of that period.
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C. Termination by Xxxxxx. Xxxxxx may terminate
Xxxxxx'x Engagement upon thirty (30) days written notice after the occurrence of
a material default of this Agreement by the Company, which default is not cured
within the thirty-day notice period. Such notice shall set forth in reasonable
detail the facts underlying the default. If Xxxxxx terminates Xxxxxx'x
Engagement under this Section 3C, Xxxxxx shall be entitled to payment by the
Company of all amounts then due to Xxxxxx under this Agreement and payment of
the Deferred Compensation described in Section 4 below.
D. Termination by Xxxxxx Upon Change of Control.
Xxxxxx may terminate Xxxxxx'x Engagement Agreement upon thirty (30) days written
notice at any time within six (6) months following the occurrence of a "Change
of Control", but only prior to Xxxxxx'x receiving a notice of termination by the
Company for Cause. Upon such termination Xxxxxx shall be entitled to payment by
the Company of all amounts then due to Xxxxxx under this Agreement and payment
of the Deferred Compensation described in Section 4 below. Change of Control is
defined for the purposes of this Agreement as any of the following acts:
(1) The acquisition by any person, entity or
"group" within the mean of ss. 13(d) or 14(d) of the Securities Exchange Act of
1934 (the "Exchange Act") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of twenty-five (25%) percent or more
of either the then outstanding equity interests in the Company or the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of the Board of Directors; or
(2) If the individuals who serve on the Board of
Directors as of the Commencement Date (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board of Directors; provided,
however, any person who becomes a director subsequent to the Commencement Date,
whose election or nomination for election was approved by a vote of at least a
majority of the directors then compiling the Incumbent Board, shall for purposes
of this Agreement be considered as if such person was a member of the Incumbent
Board; or
(3) Approval by the Company's equity holders of
(i) a merger, reorganization or consolidation whereby the Company's equity
holders immediately prior to such approval do not, immediately after
consummation of such reorganization, merger or consolidation own more than 50%
of the combined voting power entitled to vote generally in the election of
directors of the surviving entity's then outstanding voting securities; or (ii)
liquidation or dissolution of the Company; or (iii) the sale of all or
substantially all of the assets of the Company.
E. Disability. In the event that X. Xxxxxx shall
become mentally or physically disabled (as hereinafter defined) so as to be
unable to fully perform his duties herein, for a period of three consecutive
months of continuous Disability (hereinafter "Permanent Disability"), the
Company shall have the right to immediately terminate Xxxxxx'x Engagement. Upon
termination, Xxxxxx shall receive the Deferred Compensation provided in Section
4 herein. Disability for the purposes of this Section shall mean the inability
of Xxxxxx to perform his duties as described herein.
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F. Automatic Extension. The term of the Engagement
under this Agreement shall be automatically extended for successive three (3)
year periods at the end of the initial and each extended term thereafter, unless
either party provides written notice of termination to the other party at least
six (6) months prior to the expiration of the initial or such extended term,
respectively. In the event the Company terminates this Xxxxxx'x Engagement or
fails to renew Xxxxxx'x Engagement under this Agreement or does not permit the
automatic extension to occur at the end of any term hereof, Xxxxxx shall be
entitled to receive the Deferred Compensation under Section 4 hereof.
4. DEFERRED COMPENSATION.
A. When Due. Xxxxxx (or his estate as the case may
be) shall be entitled to the Deferred Compensation as calculated below, to be
paid in the event that Xxxxxx'x Engagement is terminated for any of the
following reasons: (i) death of Xxxxxx; (ii) termination by the Company without
cause or for no reason pursuant to Section 3B, (iii) termination by Xxxxxx upon
default by the Company pursuant to Section 3C, (iv) termination by Xxxxxx after
a Change of Control pursuant to Section 3D; (vi) termination by the Company in
the event of a Disability of Xxxxxx pursuant to Section 3E, or (vii) termination
or failure to renew by the Company pursuant to Section 3F.
B. Amount. The Deferred Compensation shall be the
amount which is equal to 150% of the highest Compensation received by Xxxxxx
(and Xxxxxxxx X. Xxxxxx, P.A.) from the Company (including both Base Retainer
and Contingency Fee) in any one of the three calendar years preceding the event
giving rise to the need to calculate Deferred Compensation. The Deferred
Compensation herein shall be deemed liquidated damages resulting from the
Company's termination of this Agreement and shall be Xxxxxx'x sole and exclusive
remedy for any such termination. Deferred Compensation shall not be diminished
or offset by reason of any earnings by Xxxxxx subsequent to the date of
termination. The Deferred Compensation shall be the amount which is calculated
as the greater of (i) the Base Retainer payments Xxxxxx would have received had
his Engagement continued for the remaining term of this Agreement; or (ii) an
amount equal to 150% of the highest compensation earned by X. Xxxxxx in any one
of the past three calendar years (including both Base Salary and Contingent
Fee).
C. Payment of Deferred Compensation. Except as
provided below, the Deferred Compensation shall be paid in monthly installments
over the thirty-six (36) months following the event giving rise to a Deferred
Compensation. If such termination is a result of the death of Xxxxxx, the
initial Deferred Compensation payment shall be made within fifteen (15) days
after the personal representative of Xxxxxx'x estate notifies the Company that
Letters of Administration have been filed in the probate proceeding. The Company
shall have the option at all times during the term of this Agreement to maintain
key man life insurance on Xxxxxx'x life to cover the cost of any Deferred
Compensation due to Xxxxxx. If such key man life insurance is maintained, and
the Deferred Compensation is due as a result of X. Xxxxxx'x death, the Deferred
Compensation shall be paid 100% in cash upon X. Xxxxxx'x death.
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5. CONFIDENTIALITY AND NON-DISCLOSURE OF INFORMATION.
A. Confidentiality. Xxxxxx shall not, during the
term of this Agreement or at any time thereafter, divulge, furnish or make
accessible to anyone, without the Company's prior written consent, any knowledge
or information with respect to any confidential or secret aspect of the Business
which if disclosed could reasonably be expected to have a material adverse
affect on the Business, taken as a whole ("Confidential Information").
B. Ownership of Information. Xxxxxx recognizes that
all Confidential Information and copies or reproductions thereof, relating to
the Company's operations and activities made or received by Xxxxxx in the course
of his employment are the exclusive property of the Company and Xxxxxx holds and
uses same as trustee for the Company and subject to the Company's sole control
and will deliver same to the Company at the termination of his employment,
or earlier if so requested by the Company in writing. All of such Confidential
Information, which if used by Xxxxxx outside the scope of the Engagement, could
cause irreparable and continuing injury to the Business for which there may not
be an adequate remedy at law.
C. Material Breach. Any material breach of the terms
of this paragraph by Xxxxxx shall be deemed a material breach of this Agreement.
Xxxxxx acknowledges that compliance with the provisions of this Section 6 is
necessary to protect the goodwill and other proprietary interests of the Company
and is a material condition of employment.
6. RESTRICTIVE COVENANT. As an inducement to cause the
Company to enter into this Agreement, Xxxxxx covenants and agrees that during
his Engagement and, for a period of eighteen (18) months after the end of the
Engagement, regardless of the manner or cause of termination, except as limited
in Section 6F below:
A. Restriction. X. Xxxxxx will not be an employee,
agent, director, stockholder or owner (except of not more than a 5% interest in
the voting securities of any publicly traded entity), partner, consultant,
financial backer, creditor or be otherwise directly or indirectly connected with
or participate in the management, operation or control of any Business, firm,
proprietorship, corporation, partnership, association, entity or venture
primarily engaged in a similar business as the Business (a "Competing Business")
within an area (the "Restricted Area") which is the continental United States.
B. Solicitation of Business. Xxxxxx will not
initiate any contact with, call upon, solicit business from, sell or render
services to any customer of the Company with respect to a Competing Business
within the Restricted Area and Xxxxxx shall not directly or indirectly aid or
assist any other person, firm or corporation to do any of the aforesaid acts.
C. Solicitation of Employees. Xxxxxx will not
directly or indirectly, as principal, agent, owner, partner, stockholder,
officer, director, employee, independent contractor or consultant of any
Competing Business within the Restricted Area or in any individual or
representative capacity for solicit, directly or indirectly cause others to
solicit the employment of any
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officer, sales person, agent, or other employee of the Company who has a base
compensation rate of $50,000 or more (subject to a COLA Adjustment), for the
purpose of causing said officer, sales person, agent or other person to
terminate employment with the Company and be employed by such Competing
Business.
D. Material Violation. A proven material violation
of this Section 6 shall constitute a material and substantial breach of this
Agreement and shall result in the imposition of the Company's remedies contained
in Section 7 herein. Xxxxxx acknowledges and agrees that proof of more than one
such personal solicitation by him, after due notice of the first alleged
violation, of a customer or employee, shall constitute absolute and conclusive
evidence that Xxxxxx has substantially and materially breached the provisions of
this Agreement.
E. Other Employment. It is understood by and
between the parties that the foregoing covenants set forth in Section 6 are
essential elements of this Agreement, and that, but for the agreement of Xxxxxx
to comply with such covenants, the Company would not have entered into this
Agreement. Such covenants by Xxxxxx shall be construed as agreements independent
of any other provision of this Agreement and the existence of any claim or cause
of action Xxxxxx may have against the Company whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by
Company of these covenants.
F. Defaults and Deferred Compensation.
(1) Company Breach. If the Company breaches
any requirement of Section 4 ("Deferred Compensation") herein in addition to any
other remedy to which Xxxxxx may be entitled, Company shall not be entitled to
enforce the provisions of this Section 6. The provisions of this Section 6 shall
not be imposed notwithstanding reinstatement of any benefits contained in
Section 5.
(2) Xxxxxx Breach. If Xxxxxx breaches any
requirement of Section 7 herein, in addition to any other remedy to which the
Company may be entitled, all of Xxxxxx'x rights to receive any portion of the
Deferred Compensation not already paid shall terminate. The right to receive
unpaid Deferred Compensation will not be reinstated notwithstanding any
cessation by Xxxxxx of his breach of Section 6.
(3) Inapplicability of Restrictions. In the
event that Xxxxxx'x Engagement is terminated due to a material breach by Company
of its obligations or in the event of a termination of Xxxxxx'x Engagement,
without cause, the restrictions contained in Section 6 shall not be applicable
to Xxxxxx.
7. REMEDIES. Xxxxxx hereby acknowledges, covenants and
agrees that in the event of a material default or breach by Xxxxxx under
Sections 5 or 6 of this Agreement:
A. Company may suffer irreparable and continuing
damages as a result of such breach and its remedy at law will be inadequate.
Xxxxxx agrees that in the event of a violation or breach of Sections 5 or 6 of
this Agreement, in addition to any other remedies available to it,
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Company shall be entitled to an injunction restraining any such default or any
other appropriate decree of specific performance, with the requirement to prove
actual damages or to post any bond or any other security and to any other
equitable relief the court deems proper; and
B. Any and all of Company's remedies described in
this Agreement shall not be exclusive and shall be in addition to any other
remedies which Company may have at law or in equity including, but not limited
to, the right to monetary damages.
8. SEVERABILITY. The invalidity of any one or more of the
words, phrases, sentences, clauses, sections, subdivisions, or subparagraphs
contained in this Agreement shall not affect the enforceability of the remaining
portions of this Agreement or any part thereof, all of which are inserted
conditionally on their being legally valid. In the event that one or more of the
words, phrases, sentences, clauses, sections, subdivisions, subparagraphs, or
Sections are determined to be unenforceable and if such invalidity shall be
caused by the length of any period of time or the size of any area set forth in
any part hereof, such period of time or such area, or both, shall be considered
to be reduced to a period or area which would cure such invalidity.
9. SUCCESSORS. This Agreement shall be binding upon and
inure to the successors and assigns of the parties hereto. Xxxxxx may assign
rights to receive payments hereunder to any law firm by which he is employed
from time to time including, without limitation, Xxxxxxxx X. Xxxxxx, P.A.
IN WITNESS WHEREOF, this agreement has been executed as of the day and year
first above written.
IMC MORTGAGE COMPANY
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, Chairman
/s/ Xxxxxxxx X. Xxxxxx
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XXXXXXXX X. XXXXXX
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