1
EXHIBIT 10.28
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of January 1, 1998 (the
"Effective Date") by and between NEWMARK HOME CORPORATION, a Nevada corporation
(the "Employer"), and XXXXXX X. XXXXXXX, an individual residing in Houston,
Texas (the "Employee").
RECITALS
The Employer, its divisions, subsidiaries, and other affiliated entities are
primarily engaged in the business of constructing single family residences. It
is the intent and purpose of the parties hereto to specify in this Agreement the
terms and conditions of Employee's employment with the Employer.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"Agreement"--this Employment Agreement, as amended from time to time.
"Base Salary"--as defined in Section 3.1(a).
"Basic Compensation" means Base Salary and Benefits.
"Benefits"--as defined in Section 3.1(b).
"Board of Directors" means the board of directors of the Employer.
"Confidential Information" means any and all intellectual property of
the Employer (or any of its affiliates), including but not limited to:
(a) trade secrets concerning the business and affairs of the Employer
(or any of its affiliates), product specifications, data,
know-how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software
and programs (including object code and source code), computer
software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information), and any other
information, however documented, that is a trade secret under
federal, state or other applicable law; and
2
(b) information concerning the business and affairs of the Employer
(or any of its affiliates) (which includes historical financial
statements, financial projections and budgets, historical and
projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and
techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer (or any of its
affiliates) containing or based, in whole or in part, on any
information included in the foregoing.
"Disability"--as defined in Section 4.2.
"Effective Date" means the date stated in the first paragraph of this
Agreement.
"Employee Invention" means any idea, invention, technique,
modification, process, or improvement (whether patentable or not), any
industrial design (whether registerable or not), any mask work, however
fixed or encoded, that is suitable to be fixed, embedded or programmed
in a semiconductor product (whether recordable or not), and any work of
authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Employee, either solely or in
conjunction with others, during the Employment Period or at any time
prior to the Employment Period that Employee was an employee of
Employer, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business
then being conducted or proposed to be conducted by the Employer, and
any such item created by the Employee, either solely or in conjunction
with others, following termination of the Employee's employment with
the Employer, that is based upon or uses Confidential Information.
"Employment Period" means the term of the Employee's employment under
this Agreement.
"Fiscal Year" means the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"For cause"--as defined in Section 4.3.
"Person" means any individual, corporation (including any nonprofit
corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, business trust, association,
organization, or governmental body.
"Post-Employment Period"-- as defined in Section 5.2.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Employee, and the Employee hereby
accepts employment by the Employer, upon the terms and conditions set
forth in this Agreement.
2
3
2.2 TERM
The term of the Employee's employment under this Agreement shall
commence on the Effective Date and end on December 31, 2002, unless
terminated earlier in accordance with the provisions of Section 4
herein. Employer and Employee may extend the term of this Agreement by
execution of a written amendment hereto, setting forth the terms of
such extension. If the parties fail to execute such written amendment,
but the employment relationship has continued by mutual consent, then
the terms of such employment shall be deemed to be on a month-to-month
basis.
2.3 DUTIES
The Employee will serve as President and Chief Executive Officer of the
Employer for the term of this Agreement and will have such duties as
are assigned or delegated to the Employee by the Board of Directors.
The Employee will devote his full business time, attention, skill, and
energy exclusively to the business of the Employer, will use his best
efforts to promote the success of the Employer's business, and will
cooperate fully with the Board of Directors of Employer in the
advancement of the best interests of the Employer. Nothing in this
Section 2.3, however, will prevent the Employee from engaging in
additional activities in connection with personal investments and
community affairs that are not inconsistent with the Employee's duties
under this Agreement. If the Employee is elected an officer of any of
Employer's affiliates, the Employee will fulfill his duties as such
officer without additional compensation.
3. COMPENSATION
The compensation and other benefits payable to the Employee under this
Agreement shall constitute the full consideration to be paid to the
Employee for all services to be rendered by the Employee for the
Employer, its divisions, subsidiaries and other affiliated entities.
3.1 BASIC COMPENSATION
(a) The Employee will be paid an annual salary as set forth below
("Base Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll
practices, but no less frequently than monthly.
Calendar Year Base Salary
------------- -----------
1998 $400,000.00
1999 $450,000.00
2000 $500,000.00
2001 $500,000.00
2002 $500,000.00
3
4
(b) The Employee will, during the Employment Period, be permitted
to participate in such pension, profit sharing, life
insurance, hospitalization, major medical and other employee
benefit plans of the Employer that may be in effect from time
to time, to the extent Employee is eligible under the terms of
those plans (collectively, the "Benefits").
(c) Employee will be eligible to participate in an annual bonus
plan, which will be consistent with previous bonus plans,
except as agreed to between Employee and Employer at the
beginning of each calendar year (the "Bonus Plan").
4. TERMINATION
4.1 EVENTS OF TERMINATION
The Employment Period, the Employee's Basic Compensation, and any and
all other rights of the Employee under this Agreement or otherwise as
an employee of the Employer will terminate (except as otherwise
provided in this Section 4):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in Section
4.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 4.3), immediately upon notice
from the Employer to the Employee, or at such later time as
such notice may specify; or
(d) on December 31, 2002.
4.2 DEFINITION OF DISABILITY
For purposes of Section 4.1, the Employee will be deemed to have a
"disability" if, for physical or mental reasons, the Employee is unable
to perform the essential functions of the Employee's duties under this
Agreement for 120 consecutive days, or 180 days during any twelve (12)
month period, as determined in accordance with this Section 4.2. The
disability of the Employee will be determined by a medical doctor
selected by written agreement of the Employer and the Employee upon the
request of either party by notice to the other. If the Employer and the
Employee cannot agree on the selection of a medical doctor, each of
them will select a medical doctor and the two (2) medical doctors will
select a third medical doctor who will determine whether the Employee
has a disability. The determination of the medical doctor selected
under this Section 4.2 will be binding on both parties. The Employee
must submit to a reasonable number of examinations by the medical
doctor making the determination of disability under this Section 4.2,
and the Employee hereby authorizes the disclosure and release to the
Employer of such determination and all supporting medical records. If
the Employee is not legally competent, the Employee's legal guardian or
duly authorized attorney-in-fact will act in the Employee's stead,
under this Section 4.2, for the
4
5
purposes of submitting the Employee to the examinations, and providing
the authorization of disclosure, required under this Section 4.2.
4.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 4.1, the phrase "for cause" means: (a) the
commission of fraud, theft, embezzlement, or similar malfeasance
involving moral turpitude or the conviction of, or plea of nolo
contendere to, any felony; (b) gross negligence, nonfeasance,
dishonesty, willful misconduct or substantial failure to perform
employment duties in a manner consistent with normal standards of job
performance after prior evaluation and warning related to such
standards of job performance; or (c) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer.
4.4 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Employee (or, in the event of his death, his
designated beneficiary as defined below) only such compensation as is
provided in this Section 4.4, and in lieu of all other amounts and in
settlement and complete release of all claims the Employee may have
against the Employer. For purposes of this Section 4.4, the Employee's
designated beneficiary will be such individual beneficiary or trust,
located at such address, as the Employee may designate by notice to the
Employer from time to time or, if the Employee fails to give notice to
the Employer of such a beneficiary, the Employee's estate.
(a) Termination by the Employer for Cause. If the Employer terminates
this Agreement for cause, the Employee will be entitled to
receive his accrued, but unpaid, Base Salary only through the
date such termination is effective. If the Employer terminates
this Agreement for cause, as defined in Section 4.3(a) or 4.3(c),
Employee shall forfeit his rights to any payment under any Bonus
Plan in which Employee participated at the time of termination,
whether or not payments under such Bonus Plan have been accrued
by Employer. If the Employer terminates this Agreement for cause,
as defined in Section 4.3(b), Employee shall be entitled to
receive a pro-rated portion of any payment under any Bonus Plan
in which Employee participated at the time of termination, based
on the actual days worked by the Employee during the fiscal year
on which the Bonus Plan is based. Employee shall not be released
from the covenants contained in Section 5 hereof.
(b) Termination upon Disability. If this Agreement is terminated by
either party as a result of the Employee's disability, as
determined under Section 4.2, the Employer will pay the Employee
(i) his Base Salary through the remainder of the calendar month
during which such termination is effective and (ii) a pro-rated
portion of any payment under any Bonus Plan in which Employee
participated at the time of termination, based on the actual days
worked by the Employee during the fiscal year on which the Bonus
Plan is based.
5
6
(c) Termination upon Death. If this Agreement is terminated because
of the Employee's death, the Employee's estate will be entitled
to receive (i) his Base Salary through the end of the calendar
month in which his death occurs and (ii) a pro-rated portion of
any payment under any Bonus Plan in which Employee participated
at the time of termination, based on the actual days worked by
the Employee during the fiscal year on which the Bonus Plan is
based.
(d) Termination on December 31, 2002. If on December 31, 2002, this
Agreement terminates because the parties have not extended the
Term (as provide in Section 2.2 hereof), the Employee shall be
entitled to receive (i) any unpaid Base Salary accrued through
December 31, 2002, and (ii) a pro-rated portion of any payment
under any Bonus Plan in which Employee participated at the time
of termination, based on the actual months worked by the Employee
during the fiscal year on which the Bonus Plan is based. Employee
shall not be released from the covenants contained in Section 5
hereof, provided however, that Employer shall pay Employee an
amount equal to one years Base Salary. Such amount shall be
payable in twelve (12) equal monthly installments, determined by
dividing Employee's Base Salary, on the last day of Employee's
employment with Employer, by 12, with the first such installment
being due and payable on the last day of Employee's employment
with Employer, and the remaining installments being due and
payable on the same date in each succeeding month. Employer shall
have the right, at any time, to release Employee from the
covenants contained in Section 5 hereof, at which time Employee's
right to receive and Employer's obligation to make any
installment payment shall terminate.
(e) Termination after December 31, 2002. In the event Employer and
Employee agree to continue Employee's employment with Employer
after December 31, 2002, pursuant to the terms of Section 2.2
hereof, such employment shall be continued, unless otherwise
agreed in writing, on a month to month basis and on the same
terms and conditions as set forth herein, and may be terminated
by Employer (i) at any time upon thirty (30) days notice, or (ii)
immediately, provided that Employer shall pay Employee in a lump
sum, an amount equal to one (1) months Base Salary. Employee
shall be entitled to receive a pro-rated portion of any payment
under any Bonus Plan in which Employee participated at the time
of termination, based on the actual months worked by the Employee
during the fiscal year on which the Bonus Plan is based. Employee
shall not be released from the covenants contained in Section 5
hereof, provided however, that Employer shall pay Employee an
amount equal to one years Base Salary. Such amount shall be
payable in twelve (12) equal monthly installments, determined by
dividing Employee's Base Salary, on the last day of Employee's
employment with Employer, by 12, with the first such installment
being due and payable on the last day of Employee's employment
with Employer, and the remaining installments being due and
payable on the same date in each succeeding month. Employer shall
have the right, at any time, to release Employee from the
covenants contained in Section 5 hereof, at which time Employee's
right to receive and Employer's obligation to make any
installment payment shall terminate.
6
7
In the event that Employer terminates Employee for cause, as
defined in Section 4.3, then the provisions of this Section
4.4(e)(i) and (ii) shall not apply, and Employee will be
entitled to receive only his accrued, but unpaid, Base Salary
through the date such termination is effective and Employee
shall not be released from the covenants contained in Section
5 hereof. If the Employer terminates this Agreement for cause,
as defined in Section 4.3(a) or 4.3(c), Employee shall forfeit
his rights to any payment under any Bonus Plan in which
Employee participated at the time of termination, whether or
not payments under such Bonus Plan have been accrued by
Employer. If the Employer terminates this Agreement for cause,
as defined in Section 4.3(b), Employee shall be entitled to
receive a pro-rated portion of any payment under any Bonus
Plan in which Employee participated at the time of
termination, based on the actual days worked by the Employee
during the fiscal year on which the Bonus Plan is based.
(f) Benefits. The Employee's accrual of, or participation in plans
providing for, Benefits, will cease at the effective date of
the termination of this Agreement, except as otherwise
specifically provided in writing in the documentation for any
such Benefit. The Employee will not receive, as part of his
termination pay pursuant to this Section 4, any payment or
other compensation for any vacation, holiday, sick leave, or
other leave unused on the date the notice of termination is
given under this Agreement, unless Employer's written
personnel policies provide otherwise.
5. NON-COMPETITION AND NON-INTERFERENCE
5.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character, and (b) the provisions of this Section 5
are reasonable and necessary to protect the goodwill and other business
interests of Employer.
5.2 COVENANTS OF THE EMPLOYEE
In consideration of the acknowledgments by the Employee, and in
consideration of the compensation and benefits to be paid or provided
to the Employee by the Employer, the Employee covenants that he will
not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period (as
defined below), without the express prior written consent of
Employer (as authorized by its board of directors), as owner,
officer, director, employee, stockholder, principal, consultant,
agent, lender, guarantor, cosigner, investor or trustee of any
corporation, partnership, proprietorship, joint venture,
association or any other entity of any nature, engage, directly
or indirectly, in any business of siting, permitting, developing,
constructing, or selling single-family homes in (i) the following
counties in the State of Texas: (1) Xxxxxx County and all
contiguous counties, (2) Xxxxxx County and all contiguous
counties, (3) Bexar County, and all contiguous counties, (4)
Dallas County and all
7
8
contiguous counties, and (5) any county in which Employer has
homebuilding activity during the Employment Period, and (ii) the
following counties in the State of Tennessee: (1) Xxxxxxxxxx
County and all contiguous counties, and (2) any county in which
Employer engages in business during the Employment Period,
provided, however, that the Employee may purchase or otherwise
acquire up to (but not more than) one percent (1%) of any class
of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such
securities are listed on any national or regional securities
exchange or have been registered under Section 12(g) of the
Securities Exchange Act of 1934;
(b) whether for the Employee's own account or for the account of any
other person, at any time during the Employment Period (except
for the account of Employer and its affiliates) and the
Post-Employment Period, solicit business of the same or similar
type being carried on by the Employer, from any person known by
the Employee to be a customer of the Employer, whether or not the
Employee had personal contact with such person during and by
reason of the Employee's employment with the Employer;
(c) whether for the Employee's own account or the account of any
other person (i) at any time during the Employment Period and the
Post-Employment Period, solicit, employ, or otherwise engage as
an employee, independent contractor, or otherwise, any person who
is an employee of the Employer, or in any manner induce, or
attempt to induce, any employee of the Employer to terminate his
employment with the Employer; or (ii) at any time during the
Employment Period and Post Employment Period, interfere with the
Employer's relationship with any person, including any person,
who at any time during the Employment Period, was an employee,
contractor, supplier, or customer of the Employer; provided,
however, that nothing in this Section 5.2(c)(ii) shall preclude
Employee from soliciting or employing any person, who was
employed by Employer, after six (6) months have lapsed from the
last date of the former employee's employment with Employer; or
(d) at any time during or after the Employment Period, disparage the
Employer or any of its shareholders, parents, affiliates,
directors, officers, employees, or agents.
The term "Post-Employment Period" means the one (1) year period
beginning on the date of termination of the Employee's employment with
the Employer.
If any covenant in this Section 5.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered
to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court
of competent jurisdiction may determine to be reasonable, not
arbitrary, and not against public policy, will be effective, binding,
and enforceable against the Employee. Employee hereby agrees that this
covenant is a material and substantial part of this Agreement and that
(i) the geographic limitations are reasonable; (ii) the one (1) year
term of the covenant is reasonable; and (iii) the covenant is not made
for the purpose of limiting competition per se and is reasonably
related to a protectable business interest of the Employer.
8
9
The period of time applicable to any covenant in this Section 5.2 will
be extended by the duration of any violation by the Employee of such
covenant.
The Employee will, while the covenant under this Section 5.2 is in
effect, give notice to the Employer, within ten (10) days after
accepting any other employment, of the identity of the Employee's
employer. The Employer may notify such employer that the Employee is
bound by this Agreement and, at the Employer's election, furnish such
employer with a copy of this Agreement or relevant portions thereof.
6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that (a) during the Employment Period and as
a part of his employment, the Employee will be afforded access to
Confidential Information; (b) public disclosure of such Confidential
Information could have an adverse effect on the Employer and its
business; (c) because the Employee possesses substantial technical
expertise and skill with respect to the Employer's business, the
Employer desires to obtain exclusive ownership of each Employee
Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each
Employee Invention; and (d) the provisions of this Section 6 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Employer with exclusive
ownership of all Employee Inventions.
6.2 AGREEMENTS OF THE EMPLOYEE
In consideration of the compensation and benefits to be paid or
provided to the Employee by the Employer under this Agreement, the
Employee covenants as follows:
(a) Confidentiality.
(i) During and following the Employment Period, the
Employee will hold in confidence the Confidential
Information and will not disclose it to any person
other than in connection with the performance of his
duties and obligations hereunder, except with the
specific prior written consent of the Employer or
except as otherwise expressly permitted by the terms
of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits under the federal
and state trade secret and intellectual property laws
and any other applicable law. If any information that
the Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such
information will, nevertheless, be considered
Confidential Information for purposes of this
Agreement. The Employee hereby waives any requirement
that the Employer submit proof of the economic value
of any trade secret or post a bond or other security.
9
10
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information
that the Employee demonstrates was or became
generally available to the public other than as a
result of a disclosure by the Employee.
(iv) The Employee will not remove from the Employer's
premises (except to the extent such removal is for
purposes of the performance of the Employee's duties
at home or while traveling, or except as otherwise
specifically authorized by the Employer) any
document, record, notebook, plan, model, component,
device, or computer software or code, whether
embodied in a disk or in any other form belonging to
the Employer or used in Employer's business
(collectively, the "Proprietary Items"). The Employee
recognizes that, as between the Employer and the
Employee, all of the Proprietary Items, whether or
not developed by the Employee, are the exclusive
property of the Employer. Upon termination of this
Agreement, or upon the request of the Employer
during the Employment Period, the Employee will
return to the Employer all of the Proprietary Items
in the Employee's possession or subject to the
Employee's control, and the Employee shall not retain
any copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Employee acknowledges that all
of the Employee's writing, works of authorship and other Employee
Inventions are works made for hire and the property of the
Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire, the
Employee hereby assigns to the Employer all of the Employee's
right, title, and interest, including all rights of copyright,
patent, and other intellectual property rights, to or in such
Employee Inventions. The Employee covenants that he will
promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by the
Employer, at the Employer's request and without additional
compensation, all of the Employee's right to the Employee
Invention for the United States and all foreign
jurisdictions;
(iii) execute and deliver to the Employer such applications,
assignments, and other documents as the Employer may
request in order to apply for and obtain patents or other
registrations with respect to any Employee Invention in
the United States and any foreign jurisdictions;
(iv) sign all other papers necessary to carry out the above
obligations; and
(v) give testimony and render any other assistance but without
expense to the Employee in support of the Employer's
rights to any Employee Invention.
10
11
6.3 DISPUTES OR CONTROVERSIES
The Employee recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel, or other third party, the preservation of the
secrecy of Confidential Information may be jeopardized. All pleadings,
documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by
the Employer, the Employee, and their respective attorneys and experts,
who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in
writing.
7. GENERAL PROVISIONS
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Employee acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 5 and 6) would be irreparable and
that an award of monetary damages to the Employer for such a breach
would be an inadequate remedy. Consequently, the Employer will have the
right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement.
Without limiting the Employer's rights under this Section 7 or any
other remedies of the Employer, if the Employee breaches any of the
provisions of Sections 5 and 6 and such breach is proven in a court of
competent jurisdiction, the Employer will have the right to cease
making any payments otherwise due to the Employee under this Agreement.
7.2 COVENANTS OF SECTIONS 5 AND 6 ARE ESSENTIAL AND INDEPENDENT
COVENANTS
The covenants by the Employee in Sections 5 and 6 are essential
elements of this Agreement, and without the Employee's agreement to
comply with such covenants, the Employer would not have entered into
this Agreement or continued the employment of the Employee. The
Employer and the Employee have independently consulted their respective
counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to
the nature of the business conducted by the Employer.
The Employee's covenants in Section 5 and 6 are independent covenants
and the existence of any claim by the Employee against the Employer
under this Agreement or otherwise will not excuse the Employee's breach
of any covenant in Sections 5 or 6. If the Employee's employment
hereunder expires or is terminated, this Agreement will continue in
full force and effect as is necessary or appropriate to enforce the
covenants and agreements of the Employee in Sections 5 and 6.
11
12
7.3 LEGAL RECOURSE
Employee further agrees that these covenants are made to protect the
legitimate business interests of the Employer. Employee understands as
a part of these covenants that the Employer intends to exercise
whatever legal recourse against him for any breach of this Agreement
and in particular, for any breach of these covenants.
8. GENERAL PROVISIONS
8.1 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party
in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single
or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right
arising out of this Agreement can be discharged by one party, in whole
or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a
party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
8.2 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the
Employer may merge or consolidate or to which all or substantially all
of its assets may be transferred. The duties and covenants of the
Employee under this Agreement, being personal, may not be delegated.
8.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that
a copy is mailed by certified mail, return receipt requested, or (c)
when received by the addressee, if sent by a nationally recognized
overnight delivery service, in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other
parties):
12
13
If to Employer:
Newmark Home Corporation
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile No.: 281/243-0132
With a copy to:
Xxxxxxx X. Xxxxxx
Pacific USA Holdings Corp.
0000 Xxxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile No.: 713/871-0155
If to the Employee:
Xxxxxx X. Xxxxxxx
00 Xxxxxxxx Xxxxx, XX 00X
Xxxxxxx, Xxxxx 00000
8.4 ENTIRE AGREEMENT; AMENDMENTS
Employee and Employer have entered into a Mutual Agreement to Arbitrate
Claims (the "Arbitration Agreement") incorporated herein for all
purposes as if set forth in full. The Arbitration Agreement is hereby
amended to provide that the Arbitration, as defined in the Arbitration
Agreement, shall be non-binding. This Agreement, together with the
Arbitration Agreement, contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
8.5 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
8.6 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this
Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
13
14
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
"EMPLOYER"
NEWMARK HOME CORPORATION
By: /s/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & CEO
"EMPLOYEE"
/s/ XXXXXX X. XXXXXXX
-----------------------------------
XXXXXX X. XXXXXXX 2/13/98
14
