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Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into this 15th day of
March, 1999, by and between MORTGAGE BANKERS HOLDING CORP., a New York
corporation (the "Company"), and Xxxxx X. Xxxxxxx, an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and services of the
Executive for the Company and/or its subsidiaries.
B. Executive is willing and desires to be employed by the Company, and the
Company is willing to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto do hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs Executive as National Sales
Manager, subject to the supervision and direction of the President and the
Company's Board of Directors.
2. TERM. The term of this Agreement shall be for a period of five (5)
years commencing on the date hereof.
3. COMPENSATION; REIMBURSEMENT.
3.1 BASE SALARY. Executive shall be compensated in the amount of
$12,000 per month for services rendered hereunder. The Board of Directors shall
review said salary on an annual basis.
3.2 INCENTIVE BONUS. Executive shall receive an Incentive Bonus
hereunder. Said Incentive Bonus shall be determined and computed annually by the
Board of Directors.
3.3 ADDITIONAL BENEFITS. In addition to the Base Salary and the
Incentive Bonus, the following shall be entitled at the company expense:
1. $500 ($6,000 annually) monthly car allowance;
2. Corporate Credit Card;
3. Cellular Phone;
4. All fringe benefits as they may apply to any employee of MBHC and/or
any of its subsidiaries.
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3.4 REIMBURSEMENT. Executive shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement,
subject to such reasonable documentation and limitations as may be established
by the Board of Directors of the Company. Reimbursement of invested dollars into
MBHC during calendar years 1998-1999 will be paid to Executive in cash or stock,
the choice remaining with the Executive.
4. SCOPE OF DUTIES.
4.1 ASSIGNMENT OF DUTIES. Executive shall have such duties as may be
assigned to him from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the President and Board of Directors
of the Company.
4.2 GENERAL SPECIFICATION OF DUTIES. Executive duties shall include,
but not be limited to, the duties and performance goals as follows:
(1) Serves as President and CEO of Mortgage Bankers Holding Corp. (the
Company);
(2) Execute on behalf of the Company, the Corporate budget and annual
plan;
(3) Assist the budgeting and planning department in the preparation of
above referenced sales budget and annual plan; (4) Recommend and
monitor Corporate reporting procedures; and (5) Any and all other
responsibilities that may be assigned and required by the Company
to be performed under this position.
The foregoing specifications are not intended as a complete itemization of the
duties which Executive shall perform and undertake on behalf of the company in
satisfaction of his or her employment obligations under this Agreement.
4.3 ANNUAL PLAN.
(1) Executive shall submit to the Company for its approval, not later
than 60 days before the beginning of each calendar year, an annual
Corporate business plan for the Company. The Annual Plan shall be
submitted to the Board of Directors of the Company for its review
and final approval. Each annual Plan shall include the following
information:
(a) An annual forecast of income and expenses for the Company;
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(b) A cash flow budget, estimate of profit, and source and use of
cash settlements for the operation of the Company; and
(c) A payroll and staffing plan and budget for the Company.
(2) During each year, Executive in the performance of his duties under
this Agreement shall comply or cause compliance with the applicable
Annual Plan and shall not (except for emergency expenditures or
special circumstances requiring an unanticipated expenditure)
deviate materially from any budget category set forth in the Annual
Plan, incur any material additional expense or change materially
the manner of operation, without the approval of the Company.
4.4 DEVOTION OF TIME. Executive hereby agrees to devote his full time,
abilities and energy to the faithful performance of the duties assigned to him
and to the promotion and forwarding of the business affairs of the Company, and
not to divert any business opportunities from the Company to himself or to any
other person or business entity.
4.5 CONFLICTING ACTIVITIES.
(1) Executive shall not, during the term of this Agreement be engaged
in any other business activity without the prior consent of the
Board of Directors of the Company, provided, however that this
restriction shall not be construed as preventing Executive from
investing his personal assets in passive investments in business
entities which are not in competition with the Company or its
affiliates, or from pursuing business opportunities as permitted.
(2) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or
anticipated future business of the Company, in a manner consistent
with the best interests of the Company and with his duties under
this Agreement. Should Executive discover a business opportunity
that does not relate to the current or anticipated future business
of the Company, he shall first offer such opportunity to the
Company. Should the Board of Directors of the Company not exercise
its right to pursue this business opportunity within a reasonable
period of time, (not to exceed sixty (60) days), then Executive may
develop the business opportunity for himself; provided, however,
that such development may in no way conflict or interfere with the
duties owed by Executive to the Company under this Agreement.
Further, Executive may develop such business opportunities only on
his own time, and may not use any service, personnel, equipment,
supplies, facility, or trade secrets of the Company in said
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development. As used herein, the term "business opportunity" shall
not include business opportunities involving investment in publicly
traded stocks, bonds or other securities, or other investments of a
personal nature.
5. STOCK.
5.1 STOCK OF COMPANY. Executive will receive one time 5,000,000 shares
of MBHC (Company) stock. This stock is freely traded common stock under the
criteria of 144 stock restrictions. The stated amount of stock is owned by the
Executive and said amount will survive any stock reversal, split or any other
type of stock adjustment. The stock will be owned by the employee upon execution
of this agreement and retained by employee whether or not employment is
maintained with the Company. The Company has no restrictions or reversionary
rights on Executive's rights in this stock. In addition to the shares paid in
5.1, Executive also has rights as listed in 5.2 and 5.3 below.
5.2 RIGHTS TO GRANTED STOCK. The intention of the following is to grant
what is commonly known as phantom stock to Executive. As of the later date of
execution of this Agreement by each party, MBHC grants to Executive, in tandem
with stock option rights specified elsewhere in this agreement, the right to
receive certain of MBHC's stock in the following manner: The number of shares
(phantom stock) granted to Executive is 2,000,000 per calendar year. The shares
will be credited to a stock account of Executive in the amount of 500,000 on the
1st day of March, June, September, and December of each year. The credited stock
is granted at no cost to Executive. Executive may exercise the right to take
title and possession of any amount of the stock at any time on or after the
grant of the stock as above specified. Executive may exercise the right, if so
agreed by MBHC, to take the Fair Market Value of the stock in cash in exchange
for Executive's right to take title and possession. MBHC represents that it has
the authority to grant the right to stock as called for here. These rights are
not pursuant to an employee benefit plan or otherwise qualified plan. If cash in
lieu of stock is elected by Executive, payment will be promptly made by MBHC. If
stock is elected by Executive, MBHC will execute the usual and ordinary stock
certification in Executive's name or in the name Executive designates. The
Cumulative total units of the granted stock specified in 5.2 (2,000,000 shares
per year) and the Stock Option rights specified elsewhere in this Agreement at
5.3 (1,000,000 option shares per calendar year) is a total of 3,000,000 per
calendar year. The exercise of a right to the above listed granted stock and/or
a Stock Option Right will reduce the total stock units remaining subject to
exercise by the amount so exercised. Except for the cumulative total limit,
Executive may elect to exercise the right to the granted stock or the Stock
Option Rights in any numerical combination. The amounts exercised do not affect
the 5,000,000 shares Executive is entitled to in 5.1.
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5.3 STOCK OPTION RIGHTS. As of the later date of execution of this
Agreement by each party, MBHC grants to Executive, in tandem with the grant of
rights to so-called phantom stock specified elsewhere in this agreement, the
right to purchase Stock of MBHC. The basis for any of such purchased stock value
is set at 10 cents (.10). MBHC represents that it has the authority to grant
Stock Option Rights and issue stock as of the date of execution by MBHC. MBHC
will execute the usual and ordinary stock ownership certification in Executive's
name or in the name Executive designates. The cumulative total units of the
so-called phantom stock specified in this Agreement at 5.2 (2,000,000) and the
Stock Options Rights specified here in 5.3 is 1,000,000 per calendar year. The
exercise of a right to granted stock and/or a Stock Option Right will reduce the
total stock units remaining subject to exercise by the amount so exercised.
Except for the cumulative total calendar year limit, Executive may elect to
exercise the right to granted stock or Stock Option Rights in any numerical
combination. If a stock split or stock reversal is declared or enacted,
Executive will maintain the right tot the same cumulative total units as
specified in this Agreement regardless. The mounts exercised do not affect the
5,000,000 shares executive is entitled to in 5.1.
6. CONFIDENTIALITY OF TRADE SECRETS AND OTHER MATERIALS.
6.1 TRADE SECRETS. Other than in the performance of his or her duties
hereunder, Executive agrees not to disclose either during the term of his
employment by the Company or at any time thereafter, to any person, firm or
corporation any information concerning trade secrets or the customer lists or
similar information of the company.
6.2 OWNERSHIP OF TRADE SECRETS; ASSIGNMENT OF RIGHTS. Executive hereby
agrees that all know-how, documents, reports, plans, proposals, marketing and
sales plans, client lists, client files and materials made by him or by the
Company are the property of the Company and shall not be used by him in any way
adverse to the Company's interests. Executive shall not deliver, reproduce or in
any way allow such documents or things to be delivered or used by any third
party without specific direction or consent of the Board of Directors of the
Company. Executive hereby assigns to the Company any rights, which he may have
in any such trade secret or proprietary information; provided, however, that
such assignment does not apply to any right, which qualifies fully under any
applicable state and/or federal laws.
7. TERMINATION.
7.1 BASIS FOR TERMINATION.
(1) Executive employment hereunder may be terminated at any time by
mutual agreement of the parties.
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(2) This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated.
"Permanent incapacity" as used herein shall mean mental or physical
incapacity, or both, reasonably determined by the Company's Board
of Directors, either based upon a certification of such incapacity
by, in the discretion of the Company's Board of Directors,
rendering Executive unable to perform substantially all of his
duties hereunder and which appears reasonably certain to continue
for at least six consecutive months without substantial
improvement. Executive shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has
determined that Executive is permanently incapacitated and so
notifies Executive.
(3) Executive employment may be terminated by the Company "with or
without cause" (for any reason or no reason at all) at any time by
giving Executive 60 days prior written notice of termination, which
termination shall be effective on the 60th day following such
notice (unless otherwise agreed to by both parties). If Executive
employment under this Agreement is so terminated, the Company shall
(a) make a lump sum cash payment to Executive within 10 days after
termination of an amount equal to (i) Executive Base Salary for the
balance of the year in which termination occurs, (ii) the full
portion of the Incentive Bonus, if any, earned for the year in
which termination occurs, (iii) any unreimbursed expenses accruing
to the date of termination; and (b) make a lump sum cash payment
equal to Executive annual Base Salary, as increased pursuant to
Section 3.1, on each anniversary date of this Agreement for the
balance of the term specified in Section 2. For purposes of this
provision, Executive annual Base Salary and the remaining portion
of the term of the Agreement shall be calculated as of the
termination date.
(4) Executive may terminate his employment hereunder by giving the
Company 60 days prior written notice, which termination shall be
effective on the 60th day following such notice. All severance and
termination criteria in Section 7.1 (3) shall apply in employee's
resignation as well.
7.2 CHANGE IN CONTROL. In the event that a "Change in Control" of the
Company occurs, then the Executive is entitled to terminate his employment
hereunder within one year of the Change of Control of the company, and upon such
termination the Company shall pay to the Executive (i) a lump cash severance
amount equal to three times the Executive's annual Base Salary, (ii) a full
portion of the Incentive Bonus, if any, earned for the year, and (iii) any
unreimbursed expenses incurred prior to the date of termination. Further, upon a
Change of Control of the Company, any options for common stock of the
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Company granted to or held by the Executive, to the extent not yet vested or
exercisable shall become immediately vested and exercisable. Such options will
remain exercisable for a period of five years after the date of termination
following a Change in Control. The stock referred to above does not affect the
5,000,000 shares Executive is entitled to in Section 5.1.
A "Change in Control of the Company" shall mean a change in control of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended ("Exchange Act"), or any successor thereto, whether or not the
Company is registered under the Exchange Act; provided that, without limitation,
such a change in control shall be deemed to have occurred if (i) any "person"
(as such term used in Sections 13(d) and 14(d) of the Exchange Act), directly or
indirectly, or securities of the Company representing 50% or more of the
combined voting power of the Company's then outstanding securities; or (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board of Directors of the Company cease for any
reason to constitute at least a majority thereof unless the election, or the
nomination for election by stockholders, of each new director was approved by a
vote of at least two-thirds of the directors then still in office who were
directors at the beginning of the period.
7.3 DISMISSAL FROM PREMISES. At the Company's option, Executive shall
immediately leave the Company's premises on the date notice of termination is
given by either the President or the Company unless otherwise agreed upon.
8. INJUNCTIVE RELIEF. The Company and Executive hereby acknowledge and
agree that any default under Section 6 above will cause damage to the Company in
an amount difficult to ascertain. Accordingly, in addition to any other relief
to which the Company may be entitled, the Company shall be entitled to such
injunctive relief as may be ordered by any court of competent jurisdiction
including, but not limited to, an injunction restraining any violation of
Section 6 above.
9. MISCELLANEOUS.
9.1 TRANSFER AND ASSIGNMENT. This Agreement is personal as to Executive
and shall not be assigned or transferred by Executive without the prior written
consent of the Company. This Agreement shall be binding upon and insure to the
benefit of all of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
9.2 SEVERABILITY. Nothing contained herein shall be construed to
require the commission of any act contrary to law. Should there be any conflict
between any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the
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force of law, the later shall prevail, but the provision of the Agreement
affected thereby shall be curtailed and limited only to the extent necessary to
bring it within the requirements of the law, and the remaining provisions of
this Agreement shall remain in full force and effect.
9.3 GOVERNING LAW. This Agreement is made under and shall be construed
pursuant to the laws of the Commonwealth of Pennsylvania.
9.4 COUNTERPARTS. This Agreement may be executed in several counter
parts and all documents so executed shall constitute one agreement, binding on
all of the parties hereto, notwithstanding that all of the parties did not sign
the original or the same counterparts.
9.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
9.6 MODIFICATION. This Agreement may be modified, amended, superseded,
or canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
9.7 ATTORNEYS' FEES AND COSTS. In the event of any dispute arising out
of the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
9.8 WAIVER. The waiver by either of the parties, express of implied, of
any right under this Agreement or any failure to perform under this Agreement by
the other party, shall not constitute or be deemed as a waiver of any other
right under this Agreement or of any other failure to perform under this
Agreement by the other party, whether of a similar or dissimilar nature.
9.9 CUMULATIVE REMEDIES. Each and all of the several rights and
remedies provided in this Agreement, or by law or in equity, shall b e
cumulative, and no one of them shall be exclusive of any other right or remedy,
and the exercise of any one of such rights or remedies shall not be deemed a
waiver of, or an election to exercise, any other such right or remedy.
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9.10 HEADINGS. The section and other headings contained in this
Agreement are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
9.11 NOTICES. Any notice under this Agreement must be in writing, may
be telecopied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
IF TO THE COMPANY: MORTGAGE BANKERS HOLDING CORP.
000 XXXXXXXXXX XXX.
XXXXXXXX, XX 00000
IF TO THE EXECUTIVE: XXXXX X. XXXXXXX
000 XXXXXXX XXXX XXXX
XXXXXXX XXXX, XX 00000
Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
9.12 SURVIVAL. Any provision of this Agreement which imposes an
obligation after termination or expiration of this Agreement shall survive the
termination or expiration of this Agreement and be binding on Executive and the
Company.
9.13 RIGHT OF SET-OFF. Upon termination or expiration of this
Agreement, the Company shall have the right to set-off against the amounts due
Executive hereunder the amount of any outstanding loan or advance from the
Company to Executive.
9.14 EFFECTIVE DATE. This Agreement shall become effective as of the
date set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
ATTEST: COMPANY
Xxxxxxx X. Xxxxx
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PRINTED NAME
/s/ Xxxxxxx X. Xxxxx
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SIGNATURE
ATTEST: EXECUTIVE
Xxxxx X. Xxxxxxx
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PRINTED NAME
/s/ Xxxxx X. Xxxxxxx
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SIGNATURE
