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EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made as of the 13th the
day of April, 1998 (the "Effective Date"), by and between First Sierra
Financial, Inc., a Delaware corporation (the "Employer" or "Company"), and
Xxxxx X. Xxxxxxxx (the "Employee"). Employer and Employee may be referred to
herein collectively as the "Parties" and individually as a "Party." All
capitalized terms not otherwise defined in this Agreement shall have the
meaning ascribed to such terms in the Stock Purchase Agreement among Xxxxx X.
Xxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxxxxxx, Nexsoft, Inc. and First Sierra
Financial, Inc.
ARTICLE I
TERM
Employer hereby agrees to employ Employee and Employee hereby agrees
to accept employment with Employer for a period beginning on the Effective Date
and ending on the earlier to occur of (i) the fifth anniversary of the
Effective Date and (ii) the date this Agreement is terminated pursuant to the
terms hereof (the "Term").
ARTICLE II
DUTIES OF EMPLOYEE
2.01 Duties. Employee is engaged, during the Term, to be an
Executive Vice President and Chief Information Officer (CIO) of Employer and a
member of the Executive Management Team and the General Manager of Employer's
Information Systems Division. Employee's duties and powers shall be determined
from time to time by the CEO of Employer and during the Term shall be
consistent with the duties of the general manager of the Information System's
Division. Employee shall perform and discharge such duties in a businesslike
manner and faithfully as an officer of Employer, and shall be subject to the
supervision and direction of the CEO of Employer and Employer's Board of
Directors. Employee shall discharge such duties during Employer's normal
business hours. Employer shall not require Employee to relocate from the
Highlands Ranch, Colorado, area without Employee's consent. Employee's travel
shall not exceed twenty percent.
2.02 Full Time Employment. Employee shall devote his productive
time, ability and attention to the business of Employer during the Term.
Employee shall not, directly or indirectly, during the Term render any services
of a business, commercial or professional nature to any other person,
corporation, form or organization, whether for compensation or otherwise,
without the prior written consent of Employer, provided, however, Employee may
comply with his obligations under that certain agreement with American Business
Leasing to provide software service and support.
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ARTICLE III
COMPENSATION AND BENEFITS
3.01 Base Compensation. As compensation for services rendered and
Employee's covenants and agreements under this Agreement, during the Term
Employee shall be entitled to receive from Employer a base salary of $175,000
per year, payable in equal semi-monthly installments, subject to withholding
and similar taxes. Employee's base salary will be reviewed on an annual basis,
tied to the Effective Date, by the Compensation Committee of Employer's Board
of Directors to determine (in the discretion of such Committee) whether any
increase will be granted.
3.02 Benefit Plans. During the Term, and thereafter, to the extent
provided in the applicable plan, Employer agrees to include Employee in any
retirement, insurance, medical, disability, dental or health benefit plans
adopted by Employer for the general benefit of the similar level employees of
Employer including, without limitation, Employer's 401K plan. Employee shall be
entitled to take 4 weeks paid vacation each year.
3.03 Expenses. Employer, in accordance with the rules and
regulations that the Board of Directors shall issue and revise from time to
time, shall timely reimburse Employee for business expenses directly and
reasonably incurred in the performance of his duties.
3.04 Incentive Plans. Employee shall be entitled to participate in
any stock option plan and bonus plan adopted by the Board of Directors for
executive level officers of the Company (i.e., those officers constituting an
executive vice president or the president). Employee acknowledges and agrees
that the extent to which Employee is entitled to participate in any such plan,
and the terms of such participation, the amount of compensation, the number of
options and the terms of such options shall be subject to the sole control and
discretion of the Board of Directors (and neither the Company nor any member of
its Board of Directors shall owe any duty or be subject to any standard of care
in making such determination).
ARTICLE IV
TERMINATION
This Agreement shall terminate prior to the expiration of its Term
upon the occurrence of any one of the following events:
4.01 Disability. If Employee is unable to perform his duties and
responsibilities hereunder to the extent required by the Board of Directors of
Employer by reason of illness, injury or incapacity for 60 consecutive days
(during such 60 day period Employee shall continue to be compensated as
provided in Section 3.01), this Agreement may be terminated by Employer, and
Employer and Employee shall have no further liability or obligations hereunder
other than Employer's obligation to pay Employee amounts that may be due (if
any) under Section 3.03 through the date of such termination and not previously
paid to Employee and any rights of Employee with respect to the plans described
in Section 3.02 that, in accordance with the terms of the applicable plan,
provide for benefits to Employee beyond such termination date. In the
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event of any dispute under this Section 4.01, Employee shall submit to a
physical examination by a licensed physician selected by Employer.
4.02 Death. If Employee dies during the Term, Employer shall pay to
Employee's executors, legal representatives or administrators the base
compensation specified in Section 3.01 hereof in respect of the period through
the date of such death together with any amount that may be due (if any) under
Section 3.03 through the date of such death and not previously paid to
Employee.
4.03 Cause. Nothing in this Agreement shall be construed to prevent
the termination of this Agreement by Employer at any time for "cause." For
purposes of this Agreement, "cause" shall mean (i) Employee shall commit an act
of theft or embezzlement from or fraud on Employer, (ii) Employee shall
willfully neglect his duties while employed by Employer and not cease such
neglect within 15 days following receipt of a notice from Employer stating with
reasonable specificity what duties are being willfully neglected and requesting
that Employee no longer neglect his duties, (iii) Employee shall habitually
breach Employer's policies and fail to comply with Employer's policies within
15 days following receipt of a notice from Employer requesting such compliance,
(iv) Employee shall be in material breach or default of this Agreement, and
shall remain in material default or breach 15 days after notice in writing, of
such breach or default, or (v) Employee shall commit an act of moral turpitude
or a crime that brings the reputation of the Company into public disrepute or
causes Employer to be viewed unfavorably by customers or suppliers, in any
event in the reasonable determination of the Company's Board of Directors. Upon
termination for cause, Employer shall pay to Employee all sums due to Employee
through the date of such termination under Section 3.01 and 3.03 (to the extent
the same have accrued), and not previously paid to Employee. Following such
termination and payment as described in the preceding sentence, Employer shall
have no further duties or obligations to Employee. Employee will also have all
rights with respect to the plans described in Section 3.02 that in accordance
with the terms of the applicable plan provides for benefits to Employee beyond
such termination date. In the event of a termination under this Section,
Employee shall remain subject to all provisions of Article V.
If Employee is terminated for cause and Employee disputes such
termination, such dispute shall be resolved by a binding mediation conducted by
a mediator with ADR Group, Inc., 0000 Xxxx Xxx Xxxx., Xxxxx 0000, Xxxxxxx,
Xxxxx 00000, (000) 000-0000. Such mediation shall be held in Houston, Texas,
within 5 days after notice terminating Employee for cause. The losing party
shall pay the mediator's fees.
4.04 Termination Without Cause by Employer. Employer, in its
discretion and for any reason, may terminate this Agreement at any time by
delivering 30 days' prior written notice to Employee prior to such intended
termination ("Termination Date"). This Agreement shall terminate on the
Termination Date and, except as provided under this Section 4.04, the Parties
shall have no further duties or obligations to each other. Employer shall pay
to Employee all amounts that may have accrued under Section 3.01 and 3.03
through the date of such termination and not previously paid to Employee and
the balance of the base compensation due Employee over the remaining portion of
the five year term; provided, if Employer so elects, Employer may pay such
remaining base compensation on a monthly basis. In the event of a termination
under this Section 4.04, Employee shall remain subject to all provisions of
Article V.
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4.05 No Termination by Employee. Employee shall not have the right
to terminate this Agreement for any reason.
4.06 Acquisition. Employee shall be entitled to a payout of the base
salary under Section 3.01 due over the remaining months in the Term if
Employee's employment is terminated following the acquisition of Employer by
another entity where Employer is not the surviving entity.
ARTICLE V
PROPERTY RIGHTS
5.01 Scope of Protection. During the period that Employee is
employed hereunder, Employee shall use his best efforts to promote the
interests of Employer consistent with his normal duties. During Employee's
employment with Employer and (to the extent applicable to periods of time
following Employee no longer being employed by Employer) during the period
commencing as of the date hereof and ending upon the earlier to occur of (a)
the expiration of one year from the period through which Employer agrees to pay
Employee following a termination pursuant to Section 4.04, and (b) the
expiration of six years from the date hereof, Employee hereby agrees that he
shall not, directly or indirectly, either through any form of ownership, or as
a director, officer, principal, agent, employee, employer, advisor, consultant,
partner or in any individual or representative capacity whatsoever, either for
his own benefit or for the benefit of any other person or entity, without the
prior written consent of the Board of Directors of Employer, engage in any of
the following acts, which acts shall be considered violations of this
Agreement: (i) license or provide software or software related services to any
person or entity engaged in any equipment or software lease or financing
business; (ii) request or advise any customer of Employer to withdraw, curtail
or cancel any of its business with Employer; (iii) induce or attempt to
influence any employee of Employer to terminate his or her employment with
Employer; (iv) disclose or communicate to any other person or entity the names
of any customers of Employer or other knowledge of the operations and business
of Employer; (v) employ or cause to be employed any individual employed by
Employer at any time during the Term; (vi) request, advise or attempt to
influence any person or entity which is a source of materials, supplies,
personnel, services, funds or information for Employer to withdraw, cancel or
curtail the sale or furnishing of such items to Employer; or (vii) use for his
own benefit or otherwise, or communicate to, divulge to, or use for the benefit
of, any other person or entity the Proprietary Software (or any other software
owned by the Company) or any confidential information and/or trade secrets
disclosed to, discovered by or otherwise known by Employee through his
employment and/or association with Employer, it being the intent of the parties
that Employee will have no rights to such Proprietary Software and will honor
such confidential information and will not, directly or indirectly, use the
confidential information in such a way as to adversely affect Employer or
Employer's business relations. It is understood and agreed that the foregoing
subsection (vii) shall apply during the period of employment and at all times
thereafter. Nothing in the foregoing shall prevent Employee after termination
of Employee's employment under this Agreement from pursuing or soliciting
Employer's customers, vendors, brokers and manufacturers regarding the
licensing, servicing or support of "Credit Bureau Software" (hereinafter
defined). "Credit Bureau Software" shall mean the credit report software
developed by Nexsoft, Inc. and known as "Credit Line."
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5.02. Reasonableness of Restrictions. Insofar as the covenants set
forth in this Agreement are concerned, Employee specifically acknowledges and
agrees as follows: (i) the covenants are reasonable and necessary to protect
the goodwill and the operations and business of Employer; (ii) the time
duration of the covenants are reasonable and necessary to protect the goodwill
and the operations and business of Employer; (iii) the geographical area
limitations of the covenants are reasonable and necessary to protect the
goodwill and the operations and business of Employer; and (iv) the covenants
are not oppressive to Employee and do not impose a greater restraint on
Employee than is necessary to protect the goodwill and the operations and
business of Employer.
5.03 Enforcement. If Employee violates any of the covenants set
forth in this Agreement, Employer shall suffer irreparable damage and shall be
entitled to full injunctive relief or such other relief against Employee as may
be provided by law or in equity together with such damages as may be provided
at law or in equity. Employer shall be entitled where provided under applicable
law to specific performance of the requirements of this Agreement or to
temporary or permanent injunctive relief against any breach of any provision of
this Agreement by Employee. If either party files a lawsuit seeking specific
performance or injunctive against, or damages for, any breach of this
Agreement, the party substantially prevailing in such lawsuit shall be entitled
to recover from the other party all court costs and reasonable attorneys' fees
incurred by the prevailing party in connection with such lawsuit.
5.04 Reformation. It is the express intention of Employer and
Employee to comply with all laws which may be applicable to the covenants
contained in this Agreement. Therefore, Employer and Employee have attempted to
limit Employee's right to compete only to the extent necessary to protect (i)
Employer from unfair competition, and (ii) Employer's goodwill and its
operations and business. Employer and Employee recognize, however, that
reasonable people may differ in making such a determination. Consequently,
Employer and Employee hereby specifically agree that, in the event that any
covenant contained in this Agreement shall be determined by any court or other
constituted legal authority to be effective in any particular area or
jurisdiction only if such covenant is modified to limit its duration or scope,
such covenant may be reformed or modified by the judgment or order of such
court or authority to reflect a lawful and enforceable duration or scope. Such
covenant shall automatically be deemed to be amended and modified with respect
to that particular area or jurisdiction so as to comply with the judgment or
order of such court or authority and, as to all other areas and jurisdictions
covered by this Agreement, the terms and provisions hereof shall remain in full
force and effect as originally written. If any covenants contained in this
Agreement shall be held by any court or other constituted legal authority to be
void or otherwise unenforceable in any particular area or jurisdiction
notwithstanding the operation of this Section 5.04, such covenant automatically
shall be deemed to be amended so as to eliminate therefrom that particular area
or jurisdiction as to which such covenant is so held void or otherwise
enforceable and, as to all other areas and jurisdictions covered by this
Agreement, the terms and provisions hereof shall remain in full force and
effect as originally written.
5.05 Employee agrees and acknowledges that all nonpublic or
confidential information, ideas, concepts, improvements, discoveries,
inventions, business plans, business strategies, and software possessed,
acquired or developed by Employer at any time ("Confidential Information")
shall be the sole property of Employer. Employee agrees that all information,
ideas, concepts, improvements, discoveries, inventions, business plans,
business strategies, and software that Employee develops or conceives in the
scope of his employment
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shall be the Confidential Information of Employer and shall be solely owned by
Employer. During the term of this Agreement, Employee shall promptly disclose
all information, ideas, concepts, improvements, discoveries, inventions,
business plans, business strategies, and software, whether patentable or not,
conceived, developed, made or acquired by Employee during the term of this
Agreement that relate to the business, products or services of Employer,
regardless of whether such all information, ideas, concepts, improvements,
discoveries, inventions, business plans, business strategies, and software is
conceived, developed or discovered or acquired by Employee on the job, at home,
or elsewhere. Employee agrees to use his best efforts and exercise utmost
diligence to protect and safeguard the Confidential Information, and except as
may be expressly required by Employer in connection with Employee's performance
under this Agreement, Employee shall not, directly or indirectly, use for his
own benefit, or for the benefit of another, or disclose to another, the
Confidential Information.
5.06 By execution of this Agreement, Employee hereby assigns and
transfers to Employer or its nominee all worldwide right, title and interest,
legal and equitable, in and to all information, ideas, concepts, improvements,
discoveries, inventions, business plans, business strategies, and software,
whether patentable or not, conceived, developed or made or acquired by Employee
during the term of this Agreement that relate to the business, products or
services of Employer, regardless of whether such all information, ideas,
concepts, improvements, discoveries, inventions, business plans, business
strategies, and software is conceived, developed or discovered or acquired by
Employee on the job, at home, or elsewhere. Both during and after this
Agreement, Employee agrees to assist Employer or its nominee in the protection
of such information, ideas, concepts, improvements, discoveries, inventions,
business plans, business strategies, and software.
5.07 Upon termination of this Agreement, or at any other time upon
request, Employee shall immediately deliver to Employer all documents embodying
any of Employer's Confidential Information that are in Employee's possession or
under this control.
ARTICLE VI
GENERAL PROVISIONS
6.01 Notices. All notices, requests and other communications
hereunder shall be in writing. Any notice, request or other communication
hereunder shall be sent by (i) personal delivery (including courier service),
(ii) telecopier during normal business hours to the number indicated, or (iii)
registered or certified mail, return receipt requested, postage prepaid, and
addressed to the intended recipient as set forth below (any communication shall
be deemed given upon receipt):
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If to Employer:
First Sierra Financial, Inc.
Texas Commerce Tower, Suite 7050
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
If to Employee:
Xxxxx X. Xxxxxxxx
0000 Xxxx Xxx Xxxx Xxxxx
Xxxxxxxxx Xxxxx, XX 00000
Any party may change its telecopier number or its address to which notices,
requests, and other communications hereunder are to be delivered by giving the
other party notice in the manner herein set forth.
6.02 Entire Agreement. This Agreement and the Stock Purchase
Agreement between Employer, Employee, Xxxxxxx X. Xxxxx, Xxxxxxxx Xxxxxxxx and
Nexsoft, Inc. supersede any and all other agreements, letters of intent,
statements, understandings, representations and warranties (if any), whether
oral or in writing, between the Parties solely with respect to the employment
of Employee by Employer and contain all of the covenants and agreements between
the parties with respect to such employment.
6.03 Certain Acknowledgments. Employee by his execution and
delivery of this Agreement represents to Employer as follows:
(i) Employee has been advised by Employer to have
this Agreement reviewed by an attorney
representing Employee, and Employee has had this
Agreement reviewed by such attorney.
(ii) Employee either on his own or with the
assistance and advice of his attorney has in
particular reviewed Article V and understands
and accepts (a) the restrictions imposed by
Article V and (b) the restrictions imposed upon
Employee pursuant to these sections are
reasonable and necessary for the protection of
the rights of Employer and its affiliates.
6.04 Headings. The headings or titles to Sections or Articles in
this Agreement are intended solely for convenience of the Parties and no
provision of this Agreement is to be construed by reference to the heading or
title of any section.
6.05 Amendment or Modification: Waiver. No provision of this
Agreement may be amended, modified or waived unless such amendment,
modification or waiver is agreed to in writing, signed by Employee and by an
officer of Employer thereunto duly authorized. Except as otherwise specifically
provided in this Agreement, no waiver by any Party hereto of any breach by any
other party hereto of any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of a similar or
dissimilar provision or condition at
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the same or at any prior or subsequent time; nor shall the receipt or
acceptance of Employee's employment be deemed a waiver of any condition or
provision hereof.
6.06 Assignability. Employee shall not assign, pledge or encumber
any interest in this Agreement or any part thereof without the express written
consent of Employer, this Agreement being personal to Employee. This Agreement,
shall, however, inure to the benefit of Employee's estate, dependents,
beneficiaries and legal representatives. This Agreement shall not be assignable
by Employer without the written consent of Employee, but if Employer shall
merge or consolidate with or into, or transfer substantially all of its assets
to, another corporation or other form of business organization, then this
Agreement shall bind the successor of Employer resulting from such merger,
consolidation or transfer. No such merger, consolidation or transfer, however,
shall relieve Employer or Employee from liability and responsibility for the
performance of their respective duties and obligations hereunder.
6.07 Governing Law. THIS AGREEMENT SHALL IN ALL RESPECTS BE
INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE
STATE OF COLORADO.
6.08 Severability. Each provision of this Agreement constitutes a
separate and distinct undertaking, covenant and/or provision hereof. In the
event that any provision of this Agreement shall finally be determined to be
unlawful, such provision shall be deemed severed from this Agreement, but every
other provision of this Agreement shall remain in full force and effect, and in
substitution for any such provision held unlawful, there shall be substituted a
provision of similar import reflecting the original intent of the Parties
hereto to the maximum extent permissible under law.
6.09 No Duress. Employee acknowledges that no force, fear or threats
or duress of any kind have been used to obtain the agreements and covenants
contained in this Agreement.
6.10 Duplicates. This Agreement may be executed in any number of
original counterparts, all of which will constitute but one and the same
instrument.
6.11 Arbitration. Any dispute arising under or in any matter
relating to this Agreement shall be required to be resolved pursuant to the
arbitration procedure set forth in Section 10(n) of the Stock Purchase
Agreement referenced in Section 6.02 above.
6.12 Confidential Information. Employee covenants and agrees that he
shall not use or disclose any proprietary or confidential information learned
from any third party pursuant to vendor agreements.
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EXECUTED as of the day and year first above written, intending to be
legally bound hereby.
EMPLOYER:
FIRST SIERRA FINANCIAL, INC.
By: /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx, President
EMPLOYEE:
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
