EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.1
This
Executive Employment Agreement (“Agreement”) is made effective as of August 13,
2008 (“Effective Date”), by and between Xxxxx Xxxxx (“Executive”) and United
PanAm Financial Corp and its subsidiary United Auto Credit Corporation, both
of
which may be referred to interchangeably hereinafter as “Company”. All
obligations of the Company hereunder shall be joint and several obligations
of
United PanAm Financial Corp. and United Auto Credit Corporation.
The
parties agree as follows:
| 1. |
Employment.
The Company hereby employs Executive, and Executive hereby accepts
such
employment, upon the terms and conditions set forth
herein.
|
| 2. |
Duties.
|
| 2.1 |
Position.
Executive is employed on a full-time basis as President and Chief
Executive Officer of the Company, shall report directly to the
Board of
Directors of the Company (“the Board”), and shall have the duties and
responsibilities commensurate with such position as shall be reasonably
and in good faith determined from time to time by the Board.
|
| 2.2 |
Obligations.
Executive shall: (i) abide by all federal, state and local laws,
regulations and ordinances and as applicable, all policies and
charter
documents of the Company and its affiliates, and (ii) except for
vacation
and illness periods, devote substantially all of his business time,
energy, skill and efforts to the performance of his duties hereunder
in a
manner that will faithfully and diligently further the business
interests
of the Company.
|
| 3. |
Term.
The term of this Agreement shall commence on the Effective Date
and shall
continue until December 31, 2009, unless earlier terminated as
herein
provided (the “Initial Term”). As used herein, “Term” shall include the
Initial Term and any Extended Term, but the Term of this Agreement
shall
end upon any termination of Executive’s employment with the Company as
herein provided.
|
| 4. |
Compensation.
|
| 4.1 |
Base
Salary.
As compensation for Executive’s performance of Executive’s duties and
subject to Executive’s continued employment pursuant to this Agreement ,
the Company shall pay or cause to be paid to Executive an annual
salary of
Five Hundred Thousand Dollars ($500,000.00) during the Term of
Employment
(“Base Salary”), payable in accordance with the normal payroll practices
of the Company or the Company’s payroll services provider, less all
legally required or authorized payroll deductions and tax withholdings.
During the Term of Employment, the Base Salary amount set forth
above may
be increased from time to time at the sole and absolute discretion
of the
Board.
|
1
| 4.2 |
Discretionary
Bonus.
The Company may, from time to time, pay Executive a discretionary
bonus in
an amount to be determined by the Board in its sole and absolute
discretion, less all legally required or authorized payroll deductions
and
tax withholdings.
|
| 4.3 |
Equity
Compensation.
Concurrently with the execution of this Agreement, Executive shall
be
granted an option pursuant to the Company’s [Amended and Restated 1997
Employee Stock Incentive Plan] (“the Plan”) to purchase Five Hundred
Thousand (500,000) shares of the Company’s common stock (the “Shares”) at
an exercise price of $5.00 per share with a term of ten (10) years.
So
long as Executive’s employment relationship with the Company continues,
twenty percent (20%) of the Shares underlying the option shall
vest on the
anniversary of the execution date of this Agreement and upon each
anniversary date thereafter until the fifth anniversary, whereupon
the
option shall become one-hundred percent (100%) vested. Notwithstanding
the
foregoing, the vesting shall accelerate upon a change in control
as
defined in the Stock Option Award Agreement. In addition, such
options
shall be subject to the terms and conditions of the Plan and stock
option
agreement reflecting ( and not inconsistent with) the terms set
forth in
this Agreement between the Company and Executive, which documents
are
incorporated herein by reference.
|
| 5. |
Health
and Welfare Benefits.
Executive shall be eligible for all health and welfare benefits
generally
available to other full-time employees of the Company of similar
rank and
status, subject to the terms and conditions of the Company’s policies and
benefit plan documents.
|
| 6. |
Vacation.
Executive shall be entitled to earn vacation at the rate of four
(4) weeks
per year. Executive shall be allowed to use such vacation time
at
Executive’s discretion, with reasonable advance notice to the Board, and
taking into account the business needs of the Company. In the event
that
Executive is terminated before the end of the applicable calendar
year,
any vacation time used by the Executive in excess of the pro rata
vacation
time corresponding to the portion of the calendar year then elapsed
shall
not result in any offset against any compensation owed to Executive,
except in the case of termination of Executive for
Cause.
|
| 7. |
Business
Expenses.
Executive shall be reimbursed for all reasonable, out-of-pocket
business
expenses incurred in the performance of Executive’s duties on behalf of
the Company, provided that Executive furnishes to the Company adequate
records and other documentation as may be required for the substantiation
of such expenditures as a business expense of the
Company.
|
| 8. |
Termination
of Employment. Subject
to the terms and conditions of this Section 8, either the Company
or
Executive may terminate Executive’s employment at any time, with or
without Cause (as defined in Section 8.7), during the Term of Employment.
Any termination of Executive’s employment during the Term of Employment
shall be communicated by written notice of termination from the
terminating party to the other party (“Notice of Termination”). The Notice
of Termination shall indicate the specific provision(s) of this
Agreement
relied upon in effecting the termination, if any. Termination shall
be
effective on the date designated by the terminating party in the
Notice of
Termination. In the event Executive’s employment is terminated by either
party, for any reason, during the Term of Employment, the Company
shall
pay the prorated Base Salary earned as of the date of Executive’s
termination of employment and the accrued but unused vacation as
of the
date of Executive’s termination of employment to Executive upon
Executive’s termination of employment. Except as otherwise provided in
this Section 8, the Company shall have no further obligation to
make or
provide to Executive, and Executive shall have no further right
to receive
or obtain from the Company, any payments or benefits in respect
of the
termination of Executive’s employment with the Company during the Term of
Employment.
|
2
| 8.1 |
Severance
Upon Involuntary Termination without Cause and Termination by Executive
with Good Reason.
In
the event that the Company causes to occur an involuntary termination
without Cause (as defined in Section 8.7(a)) or in the event that
Executive resigns from employment with the Company for Good Reason
(as
defined in Section 8.7(c)) during the Term of Employment, Executive
shall
be entitled to a lump sum “Severance Payment” as set forth in Exhibit A;
payable within thirty (30) days of the events giving rise to the
Severance
Payment; provided,
however, that Executive executes a Separation Agreement that includes
a
general release in favor of the Company, any successor company,
and all
subsidiary and related entities, and their officers, directors,
shareholders, employees and agents to the fullest extent permitted
by law,
drafted by and in a form reasonably satisfactory to the Company,
and does
not revoke the general release within any legally required revocation
period, if applicable. All legally required and authorized deductions
and
tax withholdings shall be made from the Severance Payment, including
for
wage garnishments, if applicable, to the extent required or permitted
by
law. Effective immediately upon termination of employment, Executive
shall
no longer be eligible to contribute to or to be an active participant
in
any retirement or benefit plan covering employees of the Company.
All
other Company obligations to Executive shall be automatically terminated
and completely extinguished; provided, however, that Executive
shall not
forfeit any right to contributions previously made to any pension,
retirement or benefit plan.
|
| 8.2 |
Effect
of Disability.
In
the event Executive’s employment is terminated on account of Disability
(as defined in Section 8.7), Executive shall be entitled to payment
of the
difference between (a) any monthly disability payments provided
through
insurance plans offered by the Company, if any, provided Executive
has
enrolled in such plans, has paid the costs thereof and is otherwise
eligible, and (b) the monthly Base Salary effective immediately
prior to
the date of termination, for a period of six (6) months following
the date
of termination, Both (a) and (b) in the preceding sentence shall
be paid
in a lump sum within thirty (30) days of Executive’s termination of
employment due to Disability. All legally required and authorized
deductions and tax withholdings shall be made from the payments
described
in the previous sentence, including for wage garnishments, if applicable,
to the extent required or permitted by law.
|
| 8.3 |
Effect
of Death.
In
the event Executive’s employment is terminated by reason of death, this
Agreement shall terminate without further obligations of Employer
to
Executive (or his heirs or legal representatives) under this Agreement,
other than for payment of: (i) any unpaid base salary (as set forth
in
Section 4.1 hereof) through the date of termination; (ii) a prorated
portion of any bonus, described in Section 4.2. above, earned through
the
date of Executive’s death that has not been paid, (iii) all compensation
previously deferred by Executive, if any; (iv) any accrued but
unused
vacation ; and (v) any amounts due pursuant to the terms of any
applicable
welfare benefit plan. All of the foregoing amounts shall be paid
to
Executive’s estate or beneficiary, as applicable, in a lump sum cash
payment within thirty (30) days after the date of termination or
earlier
as required by applicable law.
|
| 8.4 |
Employment
Reference. In
the event Executive’s employment is terminated without Cause, or Executive
resigns for Good Reason, Executive and the Company will negotiate
in good
faith to reach an agreement on a statement reflecting a benign
reason for
termination or resignation. This statement will include, at minimum,
positions held, date of hire, employment period and confirmation
of salary
history (if requested by Executive).
|
| 8.5 |
Ineligibility
For Severance. Executive
shall not be entitled to any Severance Package under this Agreement,
if at
any time during the Term of Employment, either (a) Executive voluntarily
resigns or otherwise terminates employment with the Company other
than for
Good Reason, or (b) the Company involuntarily terminates Executive’s
employment with Cause. Effective immediately upon termination of
employment, Executive shall no longer be eligible to contribute
to or to
be an active participant in any retirement or benefit plan covering
employees of the Company; provided, however, that Executive shall
not
forfeit any right to contributions previously made to any pension,
retirement or benefit plan. All other Company obligations to Executive
shall be automatically terminated and completely extinguished.
|
3
| 8.6 |
Taxes
and Withholdings. The
Company may withhold from any amounts payable under this Agreement,
including any benefits or Severance Payment, such federal, state
or local
taxes as may be required to be withheld pursuant to applicable
law or
regulations, which amounts shall be deemed to have been paid to
Executive.
|
| 8.7 |
Definitions.
|
| (a) |
“Cause”
shall mean the occurrence during the Term of Employment of any
of the
following: (i) indictment for, formal admission to (including a
plea of
guilty or nolo
contendere
to), or conviction of a felony, (ii) a crime of moral turpitude,
dishonesty, breach of trust or unethical business conduct, or any
crime
involving the Company, (iii) willful or knowing unauthorized dissemination
by Executive of Proprietary Company Information; (iv) failure by
Executive
to perform Executive’s duties which are reasonably and in good faith
requested in writing by the Board; (v) failure of Executive to
perform any
lawful directive of the Board communicated to Executive in the
form of a
written request from the Board, and (vi) Executive’s breach of the
Company’s Code of Conduct which would normally result in termination of
any Company employee.
|
| (b) |
“Disability”
shall mean, to the extent consistent with applicable federal and
state law
(including, without limitation Section 409A), Executive’s inability by
reason of physical or mental illness to fulfill his obligations
hereunder
for ninety (90) consecutive days or for a total of one hundred
and twenty
(120) days in any twelve (12) month period which, in the reasonable
opinion of an independent physician selected by the Company or
its
insurers and reasonably acceptable to Executive or Executive’s legal
representative, renders Executive unable to perform the essential
functions of his job, even after reasonable accommodations are
made by the
Company. The Company is not, however, required to make unreasonable
accommodations for Executive or accommodations that would create
an undue
hardship on the Company.
|
| (c) |
“Good
Reason” shall mean the occurrence during the Term of Employment of any
of
the following: (i) a material breach of this Agreement ; (ii) the
Executive’s Base Salary is materially reduced by the Company; (iii) a
material reduction in Executive’s duties and/or responsibilities; or (iv)
relocation of the Executive’s place of work to a location greater than 35
miles away from the current location. In no event shall any of
the
foregoing constitute Good Reason unless the Company receives notice
from
the Executive of the existence of the condition constituting Good
Reason
within ninety (90) days of the occurrence of such condition. Upon
receipt
of such notice, the Company shall be provided a period of thirty
(30) days
during which it may remedy the condition and not be required to
pay the
Severance Payment payable under Section 8 of this
Agreement.
|
| 8.8 |
Non-duplication
of Benefits.
Notwithstanding any provision in this Agreement or in any other
Company
benefit plan or compensatory arrangement to the contrary, but at
all times
subject to Section 8.5, (a) any payments due under either Section
8.2 or
Section 8.3 shall be made not more than once, if at all, (b) payments
may
be due under either Section 8.2 or Section 8.3, but under no circumstances
shall payments be made under both Section 8.2 and Section 8.3,
(c) no
payments made under this Agreement shall be considered compensation
for
purposes of any benefit plan or compensatory arrangement of the
Company,
and (d) Executive shall not be entitled to severance benefits from
the
Company other than as contemplated under this Agreement, unless
such other
severance benefits offset and reduce the benefits due under this
Agreement
on a dollar-for-dollar basis, but not below zero.
|
| 9. |
No
Conflict of Interest.
Executive must not engage in any work, paid or unpaid, that could
create a
conflict of interest with the interests of the Company during Executive’s
employment with the Company. Such work shall include, but is not
limited
to, directly or indirectly competing or interfering with the Company
Business in any way. For purposes of this Agreement, the term “Company
Business” shall mean non-prime auto
finance.
|
4
| 10. |
Confidentiality.
During
the Term of Employment, Executive has been and will continue to
be given
access to a wide variety of information about the Company, its
affiliates
and other related businesses that the Company considers “Proprietary
Company Information.” As a condition of continued employment, Executive
agrees to abide by the Company’s business policies and directives
including those on confidentiality and nondisclosure of “Proprietary
Company Information.” “Proprietary Company Information” shall mean all
information applicable to the business of the Company which confers
or may
confer a competitive advantage upon the Company over one who does
not
possess the information; and has commercial value in the business
of the
Company or any other business in which the Company engages or is
preparing
to engage during Executive’s employment with the Company. “Proprietary
Company Information” includes, but is not limited to, information
regarding the Company’s business plans and strategies; manuals, contracts
and proposals; and other business partners and the Company’s business
arrangements and strategies with respect to them; current and future
marketing or advertising campaigns; software programs whether owned
or
modified by third parties for the Company’s benefit; codes, formulae or
techniques; financial information; personnel information; and all
ideas,
plans, processes or information related to the current, future
and
proposed projects or other business of the Company whether or not
such
information would be enforceable as a trade secret of the Company
or
enjoined or restrained by a court or arbitrator as constituting
unfair
competition. “Proprietary Company information” also includes confidential
information of any third party who may disclose such information
to the
Company or Executive in the course of the Company’s business.
|
| 10.1 |
Nondisclosure.
Executive acknowledges that Proprietary Company Information constitutes
valuable, special and unique assets of the Company’s business and that the
unauthorized disclosure of such information to competitors of the
Company,
or to the general public, will be highly detrimental to the Company.
Executive therefore agrees to hold Proprietary Company Information
in
strictest confidence. Except as shall occur as and to the extent
that
Executive performs his duties to the Company, Executive agrees
not to
disclose or allow to be disclosed to any individual or entity,
other than
those individuals or entities authorized by the Company, any Proprietary
Company Information that Executive has or may acquire during Executive’s
employment by the Company (whether or not developed or compiled
by
Executive and whether or not Executive has been authorized to have
access
to such Proprietary Company Information).
|
| 10.2 |
Continuing
Obligation.
Executive agrees that the agreement not to disclose Proprietary
Company
Information will be effective during Executive’s employment and continue
even after Executive is no longer employed by the Company. Any
obligation
not to disclose any portion of any Proprietary Company Information
will
continue indefinitely unless Executive can demonstrate that such
information (a) has been developed independently without any reference
to
any information obtained during Executive‘s employment with the Company;
or (b) must be disclosed in response to a valid order by a court
or
government agency or is otherwise required by law.
|
| 10.3 |
Return
of Company Property.
On termination of employment with the Company for whatever reason,
or at
the request of the Company before termination, Executive agrees
to
promptly deliver to the Company all records, files, computer disks,
memoranda, documents, lists and other information regarding the
Company
and its business or containing any Proprietary Company Information,
including all copies, reproductions, summaries or excerpts thereof,
then
in Executive’s possession or control, whether prepared by Executive or
others. Executive also agrees to promptly return, on termination
or the
Company’s request, any and all Company property issued to Executive,
including but not limited to computers, cellular phones, keys and
credits
cards. Executive further agrees that should Executive discover
any Company
property or Proprietary Company Information in Executive’s possession
after the return of such property has been requested, Executive
agrees to
return it promptly to the Company without retaining copies, summaries
or
excerpts of any kind.
|
5
| 10.4 |
No
Violation of Rights of Third Parties.
Executive warrants that the performance of all the terms of this
Agreement
does not and will not breach any agreement to keep in confidence
proprietary information, knowledge or data acquired by Executive
prior to
Executive’s employment with the Company. Executive agrees not to disclose
to the Company, or induce the Company to use, any confidential
or
proprietary information or material belonging to any previous employers
or
others. Executive warrants that Executive is not a party to any
other
agreement that will interfere with Executive’s full compliance with this
Agreement. Executive further agrees not to enter into any agreement,
whether written or oral, in conflict with the provisions of this
Agreement
while such provisions remain effective.
|
| 11. |
Interference
with Business Relations.
|
| 11.1 |
Interference
with Customers, Suppliers and Other Business Partners.
Executive acknowledges that the Company’s tenant and customer base and its
other business arrangements have been developed through substantial
effort
and expense, and its nonpublic business information is confidential
and
constitutes trade secrets. In addition, because of Executive’s position,
Executive understands that the Company will be particularly vulnerable
to
significant harm from Executive’s use of such information for purposes
other than to further the Company’s business interests. Accordingly,
Executive agrees that during Executive’s employment with the Company and
after Executive’s employment with the Company ends , Executive will not,
either directly or indirectly, separately or in association with
others,
utilize the Company’s Proprietary Company Information to interfere with,
impair, disrupt or damage the Company’s relationship with any of its
customers, automobile dealers or other business partners of the
Company.
|
| 11.2 |
Interference
with the Company’s Employees.
Executive acknowledges that the services provided by the Company’s
employees are unique and special, and that the Company’s employees possess
trade secrets and Proprietary Company Information that is protected
against misappropriation and unauthorized use. As such, Executive
agrees
that during Executive’s employment with the Company, and for a period of
12 months after Executive’s employment with the Company is terminated for
any reason, Executive will not, either directly or indirectly,
separately
or in association with others, interfere with, impair, disrupt
or damage
the Company’s business by contacting any Company employees for the purpose
of inducing or encouraging them to discontinue their employment
with the
Company.
|
| 11.3 |
Negative
Information.
During the Term of Employment and thereafter, Executive shall not
disclose
confidential or negative non-public information regarding, or take
any
action materially detrimental to the reputation of the Company
or its
directors, officers, employees, investors, shareholders or advisors
and
any affiliates of any of the foregoing (collectively, the “Company
Affiliates”); provided, however, that nothing contained in this Section
12.3 shall affect any legal obligation of Executive to respond
to
mandatory governmental inquiries concerning the Company Affiliates
or to
act in accordance with, or to establish, his rights under this
Agreement.
|
| 11.4 |
Injunctive
Relief.
Executive acknowledges that Executive’s breach of the covenants contained
in Sections 9 through 11 of this Agreement inclusive (collectively
“Covenants”) would cause irreparable injury and continuing harm to the
Company for which there will be no adequate remedy at law, and
agrees that
in the event of any such breach, the Company seek temporary, preliminary
and permanent injunctive relief to the fullest extent allowed by
the
California Arbitration Act, without the necessity of proving actual
damages or posting any bond or other
security.
|
6
| 12. |
Agreement
to Arbitrate.
Any
dispute, controversy or claim arising out of or in respect of this
Agreement (or its validity, interpretation or enforcement), the
employment
relationship or the subject matter hereof shall be addressed and
settled
by arbitration conducted in Orange County under the auspices of
JAMS or
other mutually agreeable alternative dispute resolution service
in
accordance with that service’s rules for the resolution of employment
disputes. Included within this provision are any claims based on
a
violation of any local, state or federal law, such as claims for
discrimination or civil rights violations. Executive understands
that
arbitration is in lieu of any and all other civil legal proceedings.
The
aggrieved party can initiate arbitration by sending written notice
of any
intention to arbitrate by registered or certified mail to all parties
and
to the mutually agreed upon alternative dispute resolution service.
The
notice must contain a description of the dispute, the amount involved
and
the remedy sought. Any claim or controversy which may be arbitrated
under
this section is subject to any applicable statute of limitations
that
would apply if a lawsuit was being initiated. The arbitration shall
provide for written discovery and depositions adequate to give
the parties
access to documents and witnesses that are essential to the dispute.
The
arbitrator shall have no authority to add to or to modify this
Agreement,
shall apply all applicable law, and shall have no lesser and no
greater
remedial authority than would a court of law resolving the same
claim or
controversy. In addition to any other form of relief to which the
parties
may be entitled, injunctive relief will be available to enforce
any
provision of this Agreement including, without limitation, Section
12 of
this Agreement. The arbitrator shall issue a written decision that
includes the essential findings and conclusions upon which the
decision is
based, and which shall be signed and dated. The decision of the
arbitrator
shall be conclusive, final and binding upon the parties and may
be
submitted to any authorized court of law to be confirmed and enforced.
The
prevailing party (meaning the party that obtains substantially
the relief
sought by it) in such proceeding will be entitled to the reasonable
attorneys’ fees and expenses of counsel and costs incurred by reason of
such arbitration if such would be available if the matter had been
pursued
in a court of law. Executive and the Company shall each bear his/her
or
its own costs and attorneys’ fees incurred in conducting the arbitration,
and, except for such disputes where Executive asserts a claim otherwise
under a state or federal statute prohibiting discrimination in
employment
or unless otherwise required by applicable law (“a Statutory Claim”),
shall split equally the fees and administrative costs charged by
the
arbitrator and the alternative dispute resolution service. In disputes
where Executive asserts a Statutory Claim against the Company,
Executive
shall be required to pay only the initial administrative filing
fee to the
extent such filing fee does not exceed the fee to file a complaint
in
state or federal court. The Company shall pay the balance of the
arbitrator’s fees and administrative
costs.
|
| 13. |
General
Provisions.
|
| 13.1 |
Successors
and Assigns.
The rights and obligations of the Company under this Agreement
shall inure
to the benefit of and shall be binding upon the successors and
assigns of
the Company. The Company will require any successor (whether direct
or
indirect, by purchase, merger, consolidation or otherwise) or assignee
to
all or substantially all of the business and/or assets of the Company
to
assume expressly and agree to perform this Agreement in the same
manner
and to the same extent that the Company would be required to perform
it if
no such succession or assignment had taken place. Executive shall
not be
entitled to assign any of Executive’s rights or obligations under this
Agreement without the Company’s written
consent.
|
| 13.2 |
Legal
Protection Clause.
The Company will defend, indemnify and hold harmless the Executive
from
and against any claim or legal action taken against Executive as
a direct
consequence of the discharge of Executive’s duties or obedience to
directions of the Company, in accordance with California Labor
Code 2802
and other applicable law . Such protection, if applicable, includes
the
cost of legal defense and judgment, if any, against Executive to
the
fullest extent permitted by applicable law and the Company’s by-laws and
articles of incorporation. The Company will maintain in force a
directors’
and officers’ liability insurance policy. Executive shall have coverage
under any directors’ and officers’ liability insurance policies obtained
by the Company in an amount not less than, and providing coverage
no less
comprehensive than, the coverage applicable to any other director
or
officer of the Company.
|
7
| 13.3 |
Non-exclusivity
of Rights.
Except as expressly provided in this Agreement, Executive is
not prevented
from continuing or future participation in any Company benefit,
bonus,
incentive or other plans, programs, policies or practices provided
by the
Company subject to the terms and conditions of such plans, programs,
or
practices.
|
|
13.4
|
Waiver.
Either party’s failure to enforce any provision of this Agreement shall
not in any way be construed as a waiver of any such provision,
or prevent
that party thereafter from enforcing each and every other provision
of
this Agreement.
|
| 13.5 |
Attorneys’
Fees.
Each side will bear its own attorneys’ fees in any dispute unless a
statutory section at issue, if any, authorizes the award of attorneys’
fees to the prevailing party, and the arbitrator awards such attorneys’
fees accordingly.
|
| 13.6 |
Severability.
In the event any provision of this Agreement is found to be unenforceable
by an arbitrator or court of competent jurisdiction, such provision
shall
be deemed modified to the extent necessary to allow enforceability
of the
provision as so limited, it being intended that the parties shall
receive
the benefit contemplated herein to the fullest extent permitted
by law. If
a deemed modification is not satisfactory in the judgment of such
arbitrator or court, the unenforceable provision shall be deemed
deleted,
and the validity and enforceability of the remaining provisions
shall not
be affected thereby.
|
| 13.7 |
Interpretation;
Construction.
The headings set forth in this Agreement are for convenience only
and
shall not be used in interpreting this Agreement. This Agreement
has been
drafted by legal counsel representing the Company, but Executive
has
participated in the negotiation of its terms. Furthermore, Executive
acknowledges that Executive has had an opportunity to review and
revise
the Agreement and have it reviewed by legal counsel, if desired,
and,
therefore, the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall
not be
employed in the interpretation of this Agreement.
|
| 13.8 |
Governing
Law.
This Agreement will be governed by and construed in accordance
with the
laws of the State of California. Where necessary to enforce the
provisions
of Section 13 above, each party consents to the jurisdiction and
venue of
the state or federal courts in Los Angeles County, California.
|
| 13.9 |
Notices.
Any notice required or permitted by this Agreement shall be in
writing and
shall be delivered as follows with notice deemed given as indicated:
(a)
by personal delivery when delivered personally; (b) by overnight
courier
upon written verification of receipt; (c) by telecopy or facsimile
transmission upon acknowledgment of receipt of electronic transmission;
or
(d) by certified or registered mail, return receipt requested,
upon
verification of receipt. Notice shall be sent to the addresses
set forth
below, or such other address as either party may specify in
writing.
|
| 13.10 |
Survival.
Section 8 (“Termination of Employment”), Section 9 (” No Conflict of
Interest”),
Section 10 (“Confidentiality”), Section 11 (“Interference with Business
Relations”), Section 12 (“Agreement to Arbitrate”), Section 13 (“General
Provisions”) and Section 14 (“Entire Agreement”) of this Agreement shall
survive Executive’s employment with the Company and the Term of this
Agreement as provided therein.
|
8
| 14. |
Entire
Agreement.
This Agreement, together with the other agreements and documents
governing
the benefits described in this Agreement constitute the entire
agreement
between the parties relating to this subject matter hereof and
supersede
all prior or simultaneous representations, discussions, negotiations,
and
agreements, whether written or oral. This Agreement may be amended
or
modified only with the written consent of Executive and the Board
of
Directors of the Company. No oral waiver, amendment or modification
will
be effective under any circumstances whatsoever.
|
THE
PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT AND FULLY UNDERSTAND
EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THE PARTIES HAVE EXECUTED
THIS AGREEMENT ON THE DATES SHOWN BELOW.
|
Xxxxx
Xxxxx
|
||||
|
Dated:
|
8-15-08
|
/s/
Xxxxx Xxxxx
|
||
|
United
PanAm Financial Corporation
|
||||
|
Dated:
|
8-15-08
|
By:
|
/s/
Xxxxx Xxxx
|
|
|
Xxxxx
Xxxx
|
||||
|
Director
|
9
EXHIBIT
A
Pursuant
to Section 9
The
Severance Payment shall be equal to twelve (12) months salary at the then
current base salary plus the prorated Bonus described in Section 4.2 through
the
date of termination.
