EXHIBIT 10.3
AGREEMENT OF EMPLOYMENT
THIS AGREEMENT OF EMPLOYMENT ("Agreement") is made and entered into in duplicate
this 31 day of July , 200 2 , by and between PERFORMANCE CAPITAL
-------- -------------- ---
MANAGEMENT, LLC, a Limited Liability Company ("Employer"), and Xxxxxx X. Xxxx
("Executive").
RECITALS
A. Employer is a Limited Liability Company duly organized and validly
existing pursuant to the laws of the State of California.
B. Employer is in the business of acquiring, processing, servicing and
collecting commercial and consumer indebtedness.
C. Employer desires to employ Executive, subject to the terms and
conditions specified in this Agreement.
D. Executive hereby accepts employment with Employer as Chief Officer
of Information Technology of Employer, subject to the terms and conditions
specified in this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS SPECIFIED ABOVE THAT SHALL BE
DEEMED TO BE A SUBSTANTIVE PART OF THIS AGREEMENT, AND THE MUTUAL COVENANTS,
PROMISES, UNDERTAKINGS, AGREEMENTS, REPRESETNATIONS AND WARRANTIES SPECIFIED IN
THIS AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND
SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, WITH THE INTENT TO BE OBLIGATED
LEGALLY AND EQUITABLY, THE PARTIES DO HEREBY COVENANT, PROMISE, AGREE, REPRESENT
AND WARRANT AS FOLLOWS:
ARTICLE I.
TERM OF EMPLOYMENT
SECTION1.1 SPECIFIED TERM. Employer hereby employs Executive and Executive
hereby accepts employment with Employer for a period of five (5) years
commencing on the date of execution and delivery of this Agreement.
SECTION 1.2 AUTOMATIC RENEWAL OF TERM. The term of this Agreement shall be
renewed automatically for succeeding periods of one (1) year each, unless either
party gives to the other party notice, at least ninety (90) days prior to the
expiration of any such term, of the noticing party's intention not to renew the
term of this Agreement.
SECTION 1.3 "EMPLOYMENT TERM" DEFINED. As specified herein, the phrases
"term of employment," "employment term," and "term of this Agreement" refer to,
and shall mean, be defined as and include, any and all renewals of the term of
this Agreement.
1
ARTICLE II.
DUTIES AND OBLIGATIONS OF EXECUTIVE
SECTION 2.1 GENERAL DUTIES. Executive shall serve as Chief Officer of
Information Technology of PERFORMANCE CAPITAL MANAGEMENT, LLC, a California
Limited Liability Company. In Executive's capacity as the Chief Officer of
Information Technology of Employer, Executive shall do and perform all services,
acts, or things necessary or appropriate to manage and conduct the financial and
fiscal affairs of Employer, subject at all times to the policies established by
the Board of Directors of Employer ("Board"), and to the consent of the Board
when required. The duties to be performed by Executive shall be determined from
time to time by the Board.
SECTION 2.2 DEVOTION TO EMPLOYER'S BUSINESS.
A. Exclusive Services. During his employment by the Employer, the
Executive shall not, without the express prior written consent of the Board of
Directors, engage directly or indirectly in any outside employment or consulting
of any kind, whether or not the Executive receives remuneration for such
services, or other activity that relates to any line of business in which the
Employer is at that time engaged or plans to engage in, or that would otherwise
conflict with the Executive's employment obligations, contractual duties, or
fiduciary obligations to the Employer
SECTION 2.3 COMPETITIVE ACTIVITIES. During the term of this Agreement
Executive shall not, directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or in any other individual or representative capacity, engage or participate in
any business that is in competition in any manner whatsoever with the business
of Employer.
ARTICLE III.
OBLIGATIONS OF EMPLOYER
SECTION 3.1 GENERAL DESCRIPTION. Employer shall provide Executive with
the compensation, incentives and benefits specified elsewhere in this Agreement.
SECTION 3.2 OFFICE AND STAFF. Employer shall provide Executive with
equipment, supplies, facilities and services, suitable to Executive's position
and adequate for the performance of Executive's duties created by the provisions
of this Agreement.
SECTION 3.3 REIMBURSEMENT OF BUSINESS EXPENSES. Executive is authorized
to incur reasonable business expenses for promoting the business of Employer,
including expenditures for entertainment, and travel in accordance with the
policies and practices of Employer then in effect. Reimbursement shall be paid
within two weeks of presentation of expense statements or vouchers and such
other supporting information as Employer may reasonably require.
SECTION 3.4 INDEMNIFICATION. Employer shall indemnify Executive, if
Executive is made a party to or threatened to be made a party to, or otherwise
involved in, any proceeding commenced during the employment term, or after the
employment term, because Executive is or was an employee or agent of Employer.
The indemnification contemplated by the provisions of this Section 3.4 shall
include any and all expenses, judgments, fines, penalties, settlements, and
other amounts, actually and reasonably incurred by Executive in connection with
the defense or settlement of any such proceeding; provided, however, Executive
shall have acted in good faith and in a manner that Executive reasonably
believed to be in the best interests of Employer and, in a criminal proceeding,
Executive had no reasonable cause to believe that Executive's conduct was
unlawful. It is agreed and understood that a conflict of interest may arise
between the parties. It is agreed that the Employer is entitled to participate
in good faith in the selection of Executive's separate legal counsel,
2
which Employer will pay for, if necessary. Executive agrees to cooperate with
Employer in all strategy and settlement decisions. Any dispute arising under
this section, including the settlement of any action either jointly or severally
shall be subject to the arbitration provisions of Section 8.1.
SECTION 3.5 ADVANCES OF EXPENSES. Any and all expenses, including, but
not limited to, filing fees, costs of investigation, attorney's fees, messenger
and delivery expenses, postage, court reporters' fees and similar fees and
expenses, incurred by Executive in any proceeding shall be advanced by Employer
prior to the final disposition of such proceeding and subject to considerations
of reasonableness at the written request of Executive, but only if Executive
shall undertake to repay such advances, unless and to the extent that it is
ultimately determined that Executive is entitled to indemnification.
SECTION 3.6 INDEMNIFICATION NOT EXCLUSIVE. The indemnification
contemplated by the provisions of this Agreement shall not be deemed exclusive
of any other rights to which Executive may be entitled pursuant to the
provisions of the Articles of Incorporation or Bylaws of Employer, or any
agreement, vote of shareholders, or disinterested directors, the General
Corporation Law of the State of California, or otherwise, both as to action in
his official capacities as an employee or agent of Employer and as to action in
any other capacity while serving as an employee or agent of Employer. The
indemnification contemplated by the provisions of this Agreement shall continue
as to the Executive although he may have ceased to be an employee or agent of
Employer and shall inure to the benefit of the heirs and personal
representatives of Executive, including the estate of Executive.
ARTICLE IV.
COMPENSATION OF EXECUTIVE
SECTION 4.1 ANNUAL SALARY. As compensation for the services to be
rendered by Executive pursuant to provisions of this Agreement, Employer shall
pay Executive or cause Executive to be paid (by an affiliate of Employer) an
annual salary in the amount of One hundred thirty five thousand ($135,000.00),
payable in equal semi-monthly installments of Five thousand six hundred twenty
five dollars.
SECTION 4.2 PROFIT BONUSES. Executive shall receive bonus compensation as
follows:
(a) $12,500.00 payable February 2002 and $12,500.00 payable October
2002,
(b) at the end of the first year following the effective date of this
agreement, Executive shall be entitled to a bonus payment calculated as follows:
Executive shall share in an equal amount, with all other executives, the sum of
the total of all executive annual salaries times two and one half percent for
each and every percentage point for which the ratio of operating expenses to
gross revenues derived directly from collection activity (excluding e.g. sales
revenues collections) is less than 55% for a specific calendar year as
calculated on a cash flow basis. Bonus payments owed pursuant to this paragraph
shall be due 30 days following the last day of the first anniversary year
following the effective date of this agreement. This bonus payment shall be
reviewed, amended or cancelled going forward annually on the anniversary of the
effective date of the agreement by the Employer's Board of Directors; any change
in this bonus payment will be communicated to Executive in writing within 60
days of said anniversary date or said bonus payment will be due the following
year.
SECTION 4.3 OWNERSHIP INTEREST. Executive will receive in lieu of any
outstanding equity or equivalent interest in the Employer, a sum equal to the
total of all executive annual salaries divided by the total number of Executives
employed by Employer at the time of (a) the Employer becoming a "C" corporation
or (b) the Employer selling substantially all of its membership units or assets,
said sum to be payable thirty (30) prior to the occurrence of either event. For
the purposes of this section
3
Executives shall be confined to the following positions: Chief Operating
Officer, Chief Information Officer, Chief Human Relations Officer and Chief
Officer of Legal Affairs.
SECTION 4.4 TAX WITHHOLDING. Employer shall have the right to deduct or
withhold from the compensation due and payable to Executive pursuant to the
provisions of this Agreement any and all amounts required for federal income and
Social Security taxes and all state or local taxes now applicable or which may
be enacted and may become applicable in the future.
ARTICLE V.
EXECUTIVE BENEFITS
SECTION 5.1 ANNUAL VACATION. During the employment term, Executive shall
be entitled to an annual vacation leave, of three weeks without loss of
compensation. Executive may be absent from his employment for vacation only at
such times as the Board shall determine from time to time. In the event that
Executive is unable for any reason to take the total amount of vacation time
authorized herein during any year, except at the specific request of the
Employer, said vacation benefit will be forfeited. There will be no accrual of
vacation time. The three weeks of vacation pay will vest on January 1 of each
calendar year such that Executive will be entitled to take up to three weeks off
with pay during that year. In the event this employment relationship is
terminated, executive will be entitled to be compensated only for the prorated
portion of vacation, including reimbursing Employer for used but unearned
vacation.
SECTION 5.2 PAID HOLIDAYS. During the employment term, Executive shall be
entitled to a holiday with full pay on each New Year's Day, President's Day,
Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day
during the term of this Agreement, and such other days as Employer currently
provides other employees.
SECTION 5.3 HEALTH CARE BENEFITS. During the employment term, Employer
shall include Executive and his dependents in the hospital, surgical, medical
and dental benefit plan adopted and maintained by Employer for senior
executives. Executive shall be entitled to sick days/personal days as Employer
currently provides other employees.
SECTION 5.4 OTHER BENEFITS. During the employment term, Employer shall
provide the Executive such other benefits as Employer, in its sole and absolute
discretion, may determine to be necessary or appropriate.
ARTICLE VI.
TERMINATION OF EMPLOYMENT
SECTION 6.1 TERMINATION. Either party shall have the right to terminate
this Agreement with or without Cause before the expiration of the Term or any
Renewal Term, as provided below. Whatever the circumstances of the termination
may be, the Executive shall continue to be bound after termination by Articles 7
and 8 of this Agreement.
SECTION 6.2 TERMINATION FOR CAUSE.
A. Employer reserved the right to terminate this Agreement if Executive
willfully breaches or habitually neglects the duties which he is required to
perform pursuant to the provisions of this Agreement; or commits such acts of
dishonesty, fraud, misrepresentation or other acts of moral turpitude as would
prevent the effective performance of his duties.
4
B. Employer, at its option, may terminate this Agreement for the
reasons stated in this section by giving written notice of termination to
Executive without prejudice to any other remedy to which Employer may be
entitled either at law, in equity, or pursuant to the provisions of this
Agreement.
C. The notice of termination required by this section shall specify the
ground for the termination and shall be supported by a statement of relevant
facts.
D. Termination pursuant to this section shall be considered "for cause"
for the purposes of this Agreement.
E. If the Employer terminates the Executive's employment for Cause, the
Employer shall pay to the Executive any compensation due under Article 4 of this
Agreement, including any unused vacation, prorated through the date of
termination, and the Employer shall have an option to purchase all the ownership
interest of the Executive, if any, in accordance with the agreement creating
such interest. The Executive shall have no right to receive any further
compensation or benefits otherwise payable under any other provision of this
Agreement.
F. Termination by Executive. Executive may terminate his obligations
pursuant to this Agreement by giving Employer at least thirty (30) days written
notice in advance. In the event Executive terminates his obligations said
termination shall be treated as for cause
SECTION 6.3 TERMINATION WITHOUT CAUSE.
A. This Agreement shall be terminated upon the death of Executive.
B. Employer reserves the right to terminate this Agreement not less
than three (3) months after Executive suffers any physical or mental disability
that would prevent the performance of hisessential duties with or without
reasonable accommodation, pursuant to the provisions this Agreement. Such a
termination shall be effected by giving thirty (30) days' written notice of
termination to Executive. Executive agrees to submit to and cooperate fully
with an independent medical examination by medical professionals selected by
Employer.
C. Termination pursuant to this section shall not be considered "for
cause" for the purposes of this Agreement.
D. Payment upon Termination. Notwithstanding any provision of this
Agreement, if Employer terminates this Agreement without cause, it shall pay
Executive an amount equal to the lesser of six (6) months salary or the
remaining amount of salary due in term. However, in the event Executive accepts
employment with another Debt Buyer, Employer's obligation to continue to pay
severance shall terminate. All other provisions of this agreement shall remain
in full force and effect.
SECTION 6.4 EFFECT OF MERGER, TRANSFER OF ASSETS, OR DISSOLUTION.
A. This Agreement shall not be terminated by any voluntary or
involuntary dissolution of Employer resulting from either a merger or
consolidation in which Employer is not the consolidated or surviving
corporation, or a transfer of all or substantially all of the assets of
Employer.
B. In the event of any such merger or consolidation or transfer of
assets, Employer's rights, benefits, and obligations hereunder may be assigned
to the surviving or resulting corporation or the transferee of Employer's
assets.
5
C. In the event any such merger or consolidation or transfer of assets
results in Executive's termination, such termination shall be considered without
cause.
ARTICLE VII.
CONFIDENTIALITY AND NON-SOLICITATION
SECTION 7.1 NONDISCLOSURE. The executive acknowledges that in the course
of employment with the Employer, the Executive will have access to confidential
information. Confidential information includes, but is not limited to,
information about either the Employer's clients, the terms and conditions under
which the Employer or its affiliates deals with clients, pricing information for
the purchase or sale of assets, customer lists, research materials, manuals,
computer programs, formulas for analyzing asset portfolios, techniques, data,
marketing plans, and tactics, technical information, lists of asset sources, the
processes and practices of the Employer, all information contained in electronic
or computer files, all financial information, salary and wage information, and
any other information that is designated by the Employer or its affiliates as
confidential or that the executive knows or should know is confidential,
information provided by third parties that the Employer or its affiliates are
obligated to keep confidential, and all other proprietary information of the
Employer or its affiliates. The executive acknowledges all confidential
information is and shall continue to be the exclusive property of the Employer
or its affiliates, whether or not prepared in whole or in part by the Executive
and whether or not disclosed to or entrusted to the Executive in connection with
employment by the Employer. The Executive agrees not to disclose confidential
information, directly or indirectly, under any circumstances or by any means, to
any third persons without the prior written consent of the Employer. The
Executive agrees that he will not copy, transmit, reproduce, summarize, quote,
or make any commercial or other use whatsoever of confidential information,
except as may be necessary to perform work done by the Executive for the
Employer. The executive agrees to exercise the highest degree of care in
safeguarding confidential information against loss, theft or other inadvertent
disclosure and agrees generally to take all steps necessary or requested by the
Employer to ensure maintenance of the confidentiality of the confidential
information.
SECTION 7.2 EXCLUSIONS. Section 6.1 shall not apply to the following
information:
(a) information now and hereafter voluntarily disseminated by the Employer to
the public or which otherwise becomes part of the public domain through lawful
means; (b) information already known to the Executive as documented by written
records which predate the Executive's employment with the Employer; (c)
information subsequently and rightfully received from third parties and not
subject to any obligation of confidentiality; and (d) information independently
developed by the Executive after termination of his employment. In relation to
part (b) of this section, the date of Executive's employment shall be considered
to be the date on which Executive was first employed with Employer, including
Employer's predecessors in interest. That operative date is April 6,1998.
SECTION 7.3 SUBPOENAS; COOPERATION IN DEFENSE OF THE EMPLOYER. If the
Executive, during employment or thereafter, is served with any subpoena or other
compulsory judicial or administrative process calling for production of
confidential information or if the Executive is otherwise required by law or
regulation to disclose confidential information, the Executive will immediately,
before making any such production or disclosure, notify the Employer and provide
it with such information as may be necessary for the Employer to take such
action as the Employer deems necessary to protect its interests. The Executive
agrees to cooperate reasonably with the Employer, whether during employment or
thereafter, in the prosecution or defense of all threatened claims or actual
litigation in which the Employer is or may become a party, whether now pending
or hereafter brought, in which the Executive has knowledge or relevant facts or
issues. The Executive shall be reimbursed for his reasonable expenses for
travel time due to cooperating with the prosecution or defense of any litigation
for the Employer.
6
SECTION 7.4 CONFIDENTIAL PROPRIETARY AND TRADE SECRET INFORMATION OF
OTHERS. The Executive represents that he has disclosed to the Employer any
agreements to which the Executive is or has been a party regarding the
confidential information of others and the Executive understands that the
Executive's employment by the Employer will not require the Executive to breach
any such agreement. The Executive will not disclose such confidential
information to the Employer nor induce the Employer to use any trade secret or
proprietary information received from another under an agreement or
understanding prohibiting such use or disclosure.
SECTION 7.5 NO UNFAIR COMPETITION. The Executive hereby acknowledges that
the sale or unauthorized use or disclosure of any of the Employer's confidential
material obtained by the Executive by any means whatsoever, at any time before,
during, or after the Term or any Renewal term, shall constitute unfair
competition. The Executive shall not engage in any unfair competition with the
Employer or its affiliates either during the Term, any Renewal Term, or at any
time thereafter.
SECTION 7.6 NON-SOLICITATION OF EMPLOYEES. During the period of six (6)
months following the Termination Date, the Executive shall not directly or
indirectly solicit for employment or for independent contractor work any
employee of the Employer, and shall not encourage any such employee to leave the
employment of the Employer.
SECTION 7.7 NON-SOLICITATION OF CUSTOMERS. During the period of six
months following the Termination Date, the Executive shall not directly or
indirectly (a) solicit for business any customers of the Employer, (b) encourage
any such customers to stop using the facilities or services of the Employer, or
(c) encourage any such customers to use the facilities or services of any
competitor of the Employer, provided that Employer is continuing to pay
Employee's severance pay. For the purposes of this section, "customers"
include; original creditors, debt brokers, business partners and other
individuals from whom Employer has purchased debt portfolios.
ARTICLE VIII.
GENERAL PROVISIONS
SECTION 8.1 ARBITRATION. Any controversy, dispute or claim ("Claim")
whatsoever between Executive on the one hand, and the Employer, or any of its
employees, officers, and agents (collectively "Employer Parties") on the other
hand, arising out of this Agreement or in any way connected with Executive's
employment or the termination of his employment shall be settled by binding
arbitration at the request of either party. The parties shall agree on an
arbitrator and, if no agreement is reached, either party may petition to the
Superior Court for the selection of an arbitrator. The arbitrator shall apply
California substantive law and the California Evidence Code to the proceeding
unless otherwise agreed. The demand for arbitration must be in writing and must
be made by the aggrieved party within the applicable statute of limitations
period. The arbitration shall take place in Orange County, California. The
parties shall be entitled to conduct reasonable discovery, including, without
limitation, conducting depositions, propounding interrogatories, and requesting
documents. The arbitrator shall have the authority to determine what
constitutes reasonable discovery and may, among other things, limit the number
of depositions a party may take, the number of interrogatories a party may
propound, and the number and nature of documents a party may request. The
arbitrator shall prepare in writing and provide to the parties a decision and
award which includes factual findings and the reasons upon which the decision is
based. The decision of the arbitrator shall be binding and conclusive on the
parties and unreviewable for error of law or legal reasoning of any kind.
Judgment upon the award rendered by the arbitrator may be entered in any court
having proper jurisdiction. The fees for the arbitrator shall be paid by the
Employer. Each party shall bear its own attorney's fees, and the arbitrator may
award reasonable attorney's fees and costs
7
to the prevailing party pursuant to California law. Both the Employer and the
Executive understand and agree that by using arbitration to resolve any Claims
between the Executive and the Employer or any or all of the Employer Parties,
they are giving up any right that they may have to a judge or jury trial with
regard to those Claims.
SECTION 8.2 GOVERNMENTAL RULES AND REGULATIONS. The provisions of this
Agreement are subject to any and all present and future orders, rules and
regulations of any duly constituted authority having jurisdiction of the
relationship and transactions contemplated by the provisions of this Agreement.
SECTION 8.3 NOTICES. All notices, requests, demands or other
communications pursuant to this Agreement shall be in writing, by telex or
facsimile transmission or courier and shall be deemed to have been duly given
(i) on the date of service if delivered in person or by telex or facsimile
transmission (with the telex or facsimile confirmation of transmission receipt
acting as confirmation of service when sent and provide telexed or telecopied
notices are also mailed by first class, certified or registered mail, postage
prepaid); or (ii) seventy-two (72) hours after mailing by first class,
registered or certified mail, postage prepaid, and properly addressed as
follows:
If to Executive: Xxxxxx X. Xxxx
__________________
__________________
If to Employer: Performance Capital Management, LLC
000 Xx. Xxxxxx Xxxx., Xxx 000
Xxxxxxx, XX 00000
or at such other address as the party affected by designate in a written notice
to such other party in compliance with this section.
SECTION 8.4 ENTIRE AGREEMENT. This Agreement is the final written
expression and the complete and exclusive statement of all the agreements,
conditions, promises, representations, warranties, and covenants between the
parties with respect to the subject matter of this Agreement, and this Agreement
supersedes all prior or contemporaneous agreements, negotiations,
representations, warranties, covenants, understandings and discussions by and
between and among the parties, their respective representatives, and any other
person with respect to the subject matter specified in this Agreement. This
Agreement may be amended only by an instrument in writing which expressly refers
to this Agreement and specifically states that such instrument is intended to
amend this Agreement and is signed by each of the parties. Each of the parties
represents, warrants and covenants that in executing this Agreement that such
party has (i) relied solely on the terms, conditions and provisions specified in
this Agreement and (ii) placed no reliance whatsoever on any statement,
representation, warranty, covenant or promise of any other party, or any other
person, not specified expressly in this Agreement, or upon the failure of any
party or any other person to make any statement, representation, warranty,
covenant or disclosure of any nature whatsoever. The parties have included this
section to preclude (i) any claim that any party was in any manner whatsoever
induced fraudulently to enter into, execute and deliver this Agreement, and (ii)
the introduction of parol evidence to vary, interpret, supplement or contradict
the terms, conditions and provisions of this Agreement.
SECTION 8.5 SEVERABILITY. In the event any part of the Agreement, for any
reason, is declared to be invalid, such decision shall not affect the validity
of any remaining portion of this Agreement, which remaining portion shall remain
in complete force and effect as if this Agreement had been executed with the
invalid portion of the Agreement eliminated, and it is hereby declared the
intention of the
8
parties that the parties would have executed the remaining portion of this
Agreement without including any such part, parts or portion which, for any
reason, hereafter may be declared invalid.
SECTION 8.6 CAPTIONS AND INTERPRETATION. Captions of the sections of
this Agreement are for convenience and reference only, and the words contained
in those captions shall in no way be held to explain, modify, amplify or aid in
the interpretation, construction or meaning of the provisions of this Agreement.
The language in all parts to this Agreement, in all cases, shall be construed in
accordance with the fair meaning of that language was prepared by all parties
and not strictly for or against any party.
SECTION 8.7 FURTHER ASSURANCES. Each party shall take any and all action
necessary, appropriate or advisable to execute and discharge such party's
responsibilities and obligations created by the provisions of this Agreement and
to further effectuate and carry out the intents and purposes of this Agreement
and the relationship contemplated by the provisions of this Agreement.
SECTION 8.8 NUMBER AND GENDER. Whenever the singular number is used in
this Agreement, and when required by the context, the same shall include the
plural, and vice versa; the masculine gender shall include the feminine and the
neuter genders, and vice versa; and the word "person" shall include corporation,
firm, trust, estate, municipality, governmental agency, sole proprietorship,
political subdivision, fraternal order, club, league, society, organization,
joint stock company, association partnership or other form of entity.
SECTION 8.9 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and obligate the undersigned parties and their respective successors
and assigns. Whenever, in this Agreement, a reference to any party is made,
such reference shall be deemed to include a reference to the successors and
assigns of such party. The provisions of this section notwithstanding, no
provision of this section shall be construed or interpreted as consent to the
assignment or delegation by any party of such party's respective rights and
obligation created by the provisions of this Agreement.
SECTION 8.10 RESERVATION OF RIGHTS. The failure of any party at any time
hereafter to require strict performance by the other party of any of the
warranties, representations, covenants, terms, conditions and provisions
specified in this Agreement shall not waive, affect or diminish any right of
such party failing to require strict performance to demand strict compliance and
performance therewith and with respect to any other provisions, warranties,
terms and conditions specified in this Agreement, and any waiver of any default
shall not waive or affect any other default, whether prior or subsequent
thereto, and whether the same or of a different type. None of the
representations, warranties, covenants, conditions, provisions and terms
specified in this Agreement shall be deemed to have been waived by any act or
knowledge of either party or such party's agents, officers or employees, and any
such waiver shall be made only by an instrument in writing, signed by the
waiving party and directed to the non-waiving party specifying such waiver. Each
party reserves such party's rights to insist upon strict compliance with the
provisions of this Agreement at all times.
SECTION 8.11 NO BREACH OF EXISTING AGREEMENTS. Each party hereby
represents, warrants and covenants, upon the execution of this Agreement, such
party is not a party to any oral or written agreement which may be breached by
such party's execution of this Agreement.
SECTION 8.12 CONCURRENT REMEDIES. No right or remedy specified in this
Agreement conferred on or reserved to the parties is exclusive of any other
right or remedy specified in this Agreement or by law or equity provided or
permitted; but each such right and remedy shall be cumulative of, and in
addition to, every other right and remedy specified in this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to
9
time. The termination of this Agreement for any reason whatsoever shall not
prejudice any right or remedy which either party may have, either at law, in
equity or pursuant to the provisions of this Agreement.
SECTION 8.13 TIME. Time is of the essence of this Agreement and each and
all of the provisions of this Agreement.
SECTION 8.14 CHOICE OF LAW AND CONSENT TO JURISDICTION. This Agreement
shall be deemed to have been entered into in the County of Orange, State of
California, and all questions concerning the validity, interpretation or
performance of any of the terms, conditions and provisions of this Agreement or
of any of the rights or obligations of the parties, shall be governed by, and
resolved in accordance with, the laws of the State of California. Any and all
actions or proceedings, at law or in equity, to enforce or interpret the
provisions of this Agreement shall be litigated in courts having situs within
the County of Orange, State of California, and each party hereby consents to the
jurisdiction of any local, state or federal court located within the County of
Orange, State of California and consents any service of process in such action
or proceeding may be made by personal service upon such party wherever such
party may be then located, or by certified or registered mail directed to such
party at such party's last known address.
SECTION 8.15 ASSIGNABILITY. Neither party shall sell, assign, transfer,
convey or encumber this Agreement or any right or interest in this Agreement or
pursuant to this Agreement, or suffer or permit any such sale, assignment,
transfer or encumbrance to occur by operation of law without the prior written
consent of the other party. In the event of any sale, assignment, transfer or
encumbrance consented to by such other party, the transferee or such
transferee's legal representative shall agree with such other party in writing
to assume personally, perform and be obligated by the covenants, obligations,
terms, conditions, and provisions specified in this Agreement.
SECTION 8.16 CONSENT TO AGREEMENT. By executing this Agreement, each
party, for himself, represents such party has read or caused to be read this
Agreement in all particulars, and consents to the rights, conditions, duties and
responsibilities imposed upon such party as specified in this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement of
Employment in duplicate, each of which shall have the force and effect of an
original, on the date specified in the preamble of this Agreement.
"EMPLOYER' "Executive"
PERFORMANCE CAPITAL MANAGEMENT, LLC
A California Limited Liability Company
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxx
-------------------------------- --------------------------------
Xxxxxx Xxxxxx Xxxxxx X. Xxxx
Its: Co-Chair Person of the Board
By: /s/ Xxxxxx Xxxx
-------------------------------- --------------------------------
Xxxxxx Xxxx
Its: Co-Chair Person of the Board
10
