EXHIBIT 10.2
EMPLOYMENT AND NON-COMPETITION AGREEMENT
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THIS EMPLOYMENT AND NON-COMPETITION AGREEMENT (the "Agreement") is made and
entered into as of August 26, 1997, by and between Franchise Mortgage Acceptance
Company (the "Corporation"), a Delaware corporation, and Xxxxx Xxxxx, an
individual (the "Executive").
WITNESSETH:
WHEREAS, the Corporation desires to employ the Executive as its President
and Chief Executive Officer; and
WHEREAS, Executive has agreed not to compete with Corporation or use any
confidential and proprietary business information regarding the business of
Corporation to the detriment of Corporation during the term of this Agreement
(and thereafter as applicable) in order to induce Corporation to enter into this
Agreement and to perform its obligations hereunder; and
WHEREAS, the Executive desires to accept such employment under the terms
and conditions herein stated.
NOW, THEREFORE, the Corporation and the Executive, each intending to be
legally bound, hereby mutually covenant and agree as follows:
1. EMPLOYMENT AND TERM
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(a) Employment - The Corporation hereby offers to employ the Executive as
the President and Chief Executive Officer of the Corporation on the terms and
conditions set forth herein, and the Executive hereby accepts such employment,
for the term set forth in Section 1(b).
(b) Term - The employment hereunder shall be for a term of five years (the
"Term") commencing on November 1, 1997 and terminating on October 31, 2002 (the
"Expiration Date"), provided that such term may be extended if authorized by the
Board of Directors and evidenced by a written agreement signed by the Chairman
of the Corporation and the Executive.
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2. DUTIES
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During his Term, the Executive shall serve as President and Chief Executive
Officer of the Corporation and shall have all powers and duties consistent with
such position subject to the direction of the Board of Directors of the
Corporation, to whom the Executive shall report. Any directions of the Board of
Directors to the Executive shall be consistent with the Executive's position as
Chief Executive Officer. The Executive shall devote his full time and attention
and best efforts to fulfill faithfully, responsibly and to the best of his
ability his duties hereunder.
3. COMPENSATION
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(a) Base Salary - For services performed by the Executive for the
Corporation pursuant to this Agreement during his Term, the Corporation shall
pay the Executive a base salary ("Base Salary") at the rate of $400,000 per
year, payable twice each month in the amount of $16,667 on the 15th day and the
last day of each month, or in accordance with the Corporation's regular payroll
practices. Such Base Salary may be adjusted annually to reflect increases in the
consumer price index. Any compensation which may be paid to the Executive under
any additional compensation plan of the Corporation, or which may be otherwise
authorized from time to time by the Board, shall be in addition to the Base
Salary to which the Executive shall be entitled under this Agreement.
(b) Annual Bonus - For each full year during his Term, commencing on
January 1, 1998, the Executive shall be eligible to receive a cash bonus based
on the Corporation's achievement of certain financial goals. For calendar year
1998, and until changed by the Board's Compensation Committee, the annual cash
bonus award shall be determined on the basis of the Corporation's return on
equity ("XXX"). The Executive's cash bonus will range from $82,000 to
$682,000 as follows:
(i) if XXX for the calendar year is less than 15% and the
Corporation's net income is negative, the cash bonus shall be
$82,000;
(ii) if XXX for the calendar year is less than 15% and the
Corporation's net income is positive, the cash bonus shall be
$162,000;
(iii) if XXX for the calendar year is between 15% and 20% and the
Corporation's net income is positive, the cash bonus shall be
$282,000;
(iv) if XXX for the calendar year is between 20% and 24% and the
Corporation's net income is positive, the cash bonus shall be
$482,000;
(v) if XXX for the calendar year is at least 25% and the
Corporation's net income is positive, the cash bonus shall be
$682,000;
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(vi) The bonus payable for any calendar year shall be paid to the
Executive no later than the 15th day of April of the following
year. Executive acknowledges that $82,000 of such annual bonus
shall be deducted by the Corporation each year until $410,000
shall have been paid by Executive to the Corporation in full
repayment of that certain promissory note executed by Executive in
June 1995. This annual bonus arrangement shall be in lieu of the
Executive's participation in any other cash bonus or cash
incentive plan or arrangement of the Corporation; provided,
however, that the foregoing shall not preclude the Executive from
participating in any equity or equity-based compensation program
of the Corporation, and the bonus program set forth herein may be
replaced with a different program approved by the Board's
Compensation Committee and agreed with the Executive.
(c) Tax Withholding - The Corporation shall provide for the withholding of
any taxes required to be withheld by federal, state and local law with respect
to any payment in cash, shares of capital stock or other property made by or on
behalf of the Corporation to or for the benefit of the Executive under this
Agreement or otherwise. The Corporation may, at its option: (i) withhold such
taxes from any cash payments owing from the Corporation to the Executive,
including any payments owing under any other provision of the Agreement, (ii)
require the Executive to pay to the Corporation in cash such amount as may be
required to satisfy such withholding or (iii) make other satisfactory
arrangements with the Executive to satisfy such withholding obligations.
4. BENEFITS
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In addition to the Base Salary to be paid to the Executive pursuant to
Section 3(a) hereof and any annual bonuses earned by the Executive pursuant to
Sections 3(b), the Executive shall also be entitled to the following:
(a) Participation in Insurance and Healthcare Benefit Plans - Except as
otherwise expressly provided herein, the Executive and his dependents shall be
enrolled in the Corporation's insurance and healthcare benefit group plans,
including disability insurance, in accordance with established Corporation
policies.
(b) Participation in the Corporation's 401(k) Plan - The Executive shall be
entitled to participate in the Corporation's 401(k) Plan in accordance with
established Corporation policies.
(c) Expense Reimbursement - The Corporation shall reimburse the Executive,
upon proper accounting, for reasonable business expenses incurred by him in the
course of the performance of his duties under this Agreement.
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(d) Vacations, Holidays, Absences and Leaves - The Executive shall be
entitled to the benefit of the vacation, holiday, absence and leave policies
applicable to all employees of comparable title or status in the Corporation.
(e) Automobile Allowance - The Corporation shall pay the Executive a
monthly automobile allowance of $1,000 to be applied in the Executive's
discretion. The Corporation shall not provide the Executive any vehicles,
insurance or the cost of any maintenance hereunder.
(f) Other Benefits - The Corporation shall provide Executive with such
other benefits as are generally made available from time to time to its
employees.
(g) Proration of Benefits - Any payments or benefits pursuant to this
Section 4, in any year during which the Executive is employed by the Corporation
for less than the entire year, shall, unless otherwise provided herein or in the
applicable plan or arrangement, be prorated in accordance with the number of
days in such year during which the Executive is employed by the Corporation.
5. INDEMNIFICATION
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The Executive shall be entitled to the maximum indemnification provided by
the Bylaws and the Articles of Incorporation of the Corporation for officers,
directors and employees of the Corporation. The Executive's rights under this
paragraph shall continue without time limit so long as he may be subject to any
such liability, whether or not the Executive's term of employment by the
Corporation may have ended.
Such indemnification provided by the Bylaws and Articles of Incorporation
as of the date of this Agreement shall be deemed contract rights and no
amendment, repeal or modification of any of the provisions of the Articles of
Incorporation or Bylaws relating to indemnification shall have the effect of
limiting or denying any such rights of indemnification.
6. REPRESENTATIONS AND WARRANTIES OF THE EXECUTIVE
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The Executive hereby represents and warrants to the Corporation that (a)
the Executive's execution and delivery of this Agreement and his performance of
his duties and obligations hereunder will not conflict with, or cause a default
under, or give any party a right to damages under, or to terminate, any other
agreement to which the Executive is a party or by which he is bound, and (b)
there are no agreements or understandings that would make unlawful the
Executive's execution or delivery of this Agreement or his employment hereunder.
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7. REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
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The Corporation hereby represents and warrants to the Executive as follows:
(a) The Corporation is duly organized and established as a corporation
under the laws of the State of Delaware and has all requisite power and
authority to enter into this Agreement and to perform its obligations hereunder.
The consummation of the transactions contemplated by this Agreement will neither
violate nor be in conflict with any agreement or instrument to which the
Corporation is a party or by which it is bound.
(b) The execution, delivery and performance of this Agreement and the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action on the part of the Corporation and are valid, legal
and binding obligations of the Corporation, enforceable in accordance with their
terms except as may be limited by laws of general application relating to
bankruptcy, insolvency, moratorium or other similar laws relating to or
affecting the enforcement of creditors' rights generally, and rules of law
governing specific performance, injunctive relief or other equitable remedies.
8. TERMINATION
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Executive's employment shall terminate prior to the Expiration Date upon
the happening of any of the following events:
A. For Cause
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The Executive may be terminated for Cause immediately upon receipt of
notice pursuant to a good faith determination to terminate for Cause made by a
majority of the Board. For purposes of this Agreement, "Cause" means:
(1) the Executive engages in any act of theft, embezzlement,
falsification of records, misappropriation of funds or property, or fraud
against, or with respect to the business of, the Corporation or any affiliate;
(2) current use of illegal drugs on or off the job or current addiction
to alcohol, unless the Executive voluntarily requests accommodation for
rehabilitation before such time as the Corporation notifies the Executive that
it suspects the Executive's use of illegal drugs or addiction to alcohol;
(3) the Executive commits a breach of any material term of this
Agreement and, if such breach is capable of being cured, fails to cure such
breach within 30 days of written notice of such breach from the Corporation;
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(4) the Executive is convicted of, or pleads guilty or nolo contendere
to a felony or a crime involving moral turpitude, breach of trust or dishonesty;
or
(5) the Executive commits any act that causes, or knowingly fails to
take reasonable and appropriate action to prevent, any material injury to the
financial condition or business reputation of the Corporation or any of its
affiliates; however, this shall not apply to any act of the Corporation or its
affiliates by any other employee thereof except to the extent that such act is
committed at the direction, or with the knowledge, of the Executive.
B. Good Reason (by the Executive)
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The Executive's employment may be terminated by the Executive at any time
for any of the following reasons (each of which is referred to herein as "Good
Reason") by giving the Corporation notice of the effective date of such
termination (which effective date may be the date of such notice):
(1) the Corporation commits a breach of any material term of this Agreement
and, if such breach is capable of being cured, fails to cure such breach within
30 days of receipt of written notice of such breach; or
(2) the Corporation removes the Executive from the position of Chief
Executive Officer of the Corporation, other than for Cause, or the Corporation
effects creates any diminution of the powers, duties or authority of the
Executive.
C. Executive's Rights to Terminate
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The Executive may, at his option, terminate his employment hereunder for
any reason upon 60 days prior written notice to the Corporation.
D. Death
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This Agreement shall terminate automatically upon the Executive's death.
E. Disability
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The Corporation may terminate the Executive's employment upon a good faith
determination by the Board that Executive has become so physically or mentally
disabled as to be incapable of satisfactorily performing his duties hereunder
for a period of 180 consecutive days, such determination to be based upon a
certificate as to such physical or mental disability issued by a licensed
physician or psychiatrist employed by the Corporation.
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F. Without Cause
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The Corporation may, at its option, terminate the Executive's employment
without Cause at any time upon written notice to the Executive.
G. Date of Termination
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For purposes of this Agreement, the term "Date of Termination" shall mean
the later of the date that any party gives written notice that it intends to
terminate this Agreement pursuant to the terms hereof or the date, if any,
specified by the terminating party in such notice as the effective date of
termination.
9. OBLIGATIONS OF THE CORPORATION UPON TERMINATION
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(a) Cause - If the Executive's employment shall be terminated for Cause,
the Corporation's obligations to the Executive shall terminate, other than the
obligation (i) to pay to the Executive his Base Salary through the Date of
Termination at the rate in effect on the day preceding the Date of Termination,
and (ii) to continue to provide the Executive with benefits of the type
described in Section 4 through the Date of Termination.
(b) Voluntary - If the Executive terminates his employment for other than
Good Reason (a "Voluntary Termination"), this Agreement shall terminate without
further obligation to the Executive hereunder, other than the obligation (i) to
pay the Executive his Base Salary through the Date of Termination at the rate in
effect on the day preceding the Date of Termination and any previously awarded
but not yet paid cash bonus; and (ii) to continue to provide the Executive with
benefits of the type described in Section 4 through the Date of Termination.
(c) Without Cause or for Good Reason - If the Corporation shall terminate
the Executive's employment without Cause, or if the Executive shall terminate
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his employment for Good Reason, the Corporation shall (i) continue in accordance
with the Corporation's normal payroll procedures to pay the Executive his Base
Salary through the Date of Termination and the pro rata portion of any cash
bonus award the Executive would be entitled to receive as of year end, (ii)
continue to provide the Executive with benefits of the type described in Section
4 through the Expiration Date and (iii) pay the Severance Amount to the
Executive pro rata from the Date of Termination to the end of that month and
thereafter as of the first day of each month commencing with the month
immediately following the month in which the Date of Termination occurs and
ending on the Expiration Date; provided, however, that payment of the Severance
Amount shall be suspended during any period in which the Executive is an
employee or independent contractor of a company that in the Board's opinion
competes with the Corporation. "Severance Amount" shall mean $400,000 annual
compensation benefit.
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10. NON-COMPETITION
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The Executive acknowledges and recognizes the highly competitive nature of
the business of the Corporation and its affiliates as well as his extensive
participation in the ownership of the common stock of the Corporation. The
Executive accordingly agrees, until the third anniversary of the Executive's
termination or resignation of employment (such date being hereafter referred to
as the "Restricted Date"), as follows:
(a) The Executive will not directly or indirectly engage (as owner,
stockholder, partner or otherwise, except as a holder of fewer than 5% of the
outstanding shares or other equity interests of a company whose shares or other
equity interests are publicly traded) in any business which directly or
indirectly competes with the business of the Corporation or any of its
affiliates within the same jurisdictions in which the Corporation or any of its
affiliates engages in business at the time of the Executive's termination or
resignation, as the case may be.
(b) The Executive will not directly or indirectly induce any employee of
the Corporation or any of its affiliates to engage in any activity in which the
Executive is prohibited from engaging by paragraph (a) above or to terminate his
employment with the Corporation or any of its affiliates, and will not directly
or indirectly employ or offer employment to any person who was employed by the
Corporation or any of its affiliates unless such person shall have been
terminated without cause or ceased to be employed by any such entity for a
period of at least 12 months.
(c) The Executive will not make any statement or take any action intended
to impair the goodwill or the business reputation of the Corporation or any of
its affiliates, or to be otherwise detrimental to the interests of the
Corporation or any of its affiliates, including any action or statement
intended, directly or indirectly, to benefit a competitor of the Corporation or
any of its affiliates.
(d) It is expressly understood and agreed that although the Executive and
the Corporation consider the restrictions contained in this Section 10 to be
reasonable, if a final judicial determination is made by a court of competent
jurisdiction that the time or territory or any other restriction contained in
this Agreement is an unenforceable restriction against the Executive, the
provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
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11. PROPRIETARY INFORMATION
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Through the Restricted Date, the Executive shall not use for his personal
benefit, or disclose, communicate or divulge to, or use for the direct or
indirect benefit on any person, firm, association or company other than the
Corporation, any Proprietary Information. "Proprietary Information" means
information relating to the properties, prospects, products, services or
operations of the Corporation or any direct or indirect affiliate thereof that
is not generally known, is proprietary to the Corporation or such affiliate and
is made known to the Executive or learned or acquired by the Executive while in
the employ of the Corporation, including, without limitation, information
concerning trade secrets of the Corporation, or any of the Corporation's
affiliates and any improvements relating to the products of the Corporation in
accounting, marketing, selling, leasing, financing and other business methods
and techniques. However, Proprietary Information shall not include (A) at the
time of disclosure to the Executive such information that was in the public
domain or later entered the public domain other than as a result of a breach of
an obligation herein; or (B) subsequent to disclosure to the Executive,
Executive received such information from a third party under no obligation to
maintain such information in confidence, and the third party came into
possession of such information other than as a result of a breach of an
obligation herein. All materials or articles of information of any kind
furnished to the Executive by the Corporation or developed by the Executive in
the course of his employment hereunder are and shall remain the sole property of
the Corporation; and if the Corporation requests the return of such information
at any time during, upon or after the termination of the Executive's employment
hereunder, the Executive shall immediately deliver the same to the Corporation.
12. OWNERSHIP OF PROPRIETARY INFORMATION
------------------------------------
The Executive agrees that all Proprietary Information shall be the sole
property of the Corporation and its assigns, and the Corporation and its assigns
shall be the sole owner of all licenses and other rights in connection with such
Proprietary Information. At all times, until the Restricted Date, the Executive
will keep in the strictest confidence and trust all Proprietary Information and
will not use or disclose such Proprietary Information, or anything relating to
such information, without the prior written consent of the Corporation, except
as may be necessary in the ordinary course of performing his duties under this
Agreement.
13. DOCUMENTS AND OTHER PROPERTY
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All materials and articles of information of any kind furnished to the
Executive in the course of his employment hereunder are and shall remain the
sole property of the Corporation; and if the Corporation requests the return of
such information at any time during, upon or after the termination of the
Executive's employment hereunder, the Executive shall immediately deliver the
same to the Corporation. The Executive will not, without the prior written
consent of the Corporation, retain any documents, data or property, or any
reproduction thereof of any description, belonging to the Corporation or
pertaining to any Proprietary Information.
14. INTELLECTUAL PROPERTY
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Any and all products, including but not limited to marketing and financing
materials and methods made, developed or created by the Executive for use in the
Corporation's then current markets (whether at the request or suggestion of the
Corporation or otherwise, whether alone or in conjunction with others, and
whether during regular hours of work or otherwise) (i) during the period of this
Agreement, or (ii) within a period of one year after the date of termination or
resignation of employment hereunder, which may be directly or indirectly useful
in, or relate to, the business of or tests being carried out by any member of
the Corporation, shall be promptly and fully disclosed by the Executive to the
members of the Board and, if such intellectual property was made, developed or
created other than pursuant to the Executive's employment hereunder, the
Executive shall grant the Corporation a perpetual, royalty free license to such
intellectual property, and if such intellectual property was made, developed or
created pursuant to the Executive's employment hereunder, such intellectual
property shall be the Corporation's exclusive property as against the Executive.
15. CUSTOMER LISTS
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The Executive will not during, or for a period of two years after the
termination of, his employment (i) disclose the Corporation's (including its
subsidiaries') customer lists or any part thereof to any person, firm,
corporation, association or other entity for any reason or purpose whatsoever,
(ii) assist in obtaining any of the Corporation's (including its subsidiaries')
existing customers for any competing business, or (iii) encourage any customer
to terminate its relationship with the Corporation or any of its subsidiaries.
16. EQUITABLE RELIEF
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The Executive acknowledges that, in view of the nature of the business in
which the Corporation is engaged, the restrictions contained in Sections 10
through 15 16 inclusive (the "Restrictions") are reasonable and necessary in
order to protect the legitimate interests of the Corporation, and that any
violation thereof would result in irreparable injuries to the Corporation, and
the Executive therefore further acknowledges that, if the Executive violates, or
threatens to violate, any of the Restrictions, the Corporation shall be entitled
to obtain from any court of competent jurisdiction, without the posting of any
bond or other security, preliminary and permanent injunctive relief as well as
damages and an equitable accounting of all earnings, profits and other benefits
arising from such violation, which rights shall be cumulative and in addition to
any other rights or remedies in law or equity to which the Corporation may be
entitled.
17. BINDING EFFECT
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This Agreement shall be binding upon and inure to the benefit of the heirs
and representatives of the Executive and the successors and assigns of the
Corporation. The Corporation shall require any successor (whether direct or
indirect, by purchase, merger, reorganization, consolidation, acquisition of
property or stock, liquidation or otherwise) to all or a significant portion of
its assets, by agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent that the Corporation would be required to perform this
Agreement if no such succession had
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taken place. Regardless of whether such agreement is executed, this Agreement
shall be binding upon any successor of the Corporation in accordance with the
operation of law and such successor shall be deemed the "Corporation" for
purposes of this Agreement.
18. NOTICES
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All notices, requests, demands and other communications hereunder shall be
in writing and shall be deemed to have been duly given if delivered by hand or
sent by facsimile transmission with telephonic confirmation of receipt, or one
business day after being sent for next business day delivery by a reputable
overnight courier service providing delivery confirmation, addressed as follows:
(a) if to the Board or the Corporation, to:
Franchise Mortgage Acceptance Company
0000 Xxxxxxx Xxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
with a copy to:
H. Xxxxx Xxxxxxx
Imperial Credit Industries, Inc.
00000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
(b) if to the Executive, to:
Xxxxx Xxxxx
00000 Xxxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000
Such addresses may be changed by written notice sent to the other party at the
last recorded address of that party.
19. ARBITRATION OF ALL DISPUTES
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(a) Any controversy or claim arising out of or relating to this
Agreement or the breach thereof (including the arbitrability of any controversy
or claim), shall be settled by arbitration in the City of Los Angeles in
accordance with the laws of the State of California by one arbitrator. If the
parties cannot agree on the appointment of an arbitrator, then the arbitrator
shall be appointed by the American Arbitration Association. The arbitration
shall be conducted in accordance with the rules of the American Arbitration
Association, except with
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respect to the selection of an arbitrator which shall be as provided in this
Section 19 Paragraph 20. The cost of any arbitration proceeding hereunder shall
be borne equally by the Corporation and the Executive. The award of the
arbitrator shall be binding upon the parties. Judgment upon the award rendered
by the arbitrator may be entered in any court having jurisdiction thereof.
(b) If it shall be necessary or desirable for the Executive to retain
legal counsel and incur other costs and expenses in connection with the
enforcement of any or all of his rights under this Agreement, and provided that
the Executive substantially prevails in the enforcement of such rights, the
Corporation shall pay (or the Executive shall be entitled to recover from the
Corporation, as the case may be) the Executive's reasonable attorneys' fees and
costs and expenses in connection with the enforcement of his rights including
the enforcement of any arbitration award and any costs of any arbitration which
the Executive would otherwise be required to pay in accordance with Section
Paragraph 19 (a).
20. NO ASSIGNMENT
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Except as otherwise expressly provided herein, this Agreement is not
assignable by any party and no payment to be made hereunder shall be subject to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
other charge.
21. EXECUTION IN COUNTERPARTS
-------------------------
This Agreement may be executed by the parties hereto in two counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
constitute one and the same instrument, and all signatures need not appear on
any one counterpart.
22. JURISDICTION AND GOVERNING LAW
------------------------------
This Agreement shall be construed and interpreted in accordance with and
governed by the laws of the State of California, without reference to its
conflict of laws provisions.
23. SEVERABILITY
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If any provision of this Agreement shall be adjudged by any court of
competent jurisdiction to be invalid or unenforceable for any reason, such
judgment shall not affect, impair or invalidate the remainder of this Agreement.
24. ENTIRE AGREEMENT
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This Agreement embodies the entire agreement of the parties hereof, and
supersedes all other
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oral or written agreements or understandings between them regarding the subject
matter hereof. No change, alteration or modification hereof may be made except
in a writing, signed by each of the parties hereto.
25. HEADINGS DESCRIPTIVE
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The headings of the several paragraphs of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or construction of
any of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
FRANCHISE MORTGAGE ACCEPTANCE COMPANY
By: _______________________________ _________________________
Name: Xxxxx Xxxxx
Title:
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