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EXHIBIT 10.4
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (this "Agreement") is made as of
the 12th day of May 2000, effective as of January 1, 2000 (the "Effective
Date"), by and between NEWMARK HOME CORPORATION, a Nevada corporation (the
"Employer"), and XXXXXX X. XXXXXXX, an individual residing in Sugar Land, Texas
(the "Employee").
RECITALS
The Employer, its divisions, subsidiaries, and other affiliated entities, are
primarily engaged in the business of constructing single-family residences. The
Employer and the Employee entered into an Employment Agreement dated January 1,
1998 (the "Employment Agreement"), the intent and purpose being to specify the
terms and conditions of Employee's employment with the Employer. The Employer
and the Employee desire to amend the terms and conditions of the employment with
the Employer and hereby enter into this Agreement as of the Effective Date.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following terms have the meanings
specified or referred to in this Section 1.
"AEBIT" means actual consolidated earnings before income taxes for the
Newmark Entities as determined by an independent audit of such entities
for the years ended December 31, 2000, 2001 and 2002.
"Agreement"--the Employment Agreement, as amended from time to time,
including this Agreement.
"Base Salary"--as defined in Section 3.1(a).
"Basic Compensation" means Base Salary and Benefits.
"BEBIT" and "Target Amount" are used interchangeably and mean the
budgeted earnings before income taxes for the Newmark Entities as has
been established by the Special Benefits Committee of the Board of
Directors of Newmark Homes Corp. (the "special Benefits Committee") and
the Employee prior to the date of this Agreement for the calendar year
2000 and shall be agreed to prior to the end of the first quarter of
2001 and 2002 for calendar years 2001 and 2002, respectively. If the
parties are unable to agree on the BEBIT for 2001, the Target Amount
shall be 110% of the BEBIT for the prior calendar year. If the parties
are unable to agree on the BEBIT for 2002, the Target Amount shall be
the BEBIT for 2000 compounded at 110%.
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"Benefits"--as defined in Section 3.1(b).
"Board of Directors" means the Board of Directors of Newmark Homes
Corp.
"Bonus Plan"--as defined in Section 3.1 (c).
"Confidential Information" means any and all intellectual property of
the Employer (or any of its affiliates), including but not limited to:
(a) trade secrets concerning the business and affairs of the Employer
(or any of its affiliates), product specifications, data,
know-how, formulae, compositions, processes, designs, sketches,
photographs, graphs, drawings, samples, inventions and ideas,
past, current, and planned research and development, current and
planned manufacturing or distribution methods and processes,
customer lists, current and anticipated customer requirements,
price lists, market studies, business plans, computer software
and programs (including object code and source code), computer
software and database technologies, systems, structures, and
architectures (and related formulae, compositions, processes,
improvements, devices, know-how, inventions, discoveries,
concepts, ideas, designs, methods and information), and any other
information, however documented, that is a trade secret under
federal, state or other applicable law; and
(b) information concerning the business and affairs of the Employer
(or any of its affiliates) (which includes historical financial
statements, financial projections and budgets, historical and
projected sales, capital spending budgets and plans, the names
and backgrounds of key personnel, personnel training and
techniques and materials), however documented; and
(c) notes, analysis, compilations, studies, summaries, and other
material prepared by or for the Employer (or any of its
affiliates) containing or based, in whole or in part, on any
information included in the foregoing.
"Disability"-- as defined in Section 4.2.
"Effective Date" means the date stated in the first paragraph of this
Agreement or, if applicable for the period prior to January 1, 2000,
the Effective Date set forth in the Employment Agreement.
"Employee Invention" means any idea, invention, technique,
modification, process, or improvement (whether patentable or not), any
industrial design (whether registerable or not), any mask work, however
fixed or encoded, that is suitable to be fixed, embedded or programmed
in a semiconductor product (whether recordable or not), and any work of
authorship (whether or not copyright protection may be obtained for it)
created, conceived, or developed by the Employee, either solely or in
conjunction with others, during the Employment Period or at any time
prior to the Employment Period that Employee was an employee of
Employer, or a period that includes a portion of the Employment Period,
that relates in any way to, or is useful in any manner in, the business
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then being conducted or proposed to be conducted by the Employer, and
any such item created by the Employee, either solely or in conjunction
with others, following termination of the Employee's employment with
the Employer, that is based upon or uses Confidential Information.
"Employment Period" means the term of the Employee's employment under
this Agreement.
"Fiscal Year" means the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"For cause"--as defined in Section 4.3.
"Percentage of Target Amount Achieved" shall be determined by dividing
the AEBIT by the BEBIT.
"Person" means any individual, corporation (including any nonprofit
corporation), general or limited partnership, limited liability
company, joint venture, estate, trust, business trust, association,
organization, or governmental body.
"Post-Employment Period"-- as defined in Section 5.2.
"Newmark Entities" shall mean the Employer and all of its subsidiaries,
whether wholly-owned or not wholly-owned and whether direct or
indirect.
"Target Amount"--see BEBIT defined above.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT
The Employer hereby employs the Employee, and the Employee hereby
accepts employment by the Employer, upon the terms and conditions set
forth in this Agreement.
2.2 TERM
The term of the Employee's employment with the Employer pursuant to the
Employment Agreement commenced on January 1, 1998 and shall continue
pursuant to this Agreement on the Effective Date and end on December
31, 2002, unless terminated earlier in accordance with the provisions
of Section 4 herein. Employer and Employee may extend the term of this
Agreement by execution of a written amendment hereto, setting forth the
terms of such extension. If the parties fail to execute such written
amendment, but the employment relationship has continued by mutual
consent, then the terms of such employment shall be deemed to be on a
month-to-month basis.
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2.3 DUTIES
The Employee has served as President and Chief Executive Officer of the
Employer since January 1, 1998 pursuant to the Employment Agreement,
will continue to serve in such position for the remaining term of this
Agreement and will have such duties as are assigned or delegated to the
Employee by the Board of Directors of Newmark Homes Corp. The Employee
will devote his full business time, attention, skill, and energy
exclusively to the business of the Employer, will use his best efforts
to promote the success of the Employer's business, and will cooperate
fully with the Board of Directors of Employer in the advancement of the
best interests of the Employer. Nothing in this Section 2.3, however,
will prevent the Employee from engaging in additional activities in
connection with personal investments and community affairs that are not
inconsistent with the Employee's duties under this Agreement. If the
Employee is elected an officer of any of Employer's affiliates, the
Employee will fulfill his duties as such officer without additional
compensation.
3. COMPENSATION
The compensation and other benefits payable to the Employee under this
Agreement shall constitute the full consideration to be paid to the
Employee for all services to be rendered by the Employee for the
Employer, its divisions, subsidiaries and other affiliated entities.
3.1 BASIC COMPENSATION
(a) The Employee will be paid an annual salary as set forth below
("Base Salary"), which will be payable in equal periodic
installments according to the Employer's customary payroll
practices, but no less frequently than monthly.
Calendar Year Base Salary
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1998 $400,000.00
1999 $450,000.00
2000 $525,000.00
2001 $550,000.00
2002 $575,000.00
(b) The Employee will, during the Employment Period, be permitted
to participate in such pension, profit sharing, life
insurance, hospitalization, major medical and other employee
benefit plans of the Employer that may be in effect from time
to time, to the extent Employee is eligible under the terms of
those plans (collectively, the "Benefits").
(c) Employee has participated in an annual bonus plan pursuant
to the Employment Agreement for the calendar years 1998 and
1999 and, subject to shareholder approval at the annual
shareholder meeting in year 2000 or at any shareholder meeting
held thereafter, shall be entitled to participate in an annual
bonus plan in accordance with this Agreement for each calendar
year thereafter
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(collectively, the "Bonus Plan" or "Bonus Plans"). Employee
shall be entitled to a cash bonus for each calendar year
commencing on or after January 1, 2000 in an amount equal to
the product of the Employee's Base Salary for such calendar
year (determined at the time the Target Amount is established
by the Special Benefits Committee and disregarding any
subsequent increase thereof) multiplied by the Percentage of
Target Amount Achieved and subject to certification by the
Special Benefits Committee. Notwithstanding the foregoing, the
Employee's Bonus with respect to any calendar year shall not
exceed $1,150,000.
4. TERMINATION
4.1 EVENTS OF TERMINATION
The Employment Period, the Employee's Basic Compensation, and any and
all other rights of the Employee under this Agreement or otherwise as
an employee of the Employer will terminate (except as otherwise
provided in this Section 4):
(a) upon the death of the Employee;
(b) upon the disability of the Employee (as defined in Section
4.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 4.3), immediately upon notice
from the Employer to the Employee, or at such later time as
such notice may specify; or
(d) on December 31, 2002.
4.2 DEFINITION OF DISABILITY
For purposes of Section 4.1, the Employee will be deemed to have a
"disability" if, for physical or mental reasons, the Employee is unable
to perform the essential functions of the Employee's duties under this
Agreement for 120 consecutive days, or 180 days during any twelve (12)
month period, as determined in accordance with this Section 4.2. The
disability of the Employee will be determined by a medical doctor
selected by written agreement of the Employer and the Employee upon the
request of either party by notice to the other. If the Employer and the
Employee cannot agree on the selection of a medical doctor, each of
them will select a medical doctor and the two (2) medical doctors will
select a third medical doctor who will determine whether the Employee
has a disability. The determination of the medical doctor selected
under this Section 4.2 will be binding on both parties. The Employee
must submit to a reasonable number of examinations by the medical
doctor making the determination of disability under this Section 4.2,
and the Employee hereby authorizes the disclosure and release to the
Employer of such determination and all supporting medical records. If
the Employee is not legally competent, the Employee's legal guardian or
duly authorized attorney-in-fact will act in the Employee's stead,
under this Section 4.2, for the purposes of submitting the Employee to
the examinations, and providing the authorization of disclosure,
required under this Section 4.2.
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4.3 DEFINITION OF "FOR CAUSE"
For purposes of Section 4.1, the phrase "for cause" means: (a) the
commission of fraud, theft, embezzlement, or similar malfeasance
involving moral turpitude or the conviction of, or plea of nolo
contendere to, any felony; (b) gross negligence, nonfeasance,
dishonesty, willful misconduct or substantial failure to perform
employment duties in a manner consistent with normal standards of job
performance after prior evaluation and warning related to such
standards of job performance; or (c) the appropriation (or attempted
appropriation) of a material business opportunity of the Employer.
4.4 TERMINATION PAY
Effective upon the termination of this Agreement, the Employer will be
obligated to pay the Employee (or, in the event of his death, his
designated beneficiary as defined below) only such compensation as is
provided in this Section 4.4, and in lieu of all other amounts and in
settlement and complete release of all claims the Employee may have
against the Employer. For purposes of this Section 4.4, the Employee's
designated beneficiary will be such individual beneficiary or trust,
located at such address, as the Employee may designate by notice to the
Employer from time to time or, if the Employee fails to give notice to
the Employer of such a beneficiary, the Employee's estate.
(a) Termination by the Employer for Cause. If the Employer
terminates this Agreement for cause, the Employee will be
entitled to receive his accrued, but unpaid, Base Salary only
through the date such termination is effective. If the
Employer terminates this Agreement for cause, as defined in
Section 4.3(a) or 4.3(c), Employee shall forfeit his rights to
any payment under any Bonus Plan in which Employee
participated at the time of termination, whether or not
payments under such Bonus Plan have been accrued by Employer.
If the Employer terminates this Agreement for cause, as
defined in Section 4.3(b), Employee shall be entitled to
receive a pro-rated portion of any payment under any Bonus
Plan in which Employee participated at the time of
termination, based on the actual days worked by the Employee
during the fiscal year on which the Bonus Plan is based.
Employee shall not be released from the covenants contained in
Section 5 hereof.
(b) Termination upon Disability. If this Agreement is terminated
by either party as a result of the Employee's disability, as
determined under Section 4.2, the Employer will pay the
Employee (i) his Base Salary through the remainder of the
calendar month during which such termination is effective and
(ii) a pro-rated portion of any payment under any Bonus Plan
in which Employee participated at the time of termination,
based on the actual days worked by the Employee during the
fiscal year on which the Bonus Plan is based.
(c) Termination upon Death. If this Agreement is terminated
because of the Employee's death, the Employee's estate will be
entitled to receive (i) his Base Salary through the end of the
calendar month in which his death occurs and (ii) a pro-rated
portion of any payment under any Bonus Plan in which Employee
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participated at the time of termination, based on the actual
days worked by the Employee during the fiscal year on which
the Bonus Plan is based.
(d) Termination on December 31, 2002. If on December 31, 2002,
this Agreement terminates because the parties have not
extended the Term (as provided in Section 2.2 hereof), the
Employee shall be entitled to receive (i) any unpaid Base
Salary accrued through December 31, 2002, and (ii) a pro-rated
portion of any payment under any Bonus Plan in which Employee
participated at the time of termination, based on the actual
months worked by the Employee during the fiscal year on which
the Bonus Plan is based. Employee shall not be released from
the covenants contained in Section 5 hereof; provided however,
that Employer shall pay Employee an amount equal to one year's
Base Salary. Such amount shall be payable in twelve (12) equal
monthly installments, determined by dividing Employee's Base
Salary, on the last day of Employee's employment with
Employer, by 12, with the first such installment being due and
payable on the last day of Employee's employment with
Employer, and the remaining installments being due and payable
on the same date in each succeeding month. Employer shall have
the right, at any time, to release Employee from the covenants
contained in Section 5 hereof, at which time Employee's right
to receive and Employer's obligation to make any installment
payment shall terminate.
(e) Termination after December 31, 2002. In the event Employer and
Employee agree to continue Employee's employment with Employer
after December 31, 2002, pursuant to the terms of Section 2.2
hereof, such employment shall be continued, unless otherwise
agreed in writing, on a month-to-month basis and on the same
terms and conditions as set forth herein, and may be
terminated by Employer (i) at any time upon thirty (30) days
notice, or (ii) immediately, provided that Employer shall pay
Employee in a lump sum, an amount equal to one (1) month's
Base Salary. Employee shall be entitled to receive a pro-rated
portion of any payment under any Bonus Plan in which Employee
participated at the time of termination, based on the actual
months worked by the Employee during the fiscal year on which
the Bonus Plan is based. Employee shall not be released from
the covenants contained in Section 5 hereof; provided however,
that Employer shall pay Employee an amount equal to one year's
Base Salary. Such amount shall be payable in twelve (12) equal
monthly installments, determined by dividing Employee's Base
Salary, on the last day of Employee's employment with
Employer, by 12, with the first such installment being due and
payable on the last day of Employee's employment with
Employer, and the remaining installments being due and payable
on the same date in each succeeding month. Employer shall have
the right, at any time, to release Employee from the covenants
contained in Section 5 hereof, at which time Employee's right
to receive and Employer's obligation to make any installment
payment shall terminate.
In the event that Employer terminates Employee for cause, as
defined in Section 4.3, then the provisions of this Section
4.4(e)(i) and (ii) shall not apply, and Employee will be
entitled to receive only his accrued, but unpaid, Base Salary
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through the date such termination is effective and Employee
shall not be released from the covenants contained in Section
5 hereof. If the Employer terminates this Agreement for cause,
as defined in Section 4.3(a) or 4.3(c), Employee shall forfeit
his rights to any payment under any Bonus Plan in which
Employee participated at the time of termination, whether or
not payments under such Bonus Plan have been accrued by
Employer. If the Employer terminates this Agreement for cause,
as defined in Section 4.3(b), Employee shall be entitled to
receive a pro-rated portion of any payment under any Bonus
Plan in which Employee participated at the time of
termination, based on the actual days worked by the Employee
during the fiscal year on which the Bonus Plan is based.
(f) Benefits. The Employee's accrual of, or participation in plans
providing for, Benefits, will cease at the effective date of
the termination of this Agreement, except as otherwise
specifically provided in writing in the documentation for any
such Benefit. The Employee will not receive, as part of his
termination pay pursuant to this Section 4, any payment or
other compensation for any vacation, holiday, sick leave, or
other leave unused on the date the notice of termination is
given under this Agreement, unless Employer's written
personnel policies provide otherwise.
5. NON-COMPETITION AND NON-INTERFERENCE
5.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that: (a) the services to be performed by him
under this Agreement are of a special, unique, unusual, extraordinary,
and intellectual character, and (b) the provisions of this Section 5
are reasonable and necessary to protect the goodwill and other business
interests of Employer.
5.2 COVENANTS OF THE EMPLOYEE
In consideration of the acknowledgments by the Employee, and in
consideration of the compensation and benefits to be paid or provided
to the Employee by the Employer, the Employee covenants that he will
not, directly or indirectly:
(a) during the Employment Period, except in the course of his
employment hereunder, and during the Post-Employment Period
(as defined below), without the express prior written consent
of Employer (as authorized by its board of directors), as
owner, officer, director, employee, stockholder, principal,
consultant, agent, lender, guarantor, cosigner, investor or
trustee of any corporation, partnership, proprietorship, joint
venture, association or any other entity of any nature,
engage, directly or indirectly, in any business of siting,
permitting, developing, constructing, or selling single-family
homes in (i) the following counties in the State of Texas: (1)
Xxxxxx County and all contiguous counties, (2) Xxxxxx County
and all contiguous counties, (3) Bexar County and all
contiguous counties, (4) Dallas County and all contiguous
counties, and (5) any county in which Employer has
homebuilding activity during the Employment
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Period, and (ii) the following counties in the State of
Tennessee: (1) Xxxxxxxxxx County and all contiguous counties,
and (2) any county in which Employer engages in business
during the Employment Period: provided, however, that the
Employee may purchase or otherwise acquire up to (but not more
than) one percent (1%) of any class of securities of any
enterprise (but without otherwise participating in the
activities of such enterprise) if such securities are listed
on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act
of 1934;
(b) whether for the Employee's own account or for the account of
any other person, at any time during the Employment Period
(except for the account of Employer and its affiliates) and
the Post-Employment Period, solicit business of the same or
similar type being carried on by the Employer, from any person
known by the Employee to be a customer of the Employer,
whether or not the Employee had personal contact with such
person during and by reason of the Employee's employment with
the Employer;
(c) whether for the Employee's own account or the account of any
other person (i) at any time during the Employment Period and
the Post-Employment Period, solicit, employ, or otherwise
engage as an employee, independent contractor, or otherwise,
any person who is an employee of the Employer, or in any
manner induce, or attempt to induce, any employee of the
Employer to terminate his employment with the Employer; or
(ii) at any time during the Employment Period and Post
Employment Period, interfere with the Employer's relationship
with any person, including any person, who at any time during
the Employment Period, was an employee, contractor, supplier,
or customer of the Employer; provided, however, that nothing
in this Section 5.2(c)(ii) shall preclude Employee from
soliciting or employing any person, who was employed by
Employer, after six (6) months have lapsed from the last date
of the former employee's employment with Employer; or
(d) at any time during or after the Employment Period, disparage
the Employer or any of its shareholders, parents, affiliates,
directors, officers, employees, or agents.
The term "Post-Employment Period" means the one (1) year period
beginning on the date of termination of the Employee's employment with
the Employer.
If any covenant in this Section 5.2 is held to be unreasonable,
arbitrary, or against public policy, such covenant will be considered
to be divisible with respect to scope, time, and geographic area, and
such lesser scope, time, or geographic area, or all of them, as a court
of competent jurisdiction may determine to be reasonable, not
arbitrary, and not against public policy, will be effective, binding,
and enforceable against the Employee. Employee hereby agrees that this
covenant is a material and substantial part of this Agreement and that
(i) the geographic limitations are reasonable; (ii) the one (1) year
term of the covenant is reasonable; and (iii) the covenant is not made
for the purpose of limiting competition per se and is reasonably
related to a protectable business interest of the Employer.
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The period of time applicable to any covenant in this Section 5.2 will
be extended by the duration of any violation by the Employee of such
covenant.
The Employee will, while the covenant under this Section 5.2 is in
effect, give notice to the Employer, within ten (10) days after
accepting any other employment, of the identity of the Employee's
employer. The Employer may notify such employer that the Employee is
bound by this Agreement and, at the Employer's election, furnish such
employer with a copy of this Agreement or relevant portions thereof.
6. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
6.1 ACKNOWLEDGMENTS BY THE EMPLOYEE
The Employee acknowledges that (a) during the Employment Period and as
a part of his employment, the Employee will be afforded access to
Confidential Information; (b) public disclosure of such Confidential
Information could have an adverse effect on the Employer and its
business; (c) because the Employee possesses substantial technical
expertise and skill with respect to the Employer's business, the
Employer desires to obtain exclusive ownership of each Employee
Invention, and the Employer will be at a substantial competitive
disadvantage if it fails to acquire exclusive ownership of each
Employee Invention; and (d) the provisions of this Section 6 are
reasonable and necessary to prevent the improper use or disclosure of
Confidential Information and to provide the Employer with exclusive
ownership of all Employee Inventions.
6.2 AGREEMENTS OF THE EMPLOYEE
In consideration of the compensation and benefits to be paid or
provided to the Employee by the Employer under this Agreement, the
Employee covenants as follows:
(a) Confidentiality.
(i) During and following the Employment Period, the
Employee will hold in confidence the Confidential
Information and will not disclose it to any person
other than in connection with the performance of his
duties and obligations hereunder, except with the
specific prior written consent of the Employer or
except as otherwise expressly permitted by the terms
of this Agreement.
(ii) Any trade secrets of the Employer will be entitled to
all of the protections and benefits under the federal
and state trade secret and intellectual property laws
and any other applicable law. If any information that
the Employer deems to be a trade secret is found by a
court of competent jurisdiction not to be a trade
secret for purposes of this Agreement, such
information will, nevertheless, be considered
Confidential Information for purposes of this
Agreement. The Employee hereby waives any
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requirement that the Employer submit proof of the
economic value of any trade secret or post a bond or
other security.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information
that the Employee demonstrates was or became
generally available to the public other than as a
result of a disclosure by the Employee.
(iv) The Employee will not remove from the Employer's
premises (except to the extent such removal is for
purposes of the performance of the Employee's duties
at home or while traveling, or except as otherwise
specifically authorized by the Employer) any
document, record, notebook, plan, model, component,
device, or computer software or code, whether
embodied in a disk or in any other form belonging to
the Employer or used in Employer's business
(collectively, the "Proprietary Items"). The Employee
recognizes that, as between the Employer and the
Employee, all of the Proprietary Items, whether or
not developed by the Employee, are the exclusive
property of the Employer. Upon termination of this
Agreement, or upon the request of the Employer during
the Employment Period, the Employee will return to
the Employer all of the Proprietary Items in the
Employee's possession or subject to the Employee's
control, and the Employee shall not retain any
copies, abstracts, sketches, or other physical
embodiment of any of the Proprietary Items.
(b) Employee Inventions. Each Employee Invention will belong
exclusively to the Employer. The Employee acknowledges that
all of the Employee's writing, works of authorship and other
Employee Inventions are works made for hire and the property
of the Employer, including any copyrights, patents, or other
intellectual property rights pertaining thereto. If it is
determined that any such works are not works made for hire,
the Employee hereby assigns to the Employer all of the
Employee's right, title, and interest, including all rights of
copyright, patent, and other intellectual property rights, to
or in such Employee Inventions. The Employee covenants that he
will promptly:
(i) disclose to the Employer in writing any Employee
Invention;
(ii) assign to the Employer or to a party designated by
the Employer, at the Employer's request and without
additional compensation, all of the Employee's right
to the Employee Invention for the United States and
all foreign jurisdictions;
(iii) execute and deliver to the Employer such
applications, assignments, and other documents as the
Employer may request in order to apply for and obtain
patents or other registrations with respect to any
Employee Invention in the United States and any
foreign jurisdictions;
(iv) sign all other papers necessary to carry out the
above obligations; and
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(v) give testimony and render any other assistance but
without expense to the Employee in support of the
Employer's rights to any Employee Invention.
6.3 DISPUTES OR CONTROVERSIES
The Employee recognizes that should a dispute or controversy arising
from or relating to this Agreement be submitted for adjudication to any
court, arbitration panel, or other third party, the preservation of the
secrecy of Confidential Information may be jeopardized. All pleadings,
documents, testimony, and records relating to any such adjudication
will be maintained in secrecy and will be available for inspection by
the Employer, the Employee, and their respective attorneys and experts,
who will agree, in advance and in writing, to receive and maintain all
such information in secrecy, except as may be limited by them in
writing.
7. GENERAL PROVISIONS
7.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY
The Employee acknowledges that the injury that would be suffered by the
Employer as a result of a breach of the provisions of this Agreement
(including any provision of Sections 5 and 6) would be irreparable and
that an award of monetary damages to the Employer for such a breach
would be an inadequate remedy. Consequently, the Employer will have the
right, in addition to any other rights it may have, to obtain
injunctive relief to restrain any breach or threatened breach or
otherwise to specifically enforce any provision of this Agreement.
Without limiting the Employer's rights under this Section 7 or any
other remedies of the Employer, if the Employee breaches any of the
provisions of Sections 5 and 6 and such breach is proven in a court of
competent jurisdiction, the Employer will have the right to cease
making any payments otherwise due to the Employee under this Agreement.
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7.2 COVENANTS OF SECTIONS 5 AND 6 ARE ESSENTIAL AND INDEPENDENT COVENANTS
The covenants by the Employee in Sections 5 and 6 are essential
elements of this Agreement, and without the Employee's agreement to
comply with such covenants, the Employer would not have entered into
this Agreement or continued the employment of the Employee. The
Employer and the Employee have independently consulted their respective
counsel and have been advised in all respects concerning the
reasonableness and propriety of such covenants, with specific regard to
the nature of the business conducted by the Employer.
The Employee's covenants in Section 5 and 6 are independent covenants
and the existence of any claim by the Employee against the Employer
under this Agreement or otherwise will not excuse the Employee's breach
of any covenant in Sections 5 or 6.
If the Employee's employment hereunder expires or is terminated, this
Agreement will continue in full force and effect as is necessary or
appropriate to enforce the covenants and agreements of the Employee in
Sections 5 and 6.
7.3 LEGAL RECOURSE
Employee further agrees that these covenants are made to protect the
legitimate business interests of the Employer. Employee understands as
a part of these covenants that the Employer intends to exercise
whatever legal recourse against him for any breach of this Agreement
and in particular, for any breach of these covenants.
8. GENERAL PROVISIONS
8.1 WAIVER
The rights and remedies of the parties to this Agreement are cumulative
and not alternative. Neither the failure nor any delay by either party
in exercising any right, power, or privilege under this Agreement will
operate as a waiver of such right, power, or privilege, and no single
or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or
privilege or the exercise of any other right, power, or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right
arising out of this Agreement can be discharged by one party, in whole
or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party; (b) no waiver that may be given by a
party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of such party or of the right of the
party giving such notice or demand to take further action without
notice or demand as provided in this Agreement.
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8.2 BINDING EFFECT; DELEGATION OF DUTIES PROHIBITED
This Agreement shall inure to the benefit of, and shall be binding
upon, the parties hereto and their respective successors, assigns,
heirs, and legal representatives, including any entity with which the
Employer may merge or consolidate or to which all or substantially all
of its assets may be transferred. The duties and covenants of the
Employee under this Agreement, being personal, may not be delegated.
8.3 NOTICES
All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (with written confirmation of receipt), provided that
a copy is mailed by certified mail, return receipt requested, or (c)
when received by the addressee, if sent by a nationally recognized
overnight delivery service, in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and
facsimile numbers as a party may designate by notice to the other
parties):
If to Employer:
Newmark Home Corporation
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile No.: 281/243-0132
With a copy to:
Xxxxx X. Xxxxxxx
Technical Olympic USA, Inc.
0000 Xxxxxxxx Xxxxx Xxxxx
Xxxxx Xxxx, XX 00000
Facsimile No.: 281/243-0116
If to the Employee:
Xxxxxx X. Xxxxxxx
00 Xxxxxx Xxxx Xxxxx
Xxxxx Xxxx, Xxxxx 00000
8.4 ENTIRE AGREEMENT; AMENDMENTS
Employee and Employer have entered into a Mutual Agreement to Arbitrate
Claims (the "Arbitration Agreement") incorporated herein for all
purposes as if set forth in full. The Arbitration Agreement is hereby
amended to provide that the Arbitration as defined in the Arbitration
Agreement, shall be non-binding. This Agreement, together with the
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Arbitration Agreement, contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral or written, between the
parties hereto with respect to the subject matter hereof. This
Agreement may not be amended orally, but only by an agreement in
writing signed by the parties hereto.
8.5 GOVERNING LAW
This Agreement will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
8.6 SEVERABILITY
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this
Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date first above written.
"EMPLOYER"
NEWMARK HOME CORPORATION
/s/ Xxxxxxxxxxx Stengos
By: Newmark Homes Corp. (its sole
shareholder)
Name: Xxxxxxxxxxx Stengos
Title: Chairman of the Board of
Directors
"EMPLOYEE"
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
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