Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 3rd day of May. 1999, by and between Del Mar Mortgage. Inc. A Nevada
Corporation ("Employer"), and XXXX XXXXXXXXX ("Employee").
W I T N E S S E T H:
WHEREAS, Employer and Employee deem it to be in their respective best
interests to enter into an agreement providing for Employer's employment of
Employee pursuant to the terms herein stated.
NOW, THEREFORE, in consideration of the premises and the mutual
promises and agreements contained herein, it is hereby agreed as follows:
1. Term of Employment. Employer hereby employs and Employee hereby
accepts with employment with Employer for a term of three (3) years effective as
Of May 10. 1999 ("Commencement Date"), and ending on May 9. 2002 (the
'Termination Date"), unless sooner terminated as provided herein.
2. Duties of Employee. Employer agree to engage Employee, and Employee
agrees to serve Employer, in the capacity of Compliance Officer, and shall do
and perform all services, acts, or things necessary or advisable to accomplish
the objectives and complete the tasks assigned to Employee by Employer's
management, including, without limitation: (i) establishment of procedures for
the proper processing by Del Mar of loans (originating both within and outside
the State of Nevada), including, trust accounting, funding, title policy, and
assignments, (ii) learning the regulations and administrative codes for all
states in which Employer lends and establish procedures for lending in those
states; and (iii) working directly with government officials regarding policy
and audits.
3. Devotion of Time to Employer's Business. Employee shall be a
full-time employee of Employer and shall devote such substantial and sufficient
amounts of this productive time, ability, and attention to the business of
Employer during the term off this Agreement as may be necessary to accomplish
the objectives and complete the task assigned to Employee. Employee acknowledges
that Employee, in the course of fulfilling his duties hereunder, may be required
to travel outside the State of Nevada. Employee acknowledges that Employer may
require Employee to become licensed by the United States Securities and Exchange
Commission; the Nevada Association of Securities Dealers, and/or such other
entities as may be required for Employee to market securities to the public.
Prior written consent of Employer shall be required 1>efore Employee undertakes
any outside services of a business, commercial, or professional nature, whether
for compensation or otherwise. Written consent shall not be required as to
Employee's reasonable participation in educational and professional activities
related to the maintenance of Employee's qualifications and stature in his
profession.
4. Uniqueness of Services. Employee acknowledges that the services to
be performed by him under the terms of this Agreement are of a special and
unique value.
Accordingly, the obligations of Employee under this Agreement are
non-assignable.
5. Compensation of Employee.
a. Annual Base Salary. Subject to other specific provisions in
the Agreement, as compensation for service hereunder. Employee
shall receive a salary at the rate of not less than Seventy
Thousand and No/I 00 Dollars ($70,000.00) per annum ("Annual
Base Salary").
b. Cash Bonus. Within forty-five (45) days of expiration of
each Fiscal Quarter (as hereinafter defined), and provided
Employee is still employed by Employer on the date of
expiration of such Fiscal Quarter, Employer shall pay to
Employee a bonus equal to the greater of. (i) the product
obtained by multiplying the number of loans closed in such
Fiscal Quarter by One Hundred Seventy Five and No/I 00 Dollars
($175.00); or (ii) Five Thousand and No/100 Dollars
($5,000.00). Within forty-five (45) days of the expiration of
each Fiscal Year (as herein defined), and provided Employee is
still employed by Employer on the date of expiration of such
Fiscal Year, Employer shall pay to Employee a bonus calculated
as follows: (i) if on the date of expiration of a Fiscal Year
the then most current annual audit rating (as prepared by the
State of Nevada, Department of Business and Industry,
Financial Institutions Division ("FID")) for Employer shall be
I, then the bonus amount for such Fiscal Year shall be
Thirty-Five Thousand and No/100 Dollars ($35,000.00), (ii) if
on the date of expiration of a Fiscal Year the then most
current annual audit rating (as prepared by FID) for Employer
shall be 2, then the bonus amount for such Fiscal Year shall
be Twenty Thousand and No/100 Dollars ($20,000.00). (iii) if
on the date of expiration of a Fiscal Year the then most
current annual audit rating (as prepared by FID) for Employer
shall be 3, then the bonus amount for such fiscal year shall
be Ten Thousand and No/100 Dollars ($10,000.00). The term
"Fiscal Quarter" shall mean, commencing on the Commencement
Date, the first three (3) month period of the term of this
Agreement, and each three (3) month period during the term of
this Agreement thereafter. The term "Fiscal Year" shall mean,
commencing on the Commencement Date, the first twelve (12)
month period of the term of this Agreement, and each twelve
(12) month period during the term of this Agreement
thereafter.
c. Employee Benefits. Employee shall receive health and dental
insurance benefits, and 401K Plan coverage designated by
Employer arid no less favorable than the coverage provided by
Employer to its employees of same executive level (as
determined by Employer in its reasonable discretion).
d. Stock Options. Management will make a reasonable attempt to
give Employee the same option programs that will be available
to other executives
e. Business Expenses. Employer will reimburse employee for
reasonable business expenses incurred in performing Employee's
duties and promoting the business of Employer.
f. Vacation. Employee shall be entitled to fifteen (15) work
days (i.e., as a
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practical matter, three (3) weeks) per Fiscal Year as paid
vacation days. All vacation schedules shall be subject to the
reasonable approval of Employer.
g. Occasional Absence. Employee shall be entitled to five (5)
work days (i.e., as practical matter, one (1) week) per Fiscal
year as unpaid occasional absence days. All occasional absence
schedules shall be subject to the reasonable approval of
Employer.
h. Sick. Employee shall be entitled to ten (10) work days
(i.e., as a practical matter, two (2) weeks) per Fiscal Year
as paid sick days.
6. Termination of Employment.
a. Termination for Cause. Employer shall have the right to
terminate Employee's employment at any time for cause by
giving Employee written notice of the effective date of
termination. In the event of Employer's termination of
Employee with cause. Employee shall not be entitled to any
further payments, rights, or benefits, hereunder, except such
as have accrued prior to the effectiveness of Employees
termination. For purposes of this Agreement, "cause" shall
mean:
(1) fraud, misappropriation, embezzlement, or any other
action of material misconduct against Employer;
(2) substantial failure to render services in accordance
with the provisions of the Agreement, provided that:
(i) a written demand for performance has been
delivered to Employee by Employer at least
ten (10) days prior to termination
identifying the manner in which Employer
believes that Employee has failed to
perform, and
(ii) Employee has thereafter failed to remedy
such failure to perform;
(3) material violation of any law, rule, or regulation of
any governmental or regulatory body material to the
business of Employer;
(4) conviction or a guilty plea or nolo contendere plea
to a felony
(5) the loss, revocation, or suspension of any license or
certification of Employee necessary for Employee to
discharge his duties on behalf of Employer;
(6) repeated and persistent failure to abide by the
policies established by the management of Employer;
(7) any acts of violence or threats of violence made by
Employee against Employer or anyone associated with
Employer's business; or
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(8) drug dependency or habitual insobriety.
b. Termination without Cause. Employer shall have the right to
terminate Employee's employment at any time without cause by giving
Employee at least thirty (30) days prior written notice of the
effective date of termination. In the event of termination of this
Agreement without cause. Employer shall continue to pay Employee and
Annual Base salary (in accordance with Section 5(a) hereof), for a
period which is the lesser of (a) twelve (12) months or (b) the number
of full months from the effective date of termination of Employee
without cause to the Termination Date. Except for Employer's obligation
to pay the Annual Base Salary in accordance with the foregoing, in the
event of Employer's termination of Employee without Cause, Employee
shall not be entitled to any further payments, rights, or benefits
hereunder, except such as have accrued prior to the effectiveness of
Employee's termination.
c. Termination by Employee. Employee may terminate Employee's
employment hereunder, provided: (i) Employer commits a material breach
of this Agreement; and (ii) Employer receives written notice thereof
from Employee; and (iii) Employer fails to cure such default within
thirty (30) days of receipt of such notice.
d. Death or Incapacity. This Agreement shall terminate
automatically in the event that: (1) Employee fails or is unable to
perform Employee's duties due to injury, illness or other incapacity
for ninety (90) days in any twelve (12) month period; or (2) death of
Employee. If this Agreement shall terminate in accordance with this
Section 6(c), the obligation of Employer to make any payments
whatsoever under this Agreement shall cease except that in the event
this Agreement is terminated as a result of Employee's death.
Employee's executors, administrators' or other legal representatives,
shall within thirty (30) days of the date of Employees death, be paid
any compensation pursuant to this Agreement which is accrued and unpaid
as of the date of death of Employee (and to which Employee is otherwise
entitled pursuant to the terms of this Agreement).
e. Mitigation. In the event of a termination of Employee's
employment for any reason, Employee shall be required to seek other
employment in order to mitigate any damages resulting from the breach
of this Agreement.
7. Covenant of Confidentiality. All documents, records, files,
manuals, forms, materials, supplies, computer programs, trade secrets,
and other information which comes into Employee's possession from time
to time during Employee's employment by Employer, and/or any of
Employer's subsidiaries or affiliates, shall remain the sole and
exclusive property of Employer. Employee acknowledges that all such
confidential and propriety information is confidential and proprietary
and not readily available to Employer's business competitors. On the
effective date of the termination of the employment relationship or at
such other date specified by Employer, Employee agrees that he will
return to Employer all such confidential and propriety items
(including, but not limited to, company badge and keys) in his control
or possession, and all copies thereof,
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and that he will not remove any such items from the offices of
Employer.
8. Covenant of Non-Disclosure. Employee shall keep
confidential and not disclose or otherwise make use of any of the
confidential or proprietary information or trade secrets referred to in
Section 7 nor the same to any third xxxxx whomsoever, except as
required by law.
9. Covenant of Non-Solicitation. During the term of this
Agreement and for a period of five (5) years following the effective
date of termination of the employment relationship. Employee, either on
Employee's own account or for any person, film, company or other
entity, shall not solicit, interfere with or induce, or attempt to
induce, any employee of Employer, or any of its subsidiaries or
affiliates to leave their employment or to breach their employment
agreement, if any with Employer.
10. Covenant of Non-Disparagement, During the term of this
Agreement and for a period of five (5) years following the effective
date of the termination of the employment relationship. Employee shall
not make any remarks disparaging the conduct or character of Employer
or any of its subsidiaries or affiliates, their agents, employees,
officers, directors, successors, or assigns.
11. Covenant of Cooperation. Employee agrees to cooperate with
Employer in any litigation or administrative proceedings involving any
matters with which Employee was involved during his employment by
Employer. Employer shall reimburse Employee for reasonable expenses
incurred in providing such assistance.
12. Covenant Against Competition. During the term of this
Agreement and for a period of three (3) years following the effective
date of the termination of the employment relationship. Employee shall
not directly or indirectly engage in or become a partner, principal,
investor, creditor or stockholder of any business, proprietorship,
association, firm, corporation or any other business entity which is
engaged or proposes to engage or hereafter engages in any business
which competes with the business of Employer and/or any of its
subsidiaries or affiliates in any geographic area in which Employer
conducts business at the time of the termination of the employment
relationship.
13. Remedies. Notwithstanding any other provision in this
Agreement to the contrary. Employee acknowledges and agrees that if
Employee commits a material breach of the Covenant of Confidentiality
(Section 7), Covenant of Non-Disclosure (Section 8), Covenant of
Non-Solicitation (Section 9), Covenant of Non Disparagement (Section
10), Covenant of Cooperation (Section II), or the Covenant Against
Competition (Section 12), Employer shall have the right to have the
obligations of Employee specifically enforced by any court having
jurisdiction on the grounds that any such breach will cause irreparable
injury to Employer and money damages will not provide an adequate
remedy. Such equitable remedies shall be in addition to any other
remedies at law or equity,
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all of which remedies shall be cumulative and not exclusive. Employee
further acknowledges and agrees that the obligations contained in
Section 7 through 12, of this Agreement are fair, do not unreasonably
restrict Employee's future employment and business opportunities, and
are commensurate with the compensation arrangement set out in this
Agreement.
14. Survivability. Section 7 through 13, of this Agreement
shall survive termination of the employment relationship and this
Agreement.
15. General Provisions.
a. Notices. Any notices to be given hereunder by either party
to the other shall be in writing and may be effected by
personal delivery or by mail, registered or certified, postage
prepaid with return receipt requested. Notices delivered
personally shall be deemed communicated as of actual receipt.
Mailed notices shall be deemed communicated as of two (2) days
after mailing. Notice however sent, if received, shall be
effective and deemed communicated no later than time of
receipt.
b. Employer's address is:
0000 Xx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
c. Employee's address is:
4008 Tyler Xxxxxxx Xxxx
Xxx Xxxxx. Xxxxxx 00000
Any such changes in the address for notice of either party shall be provided to
the other party within ten (10) days of such change.
d. Arbitration. Other than disputes concerning Section 7
through 13 of this Agreement, any controversy between Employer
and Employee involving the construction, application,
enforceability or breach of any of the terms, provisions, or
conditions of this Agreement, including without limitation
claims for breach of contract, violation of public policy,
breach implied covenant, intentional infliction of emotional
distress or any other alleged claims which are not settled by
mutual agreement of the parties, shall be submitted to final
and binding arbitration in accordance with the roles of the
American Arbitration Association. The cost of arbitration
shall be borne by the losing party. In consideration of each
party's agreement to submit to arbitration all disputes that
arise under this Agreement (except disputes involving Sections
7 through 13), each party agrees that the arbitration
provisions of this Agreement shall constitute his/her/its
exclusive remedy and each party expressly waives the right to
pursue redress of any kind in any other forum. The parties
farther agree that the arbitrator acting hereunder shall not
be empowered to add to, subtract from, delete or in any other
way modify the terms of this Agreement.
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e. Attorneys' Fees and Costs. If any action in law, equity,
arbitration or otherwise is necessary to enforce or interpret
the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary
disbursements in addition to any other relief to which
he/she/it may be entitled. The term "prevailing party" means
the party obtaining substantially the relief sought, whether
by compromise, settlement, award or judgement.
f. Authorization. Employer and Employee each represent and
warrant to the other that he/she/it has the authority, power
and right to deliver, execute and fully perform the terms of
this Agreement
g. Entire Agreement. Employee understands and acknowledges
that this documents constitutes the entire agreement between
Employee and Employer with regard to Employee's employment by
Employer and Employee's post-employment activities concerning
Employer. This Agreement supersedes any and all other written
and oral agreements between the parties with respect to the
subject matter hereof. Any and all prior agreements, promises,
negotiations, or representations' either written or oral,
relation to the subject matter of this Agreement not expressly
act forth in this Agreement are of no force and effect. This
Agreement may altered, amended, or modified only in writing
signed by all of the parties hereto. Any oral representations
or modifications concerning this instrument shall be of no
force and effect.
h. Severabilitv. If any term, provision, covenant, or
condition of this Agreement is held by a court or other
tribunal of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of such provisions and all of the
remaining provisions hereof shall remain in full force and
effect to the fullest extent permitted by law and shall in no
way be affected, impaired, or invalidated as a result of such
decision.
i. Governing Law. Except to the extent that federal law may
preempt Nevada law, this Agreement and the rights and
obligations hereunder shall be governed, construed and
enforced in accordance with the laws of the State of Nevada.
j. Taxes. All compensation payable hereunder is gross and
shall be subject to such withholding taxes and other taxes as
may be provided by law. Employee shall be responsible for the
payment of all taxes attributable to the compensation provided
by this Agreement except for those taxes required by law to be
paid or withheld by Employer.
k. Assignment. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of Employer.
Employee may not sell, transfer, assign, or pledge any of his
rights or interests pursuant to this Agreement.
l. Waiver. Either party's failure to enforce any provision or
provisions of this Agreement shall not in any way be construed
as a waiver of any
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such provision or provisions, or prevent that party thereafter
from enforcing such provision or provisions and each and every
other provision of this Agreement.
M. Captions. Titles and headings to sections in this Agreement
arc for the purpose contained therein.
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IN WITNESS WHEREOF, the parties hereto have read, understood, and
voluntarily executed this Agreement as of the day and year first above written.
EMPLOYEE EMPLOYER
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XXXX XXXXXXXXX CEO
Date: Date:
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