EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into by
and between Triad Financial Corporation, a California corporation (the
"Company"), with offices at 5201 Rufe Snow Drive, North Richland Hills, Texas,
and Xxxxx X. Xxxxxxx, (the "Executive"), 0000 Xxxx Xxxx Xxxxx, Xxxxx Xxxxxxxx
Xxxxx, Xxxxx, 00000.
R E C I T A L S
A. The Executive currently serves as a Senior Vice President of the
Company.
B. The Executive and the Company have determined that it is in their mutual
interests to set forth certain terms relating to the Executive's
employment by the Company.
C. The Executive and the Company intend for this Agreement to supersede and
replace any and all prior employment agreements the Executive may at any
time have had with the Company or any predecessor of the Company.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT.
(a) Service to the Company. Executive shall devote all of his
professional time, energy, skill and efforts to the performance of his duties
hereunder and to the business of the Company, and shall perform his duties in a
diligent, trustworthy, and business-like manner, all for the purpose of
advancing the business of the Company. Executive shall be primarily responsible
for the operation of the Direct Lending Program offered by the Company, in
addition to such other duties as may be delegated to him from time to time.
Executive shall report directly to the President and Chief Executive Officer of
the Company, and shall be subject to the policies and procedures adopted by the
Company from time to time.
(b) Other Commitments. Notwithstanding the commitment of the
Executive's professional time, energy, skill and efforts to the Company as set
forth in this Section 1(a) above, Executive may serve on corporate, civic, or
charitable boards or committees, provided that such service does not interfere
with the performance of the Executive's duties under this Agreement, and
provided the Executive keeps the Company reasonably informed of such
commitments. If the Company determines that any such commitments conflict with
or interfere with the performance of the Executive's duties to the Company, the
Company shall give written notice of such conflict or interference to the
Executive, who then shall be given thirty days in which to remedy the conflict.
2. EMPLOYMENT TERM.
(a) Initial Term. Subject to the terms and conditions hereof, the
Executive's term of employment under this Agreement (the "Employment Term")
shall commence effective as of July 1, 2005 (the "Effective Date"), and continue
through June 30, 2008 (the "Initial Term"), subject to the extension provisions
of Section 2(b), unless terminated earlier in accordance with the provisions
contained herein.
(b) Extensions. The Company may, at its option, extend the term
of this Agreement by delivering to the Executive written notice that it intends
to extend the term of the Agreement, which notice shall contain the terms under
which the Company proposes to extend such term. The Executive shall have 30 days
following the delivery of such notice of his acceptance or rejection of the
Company's offer.
3. SALARY AND BENEFITS.
(a) Salary. During his employment pursuant to this Agreement, the
Executive shall receive a total annual salary of Two Hundred Fifty-five Thousand
U.S. Dollars (U.S. $255,000) as compensation for his services to the Company
(the "Base Salary"), such compensation to be payable in regular installments in
accordance with the Company's policy for salaried employees.
(b) Target Bonus. For each fiscal year of the Company ending
during the term of this Agreement, the Executive shall be eligible to receive an
annual incentive bonus with a target payout based on the Company's performance
for such fiscal year (the "Annual Bonus"), provided that the performance
objectives established by the Board of Directors of the Company (the "Board")
for both the Company and the Executive for such fiscal year are attained and
provided the Executive is serving as an employee of the Company as of the end of
such fiscal year. Any Annual Bonus that is payable hereunder will be paid after
the completion of the annual audit of the Company with respect to such fiscal
year. If the Executive is employed by the Company on December 31, 2005, and if
the applicable performance objectives for fiscal year 2005 are accomplished, the
Company will pay the Executive an Annual Bonus based on the Company's full 2005
fiscal year, notwithstanding that the Executive's employment under this
Agreement did not commence until July 1, 2005.
(c) Benefit Plans. During his employment pursuant to this
Agreement, subject to eligibility requirements, applicable employee
contributions and the terms and conditions of the applicable plan, and except as
otherwise expressly provided in this Agreement, the Executive shall be entitled
to participate in the Company-sponsored employee benefit plans, medical benefit
plans, group life insurance plans or other employee welfare plans that the
Company may adopt for employees generally from time to time during the
Executive's employment pursuant to this Agreement, and as such plans may be
modified, amended, terminated, or replaced from time to time.
(d) Vacation. The Executive shall be entitled to four weeks of
paid vacation each fiscal year of this Agreement, to be taken in accordance with
the Company's policy then in effect, and to the same paid Holidays provided to
the other employees of the Company. The Executive's vacation days will be
pro-rated based on the number of full months, if less than twelve, that the
Executive is employed hereunder in the applicable fiscal year.
(e) Reimbursement of Expenses. The Company shall reimburse the
Executive for all reasonable out-of-pocket expenses incurred by the Executive on
behalf of the Company in the course of his duties, upon presentation of
appropriate documentation of such costs as and when required by and to the
satisfaction of the Company, on a basis that is consistent with the Company's
past practices. The Executive shall be entitled to fly Business Class on flights
that have a scheduled flight time of two hours
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or more, to the extent a Business Class seat is available. All other flights
shall be Economy Class or its equivalent.
(f) Car Allowance. During his employment pursuant to this
Agreement, the Executive shall be entitled to a vehicle allowance of One
Thousand Two Hundred Fifty Dollars ($1,250) per month in addition to his salary
and other benefits.
4. NON-SOLICITATION/COVENANT NOT TO COMPETE.
The Executive acknowledges that he is considered a key employee of the Company
and agrees that he will work on a full-time basis to accomplish the Company's
business plan, and that he is being entrusted with certain Confidential
Information (defined herein) in order to perform the tasks required of him. The
Executive further acknowledges that the restrictions imposed by this Agreement
are legitimate, reasonable and necessary to protect the stockholders' and the
Company's investment in the Company's business and the goodwill thereof. For
these reasons, and the additional consideration set forth in this Agreement,
Executive agrees that from the effective date of this Agreement and until the
two-year anniversary of the termination of the Executive's employment under this
Agreement for any reason (other than non-renewal by the Company pursuant to
Section 2(b), in which event Section 4(a) shall not apply):
(a) The Executive shall not, directly or indirectly, own, manage,
operate, control, or participate in the ownership, management,
operation or control of, or be connected as an officer,
employee, partner, director, agent, representative of, or have
any financial interest in, or aid or assist anyone else in the
conduct of any business (a "Competitive Operation") which
competes with any business conducted by the Company or by any
group, division or subsidiary of the Company (a "Company
Operation") in any area where such Company Operation is being
conducted at the time of the Executive's termination.
(b) The Executive shall not, directly or indirectly, use
Confidential Information (defined below) that constitutes a
protectable trade secret to solicit business from, attempt to do
business with, or do business with any customers, lenders,
suppliers, joint venturers or business referral sources, in each
case which either: (1) the Executive contacted, called on,
serviced, transacted business with or had significant contact
with during the Executive's employment with the Company or that
the Executive attempted to contact, call on, service, or do
business with during the Executive's employment with the
Company; or (2) the Executive became acquainted with as a result
of the Executive's employment with the Company. The restriction
set forth in this Section 4 applies only to business that is in
the scope of services or products provided by the Company during
the term of the Executive's employment hereunder.
(c) The Executive shall not, directly or indirectly, on behalf of
the Executive or any other person or entity, solicit, induce,
encourage, attempt to solicit or induce, or assist another to
induce or attempt to induce, any employee or independent
contractor of the Company to terminate his or her employment or
relationship with the Company.
The Executive agrees that if a court of competent jurisdiction
determines that the length of time or any other restriction, or portion thereof,
set forth in this Section 4 is overly restrictive and unenforceable, the court
may reduce or modify such restrictions to those which it deems reasonable and
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enforceable under the circumstances, and as so reduced or modified, the parties
hereto agree that the restrictions of this Section 4 shall remain in full force
and effect. The Executive further agrees that if a court of competent
jurisdiction determines that any provision of this Section 4 is invalid or
against public policy, the remaining provisions of this Section 4 and the
remainder of this Agreement shall not be affected thereby, and shall remain in
full force and effect.
The Executive acknowledges that the scope and duration of the
restrictions contained herein are reasonable in light of the business plan for
the Company, the time that the Executive has been engaged in (and is expected to
be engaged in) the business of the Company, the Executive's reputation in the
markets for the Company's businesses and the Executive's relationship with the
Company's actual and prospective lenders, clients, employees and management
team.
If the Executive violates any of the restrictions contained in Section 4
of this Agreement, the restrictive period will be suspended and will not begin
to run again in favor of the Executive from the time of the commencement of any
violation until the time when the Executive cures the violation to the Company's
satisfaction.
5. CONFIDENTIAL INFORMATION.
(a) Confidential Information. For purposes of this Agreement, the
term "Confidential Information" means any trade secrets or confidential or
proprietary information of the Company, including without limitation the
following:
(i) Information concerning the Company's investor or
prospective investor lists, lenders, customers, clients, marketing, business and
operational methods of the Company and their customers or clients, contracts,
financial or other data, technical data, e-mail and other correspondence or any
other confidential or proprietary information possessed, owned or used by any of
the Company;
(ii) Business records, financial information, pricing,
business strategies, marketing and promotional practices (including
internet-related marketing) and management methods and information;
(iii) Finances, strategies, systems, research, plans,
reports, recommendations and conclusions;
(iv) Names, arrangements with, or other information
relating to, any of the Company's investors, customers, clients, suppliers,
financiers, owners, representatives and other persons who have business
relationships with the Company or who are prospects for business relationships
with the Company; and
(v) Any matter or thing obtained or ascertained by
Executive through Executive's association with the Company, the use or
disclosure of which might reasonably be construed to be contrary to the best
interests of any the Company, its owners or employees.
Upon termination of the Executive's employment under any circumstances,
the Executive or his representatives, shall promptly return to the Company all
property of the Company, including any and all Confidential Information,
computers, hard-drives, papers, books, records, documents, memoranda, manuals,
e-mail, electronic or magnetic recordings or data, electronic devices and
related data storage devices, including all copies thereof, which belong to the
Company or relate to the Company's business and which are in Executive's
possession, custody or control, whether prepared by Executive or others, and
shall destroy or erase any data that cannot be returned (with it being
understood and agreed that
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subject to Section 5 hereof, the Executive shall be permitted to retain his own
rolodex, calendars, appointment lists and other personal lists maintained during
the course of his employment hereunder).
If the Executive is subpoenaed, served with any legal process or notice
or otherwise requested to produce or divulge, directly or indirectly, any
Confidential Information by any entity, agency or person in any formal or
informal proceeding, including without limitation any interview, deposition,
administrative or judicial hearing and/or trial, then promptly after the
Executive's receipt of such subpoena, process, notice or request, the Executive
shall notify the Company and shall reasonably cooperate with the Company's
efforts to obtain a protective order or other relief to protect the Company's
Confidential Information or to limit the scope of disclosure of such information
in such interview, deposition, administrative or judicial hearing and/or trial.
(b) Non-disparagement. During the term of this Agreement and
continuing after termination of the Executive's employment hereunder, the
Executive shall not communicate or publish, directly or indirectly, any
confidential, personal or disparaging information concerning any member of the
Company, any director, officer or employee of any entity in the Company or any
entity or individual who controls, directly or indirectly, any entity in the
Company.
(c) Works. Any works created during the term of this Agreement by
the Executive shall be deemed work for hire to the extent permitted by law, and
the Company shall have the sole right to any such works. In addition, the
Executive hereby grants and shall grant to Company all his rights, title and
interest including, without limitation, all intellectual property and
proprietary rights, in all works developed or created by the Executive during
the term of this Agreement. The Executive hereby waives for the benefit of the
Company and its successors, assigns and licensees all moral rights that the
Executive may have in such works. For greater clarity, the parties acknowledge
and agree that such works include without limitation the Developments as defined
in Section 5(d) below.
(d) Other Provisions/Exclusions. The Executive understands,
acknowledges and agrees that all Developments (as hereinafter defined) shall be
made for hire by the Executive for the Company. "Developments" means any idea,
discovery, invention, design, method, technique, improvement, enhancement,
development, computer program, machine, algorithm or other work or authorship
that (i) relates to the business or operations of the Company, or (ii) results
from or is suggested by any undertaking assigned to the Executive or work
performed by the Executive for or on behalf of the Company, whether created
alone or with others, during or after working hours. All confidential or
proprietary information described in Section 5(a) above and all Developments
shall remain the sole property of the Company. The Executive shall acquire no
proprietary interest in any confidential or proprietary information described in
Section 5(a) above or Developments developed or acquired while the Executive is
required to provide services to the Company hereunder. To the extent the
Executive may, by operation of law or otherwise, acquire any right, title or
interest in or to any confidential or proprietary information described in
Section 5(a) above or Development, the Executive hereby assigns to the Company
all such intellectual property or proprietary rights. The Executive shall, both
during the term of this Agreement and for two years thereafter, upon the
Company's request, promptly execute and deliver to the Company all such
assignments, certificates and instruments, and shall promptly perform such other
acts, as the Company may from time to time in its reasonable discretion deem
necessary or desirable to evidence, establish, maintain, perfect, enforce or
defend the Company's rights in Developments and in the proprietary information,
inventions, copyrights, and trademarks otherwise described in this Section 5.
6. TERMINATION.
(a) By the Executive. The Executive may resign his employment at
any time, for Good Reason (defined below) or without Good Reason, upon thirty
days written notice to the Company.
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Upon receipt of written notice from the Executive of his voluntary resignation
of employment, the Company may immediately terminate the Executive's employment
with the Company (which shall be deemed for all purposes an immediate voluntary
resignation by the Executive, and not a termination by the Company) and require
no further services from the Executive. The term "Good Reason" means (i) any
material breach by the Company of any provision of this Agreement, after the
Executive has given the Company thirty days written notice of such breach and
the Company has not during such period cured the alleged breach, (ii) a
reduction in the Executive's Base Salary without the Executive's consent, or
(iii) the Company's failure to continue any benefit or compensation plan in
which the Executive is participating (other than an equal reduction in such
benefits for all similarly-situated executives of the Company). Relocation by
the Company of the Executive's office shall not be a material breach and shall
not serve as the basis for a termination by the Executive for Good Reason.
(b) By the Company. The Company may terminate the Executive's
employment for any reason, at any time, upon written notice to the Executive,
provided that the Company shall pay the Executive the amounts and benefits as
set forth in Section 6(d) or Section 6(e) below, as applicable. The Company
shall have the right to terminate the Executive's employment with the Company
under this Agreement with or without Cause. As used in this Agreement, the term
"Cause" shall mean the Executive's:
(i) material fraud, embezzlement, theft or other act or
omission involving material dishonesty, or a crime of moral turpitude, in each
case relating to the Company's business, or constituting information known
within the Company's industry or among the Company's employees;
(ii) intentional or reckless failure to abide in any
material respect with reasonable rules and regulations governing the transaction
of business of the Company as the Company may from time to time adopt or
approve;
(iii) failure to perform material duties or to follow
material directions of the Board;
(iv) intentional misappropriation of any corporate
opportunity, or otherwise intentionally obtaining personal profit from any
material transaction that is adverse to the interests of the Company or to the
benefits to which the Company is entitled;
(v) indictment for a felony (provided, however, that
indictment for a felony involving only the use of a motor vehicle that does not
cause material personal injury to any person shall not constitute Cause under
this item (v)); or
(vi) intentional or reckless conduct by the Executive that
subjects the Company or any direct or indirect subsidiary, parent or other
affiliated entity, to loss of any required license, permit or similar
governmental authorization that is material to the Company's or such entity's
business.
(c) By Death or Disability. The Executive's employment shall be
terminated under this Agreement in the event of the Executive's death or
Disability. For purposes of this Agreement, "Disability" means that for a period
of at least 120 days during any twelve consecutive month period on account of a
mental or physical condition, the Executive is unable to perform the essential
functions of his job for the Company, with or without reasonable accommodation,
as determined in good faith by the Company, based upon medical reports or other
evidence satisfactory to the Company.
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(d) Obligations Where no Severance is Required. In the event that
the Company terminates the Executive's employment under this Agreement for
Cause, this Agreement is not extended by Employer under Section 2(b), the
Executive's employment terminates due to his death, or Disability, or the
Executive terminates his employment hereunder (other than for Good Reason), then
in each such case the Company shall have no further obligation to the Executive
under this Agreement except to pay his Base Salary earned through the date of
termination of employment with the Company and a lump sum payment for any
accrued and earned, but unused, vacation shall be paid to Executive on or before
the next regularly scheduled pay day after the effective date of the
termination; provided, however, that if the Executive's date of termination
occurs after the end of the Company's fiscal year, but before payment of any
applicable Annual Bonus actually earned by the Executive for such completed
fiscal year, then the Company also shall pay such earned Annual Bonus in
accordance with Section 6(e)(iii).
(e) Severance Obligations. In the event the Company terminates
the Executive's employment without Cause, or Executive resigns for Good Reason
on or after the twelve-month anniversary of the Effective Date of this
Agreement, the Company's obligations to the Executive shall be limited to the
following:
(i) Earned Salary. The Company shall pay Executive any
Base Salary earned through the date of termination of employment with the
Company and a lump sum payment for any accrued and earned, but unused, vacation;
provided, however, that if the Executive's date of termination occurs after the
end of the Company's fiscal year, but before payment of any applicable Annual
Bonus actually earned by the Executive for such completed fiscal year, then the
Company also shall pay such earned Annual Bonus in accordance with Section
6(e)(iii).
(ii) Severance.
(A) Payment Terms. Subject to the last sentence of
Section 6(f) below, if the Company terminates Executive's employment without
Cause or the Executive resigns for Good Reason prior to the expiration of the
Initial Term of this Agreement, the Company shall pay Executive severance
payments ("Severance") in an amount equal to the total amount remaining to be
paid under the terms of this Agreement, after taking into consideration the
amount of salary and benefits previously paid to the Executive as of the date of
termination of employment reduced by any required payroll and tax withholdings.
The Severance shall be payable in twelve equal installments on the first pay day
of each month, beginning on the first pay day of the month following the month
in which Executive's Employment is terminated, provided that Executive has not
revoked the Separation Agreement and Release.
(B) Forfeiture Upon Breach. If the Executive is
eligible to receive severance payments under this Section 6(e)(ii), then in the
event the Executive violates any of the provisions of Section 4 or Section 5
above, all remaining payments shall be forfeited and the Company shall be
entitled to reimbursement from the Executive for any and all severance payments
previously made to Executive during the period of such violation. If Executive
or anyone acting on his behalf brings a claim against the Company seeking to
declare any term of this Agreement void or unenforceable, including Section 4
and Section 5 of this Agreement, and if one or more material terms of this
Agreement are ruled by a court or arbitrator to be void or unenforceable or
subject to reduction or modification, then the Company shall be entitled to (i)
refuse to make any severance payments, or any additional severance payments,
described in Section 6(e) of this Agreement; (ii) recover from Executive all
Severance payments, as described in Section 6(e), already paid to Executive; and
(iii) recover its attorneys' fees incurred in defending such action and seeking
recovery of such amounts.
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(C) Acknowledgement. The Executive acknowledges and
agrees that the severance compensation provided for in this Section 6(e)(ii) is
fair and reasonable and is the result of negotiation between the parties.
(iii) Completed Fiscal Year Earned Annual Bonus. If the
Executive's employment terminates after the end of a full fiscal year but prior
to the payment of any Annual Bonus actually earned for such full fiscal year,
the Company will pay such earned Annual Bonus as promptly as reasonably
practicable after the completion of the audit for such fiscal year, and in any
event not later than the payment of annual bonuses (if any) payable to other
senior executive officers of the Company pursuant to the same or any
substantially similar bonus program.
(f) Sole Remedy; Release. The applicable payments provided in
this Section 6 shall be the sole remedy for any claim the Executive may have
arising out of termination of the Executive's employment by the Company or the
termination of this Agreement. Notwithstanding any provision of this Agreement
to the contrary, the Company shall not be obligated to make any payment under
Section 6(e)(ii) unless the Executive timely executes and delivers to the
Company The Separation Agreement and Release, a copy of which is attached
hereto, marked as Exhibit "A", and incorporated herein by reference for all
purposes.
7. BREACHES AND REMEDIES. In the event of a breach or a threatened
breach by the Executive of this Agreement, the Company shall be entitled to a
temporary restraining order and injunctive relief restraining the Executive from
the commission of any breach, and (if the Company obtains such relief) to
recover the Company's attorneys' fees, costs and expenses related to the breach.
Nothing contained in this Agreement shall be construed as prohibiting the
Company from pursuing any other remedies available to it for any breach or
threatened breach, including, without limitation, the recovery of money damages,
attorneys' fees, and costs. The Executive against the Company shall construe
each the restrictions in this Agreement as independent of any other provisions
in this Agreement, and the existence of any claim or cause of action, whether
predicated on this Agreement or otherwise, shall not constitute a defense to the
enforcement of this Agreement. The Executive acknowledges and agrees that in the
event that the Executive violates Section 4 or Section 5 hereof, in addition to
any other rights or remedies to which it may be entitled under law or this
Agreement, the Company shall, except as prohibited by applicable law, cease
making any severance or other payments hereunder, shall be entitled to
reimbursement from the Executive for any and all severance payments previously
made to the Executive under this Agreement during the period of such violation
and shall be entitled to enforce the provisions of Section 4 or Section 5 by
injunction or other equitable relief, without having to prove irreparable harm
or inadequacy of money damages.
8. DISPUTE RESOLUTION. Any dispute, controversy or claim arising out
of or in relation to or in connection with this Agreement, including without
limitation any dispute as to the construction, validity, interpretation,
enforceability or breach of this Agreement, shall be exclusively and finally
settled by arbitration, and any party may submit such dispute, controversy or
claim, including a claim for indemnification under this Section 8, to
arbitration. Notwithstanding the provisions of this Section 8 to the contrary,
the Company shall be entitled to seek injunctive or other emergency relief in a
court of law to enforce the provisions of Section 4 or Section 5.
(a) Arbitrator. The arbitration shall be heard and determined by
one arbitrator, who shall be impartial and who shall be selected by mutual
agreement of the parties. If the parties cannot agree upon an arbitrator, then
they shall submit the dispute to the American Arbitration Association, which
shall appoint an impartial arbitrator to preside over the arbitration.
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(b) Proceedings. Unless otherwise expressly agreed in writing by
the parties to the arbitration proceedings:
(i) The arbitration proceedings shall be held in Dallas
County, Texas, at a site chosen by mutual agreement of the parties, or if the
parties cannot reach agreement on a location within thirty (30) days of the
appointment of the arbitrator, then at a site chosen by the arbitrator;
(ii) The arbitrator shall be and remain at all times
wholly independent and impartial;
(iii) The arbitration proceedings shall be conducted in
accordance with the Employment Dispute Rules of the American Arbitration
Association, as amended from time to time;
(iv) Any procedural issues not determined under the
arbitral rules selected pursuant to item (iii) above shall be determined by the
laws of the state of Texas, unless such laws would refer the matter to another
jurisdiction;
(v) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the manner determined by the
arbitrator;
(vi) The decision of the arbitrator shall be reduced to
writing; final and binding without the right of appeal; the sole and exclusive
remedy regarding any claims, counterclaims, issues or accounting presented to
the arbitrator; made and promptly paid in United States dollars free of any
deduction or offset; and any costs or fees incident to enforcing the award
shall, to the maximum extent permitted by law, be charged against the party
resisting such enforcement;
(vii) The award shall include interest from the date of
any breach or violation of this Agreement, as determined by the arbitral award,
and from the date of the award until paid in full, at 6% per annum; and
(viii) Judgment upon the award may be entered in any court
having jurisdiction over the person or the assets of the party owing the
judgment or application may be made to such court for a judicial acceptance of
the award and an order of enforcement, as the case may be.
(c) Acknowledgment of Parties. Each party acknowledges that such
party has voluntarily and knowingly entered into an agreement to arbitrate under
this Section 8 by executing this Agreement.
9. MISCELLANEOUS PROVISIONS.
(a) Successors of the Company. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, 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 Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as hereinbefore defined and any successor to its business and/or assets
as aforesaid which executes and delivers the Agreement provided for in this
Section 9 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
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(b) No Assignment or Delegation by the Executive. The Executive
may not assign his rights or delegate his duties or obligations hereunder.
(c) Notice. For the purposes of this Agreement, notices and all
other communications provide for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by registered or
certified mail, return receipt requested, postage prepaid, addressed to the
respective addresses set forth on the first page of this Agreement, or to such
other in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d) Amendment; Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and such individual as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
(e) Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding shall not
have the effect of invalidating or voiding the remainder of this Agreement and
the parties hereby agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or otherwise be
stricken from this Agreement to the extent required for the purposes of validity
and enforcement thereof.
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
(g) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Texas.
(h) Headings. The headings contained in this Agreement are for
reference only and shall not affect the meaning or interpretation of any
provision of this Agreement.
(i) Prior Agreements. This Agreement supersedes in all respects
all prior employment agreements between the parties, whether written or oral.
(j) Captions and Gender; Mutual Drafting. The use of captions and
Section headings herein is for purposes of convenience only and shall not affect
the interpretation or substance of any provisions contained herein. Similarly,
the use of the masculine gender with respect to pronouns in this Agreement is
for purposes of convenience and includes either sex who may be a signatory. Each
party has substantially participated in the preparation and drafting of this
Agreement and there shall be no presumption against any party by virtue of any
party's preparation of any provision of this Agreement.
(k) Survival. The covenants and provisions set forth in Sections
4, 5, 6, 7, 8 and 9 of this Agreement shall survive the termination of the
Executive's employment, and/or termination of this Agreement, in accordance with
their respective terms.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement
effective as of the 1st day of July, 2005.
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TRIAD FINANCIAL CORPORATION,
A CALIFORNIA CORPORATION
By: /s/ Xxxx X. Xxxx
Name: Xxxx X. Xxxx
Title: President, Chief Executive Officer
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
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EXHIBIT A
FORM OF SEPARATION AGREEMENT AND RELEASE
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SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release ("Agreement") is entered into by
Triad Financial Corporation ("Triad") and Xxxxx X. Xxxxxxx, (the "Executive").
Triad and Executive are referred to as the "Parties." Because the Parties desire
to enter into an agreement that amicably resolves the employment relationship
between them and any disputes that now or may exist between them concerning
Executive's hiring, employment and termination from Triad including disputes
regarding Executive's compensation or benefits, the Parties are entering into
this Agreement. Defined terms in this Agreement have the same meaning as defined
in the Employment Agreement between Triad and Executive, dated as of July 1,
2005 ("Employment Agreement").
1. END OF EXECUTIVE'S EMPLOYMENT. Executive's last day of employment
with Triad will be ____________ (which is designated the "Separation Date"). All
benefits and severance to be paid to Executive are set forth in Section 6(d) and
(e) of the Employment Agreement. Except as stated in this Agreement and the
Employment Agreement, or as required by law, all other benefits and pay which
relate to Executive's employment with Triad shall cease as of the Separation
Date.
2. EXECUTIVE'S PARTICIPATION IN COMPANY BENEFIT PLANS. Following his
termination of employment, Executive shall not be entitled to any additional
payments or future grants under any benefit plan or bonus or incentive program
established by Triad or any of its affiliates. Any vested interest held by
Executive in Triad's 401(k) and any other plans in which Executive participates
shall be distributed in accordance with the terms of the plan and applicable
law. Executive's right to exercise vested options or grants after his
termination of employment will be determined according to the provisions of his
Employment Agreement and the applicable equity incentive plans and agreements
governing the options or grants for stock in Triad, Triad Holdings, Inc. or
their affiliates (the "Option Documents"). Executive agrees that the release in
Paragraph 4 below, except as provided therein, covers any claims he might have
regarding his bonuses, stock options or grants and any other benefits he may or
may not have received during his employment with Triad. In addition, after the
Separation Date, Executive and his dependents shall have the right to choose
extension of applicable medical insurance coverage pursuant to COBRA. Triad
shall provide Executive under separate cover at his home address, information
necessary and as required by law to facilitate the transfer or rollover of his
401(k) account and information regarding COBRA election.
3. RETURN OF TRIAD PROPERTY. Executive shall promptly return all
equipment and property in his possession which belongs to Triad, including all
computer software, computer access codes, company laptops, personal data
assistants, company credit cards, keys, access cards, and all original and
copies of notes, documents, files or programs stored electronically or
otherwise, that relate or refer to Triad, its customers, its financial
statements, its business contacts, and sales. By signing this Agreement,
Executive warrants that he has not retained and has returned all such equipment
or property and that should he later discover additional Company equipment or
property, he will promptly notify the Company and return it to the Company.
4. EXECUTIVE'S RELEASE. In consideration of the benefits and severance
pay described in Section 6(e) of the Employment Agreement, and the promises,
covenants and other valuable consideration provided by Triad in this Agreement,
and subject thereto, Executive releases Triad and any of its direct or indirect
parents, predecessors, successors, subsidiaries, affiliates or related
companies, and their respective officers, directors, shareholders, executives,
attorneys, agents successors and assigns, (collectively referred to as
"Releasees,") from any and all claims, causes of action, losses, obligations,
liabilities, damages, judgments, costs, expenses (including attorney's fees) of
any kind whatsoever, including, but not limited to, disputes or claims arising
out of Executive's hiring, employment or termination of such employment with
Triad, or arising out of any act committed or omitted during or after
the existence of such employment relationship, including any disputes regarding
compensation. This release includes, but is not limited to, all claims, whether
arising in contract or allegations of tort, common law or assertion of federal
or state statutory rights, including, but not limited to, Title VII of the Civil
Rights Act of 1964, as amended, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Executive Retirement Income Security Act,
claims for wrongful discharge, breach of express or implied contract or implied
covenant of good faith and fair dealing, as well as any expenses, costs or
attorney's fees. Furthermore, Executive agrees and hereby relinquishes any right
to re-employment with Triad. However, Executive does not release his right to
enforce the terms of this Agreement, or the obligations to him under the
Employment Agreement and Option Documents that by the terms thereof expressly
continue after his employment ends (the "Continuing Obligations").
Executive hereby expressly agrees that this Agreement shall extend and apply to
all unknown, unsuspected and unanticipated injuries and damages as well as those
that are now disclosed.
In exchange for the Severance benefits described in Section 6(e) of the
Employment Agreement, Executive further agrees never to file a lawsuit asserting
any claims that are released in this Agreement and further agrees not to accept
any recoveries or benefits which may be obtained on his behalf by any other
person or agency or in any class action; provided that nothing in this Agreement
shall be construed to prohibit Executive from challenging the validity of this
Agreement, enforcing the Continuing Obligations, filing a charge with the Equal
Employment Opportunity Commission, or participating in any investigation or
proceeding conducted by the Equal Employment Opportunity Commission.
5. NON-SOLICITATION AGREEMENT. Executive reaffirms his non-solicitation
obligations set forth in Section 4 of his Employment Agreement; and agrees that
nothing in this Agreement shall cause such obligations to cease.
6. NOT AN ADMISSION OF WRONGDOING. This Agreement shall not in any way
be construed as an admission by either Party of any acts of wrongdoing,
violation of any statute, law or legal or contractual right.
7. VOLUNTARY EXECUTION OF THE AGREEMENT. Executive and Triad represent
and agree that they have had an opportunity to review all aspects of this
Agreement, and that they fully understand all the provisions of the Agreement
and are voluntarily entering into this Separation Agreement and the General
Release. Executive further represents that he has not transferred or assigned to
any person or entity any claim involving Triad or any portion thereof or
interest therein. To the extent that Executive has any remaining claims against
Triad, such claims are hereby assigned to Triad.
8. BINDING EFFECT. This Agreement shall be binding upon Triad and upon
Executive and his heirs, administrators, representatives, executors, successors
and assigns.
9. ENFORCEABILITY. Should any provision of this Agreement be declared or
determined to be illegal or invalid by any government agency or court of
competent jurisdiction, the validity of the remaining parts, terms or provisions
of this Agreement shall not be affected and such provisions shall remain in full
force and effect.
10. ENTIRE AGREEMENT. This Agreement and the Employment Agreement
between Triad and Executive set forth the entire agreement between the parties,
and fully supersedes any and all prior agreements (except the Employment
Agreement and the Option Documents), understandings, or representations between
the parties pertaining to Executive's employment with Triad, the subject matter
of this Agreement or any other term or condition of the relationship between
Triad and Executive.
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Executive represents and acknowledges that in executing this Agreement, he does
not rely, and has not relied, upon any representation(s) by Triad or its agents
except as expressly contained in this Agreement.
11. TIME TO CONSIDER. Triad and Executive agree that Executive received
this Agreement on __________ and has been told that he has twenty-one (21) days
to consider this Agreement prior to signing. Executive is not required, however,
to wait 21 days to execute this Agreement and may execute this Agreement at any
time. Executive agrees that he has been given a sufficient period of time to
review and consider this Agreement before signing it and is encouraged to
consult with an attorney of his choosing before signing this Agreement.
Executive understands that the decision to consult with an attorney is in his
sole discretion. Executive understands and agrees that if he refuses to sign
this Agreement, his employment will be immediately terminated and he will not be
entitled to receive any payment pursuant to this Agreement or the Employment
Agreement.
12. EXECUTIVE'S RIGHT TO REVOKE THE AGREEMENT. Triad and Executive agree
that Executive may revoke this Agreement at any time up to seven (7) days after
signing.
13. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Texas without reference to its choice of law rules.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when executed and delivered (which deliveries may be by facsimile)
shall be deemed an original and all of which together shall constitute one and
the same instrument.
* * * * *
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I ACKNOWLEDGE THAT I HAVE CAREFULLY READ THE FOREGOING AGREEMENT, THAT I
UNDERSTAND ALL OF ITS TERMS, AND THAT I AM ENTERING INTO IT VOLUNTARILY.
AGREED TO BY:
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Name Date
STATE OF TEXAS
COUNTY OF ___________________
Before me, a Notary Public, on this day personally appeared
____________________________, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledges to me that he has
executed this Agreement on behalf of himself and his heirs, for the purposes and
consideration therein expressed.
Given under my hand and seal of office this__________day of_____________
________________, _______.
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Notary Public in and for the State of Texas
(PERSONALIZED SEAL)
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TRIAD FINANCIAL CORPORATION
BY: DATE:
------------------------------------ ---------------------------------
TITLE:
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STATE OF __________________
COUNTY OF ________________
Before me, a Notary Public, on this day personally appeared_____________
____________, known to me to be the person and officer whose name is subscribed
to the foregoing instrument and acknowledged to me that the same was the act of
_________________, and that he has executed the same on behalf of said
corporation for the purposes and consideration therein expressed, and in the
capacity therein stated.
Given under my hand and seal of office this_______________________day of
__________________, _______.
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Notary Public in and for
the State of _____________
(PERSONALIZED SEAL)
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