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EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of SEPTEMBER
8, 1997, by and between FIRSTCITY FUNDING CORPORATION, a Texas corporation (the
"Employer"), and XXXXXX X. XXXXXX, an individual (the "Executive"). 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.
"AGREEMENT" means this Employment Agreement, as amended from time to
time.
"BASIC COMPENSATION" means Salary and Benefits.
"BENEFITS" has the meaning as defined in Section 3.1(b).
"BOARD OF DIRECTORS" means the board of directors of the Employer.
"CONFIDENTIAL INFORMATION" means any and all of the following, but
only to the extent such information or documents were created, learned and/or
obtained during the Employment Period (defined below): (a) trade secrets
concerning the business and affairs of the Employer; (b) information concerning
the business and affairs of the Employer (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 containing or based, in whole or in part, on any
information included in the foregoing.
"DISABILITY" has the meaning as defined in Section 6.2.
"EFFECTIVE DATE" means the date stated in the first paragraph of the
Agreement.
"EMPLOYEE INVENTION" means any invention, technique, modification,
process, or improvement (whether patentable or not) and any work of authorship
(whether or not copyright protection may be obtained for it) created,
conceived, or developed by the Executive, either solely or in conjunction with
others, during the Employment Period, or a period that includes a portion of
the Employment Period, that relates in any way to, the business then being
conducted by the Employer.
"EMPLOYMENT PERIOD" means the term of the Executive's employment under
this Agreement.
"FIRSTCITY" means FirstCity Financial Corporation, a Delaware
corporation.
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"FISCAL YEAR" means the Employer's fiscal year, as it exists on the
Effective Date or as changed from time to time.
"FOR CAUSE" has the meaning as defined in Section 6.3.
"FOR GOOD REASON" has the meaning as defined in Section 6.4.
"INCENTIVE BONUS" has the meaning as defined in Section 3.2.
"OPERATING AGREEMENT" means the Operating Agreement of even date
herewith between the Employer and FirstCity.
"PERSON" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, or governmental body.
"POST-EMPLOYMENT PERIOD" has the meaning as defined in Section 8.2.
"PROPRIETARY ITEMS" has the meaning as defined in Section 7.2(a)(iv).
"SALARY" has the meaning as defined in Section 3.1(a).
"SHAREHOLDER AGREEMENT" means the Shareholder Agreement of even date
herewith among FirstCity, Xxxxxx X. Xxxxxx, Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx,
R. Xxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx, as
amended from time to time.
2. EMPLOYMENT TERMS AND DUTIES
2.1 EMPLOYMENT. The Employer hereby employs the Executive, and
the Executive hereby accepts employment by the Employer, upon the terms and
conditions set forth in this Agreement.
2.2 TERM. Subject to the provisions of Section 6, the term of the
Executive's employment under this Agreement will be five (5) years, beginning
on the Effective Date and ending on the fifth (5th) anniversary of the
Effective Date.
2.3 DUTIES. The Executive will have such duties as are assigned
or delegated to the Executive by the Board of Directors, and will initially
serve as President of the Employer. The Executive will devote his entire
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 in the
advancement of the best interests of the Employer. Nothing in this Section
2.3, however, will prevent the Executive from engaging in additional activities
in connection with personal investments and community affairs that are not
inconsistent with the Executive's duties under this Agreement.
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3. COMPENSATION
3.1 BASIC COMPENSATION.
(a) SALARY. The Executive will be paid an annual salary of
$144,000.00, subject to adjustment as provided below (the "Salary"),
which will be payable in equal periodic installments according to the
Employer's customary payroll practices, but no less frequently than
monthly. The Salary will be reviewed by the Board of Directors not
less frequently than annually, and may be adjusted upward in the sole
discretion of the Board of Directors.
(b) BENEFITS. The Executive will, during the Employment Period,
be permitted to participate in such pension, profit sharing, bonus,
stock option, 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 the Executive is eligible under the
terms of those plans (collectively, the "Benefits").
3.2 INCENTIVE BONUS. As additional compensation (the "Incentive
Bonus") for the services to be rendered by the Executive pursuant to this
Agreement, the Employer will pay to the Executive and to Senior Management with
respect to each Fiscal Year during the Employment Period, commencing with the
Fiscal Year ending December 31, 1997, an incentive bonus based on the profits
of the Employer. The amount of the Incentive Bonus and the terms and
conditions of payment of the Incentive Bonus will be determined in accordance
with the Bonus Calculation attached hereto as Exhibit A. The Executive and the
Senior Management cumulatively shall be entitled to receive the entirety of the
Bonus Pool pursuant to the terms of the Bonus Calculation. A reasonable
allocation of the Bonus Pool between the Executive and the Senior Management
shall be determined by the majority decision of the Executive, Xxxx X. Xxxxx
and one member of Employer's Senior Management (the "Bonus Committee"). The
Bonus Committee shall submit the allocation to the Board of Directors for
review. The Executive and the Senior Management shall have the option, in a
manner similar to that provided in FirstCity's Incentive Bonus Plan, to take
all or any portion of their portion of the Bonus Pool, including the deferred
portion thereof, in cash or in registered and readily marketable stock of
FirstCity at a price per share determined in accordance with FirstCity's
Incentive Bonus Plan. For purposes hereof, Senior Management is defined to be,
in addition to Executive, Xxxx X. Xxxxx, Xxxxxx X. Xxxxxx, R. Xxxxx Xxxxx,
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxxx; provided, however,
that the Bonus Committee may modify the term Senior Management by adding or
removing persons to be included in Senior Management.
4. FACILITIES AND EXPENSES
4.1 GENERAL. The Employer will furnish the Executive office
space, equipment, supplies, and such other facilities and personnel as the
Employer deems necessary or appropriate for the performance of the Executive's
duties under this Agreement. The Employer will pay on behalf of the Executive
(or reimburse the Executive for) reasonable expenses incurred by the Executive
at the request of, or on behalf of, the Employer in the performance of the
Executive's duties pursuant to this Agreement, and in accordance with the
Employer's employment policies, including reasonable expenses incurred by the
Executive in attending conventions, seminars, and other business meetings, in
appropriate business entertainment activities, and for promotional expenses.
The Executive must file expense reports with respect to such expenses in
accordance with the Employer's policies.
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5. VACATIONS AND HOLIDAYS
The Executive will be entitled to paid vacation each Fiscal Year in
accordance with the vacation policies of the Employer in effect for its
executive officers from time to time. The Executive will also be entitled to
the paid holidays and other paid leave set forth in the Employer's policies.
6. TERMINATION
6.1 EVENTS OF TERMINATION. The Employment Period, the Executive's
Basic Compensation and Incentive Bonus, and any and all other rights of the
Executive under this Agreement or otherwise as an employee of the Employer will
terminate (except as otherwise provided in this Section 6):
(a) upon the death of the Executive;
(b) upon the disability of the Executive (as defined in Section
6.2) immediately upon notice from either party to the other;
(c) for cause (as defined in Section 6.3), immediately upon notice
from the Employer to the Executive, or at such later time as such
notice may specify; or
(d) for good reason (as defined in Section 6.4) upon not less than
thirty days' prior notice from the Executive to the Employer. In the
event Executive exercises his right to terminate the Agreement under
this subparagraph, all rights of the Employer under this Agreement,
including those set forth in paragraphs 7 and 8 and all subparagraphs
thereof, will terminate and will not be enforceable against Executive.
6.2 DEFINITION OF "DISABILITY". For purposes of Section 6.1, the
Executive will be deemed to have a "disability" if, for physical or mental
reasons, the Executive is unable to perform the Executive'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 6.2. The disability of
the Executive will be determined by a medical doctor selected by written
agreement of the Employer and the Executive upon the request of either party by
notice to the other. If the Employer and the Executive cannot agree on the
selection of a medical doctor, each of them will select a medical doctor and
the two medical doctors will select a third medical doctor who will determine
whether the Executive has a disability. The determination of the medical
doctor selected under this Section 6.2 will be binding on both parties. The
Executive must submit to a reasonable number of examinations by the medical
doctor making the determination of disability under this Section 6.2, and the
Executive hereby authorizes the disclosure and release to the Employer of such
determination and all supporting medical records. If the Executive is not
legally competent, the Executive's legal guardian or duly authorized
attorney-in-fact will act in the Executive's stead, under this Section 6.2, for
the purposes of submitting the Executive to the examinations, and providing the
authorization of disclosure, required under this Section 6.2.
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6.3 DEFINITION OF "FOR CAUSE". For purposes of Section 6.1, the
phrase "for cause" means: (a) the Executive's material breach of this Agreement
or the Shareholder Agreement; (b) the Executive's failure to adhere to any
written Employer policy if the Executive has been given a reasonable
opportunity to comply with such policy or cure his failure to comply (which
reasonable opportunity must be granted during the ten-day period preceding
termination of this Agreement); (c) the Executive's appropriation (or attempted
appropriation) of a material business opportunity of the Employer, including
attempting to secure or securing any personal profit in connection with any
transaction entered into on behalf of the Employer; (d) the Executive's
misappropriation (or attempted misappropriation) of any of the Employer's funds
or property; (e) the Executive's conviction of, the indictment for (or its
procedural equivalent), or the entering of a guilty plea or plea of no contest
with respect to, a felony, the equivalent thereof, or any other crime with
respect to which imprisonment is a possible punishment; or (f) the Executive's
failure to own and control at least 25,000 shares of the common stock, par
value $0.01 per share, of the Employer.
6.4 DEFINITION OF "FOR GOOD REASON". For purposes of Section 6.1,
the phrase "for good reason" means any of the following: (a) the Employer's
material breach of this Agreement; or (b) the assignment of the Executive
without his consent to a position, responsibilities, or duties of a materially
lesser status or degree of responsibility than his position, responsibilities,
or duties at the Effective Date.
6.5 TERMINATION PAY. Effective upon the termination of this
Agreement, the Employer will be obligated to pay the Executive (or, in the
event of his death, his designated beneficiary as defined below) only such
compensation as is provided in this Section 6.5, and in lieu of all other
amounts and in settlement and complete release of all claims the Executive may
have against the Employer. For purposes of this Section 6.5, the Executive's
designated beneficiary will be such individual beneficiary or trust, located at
such address, as the Executive may designate by notice to the Employer from
time to time or, if the Executive fails to give notice to the Employer of such
a beneficiary, the Executive's estate. Notwithstanding the preceding sentence,
the Employer will have no duty, in any circumstances, to attempt to open an
estate on behalf of the Executive, to determine whether any beneficiary
designated by the Executive is alive or to ascertain the address of any such
beneficiary, to determine the existence of any trust, to determine whether any
person or entity purporting to act as the Executive's personal representative
(or the trustee of a trust established by the Executive) is duly authorized to
act in that capacity, or to locate or attempt to locate any beneficiary,
personal representative, or trustee. Executive's rights under the Shareholder
Agreement and his ownership of shares in the Employer, will not be affected by
the termination of this Agreement.
(a) SALARY. Upon the termination of this Agreement, the Executive
will be entitled to receive his Salary only through the date such
termination is effective.
(b) BENEFITS. The Executive's accrual of, or participation in
plans providing for, the Benefits will cease at the effective date of
the termination of this Agreement, and the Executive will be entitled
to accrued Benefits pursuant to such plans only as provided in such
plans.
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7. NON-DISCLOSURE COVENANT; EMPLOYEE INVENTIONS
7.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges
that (a) during the Employment Period and as a part of his employment, the
Executive 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 Executive 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; (d) FirstCity and the
Employer have required that the Executive make the covenants in this Section 7
as a condition to entering into the Operating Agreement; and (e) the provisions
of this Section 7 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.
7.2 AGREEMENTS OF THE EXECUTIVE. In consideration of the
compensation and benefits to be paid or provided to the Executive by the
Employer under this Agreement, the Executive covenants as follows:
(a) CONFIDENTIALITY.
(i) During the Employment Period and the Post-Employment
Period (as defined below), the Executive will hold in
confidence the Confidential Information and will not disclose
it to any person 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 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.
(iii) None of the foregoing obligations and restrictions
applies to any part of the Confidential Information that the
Executive demonstrates was or became generally available to
the public other than as a result of a disclosure by the
Executive.
(iv) The Executive will not remove from the Employer's
premises (except to the extent such removal is for purposes of
the performance of the Executive'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 owned by the
Employer, whether embodied in a disk or in any other form
(collectively, the "Proprietary Items"). The Executive
recognizes that, as between the Employer and the Executive,
all of the Proprietary Items, whether or not developed by the
Executive, are the exclusive property of the Employer. Upon
termination of this Agreement by either party, or upon the
request of the Employer during the Employment Period, the
Executive will return to the Employer all of the Proprietary
Items in the Executive's possession or subject to the
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Executive's control, and the Executive 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. If it is determined that any such works
are not works made for hire, the Executive hereby assigns to the
Employer all of the Executive's right, title, and interest, including
all rights of copyright, patent, and other intellectual property
rights, to or in such Employee Inventions. The Executive 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 Executive'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
(v) give testimony and render any other assistance but
without expense to the Executive in support of the Employer's
rights to any Employee Invention.
(c) PUBLISHING RIGHTS. Notwithstanding any obligations or
agreements of Executive set forth herein, including, without
limitation, those set forth in Paragraphs 7 and 8 herein, Executive
shall have the right to write and publish one or more books regarding
sales, management, motivation, and/or leadership, applicable to the
general public and not industry specific, and such works and any
proceeds therefrom shall be the property of the Executive. Executive
shall also have the right to any audio and video productions regarding
sales, management, motivation, and/or leadership, applicable to the
general public and not industry specific, and such works and any
proceeds therefrom shall be the property of the Executive.
7.3 DISPUTES OR CONTROVERSIES. The Executive 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. In the event any arbitration or court proceeding is instigated
relating to this Agreement, the parties to this Agreement agree to make good
faith efforts to preserve the secrecy of any Confidential Information.
8. NON-COMPETITION AND NON-INTERFERENCE
8.1 ACKNOWLEDGMENTS BY THE EXECUTIVE. The Executive acknowledges
that: (a) the services to be performed by him under this Agreement are of a
special, unique, unusual, extraordinary, and intellectual character; (b) the
Employer's business may be, in
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the future, national in scope and its products may be, in the future, marketed
throughout the United States; (c) the Employer competes with other businesses
that are or could be located in any part of the United States; (d) FirstCity
and the Employer have required that the Executive make the covenants set forth
in this Section 8 as a condition to entering into the Operating Agreement; and
(e) the provisions of this Section 8 are reasonable and necessary to protect
the Employer's business.
8.2 COVENANTS OF THE EXECUTIVE. In consideration of the
acknowledgments by the Executive, and in consideration of the compensation and
benefits to be paid or provided to the Executive by the Employer, the Executive
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, engage
or invest in, own, manage, operate, finance, control, or participate
in the ownership, management, operation, financing, or control of, be
employed by, associated with, or in any manner connected with, lend
the Executive's name or any similar name to, lend Executive's credit
to or render services or advice to, any business whose products or
activities compete in whole or in part with the products or activities
of the Employer anywhere within the United States where the Employer
conducts or markets its business or products; provided, however, that
the Executive may purchase or otherwise acquire up to (but not more
than) one percent 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 Executive's own account or for the account of
any other person, at any time during the Employment Period 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
Executive to be a customer of the Employer, whether or not the
Executive had personal contact with such person during and by reason
of the Executive's employment with the Employer;
(c) whether for the Executive'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 or
was an employee of the Employer at any time during the Employment
Period 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 for three years thereafter,
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; or
(d) at any time during or after the Employment Period, disparage
the Employer or any of its shareholders, directors, officers,
employees, or agents.
For purposes of this Section 8.2, the term "Post-Employment Period"
means the two (2) year period beginning on the date of termination of the
Executive's employment with the Employer.
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If any covenant in this Section 8.2 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
Executive.
The period of time applicable to any covenant in this Section 8.2 will
be extended by the duration of any violation by the Executive of such covenant.
The Executive will, while the covenant under this Section 8.2 is in
effect, give notice to the Employer, within ten (10) days after accepting any
other employment, of the identity of the Executive's employer. The Buyer or
the Employer may notify such employer that the Executive is bound by this
Agreement and, at the Employer's election, furnish such employer with a copy of
this Agreement or relevant portions thereof.
9. GENERAL PROVISIONS
9.1 INJUNCTIVE RELIEF AND ADDITIONAL REMEDY. The Executive
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 7 and 8) 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, and the
Employer will not be obligated to post bond or other security in seeking such
relief. Without limiting the Employer's rights under this Section 9 or any
other remedies of the Employer, if the Executive breaches any of the provisions
of Section 7 or 8, the Employer will have the right to cease making any
payments otherwise due to the Executive under this Agreement.
9.2 COVENANTS OF SECTIONS 7 AND 8 ARE ESSENTIAL AND INDEPENDENT
COVENANTS. The covenants by the Executive in Sections 7 and 8 are essential
elements of this Agreement, and without the Executive's agreement to comply
with such covenants, the Employer would not have entered into this Agreement or
employed or continued the employment of the Executive. The Employer and the
Executive 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 Executive's covenants in Sections 7 and 8 are independent
covenants and the existence of any claim by the Executive against the Employer
under this Agreement or otherwise, or against the Buyer, will not excuse the
Executive's breach of any covenant in Section 7 or 8 unless the Agreement is
terminated pursuant to paragraph 6.1(d) hereof.
If the Executive'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 Executive in Sections 7 and 8
unless the Agreement is terminated pursuant to paragraph 6.1(d) hereof.
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9.3 REPRESENTATIONS AND WARRANTIES BY THE EXECUTIVE. The
Executive represents and warrants to the Employer that the execution and
delivery by the Executive of this Agreement do not, and the performance by the
Executive of the Executive's obligations hereunder will not, with or without
the giving of notice or the passage of time, or both: (a) violate any judgment,
writ, injunction, or order of any court, arbitrator, or governmental agency
applicable to the Executive; or (b) conflict with, result in the breach of any
provisions of or the termination of, or constitute a default under, any
agreement to which the Executive is a party or by which the Executive is or may
be bound.
9.4 OBLIGATIONS CONTINGENT ON PERFORMANCE. The obligations of the
Employer hereunder, including its obligation to pay the compensation provided
for herein, are contingent upon the Executive's performance of the Executive's
obligations hereunder.
9.5 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.
9.6 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 Executive under this Agreement,
being personal, may not be delegated.
9.7 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 registered mail, return receipt requested, or
(c) when received by the addressee, if sent by a nation-ally recognized
overnight delivery service (receipt requested), 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: FirstCity Funding Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Board of Directors
Facsimile: 000-000-0000
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With a copy to: FirstCity Financial Corporation
X.X. Xxx 0000
Xxxx, Xxxxx 00000-0000
Attention: Xxxx X. Xxxxxxxxxx
Facsimile No.: 000-000-0000
If to the Executive: Xxxxxx X. Xxxxxx
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
9.8 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Merger
Agreement, and the documents executed in connection with the Merger Agreement,
contain the entire agreement between the parties with respect to the subject
matter hereof and supersede 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.
9.9 GOVERNING LAW. This Agreement will be governed by the laws of
the State of Texas without regard to conflicts of laws principles.
9.10 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in
this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections"
refer to the corresponding Section or Sections of this Agreement unless
otherwise specified. All words used in this Agreement will be construed to be
of such gender or number as the circumstances require. Unless otherwise
expressly provided, the word "including" does not limit the preceding words or
terms.
9.11 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.
9.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date above first written above.
EMPLOYER:
FIRSTCITY FUNDING CORPORATION
By: /s/ XXXX X. XXXXX
-------------------------------
Xxxx X. Xxxxx, Executive Vice
President
EXECUTIVE:
/s/ XXXXXX X. XXXXXX
-----------------------------------
Xxxxxx X. Xxxxxx
EMPLOYMENT AGREEMENT PAGE 12
13
EXHIBIT A
BONUS CALCULATION FOR SENIOR MANAGEMENT
ANNUAL BONUS DOLLAR THRESHOLD will be determined by multiplying the sum of (the
month end average total equity, the daily average balance of the Capital Note,
and the month end average balance of any bonus accruals, such sum referred to
as "Equity") by the Target Return.
BONUS POOL: 50% x the sum of (net income before taxes plus interest on the
Capital Note plus year to date bonus accrual minus the Annual Bonus Dollar
Threshold).
CURRENT BONUS (which will be paid in March of the following year) will be 50%
of the Bonus Pool.
ONE-YEAR DEFERRED BONUS (which will be paid in March of the year following when
the Current Bonus is paid) will be 25% of the Bonus Pool, subject to achieving
Bonus Threshold for corresponding current year.
TWO-YEAR DEFERRED BONUS (which will be paid in March of the 2nd year following
when the Current Bonus is paid) will be 25% of the Bonus Pool, subject to
achieving Bonus Threshold for corresponding current year.
TARGET RETURN:
Bonus Threshold Percentages
Leverage Ratio Target Return
0.00 - 5.0 25.00%
5.01 - 5.49 26.25%
5.50 - 5.99 27.50%
6.00 - 6.49 28.75%
6.50 - 6.99 30.00%
7.00 - 7.49 31.25%
7.50 - 7.99 32.50%
8.00 - 8.49 33.75%
8.50 - 8.99 35.00%
9.00 - 9.49 36.25%
9.50 - 10.00 37.50%
EXHIBIT A TO EMPLOYMENT AGREEMENT PAGE i
