Exhibit 10.1
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into as of
January 7, 2008, by and between NovaStar Financial, Inc. (the "Company") and
Xxxxxx X. Xxxxxxxxx (the "Employee").
1. EMPLOYMENT BY THE COMPANY
1.1 Employment. The Company hereby employs Employee, and Employee hereby
accepts employment with the Company, upon the terms and conditions set forth in
this Agreement.
1.2 Duties. Employee initially shall be employed by the Company in the
position of Chief Financial Officer. Employee shall perform for and on behalf of
the Company such duties as the chief executive officer or Board of Directors of
the Company shall assign from time to time, and shall perform such duties in
accordance with the Company's policies and practices, including, but not limited
to, its employment policies and practices.
1.3 Efforts. Employee hereby agrees that he will devote all of his working
time and attention and give his diligent effort and skill exclusively to the
business and interests of Company, and that he will perform such services as may
from time to time be assigned to Employee, and shall do his utmost to further
enhance and develop the best interests and welfare of the Company in all
respects. Employee agrees that he will give full attention and fully comply with
the rules and procedures as may from time to time be promulgated by Company in
its sole discretion.
1.4 Conflicts. Employee shall not, without prior written consent of the
Company, at any time during his employment with the Company: (a) accept
employment with, or render services of a business, professional or commercial
nature to any person other than the Company; (b) engage in, own or provide
financial or other assistance to any person, venture or activity which the
Company may in good faith consider to be competitive with or adverse to the
Company, whether directly or indirectly, alone or with any other person as a
principle, agent, shareholder, participant, partner, promoter, director,
officer, manager, employee, consultant, sales representative or otherwise; or
(c) engage in any venture or activity that the Company may in good faith
consider to interfere with Employee's performance of his duties.
1.5 Authority. Employee represents that he has not entered into any
agreement that is effective at the time of the execution of this Agreement which
would prevent Employee from performing his duties to the Company. Employee is
not authorized by the Company to take, use, disclose or otherwise misappropriate
any confidential, business proprietary, trade secret and/or other any other
business information from any of Employee's former employers to perform his job
duties with the Company, and Employee hereby covenants and agrees that Employee
shall not use or disclose any such information to the Company in performing his
job duties for the Company or otherwise.
2. COMPENSATION
2.1 Base Salary. The Company agrees to pay Employee an annual base salary
("Base Salary") of $165,000.00, payable in accordance with the Company's regular
payroll schedule and subject to applicable deductions and withholdings. The
Company may increase or decrease Employee's Base Salary at any time in its sole
discretion, subject to the rights of Employee under Section 5 of this Agreement.
2.2 2008 Incentive Pay. The Company agrees to pay to Employee cash
incentive compensation for 2008 ("2008 Incentive Pay") in the amount of
$100,000.00, to be paid in four (4) equal installments at the end of each
calendar quarter. 2008 Incentive Pay for any calendar quarter or portion
thereof shall be deemed earned only at the end of such calendar quarter unless
Employee's employment is terminated by the Company other than for Cause, or by
the Employee for Good Reason, in which case any unpaid portion of the 2008
Incentive Pay will be deemed fully earned upon termination and, subject to the
other provisions of this Agreement, will be payable upon termination. Should the
Employee voluntarily terminate employment for other than Good Reason or if the
Company terminates the Employee for Cause, prior to the end of a calendar
quarter, Employee shall not be eligible or entitled to any installment of the
2008 Incentive Pay or to any pro-rata portion thereof not fully earned prior to
such termination. The foregoing shall not be subject to modification by the
Company without the written consent of Employee
2.3 Performance Bonus. Employee shall be eligible to receive incentive
compensation ("Incentive Pay") based upon goals established by the Company from
time to time. The Company may prospectively increase or decrease Employee's
Incentive Pay and any Incentive Pay target amount thereof, and may prospectively
modify any Incentive Pay program or structure, at any time in its sole
discretion, subject to the rights of Employee under Section 5 of this Agreement;
provided, however, that the Company shall not have the right to decrease or
alter the terms of any Incentive Pay to the extent the amount or terms thereof
are set forth in a written agreement between Employee and the Company, other
than modifications made in accordance with the terms of such agreement.
Incentive Pay for any calendar year or portion thereof shall be deemed earned
only at the end of such calendar year, except to the extent otherwise provided
in this Agreement or any other written agreement between Employee and the
Company. Should Employee no longer be employed by the Company on the date on
which any Incentive Pay is deemed pursuant to the foregoing to be earned,
Employee shall not be eligible or entitled to such Incentive Pay or to any
pro-rata portion thereof, except to the extent otherwise provided in this
Agreement or any other written agreement between Employee and the Company.
2.4 Benefits. Employee shall be entitled to participate in any employee
benefits plans, perquisites and fringe benefits that the Company extends
generally from time to time to employees of the Company at the level of
Employee. Separate written descriptions of available benefits will be provided
or made available from time to time, and the Company reserves, in its sole and
absolute discretion, the right to modify these benefits in whole or in part at
any time.
2.5 Vacation. Employee shall be entitled to 4 weeks of paid vacation per
calendar year, with such vacation to be accrued and taken in accordance with the
Company's standard vacation policies.
2.6 Business Expenses. The Company shall reimburse Employee for any and all
necessary, customary and usual expenses, properly receipted in accordance with
the Company's policies and procedures, incurred by Employee on behalf of the
Company.
2.7 Equity Awards. Equity or equity-based compensation awards including,
without limitation, stock options and/or restricted stock ("Equity Awards") may
be offered to certain employees of the Company from time to time, at the sole
discretion of the Company. Such Equity Awards, if any, shall be governed solely
by one or more separate agreements and the provisions of any plan governing such
awards.
3. AT WILL EMPLOYMENT
Employee and the Company acknowledge that there is no agreement, express or
implied, between them for any specified term or period of employment, nor for
continuing or long-term employment. The employment relationship between Employee
and the Company is completely and, in all respects, at-will. Each of Employee
and the Company has the separate and absolute right to terminate the employment
relationship, at any time, with or without cause, for any reason or no reason
and no reason need be given.
The fact that other sections of this Agreement provide differential
post-termination benefits to Employee on the basis of whether Employee is
terminated with Cause or without Cause, as defined below, and the fact that the
other rights and obligations set forth in this Agreement remain in effect for a
specified period of time, do not undermine the at-will nature of the employment
relationship. This is the entire agreement between Employee and the Company
regarding the matters set forth in this paragraph.
4. TERMINATION OF EMPLOYMENT BY THE COMPANY
4.1 Termination For Cause. Employee's employment may be terminated by the
Company for Cause at any time. For purposes of this Agreement, "Cause" shall
mean the existence of or a good faith belief by the Company in the existence of
facts which constitute a basis for termination of Employee's employment in view
of relevant factors and circumstances, which may include, but are not limited
to, Employee's duties, responsibilities, conduct on the job or otherwise, job
performance, and employment record. Acts or omissions that constitute Cause
include, but are not limited to:
(a) Breach of any of the terms of this Agreement;
(b) Failure to perform material duties in accordance with the
standards from time to time established by the Company;
(c) Neglect in performance of or failure to attend to the performance
of material duties;
(d) Insubordination or willful breach of policies and procedures of
the Company;
(e) Breach of fiduciary duties; or
(f) Conduct that the Company determines in good faith may impair or
tend to impair the integrity of the Company, including but not limited to
commission of a felony, theft, misappropriation, embezzlement, dishonesty,
or criminal misconduct.
4.2 Termination For Death or Disability. Employee's employment shall be
terminated by the Company upon the death of Employee, and may be terminated by
the Company upon the disability of Employee, consistent with any rights or
obligations of the Company and the Employee under the Americans with
Disabilities Act, or any other applicable constitutional provision or statute.
Termination for death or disability is separate and distinct from termination
with Cause or Good Reason and from termination without Cause or Good Reason, and
will give rise only to the rights and obligations expressly provided in Section
6.3 hereof.
4.3 Termination Without Cause. Employee's employment may be terminated by
the Company without Cause at any time and at its sole discretion.
5. TERMINATION OF EMPLOYMENT BY EMPLOYEE
5.1 Termination for Good Reason. Employee's employment may be terminated by
Employee at any time for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence, without the Employee's consent, of any one or
more of the following events:
(a) Except in connection with the Company's termination of Employee's
employment for Cause pursuant to Section 4.1 or as a result of Employee's
death or disability: (i) a material reduction in Employee's Base Salary or
Incentive Pay target; or (ii) a decrease in the
responsibilities of Employee to a level that, on the whole, is materially
inconsistent with the position for which Employee is then employed by the
Company; or
(b) The Company requires that Employee relocate more than fifty (50)
miles from the location at which Employee is employed by the Company on the
date hereof, and the Employee objects to such relocation in writing prior
to Employee's actual relocation.
(c) The Company's material breach of any of the provisions of this
Agreement or of any other agreement between the Company and Employee
concerning Incentive Pay or Equity Awards.
5.2 Notice and Cure. Notwithstanding the foregoing, a termination of
employment by Employee shall not be considered as having occurred for Good
Reason unless Employee provides written notice of his objection to the event
constituting Good Reason within thirty (30) days following the occurrence
thereof, specifying that Employee believes such event to constitute Good Reason,
and the Company has been afforded a period of at least thirty (30) days
following delivery of such notice to remedy the event constituting Good Reason
and has not done so.
5.3 Termination Without Good Reason. Employee's employment may be
terminated by Employee without Good Reason at any time.
6. TREATMENT OF COMPENSATION AND BENEFITS UPON TERMINATION
6.1 For Cause or Without Good Reason. If Employee is terminated by the
Company for Cause or if Employee terminates his employment without Good Reason:
(a) Employee shall not be entitled to any continuation of Base Salary,
other than Base Salary accrued but unpaid at the date of termination of
Employee's employment;
(b) Employee shall not be entitled to Incentive Pay not earned prior
to the date of termination of Employee's employment;
(c) Employee shall be entitled to receive reimbursement for business
expenses incurred prior to the date of termination of Employee's employment
to the extent provided in Section 2.5 hereof;
(d) Employee shall not be entitled to continue to receive any benefits
from the Company after the date of termination of Employee's employment,
except as otherwise required by the applicable benefit plan or applicable
law.
6.2 Other than for Cause; for Good Reason. If Employee's employment is
terminated by the Company other than for Cause, or by the Employee for Good
Reason:
(a) Employee shall receive compensation at the same rate as Employee's
Base Salary in effect on the date of termination of Employee's employment,
for the period commencing on the date of termination and continuing until
the date that is twelve (12) months following the date of termination of
Employee's employment, pursuant to a "Consultancy Agreement" between
Employee and the Company, the terms and conditions of which are outlined in
Section 8.4 of this Agreement;
(b) Employee shall be entitled to payment, within ten (10) days
following termination, of (i) all Incentive Pay fully earned prior to or
upon the date of termination of Employee's employment (including, without
limitation, the full amount of the 2008 Performance Bonus); and (ii) to the
extent and only to the extent determined by the Company in its sole and
absolute discretion, or required by any other written agreement between
Employee and the Company, Incentive Pay not otherwise fully earned prior to
the date of termination of Employee's employment;
(c) Employee shall be entitled to receive reimbursement for business
expenses incurred prior to the date of termination of Employee's employment
to the extent provided in Section 2.5 hereof;
(d) Employee shall not be entitled to continue to receive any benefits
from the Company after the date of termination of Employee's employment,
except as otherwise required by the applicable benefit plan or applicable
law.
6.3 For Death or Disability. If Employee's employment is terminated by
reason of the death or disability of Employee:
(a) Employee shall not be entitled to any continuation of Base Salary,
other than Base Salary accrued but unpaid at the date of termination of
Employee's employment;
(b) Employee shall be entitled to payment, within ten (10) days
following termination, of (i) all Incentive Pay fully earned prior to or
upon the date of termination of Employee's employment; and (ii) to the
extent and only to the extent determined by the Company in its sole and
absolute discretion, or required by any other written agreement between
Employee and the Company, Incentive Pay not otherwise fully earned prior to
the date of termination of Employee's employment;
(c) Employee shall be entitled to receive reimbursement for business
expenses incurred prior to the date of termination of Employee's employment
to the extent provided in Section 2.5 hereof;
(d) Employee shall not be entitled to continue to receive any benefits
from the Company after the date of termination of Employee's employment,
except as otherwise required by the applicable benefit plan or applicable
law.
6.4 After Change in Control by Company Other than for Cause or by Employee
for Good Reason. If Employee's employment shall be terminated after a Change in
Control, as defined in Section 6.5, (a) by Company other than for Cause, or (b)
by Employee for Good Reason, Employee shall be entitled to the following
additional benefits, in addition to those otherwise provided for in this
Agreement (including, without limitation, Section 6.2 hereof):
(a) Employee shall be paid an amount (the "Severance Amount") equal to
one (1) times the Employee's combined current year Base Salary and actual
Incentive Pay for the preceding fiscal year; provided, however, the
Severance Amount shall not be less than Two Hundred Thousand Dollars
($200,000.00). The Severance Amount shall be paid in a single lump sum
within ten (10) days following termination of Employee's employment by the
Company other than for Cause or by Employee for Good Reason.
(b) Vesting for Equity Awards will accelerate to the date of
termination. In other words, Employee shall immediately be vested with all
Equity Awards awarded by Company which have not been exercised prior to the
termination date. The provisions of the agreements and/or plans governing
the stock options and restricted stock will otherwise be controlling.
6.5 Change in Control. A "Change in Control" shall be deemed to have
occurred if the conditions set forth in any one of the following paragraphs
shall have been satisfied.
(a) Any "person" as such term is used in Sections 13(d) and 14(d) of
the Securities Exchange Act of 1934 (the "Exchange Act") (other than
Company; any trustee or other fiduciary holding securities under an
executive benefit plan of Company; or any company owned, directly or
indirectly, by the stockholders of Company in substantially the same
proportions as their ownership of the stock of Company), is or becomes the
"beneficial owner" (as defined by Rule 13d-3 under the Exchange Act),
directly or indirectly, of the securities of Company (not including any
securities acquired directly from Company or from a transferor in a
transaction expressly approved or consented to by the Board of Directors)
representing more than 25% of the combined voting power of Company's then
outstanding securities; or
(b) During any period of two consecutive years (not including any
period prior to the execution of the Agreement), individuals who at the
beginning of such period constitute the Board of Directors and any new
director (other than a director designated by a person who has entered into
an agreement with Company to effect a transaction described in clause (a),
(c) or (d) of this section), (i) whose election by the Board of Directors
or nomination for election by Company's stockholders was approved by a vote
of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved or (ii) whose election
is to replace a person who ceases to be a director due to death, disability
or age, cease for any reason to constitute a majority thereof; or
(c) The stockholders of Company approve a merger or consolidation of
Company with another corporation, other than (i) a merger or consolidation
which would result in the voting securities of Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity), in combination with the ownership of any trustee or other
fiduciary holding securities under an executive benefit plan of Company, at
least 75% of the combined voting power of the voting securities of Company
or such surviving entity outstanding immediately after such merger or
consolidation, or (ii) a merger or consolidation effected to implement a
recapitalization of Company (or similar transaction) in which no person
acquires more than 50% of the combined voting power of Company's then
outstanding securities; or
(d) The stockholders of Company approve a plan of complete liquidation
of Company or an agreement for the sale or disposition by Company of all or
substantially all Company's assets.
7. NON-COMPETITION
7.1 During Employment. Employee agrees that, during his employment by the
Company, he will not engage directly or indirectly, at any location within the
United States, in any business of the same or similar nature to the business of
the Company or of any Affiliate thereof or to any business in which the Company
or any Affiliate thereof is engaged in developing, nor will Employee participate
directly or indirectly in the ownership or management of any enterprise engaged
in such a business within the United
States, including ownership or management as defined by the Xxxxxxxx-Xxxxx Act
of 2002. As used in this Agreement, an "Affiliate" of any person or entity means
any other person or entity that controls, is controlled by, or is under common
control with such first person or entity, with "control" of an entity meaning
direct or indirect ownership of fifty percent (50%) or more of the voting power
or economic interests of such entity.
8. ADDITIONAL OBLIGATIONS
8.1 Non-Interference. Employee agrees that during the term of his
employment with the Company and for a period of one (1) year after termination
of employment with the Company for any reason, Employee shall not interfere with
the business of the Company or any of its Affiliates.
8.2 Non-Solicitation. Employee agrees that during the term of his
employment with the Company and for a period of one (1) year after termination
of employment with the Company for any reason, Employee shall not directly or
indirectly solicit or encourage any of the employees of the Company or of any
Affiliate thereof to leave such employment and/or to work for another company or
business, whether or not the solicited employee would commit any breach of his
own employment terms by leaving the service of the Company or of such Affiliate.
8.3 Non-Disparagement. Employee agrees that he will not, at any time during
the term of his employment with the Company or thereafter, in any way disparage
the Company or any of its Affiliates (or any of their respective directors,
officers, managers, employees or other representatives), and will not make or
solicit any comments, statements, or the like to others that are derogatory or
detrimental to the good name or business reputation of the Company or of any
Affiliate thereof.
8.4 Consultancy Agreement.
(a) Employee shall enter into, and shall be conclusively deemed to
have entered into, a consultancy agreement with Company upon the terms of
this Section 8.4 (i) immediately upon termination of Employee's employment
without Cause by the Company or for Good Reason by Employee, or (ii) at the
Company's sole discretion, immediately upon the Company's request following
termination of Employee's employment with Cause by the Company or without
Good Reason by Employee. The term of the consultancy will commence on the
date of termination of Employee's employment and shall continue until the
date that is twelve (12) months following the date of termination of
Employee's employment (the "Consulting Period"). In exchange for Employee's
consulting services, Employee shall receive compensation during the
Consulting Period at the same rate as Employee's Base Salary in effect on
the date of termination of Employee's employment ("Consultancy Pay"),
payable in equal monthly installments.
(b) During the Consulting Period, Employee agrees to make himself or
herself available to the Company for up to ten (10) hours per week, whether
by telephone, e-mail, or in person, on an as-needed basis to consult with
respect to matters that were within Employee's job description during the
course of Employee's employment. Employee agrees to respond promptly,
reasonably and cooperatively to the Company's requests for assistance.
Barring special circumstances, the consulting hours shall not be
cumulative; accordingly, hours not used within a given week will be waived
by the Company, but Employee will receive his full pay under Section
8.4(a). However, the Company reserves the right to require Employee to
provide more than ten (10) hours of service per week in the event that
special circumstances arise in which Employee's unique assistance is
required by the Company. (Examples of special circumstances include, but
are not limited to assistance in litigation or responding to regulatory
inquiries). Notwithstanding the foregoing, in the event that Employee
accepts employment or other consulting work within
the Consulting Period, Employee will be required to spend no more than five
(5) hours per week consulting with the Company.
(c) In order to protect the Company's confidential and trade secret
information from use or disclosure to a party other than the Company, and
to enable the Company to be able to obtain the benefits of Employee's
consulting obligations hereunder, Employee agrees that during the
Consulting Period, Employee (i) will continue to abide by the provisions of
paragraphs 8.1, 8.2 and 8.3 above, and (ii) shall not directly or
indirectly contact, solicit, divert or take away, or attempt to contact,
solicit, divert, or take away, the business or patronage of any of the
clients, customers, or accounts, or prospective clients, customers, or
accounts of the Company or of any of its Affiliates.
9. CONFIDENTIALITY/TRADE SECRETS
9.1 Confidential Information. For the purpose of this Agreement,
"Confidential Information" means any technology, ideas, concepts, design,
devices or other information belonging to or relating to the affairs of the
Company or any Affiliate thereof, including, but not limited to, (a) all trade
secrets, unpublished proprietary or other information with respect to any
business conducted or proposed to be conducted by the Company or any Affiliate
thereof, (b) any present or proposed services or products, (c) all lending
policies and procedures, contracts and agreements with lenders, investors, and
other clients, and information regarding lenders, investors, loan applicants,
and borrowers, (d) the manner in which business is conducted, sales techniques,
and methods of data processing, and (e) budgets, forecasts, and financial
information; provided, however, that Confidential Information shall not include
any information that has entered or enters the public domain through no fault of
Employee.
9.2 Value and Secrecy. Employee acknowledges and agrees that the
Confidential Information has independent actual or potential economic value from
not being generally known to the public or to other persons who can obtain
economic value from its disclosure or use, is not readily available or
independently ascertainable through any source other than Company and its
Affiliates, and is subject to reasonable efforts to maintain its secrecy.
9.3 Ownership. Employee understands and agrees that any and all
Confidential Information produced or used by Employee during the period of
employment belongs to the Company and its Affiliates and not to Employee.
9.4 Restrictions on Use and Disclosure. In recognition that the business of
the Company and that the nature of Employee's work will require Employee to have
access to Confidential Information which, if disclosed in an unauthorized
manner, could be highly prejudicial to the Company, its Affiliates, and/or their
respective clients:
(a) Employee agrees not to make any use whatsoever, directly or
indirectly, at any time, of any Confidential Information, except as
required in the course of his employment with or provision of consulting
services to the Company.
(b) Employee agrees not to disclose in any manner any Confidential
Information, directly or indirectly, during employment with the Company or
following termination of employment, except as required in the course of
his employment with or provision of consulting services to the Company, or
as required by applicable law, judicial or regulatory process, or other
governmental authority.
(c) Employee agrees to take, during his employment with the Company
and following termination of employment, all precautions reasonably
necessary to prevent the unauthorized use, disclosure, or dissemination of
Confidential Information then his possession or control.
(d) Upon termination of employment, Employee will immediately turn
over to the Company all Confidential Information, including all copies
thereof, created or obtained by, or otherwise in the possession of,
Employee.
9.5 Other Rights. Employee recognizes and acknowledges that none of the
above provisions, nor the Company's exercise of any rights under this Agreement,
shall limit the rights of the Company under applicable statutes and common law
rules regarding trade secrets, including, without limitation, the Uniform Trade
Secrets Act.
10. MISCELLANEOUS
10.1 Section 409A Requirements. To the extent applicable, this Agreement
shall be interpreted, construed and operated in accordance with the Section 409A
of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury
regulations and other guidance issued thereunder. If on the date of the
Employee's separation from service (as defined in Treasury Regulation
ss.1.409A-1(h)) with the Company the Employee is a specified employee (as
defined in Code Section 409A and Treasury Regulation ss.1.409A-1(i)), then,
notwithstanding any other provision of this Agreement, no payment constituting
the "deferral of compensation" within the meaning of Treasury Regulation
ss.1.409A-1(b) and after application of the exemptions provided in Treasury
Regulation ss.ss.1.409A-1(b)(4) and 1.409A-1(b)(9)(iii) shall be made to the
Employee at any time during the six (6) month period following the Employee's
separation from service, and any such amounts shall instead be paid in a lump
sum on the first payroll payment date following expiration of such six (6) month
period. For purposes of conforming this Agreement to Section 409A of the Code,
the parties agree that any reference to termination of employment, severance
from service or similar terms shall mean a "separation from service" as defined
in Treasury Regulation ss.1.409A-1(h).
10.2 Specific Performance. Employee understands and expressly acknowledges
that the provisions of Sections 7, 8 and 9 of this Agreement are material terms
of this Agreement. Employee acknowledges that any breach of the provisions of
Section 7, 8 or 9 of this Agreement shall result in serious and irreparable
injury to the Company for which the Company cannot be adequately compensated by
monetary damages alone. Employee agrees, therefore, that, in addition to any
other remedies it may have, the Company shall be entitled to enforce the
specific performance of this Agreement and to seek both temporary and permanent
injunctive relief (to the extent permitted by law).
10.3 Successors and Assigns. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the Company. Employee cannot assign any right or
obligation under this Agreement without the prior written consent of the
Company.
10.4 Entire Agreement; Amendment. Except for Incentive Pay and Equity Award
agreements and any other agreements referenced herein that have or may be
entered into by the Company and Employee, this Agreement constitutes the entire
agreement between the parties with respect to the subject matter of this
Agreement and supercedes any prior agreement by and between the parties with
respect to the subject matter hereof. This Agreement can be modified only by a
written instrument executed by Employee and an officer of the Company duly
authorized to do so by the Board of Directors of the Company.
10.5 Waiver. Failure to insist upon compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of, or failure to
insist upon strict compliance with, any right or power hereunder at any one or
more times be deemed a waiver of or relinquishment of such right or power at any
other time or times.
10.6 Headings. Section headings in this Agreement are included for
convenience of reference only and shall not constitute a part of this Agreement
for any purpose.
10.7 Severability. In the event that one or more of the provisions
contained herein are held to be invalid by a court of competent jurisdiction,
the remainder of the contract will continue in full force and effect.
10.8 Attorney's Fees. The prevailing party in any action or dispute between
the Company and Employee shall be entitled to recover reasonable attorneys' fees
and other costs incurred in that action or proceeding in addition to any other
relief to which the prevailing party may be entitled.
10.9 Negotiation. The parties warrant and agree that the terms of this
Agreement were the subject of negotiations between them. Employee acknowledges
that he has read this Agreement and has had full opportunity to seek independent
legal advice before signing it.
10.10 Governing Law; Consent to Jurisdiction. This Agreement and the legal
relations thus created between the parties hereto shall be governed by and
construed under and in accordance with the laws of the State of Missouri,
without regard to conflicts of laws principles. FOR PURPOSES OF DETERMINING ANY
CONTROVERSY ARISING UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY CONSENTS TO
THE NON-EXCLUSIVE JURISDICTION, PERSONAL AND OTHERWISE, OF THE FEDERAL AND STATE
COURTS OF THE STATE OF MISSOURI, AND HEREBY WAIVES ANY OBJECTIONS OF ANY NATURE
TO VENUE IN SUCH COURTS.
[Signatures on following page.]
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date first written above.
EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxx
COMPANY:
NOVASTAR FINANCIAL, INC.
/s/ W. Xxxxx Xxxxxxxx
-----------------------------------------
W. Xxxxx Xxxxxxxx
Chief Executive Officer
