1
EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
June 27, 1996, by and between PACIFICAMERICA MONEY CENTER, INC., a Delaware
corporation (hereinafter referred to as "EMPLOYER") and XXXXXXX X. XXXXXX
(hereinafter referred to as "XXXXXX") on the following terms and conditions:
1. TERM OF AGREEMENT; DUTIES.
1. Term. EMPLOYER hereby agrees to employ XXXXXX as Chief
Financial Officer of EMPLOYER, Pacific Thrift and Loan Company, Inc., a
California corporation ("Pacific Thrift") and PacificAmerica Lending,
Inc.("PAL"), a Delaware corporation, both of which are operating subsidiaries of
the EMPLOYER, for a two-year term, commencing on the date hereof, and XXXXXX
hereby agrees to accept such employment for such term, subject to earlier
termination under the circumstances provided herein. The term of this Agreement
shall be extended automatically to cover successive terms of one year commencing
on each anniversary date of the date hereof after the initial two-year term,
unless, at least six months prior to the end of the initial term or any renewal
term hereof, XXXXXX gives written notice to the Board of Directors of EMPLOYER
(the "Board"), or EMPLOYER gives written notice to XXXXXX, of an intent to
terminate this Agreement at the end of such term.
2. Duties. XXXXXX, subject to the direction and control of the
Board, shall devote all of XXXXXX'X productive time, attention and energies to
discharging, and shall perform, such executive duties and managerial
responsibilities as Chief Financial Officer of EMPLOYER, Pacific Thrift and PAL
as may from time to time be specified by EMPLOYER, and will use XXXXXX'X best
efforts to promote the interests of EMPLOYER and its subsidiaries and
affiliates. The performance of such duties and responsibilities shall be
performed primarily in Los Angeles County and shall be XXXXXX'X exclusive
employment for compensation; provided, however, that nothing herein contained
shall be deemed to limit XXXXXX'X right to engage in other activities that do
not interfere with XXXXXX'X duties hereunder, with the consent of the Board.
2. COMPENSATION.
(a) In consideration for the services to be rendered by XXXXXX
hereunder during the term of XXXXXX'X employment, including all services to be
rendered as an officer and executive of EMPLOYER, its subsidiaries and
affiliates, EMPLOYER agrees to compensate XXXXXX as follows:
(i) During the term of this Agreement, EMPLOYER shall
pay XXXXXX a salary at an annual base rate of one hundred sixty thousand dollars
($160,000) per year, which shall
2
be adjusted annually on December 31 of each year, to reflect, at a minimum, any
increase from the previous year in the Consumer Price Index for the Los Angeles,
California area (the "Base Salary"), in addition to such merit salary increase
as shall be determined by the Board of Directors or the Employee Compensation
Committee of the Board of Directors. The applicable Base Salary shall be payable
not less frequently than monthly in accordance with the regular salary procedure
from time to time adopted by EMPLOYER. There shall be deducted from all
compensation paid to XXXXXX such sums, including but not limited to Social
Security, income tax withholding, employment insurance, and any and all other
such deductions, as EMPLOYER is by law obligated to withhold.
(ii) XXXXXX shall be reimbursed for XXXXXX'X reasonable
and actual out-of-pocket expenses incurred by XXXXXX in performance of XXXXXX'X
duties and responsibilities hereunder, provided that XXXXXX shall first furnish
to EMPLOYER proper vouchers and/or receipts.
(iii) XXXXXX shall be entitled to participate in, and
shall be included in, such insurance, pension, profit sharing, stock option,
stock purchase, employee cash bonus pools, and other employee benefit plans of
EMPLOYER as are in effect from time to time during the term of this Agreement
and provided to other senior executive employees of EMPLOYER, including, but not
limited to, EMPLOYER'S Supplemental Executive Retirement Plan (all of which are
collectively referred to herein as the "Benefit Plans").
(iv) XXXXXX shall also be entitled to all perquisites
provided in accordance with EMPLOYER'S policy for senior management executives
from time to time in effect (all of which are collectively referred to herein as
the "Perquisites"). Notwithstanding the foregoing, in no event shall each or any
of the Perquisites provided pursuant to the terms of this Section 2 (a) (iv) be
lesser in value than such perquisites as were provided to XXXXXX by Pacific
Thrift, Presidential Mortgage Company, a California limited partnership
("Presidential") and/or Presidential Management Company, a California limited
partnership, and in effect immediately prior to the transfer of assets by
Presidential to EMPLOYER. Perquisites provided pursuant to this Section 2(a)
(iv) shall include, without limitation, use of an automobile or automobile
allowance, expense allowances, vacation days, sick days and holidays, and
medical, dental and life insurance benefits.
3. DISABILITY. If, on account of any physical or mental disability,
XXXXXX shall fail or be unable to perform under this Agreement for any period of
one hundred twenty (120) consecutive days or for an aggregate period of one
hundred twenty (120) or more days during any consecutive twelve-month period,
EMPLOYER may, at its option, at any time thereafter, upon written notice to
XXXXXX, terminate the employment relationship provided for in this Agreement. In
such event, XXXXXX'X requirement to
2
3
render services hereunder and EMPLOYER'S requirement to compensate XXXXXX
hereunder shall terminate and come to an end upon the date provided in such
notice. In that event, XXXXXX shall be entitled to receive, as disability
compensation: (i) XXXXXX'X Base Salary for one year following termination of
this Agreement payable not less frequently than monthly,(ii) the cash value of
all vacation, holiday and sick days which have accrued up to the date of
disability, and (iii) use of an automobile or automobile allowance, full
automobile insurance coverage, and health insurance coverage under any health
insurance policies maintained by EMPLOYER for its other senior executives, all
of which shall be provided pursuant to the terms of Section 2 (a) (iv) herein
and shall continue to be provided without interruption for the greater of one
year following the effective date of termination pursuant to this Section 3 or
the remainder of the term of this Agreement. EMPLOYER may, at its option, apply
for disability income insurance and, if so, any obligation on the part of
EMPLOYER to pay XXXXXX any monthly payments on account of any physical or mental
disability of XXXXXX as specified above, shall be reduced by the amount of any
monthly payments to XXXXXX under any such disability income policy. Any payments
to XXXXXX under any state disability insurance shall not reduce the amount
payable to XXXXXX under this Agreement.
4. DEATH. In the event of XXXXXX'X death during the term hereof,
this Agreement shall terminate immediately. In such event, XXXXXX'x personal
representative shall be entitled to receive, as a death benefit, in addition to
any other payments which XXXXXX'x personal representative may be entitled to
receive under any Benefit Plans, XXXXXX'X Base Salary for one year following
XXXXXX'X death, payable not less frequently than monthly, together with the cash
value of all vacation, holiday and sick days which have accrued up to the date
of death.
EMPLOYER may maintain life insurance on the life of XXXXXX in favor
of the EMPLOYER. XXXXXX shall have no interest whatsoever in any such policy or
policies, except as otherwise provided in any split dollar life insurance
agreements, but XXXXXX shall, at the request of EMPLOYER, submit to such medical
examinations, supply such information, consent to such blood tests and execute
such documents as may be required by the insurance company or companies to whom
EMPLOYER has applied for such insurance.
5. TERMINATION FOR CAUSE. EMPLOYER may discharge XXXXXX at any time
for cause. "Cause" for discharge shall mean (i) theft or embezzlement by XXXXXX
from EMPLOYER or its affiliates, (ii) fraud or other acts of dishonesty by
XXXXXX in the conduct of EMPLOYER'S business or the fulfillment of XXXXXX'X
assigned responsibilities hereunder, (iii) XXXXXX'X conviction of, or plea of
nolo contendere to, any felony or any crime involving moral turpitude, (iv)
XXXXXX'X willfully and knowingly taking any action which is materially injurious
to EMPLOYER'S business or reputation. Within 10 business days following
3
4
receipt of written notice of termination for Cause, XXXXXX shall have the right
to demand and, if demanded, to receive within 30 days, an opportunity to respond
and defend himself before the Board and to have the Board by resolution confirm
by a three-fourths affirmative vote that EMPLOYER has grounds to terminate
XXXXXX for Cause. If the Board does not determine that Cause exists, XXXXXX
shall have the option to treat his employment as not having terminated or as
having been terminated by EMPLOYER without cause as defined in Section 6 herein.
Without limiting the foregoing, nothing in this Section 5 shall be construed to
require that XXXXXX demand a hearing before the Board as a condition to pursuing
any claim or action with respect to the matters contained in this Agreement, and
nothing in this Section 5 shall limit XXXXXX'X rights under applicable law. The
occurrence of any event constituting cause for discharge shall permit, but not
require, EMPLOYER to terminate XXXXXX for Cause; provided, however, that
EMPLOYER'S decision not to terminate the XXXXXX upon the occurrence of an event
constituting cause for discharge shall not operate as a waiver of its rights
provided in this Section 5 or otherwise.
If EMPLOYER terminates XXXXXX for Cause, EMPLOYER shall be obligated
to provide to XXXXXX only the Base Salary provided for in Section 2 (a) (i)
herein through the date of termination of XXXXXX at the rate in effect on the
date of such termination, together with the cash value of all vacation, holiday
and sick days which have accrued up to the date of termination. The decision to
terminate XXXXXX shall be confidential, except to the extent disclosure is
required by law.
6. TERMINATION WITHOUT CAUSE. Should EMPLOYER terminate this
Agreement for reasons other than those specified in Sections 3, 4, 5, or 7
herein, XXXXXX shall be entitled to use of an automobile or automobile
allowance, full automobile insurance coverage, and health insurance coverage
under any health insurance policies maintained by EMPLOYER for its other senior
executives, all of which shall be provided pursuant to the terms of Section 2
(a) (iv) herein and shall continue to be provided without interruption for six
months following the effective date of termination pursuant to this Section 6.
Upon termination pursuant to this Section 6, EMPLOYER shall additionally pay to
XXXXXX a lump sum payment, to be paid on the effective date of termination
pursuant to this Section 6, which shall consist of: (i) one-half of the full
annual Base Salary, and (ii) the cash value of all vacation, holiday and sick
days which have accrued up to the date of termination and which would have
accrued for six months following termination pursuant to this Section 6. (The
sum of all amounts and benefits to be provided by EMPLOYER to XXXXXX pursuant to
this Section 6 is collectively referred to herein as the "Termination Payment".)
7. CORPORATE CHANGES.
4
5
(a) Definition. XXXXXX may terminate his employment hereunder
upon thirty (30) days written notice at any time within one year following the
occurrence of a Corporate Change. For purposes of this Section 7, a "Corporate
Change" shall be deemed to have occurred upon the occurrence of any one (or
more) of the following events: (i) a transaction in which EMPLOYER ceases to be
an independent publicly owned corporation that is required to file quarterly and
annual reports under the Securities Exchange Act of 1934, (ii) a sale or other
disposition of all or substantially all of the assets, or a majority of the
outstanding capital stock, of EMPLOYER (including but not limited to the assets
or stock of EMPLOYER'S subsidiaries that results in all or substantially all of
the assets or stock of EMPLOYER on a consolidated basis being sold), (iii) as a
result of, or in connection with, any cash tender offer, exchange offer, merger
or other business combination, sale of assets, or contested election for the
Board, or combination of the foregoing, persons who were directors of EMPLOYER
just prior to such event(s) shall cease to constitute a majority of the Board,
(iv) any person, including a group as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, becomes the beneficial owner of
shares of EMPLOYER with respect to which twenty percent (20%) or more of the
total number of votes for the election of the Board may be cast, (v) EMPLOYER'S
stockholders cause a change in the majority of the members of the Board within a
twelve (12) month period; provided, however, that the election of one or more
new directors shall not be deemed to be a change in the membership of the Board
if the nomination of the newly elected directors was approved by the vote of
three-fourths of the directors then still in office who were directors at the
beginning of such twelve (12) month period, or (vi) a tender offer or exchange
offer is made for shares of the EMPLOYER'S common stock (other than one made by
the EMPLOYER) and shares of common stock are acquired thereunder.
(b) Payments. Upon termination of employment pursuant to
Section 7(a) hereof, XXXXXX shall be entitled to use of an automobile or
automobile allowance, full automobile insurance coverage, and health insurance
coverage under any health insurance policies maintained by EMPLOYER for its
other senior executive officers, all of which shall be provided pursuant to the
terms of Section 2 (a) (iv) herein and shall continue to be provided without
interruption for six months following the effective date of termination pursuant
to this Section 7. EMPLOYER shall additionally pay to XXXXXX a lump sum payment,
to be paid within five (5) days after the date of XXXXXX'X notice pursuant to
Section 7 (a) herein, which shall consist of: (i) two times the full annual Base
Salary plus three times the amount of the last annual bonus paid to XXXXXX for
the most recent fiscal year, and (ii) the cash value of all vacation, holiday
and sick days which have accrued up to the date of termination and which would
have accrued for six months following termination pursuant to this Section 7.
(The sum of all amounts and benefits to be provided by EMPLOYER to XXXXXX
pursuant to this Section 7 (b) is collectively referred to herein as the
5
6
"Corporate Changes Termination Payment"). Notwithstanding the foregoing, if
XXXXXX gives notice of termination pursuant to this Section 7 prior to the
closing of a transaction referred to in Section 7(a)(i) or (ii) hereof, the
Corporate Changes Termination Payment must be made a condition to and must be
paid on the date of the closing of such a transaction.
(c) Tax Limitations on Corporate Changes Payments. If the
aggregate of all payments, including but not limited to, the Corporate Changes
Termination Payment that is to be paid to XXXXXX contingent on those Corporate
Changes specified in Section 7 (a) herein (the "Aggregate Amount"), would
constitute a "parachute payment" (as defined in Section 280 G of the Internal
Revenue Code of 1986, as amended or supplemented (the "Code"), the Corporate
Changes Termination Payment otherwise payable to the XXXXXX pursuant to Section
7 (b) herein shall be equal to the higher of: (i) the amount (referred to herein
as the "Reduced Amount") that would result in no portion of the Aggregate Amount
being subject to the excise tax imposed by Section 4999 of the Code, or (ii) the
full Aggregate Amount if the net after tax payments to XXXXXX would exceed the
Reduced Amount. The determination of the Corporate Changes Termination Payment,
the Reduced Amount and the net after tax amount payable to XXXXXX on the full
Aggregate Amount shall be made by the XXXXXX and the EMPLOYER in good faith, and
in the event they disagree, such determination shall be made by means of
arbitration to be conducted at the EMPLOYER'S expense. Any such arbitration
shall be conducted in Los Angeles, California, by one arbitrator, who shall be a
member of a nationally recognized accounting firm that is not then engaged by
the EMPLOYER or any of its major stockholders, and who shall be jointly
designated by the parties. If the parties cannot agree on the selection of an
arbitrator, EMPLOYER'S then current independent auditors shall select such
arbitrator. The findings of the arbitrator shall be conclusive and binding on
the parties. For purposes of this Section 7(c), the net after tax amount payable
to XXXXXX shall mean the present value, as determined in accordance with Section
280G(d)(4) of the Code, of any payment or distribution in the nature of
compensation to or for XXXXXX'X benefit, whether paid or payable pursuant to
this Agreement or otherwise, net of all taxes imposed on the XXXXXX with respect
thereto under Sections 1 and 4999 of the Code, determined by applying the
highest marginal rate under Section 1 of the Code.
(d) Management Changes. XXXXXX may terminate his employment
hereunder upon thirty (30) days written notice at any time within one year
following the occurrence of a Management Change, which shall be deemed to have
occurred upon the termination of both of Xxxx X. Xxxxxxx and Xxxxxxx X. Xxxxx as
President and Senior Executive vice President, respectively of EMPLOYER. Upon
termination of employment pursuant to this Section 7(d), XXXXXX shall be
entitled to a lump sum payment, to be paid within five (5) days after the date
of XXXXXX'X notice pursuant to this Section 7(d), which shall consist of: (i)
two
6
7
times the full annual Base Salary plus an amount equal to the last annual
bonus paid to XXXXXX for the most recent fiscal year, and (ii) the cash value of
all vacation, holiday and sick days which have accrued up to the date of
termination.
8. RIGHTS TO PROPRIETARY INFORMATION.
(a) For purposes of this Agreement, the term "Proprietary
Information" means and includes: 2. all written, oral and visual information
about EMPLOYER's customers, clients, employees, consultants and brokers that is
not readily known or available to the public, or that XXXXXX learns of or
acquires through his employment by EMPLOYER; and 3. financial information,
marketing techniques and materials, marketing and development plans, broker
lists, customer lists, other information concerning brokers and customers,
pricing information and policies, price lists, employee files, corporate and
business contacts and relationships, corporate and business opportunities,
telephone logs and messages, video or audio tapes and/or disks, photographs,
film and slides, including all negatives and positive and prints, computer disks
and files, rolodex cards, addresses and telephone numbers, contracts, releases,
other writings of any kind, and any and all other materials of a proprietary
nature to which XXXXXX is exposed or has access as a consequence of his
employment by EMPLOYER. All of the Proprietary Information is, and at all times
shall be and remain, private and confidential and is the sole and exclusive
property of, and owned and controlled by EMPLOYER, regardless of whether such
Proprietary Information is in tangible or intangible form. The parties
understand that information that is generally known to the public, or which
XXXXXX acquired other than as a consequence of his employment by EMPLOYER, such
as in the course of similar employment or work elsewhere shall not be deemed
part of the Proprietary Information.
(b) All Proprietary Information shall be the sole property of
EMPLOYER, its successors and assigns, and EMPLOYER, its successors and assigns
shall be the sole owner of all patents, trademarks, service marks and
copyrights, and other rights (collectively referred to herein as "Rights")
pertaining to Proprietary Information. XXXXXX hereby assigns to EMPLOYER any
rights XXXXXX may have or acquire in Proprietary Information or Rights
pertaining to the Proprietary Information. XXXXXX further agrees as to all
Proprietary Information to assist EMPLOYER or any person designated by it in
every necessary or appropriate manner (but at EMPLOYER's expense) to obtain and
from time to time enforce Rights relating to said Proprietary Information
throughout the universe. XXXXXX will execute all documents for use in applying
for, obtaining and enforcing such Rights on such Proprietary Information as
EMPLOYER may desire, together with any assumptions thereof to EMPLOYER or
persons designated by it. XXXXXX'x obligation to assist EMPLOYER or any person
designated by it in obtaining and enforcing Rights relating to Proprietary
Information shall continue beyond the
7
8
cessation of his employment. It is provided, however, that EMPLOYER shall
compensate XXXXXX at a reasonable rate after the cessation of employment for
time actually spent by XXXXXX upon EMPLOYER's request for such assistance, at a
rate not less than XXXXXX'X last salary rate, on a pro rated per hour basis, in
effect on the date of his termination. In the event that EMPLOYER is unable,
after reasonable effort, to secure XXXXXX'x signature on any document or
documents needed to apply for or enforce any Right relating to Proprietary
Information, whether because of his physical or mental incapacity or for any
other reason whatsoever, XXXXXX hereby irrevocably designates and appoints
EMPLOYER and its duly authorized officers and agents as his agents and
attorneys-in-fact to act for and in his behalf and stead in the execution and
filing of any such application and in furthering the application for an
enforcement of Rights with the same legal force and effect as if such acts were
performed by XXXXXX.
(c) At all times, both during his employment and after the
cessation of employment, whether the cessation is voluntary or involuntary, for
any reason or no reason, or by disability, XXXXXX will keep in strictest
confidence and trust all Proprietary Information, and XXXXXX will not disclose,
use, or induce or assist in the use or disclosure of any Proprietary Information
or Rights pertaining to Proprietary Information, or anything related thereto,
without the prior, express written consent of EMPLOYER, except as may be
necessary in the ordinary course of performing his duties as an employee of
EMPLOYER. XXXXXX recognizes that EMPLOYER has received and in the future will
receive from third parties their confidential, trade secret, or Proprietary
Information subject to a duty on EMPLOYER's part to maintain the confidentiality
of such information and to use it only in connection with the performance of his
duties as an employee of EMPLOYER. XXXXXX agrees that XXXXXX owes EMPLOYER and
such third parties, during his employment and thereafter, a duty to hold all
such confidential, trade secret, or Proprietary Information in the strictest
confidence, and XXXXXX will not disclose, use, or induce or assist in the use or
disclosure of any such confidential, trade secret, or Proprietary Information
without the prior, express written consent of EMPLOYER, except as may be
necessary in the ordinary course of performing his duties as an employee of
EMPLOYER consistent with EMPLOYER's agreement with such third party.
(d) XXXXXX agrees that all material or other original works of
authorship written, created, or developed by XXXXXX in connection with his
employment hereunder (whether alone or in conjunction with any other person),
and all rights of any and every kind whatsoever in and to the results and
proceeds of XXXXXX'x services rendered hereunder, whether or not such rights are
now known, recognized or contemplated, and the complete, unconditional and
unencumbered ownership in and to such materials, results and proceeds for all
purposes whatsoever shall be "works for hire," as that term is defined in the
United States
8
9
Copyright Act (17 U.S.C. Section 101), and shall be the sole and absolute
property of EMPLOYER, its successors and assigns, and XXXXXX agrees that he/she
does not have and will not claim to have, either under this Agreement or
otherwise, any right, title or interest of any kind or nature whatsoever in or
to said property.
(e) XXXXXX will promptly disclose to EMPLOYER, and EMPLOYER
hereby agrees to receive such disclosures in confidence, all discoveries,
developments, designs, improvements, inventions, software programs, processes,
techniques, know-how, negative know-how and data, whether or not patentable or
registrable under patent, copyright or similar statutes or reduced to practice,
made or conceived or reduced to practice or learned by XXXXXX, either alone or
jointly with others during the period of his employment, for the purpose of
permitting EMPLOYER to determine whether they constitute Proprietary
Information, or copyrightable or patentable material.
9. NON-COMPETITION/NON-SOLICITATION.
(a) During the period of his employment, XXXXXX will not
directly or indirectly engage in any activity which competes with EMPLOYER, or
which EMPLOYER shall determine in good faith to be in competition with EMPLOYER
or any subsidiary or affiliate of EMPLOYER. In addition, during his employment
and after the cessation of employment, XXXXXX will not, alone or in concert with
others, or on his own behalf, or on behalf of any other person, in any way use
or disclose Proprietary Information in order to solicit, entice, or in any way
divert any broker to do business with any competitor of EMPLOYER or any
subsidiary or affiliate of EMPLOYER. During his employment, XXXXXX agrees not to
plan or otherwise take any preliminary steps, either alone or in concert with
others, or on his own behalf, or on behalf of any other person, to set up or
engage in any business enterprise that would be in competition with EMPLOYER or
any subsidiary or affiliate of EMPLOYER.
(b) During his employment and for a period of two (2) years
after the cessation of employment, XXXXXX will not, either directly or
indirectly, either alone or in concert with others or on his own behalf or on
behalf of any other person, solicit, divert, entice, recruit, or employ any
employee of or consultant to EMPLOYER, or any subsidiary or affiliate of
EMPLOYER, to leave employment with or otherwise terminate employment with
EMPLOYER or any subsidiary or affiliate of EMPLOYER or work for any competitor
of EMPLOYER or any subsidiary or affiliate of EMPLOYER.
(c) XXXXXX recognizes that the immediate and continuous
performance of his obligations in this paragraph 9 is extremely important and
valuable to EMPLOYER because of the extensive and costly training given to its
employees and the knowledge gained by such employees of the Proprietary
Information
9
10
used by EMPLOYER in its operations. In the event of his breach of those
obligations, XXXXXX therefore agrees that EMPLOYER shall be entitled to
estimated or liquidated damages, as defined herein. For each employee of
EMPLOYER whom XXXXXX solicits, diverts, recruits, or employs in violation of
this paragraph 9, and for each broker or mortgage loan customer of EMPLOYER whom
such employee handled for EMPLOYER and whom the employee contacts or otherwise
services or works with for his benefit or for the benefit of anyone in privity
with XXXXXX, including any competitor of EMPLOYER or any subsidiary or affiliate
of EMPLOYER with whom XXXXXX accepts employment in breach of this paragraph 9,
XXXXXX shall pay EMPLOYER liquidated damages. The liquidated damages for each
such broker or customer shall be (i) the amount of profit earned by EMPLOYER
from mortgage loan referrals from each broker, or the amount of profit earned on
loans to each mortgage loan customer, during the twelve (12) months immediately
preceding termination of such employer with EMPLOYER, and (ii) the amount of
cost to EMPLOYER to recruit and train a replacement for each such employee plus
the first six (6) month's salary paid to the replacement(s) for such employee.
If the employee was not in a position of have contacts with brokers or to
otherwise generate business from mortgage loan customers, the liquidated damages
shall be the amount of the cost to EMPLOYER to recruit and train a
replacement(s) for the employee. XXXXXX further agrees that the cost to recruit
and train replacement(s) for each employee as described in this paragraph 9 will
be part of EMPLOYER's damages and that the profit formula for employees who had
broker or mortgage loan business contact, and the first six (6) months salary
paid to the replacement(s) for employees, are conservative estimates of the
value, or a portion of the value, of the employee to EMPLOYER.
10. SUCCESSORS; BINDING AGREEMENT.
(a) EMPLOYER 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 EMPLOYER to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that EMPLOYER would be required to perform it if no such succession had taken
place. Any failure of EMPLOYER to obtain such assumption and agreement prior to
the effectiveness of any such succession shall be a material breach of this
Agreement and shall entitle XXXXXX to compensation from EMPLOYER in the same
amount and on the same terms as he would be entitled to hereunder if EMPLOYER
were to terminate employment pursuant to Section 7 hereof, except that for
purposes of implementing the foregoing, the day before any such succession
becomes effective shall be deemed the date that payment is due. As used in this
Agreement, "EMPLOYER" shall mean EMPLOYER as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
10
11
(b) This Agreement shall inure to the benefit of, and be
enforceable by, XXXXXX'X personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
XXXXXX should die while any amount would still be payable to him hereunder if he
had continued to live, all such amounts, unless otherwise provided herein, shall
be paid in accordance with the terms of this Agreement to his devisees, legatee
or other designees, or if there is no such designee, to his estate.
11. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be deemed to have
been given at the time delivered, if personally delivered, or twenty-four hours
after deposit thereof for mailing at any general or branch United States Post
Office enclosed in a registered or certified postpaid envelope and addressed as
follows:
If to EMPLOYER:
PacificAmerica Money Center, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx, President and Chief
Executive Officer
with copies to:
Jeffer, Mangels, Xxxxxx & Marmaro
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xx Xxxx Xxxxxx, Esq.
and
PacificAmerica Money Center, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Board of Directors
If to XXXXXX:
XXXXXXX X. XXXXXX
_______________________
_______________________
The parties hereto may designate a different place at which notice shall be
given, provided, however, that any such notice of change of address shall be
effective only upon receipt.
12. ENTIRE UNDERSTANDING. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior written or
11
12
oral agreements. This Agreement may not be modified, amended, or terminated
except by another instrument in writing executed by the parties hereto.
13. GOVERNING LAW. This Agreement and all rights, obligations and
liabilities arising hereunder shall be construed and enforced in accordance with
the laws of the State of California.
14. ATTORNEY'S FEES.
(a) In the event it becomes necessary to commence any
proceeding or action to enforce the provisions of this Agreement, the court
before whom such action shall be tried may award to the prevailing party all
costs and expenses thereof, including but not limited to reasonable attorneys
fees, the usual, customary and lawfully recoverable Court costs, and all other
expenses in connection therewith. XXXXXX shall be deemed to be the prevailing
party if he is awarded any amounts in any such proceeding or action.
(b) EMPLOYER shall also pay and be responsible for all
attorneys and related fees, expenses or costs incurred by XXXXXX, if EMPLOYER,
or any stockholder of EMPLOYER contests the validity or enforceability of this
Agreement or any part hereof.
The parties hereto have executed this Agreement on the day and year
first above written.
"XXXXXX"
________________________________
XXXXXXX X. XXXXXX
"EMPLOYER"
PACIFICAMERICA MONEY CENTER, INC.
By: _____________________________
Xxxx X. Xxxxxxx
President
12
