Employment Agreement
THIS AGREEMENT is made as of December 15, 1998, by and between MOFC, INC.,
d/b/a CONSUMER ONE FINANCIAL ("Employer") and its successors and assigns, and
XXXXX X. XXXXX ("Employee"), who, in consideration of the mutual promises of the
parties and other good and valuable consideration, the receipt and adequacy of
which are acknowledged, the parties have agreed as follows:
1. Definitions. Whenever the following words or phrases are used in the
Agreement, they shall have the meanings given in this Section, unless otherwise
indicated.
(a) "Affiliate" means any Person owned by (greater than 10%), owning
(greater than 10%), under common ownership with, controlling, controlled by, or
under common control with, another Person, which includes subsidiary and parent
organizations.
(b) "Compete" shall mean in any way being in contest with or rivalry
with Employer, including directly or indirectly working with, being employed by,
or having any interest or involvement in any other Person which is involved in
selling, marketing or otherwise providing any of the services or products which
are provided or performed as part of the Primary Business Operation of Employer
during Employee's employment with Employer.
(c) "Customer" shall mean individual borrowers, mortgage brokers or
other sources of referrals of business to Employer.
(d) "Loans" means all residential real property loans, regardless of
lien position.
(e) "Primary Business Operation" shall mean wholesale and retail
origination and sale of Loans.
(f) "Person" shall include both natural persons and entities.
(g) "Territory" shall mean the area encompassed in a 35 mile radius
around any office of Employer or its Affiliates which are in the same Primary
Business Operation.
2. Employment. Employer employs Employee for the position specified on
Schedule A. Employee agrees to perform such duties and to comply with the
general supervision and policies of Employer and the orders, advice, and
direction of the Board of Directors in managing such offices.
3. Duties. Employee shall perform the duties customarily performed by one
holding Employee's position in similar businesses, and such duties as may be
assigned by this Agreement as specified in Schedule A attached to and
incorporated herein, and such other duties as may be assigned from time to time
by Employer. Employee shall make available to Employer all information of which
Employee shall have any knowledge, and shall make all suggestions and
recommendations that will be of benefit to Employer.
4. Best Efforts of Employee. Employee will at all times faithfully,
industriously, and to the best of Employee's ability, perform all of Employee's
duties, to the satisfaction of Employer.
5. Term and Renewal. This Agreement is for an initial term of three (3)
years, renewable thereafter on a year to year basis. Either party must give
ninety (90) days written notice if the contract is not going to be renewed. Upon
failure to give such notice, this Agreement will automatically renew for an
additional year on the same terms. This notice requirement shall continue for
all subsequent renewal periods.
6. Compensation. Employer shall pay Employee in full payment for
Employee's services, compensation in accordance with the Compensation Schedule
attached to this Agreement as Schedule B and incorporated as part of this
Agreement, which shall remain in effect until supplemented or replaced by a new
Agreement between Employer and Employee.
7. Other Activities. Employee shall devote all business time, attention,
knowledge, and skills solely to the business and interest of Employer, and
Employer shall be entitled to all of the benefits, profits or other issues
arising from or incident to all work, services, and advice of Employee. Employee
shall not, during the term of this Agreement, be employed by or contract to
provide services to any other person or engage in any other business or trade,
nor shall Employee use or take for Employee's personal benefit any position
which conflicts with or is contrary to any position which would be beneficial to
Employer. Nothing in this Agreement, however, shall limit Employee's right to
invest in publicly traded securities, to engage in any business with the written
consent of Employer, or to engage in civic and charitable activities.
8. Benefits. Employee shall be entitled to benefits according to
Employer's stated policy, as amended from time to time.
9. Termination. Employer may terminate this Agreement at any time without
advance notice for cause. For the purpose of this Agreement "cause" is defined
as: (i) a breach of this Agreement or any policy, rule, instruction, or order of
Employer relating to the Business; (ii) any act or omission by Employee which
involves moral turpitude, gross negligence, dishonesty, bad faith, fraud,
conflict of interest, intentionally lying to Employer, taking action prohibited
by Employer, or breach of fiduciary duty, or other act or omission which in the
sole discretion of the Board of Directors or Executive committee of the
Employer, could have an adverse impact on the Employer in any respect, including
but not limited to its financial condition, assets, operations, earnings,
reputation, employee relations or discipline; (iii) violation of any law or
regulation; (iv) repeated neglect of duties; (v) failure to follow any lawful
directive from the Chairman of the Board or Board of Directors related to the
Business; or (vi) a material breach by Employee of a representation, warranty or
covenant in the Share Purchase Agreement of even date herewith in which Employee
sold his stock in MOFC, Inc., d/b/a Consumer One Financial to Approved Financial
Corp. To the extent that any act or omission in the preceding clauses are
capable of being remedied or cured (which determination will be made by Employer
in its sole discretion), then a violation will not be grounds for immediate
termination unless Employer first provides notice to Employee which includes (a)
the act or failure to act of Employee giving rise to the proposed termination,
(b) the corrective action which Employer reasonably believes would cure the
violation, and (c) twenty (20) days from receipt of the notice to take such
corrective action. Furthermore, this Agreement shall terminate immediately upon
Employee's death or disability, but such termination shall not affect any
previously vested right of Employee to receive disability payments in accordance
with any applicable plan for a disability which arises while this Agreement is
in effect.
10. Confidential and Proprietary Information. In the course of this
employment, Employee will be exposed to certain confidential and proprietary
information of Employer and its Customers. Employee shall not reproduce or
remove from any premises any such information without the express written
consent of Employer. Any such information acquired by Employee shall be promptly
delivered to Employer if in tangible form, unless specific written consent is
received from Employer. Employee shall not at any time or in any manner,
disclose to any Person, nor in any way use to his benefit or that of any other
person, any information concerning any matters affecting or relating to the
business of Employer, including any of its Customers, the prices it obtains or
at which it offers its products or services, or the sources of and/or prices it
pays for any supplies, material, services or technical assistance, or any other
information concerning the finances or business of Employer or any of its
Customers, without regard to whether any of the foregoing matters would
otherwise be considered confidential or trade secrets, the parties agreeing that
these matters are important, material, and confidential and gravely affect the
successful conduct of Employer's business and goodwill, and that any breach of
the terms of this Section shall be a material breach of this Agreement and
result in irreparable harm to Employer. Employee further agrees that upon
termination or expiration of this Agreement for any reason, Employee shall
immediately deliver to Employer any and all information, documents, agreements,
data, work product, customer lists, notes, and the like of Employer or relating
to Employer's business. The duties and restrictions on Employee in this Section
shall survive the expiration or termination of this Agreement and remain in full
force and effect for so long as Employer continues in business.
11. Covenant Not to Compete. In consideration of the employment of
Employee or in the event Employee is entering into this Agreement after having
been an employee, either with a prior contract or no contract, then in
consideration of continued employment, the benefits of this Agreement and other
good and valuable consideration, the Employee independently covenants and agrees
with Employer, each of which said covenants shall be independent of and
severable from each other and each of which shall continue in force for the
specified duration irrespective of the completion and performance of all other
obligations between the parties hereto, that:
(a) Employee will NOT during the term of Employee's employment, nor
one (1) year immediately following the termination of employment, compete with
Employer within the geographical limits of the Territory.
(b) Employee will NOT during the term of Employee's employment, nor
for one (1) year immediately following termination of employment, Compete with
employer within a 35-mile radius of any office which Employee worked at or
supervised during his employment with Employer.
(c) Employee will NOT, during the term of Employee's employment nor
two (2) years immediately following the termination thereof, directly or
indirectly, for Employee, or in conjunction with any other Person, (by
disparagement of Employer's business or otherwise), do business with, divert,
take away or cause to leave any of the Customers of Employer.
(d) Employee will NOT, during the term of Employee's employment nor
two (2) years immediately following the termination thereof, directly or
indirectly, for Employee, or in conjunction with any other Person (by
disparagement of Employer's business or otherwise), employ, solicit, divert or
take away any of the employees of Employer.
(e) If any of the preceding limitations on the Employee imposed by the
preceding subsection "(a)" through "(d)" exceed the maximum limitation
permissible under the statutes, laws or precedents of any state wherein it is
sought to be enforced against the Employee, then the parties hereto agree that
such limitation may and shall be deemed to be amended to conform to the maximum
limitation permissible under such statutes, laws or precedents, or in the
absence thereof, to such limitations deemed appropriate by any court of record
in the state wherein it is sought to be enforced.
(f) The Employee acknowledges that a violation on Employee's part of
any covenants of this Section and its Subsections or Section 10 or 12 will cause
such damage to the Employer as will be irreparable and the exact amount of which
will be impossible to ascertain, and for that reason, the Employee further
acknowledges that the Employer shall be entitled, as a matter of course, to an
injunction out of any Court of competent jurisdiction, restraining any further
violation of the covenant by the Employee, and, pending the hearing and decision
on the application for such injunction, the Employer shall be entitled to a
Temporary Restraining Order, and waives any request for a bond, or the
equivalent thereof, without prejudice to any other remedies available to it. The
Employee particularly agrees to the immediate issuance of such Temporary
Restraining Order and hereby waives any requirements of notice or objection
whatsoever to the issuance of such an Order.
(g) It is mutually agreed that regardless of whether the Employee
leaves the employ of the Employer by Employee's own request or the request of
the Employer, or regardless of how or by what manner the employment relationship
is terminated (including whether with or without cause), or this contract is
terminated or expires, the independent covenants herein contained in this
Section and in Sections 10 and 12 shall survive and remain in full force and
effect as INDEPENDENT COVENANTS. Should any provision or covenant in this
Agreement be breached by Employer, or be declared void or unenforceable by a
court of competent jurisdiction, the remaining covenants and provisions
including those in this Section 11 and Sections 10 and 12 shall nevertheless
remain in full force and effect, each being independent and severable.
(h) During the term of the noncompetition covenant, Employee shall
give all of Employee's actual and prospective employers written notice of the
requirements of the noncompetition covenant. If Employer believes that Employee
has failed to provide any actual or prospective employer such notice, Employer
may provide such notice, including providing a copy of any or all of this
Agreement.
(i) Employee acknowledges that (i) there was no duress involved in
signing this Agreement; (ii) other employment options were available to Employee
at the time of signing this Agreement; (iii) Employee's covenant not to compete
was a material and necessary inducement to Employer to employ or continue the
employment of Employee; (iv) Employee understands the policy of reasonableness
regarding restrictive covenants and agrees that the restrictions imposed upon
Employee by this Agreement are reasonable in scope and duration and are
necessary to serve a legitimate business interest of Employer; (v) Employee
acknowledges that the Nonconforming Loan business is only a part of the overall
mortgage loan industry and therefore a restrictive covenant limited to the
Primary Business Operation as defined herein would not prevent Employee from
earning a livelihood in the overall mortgage loan industry; and (vi) Employee
has had an opportunity to have this Agreement reviewed by legal counsel of
Employee's choice.
(j) Employee represents and warrants that his employment by Employer
does not and will not breach any agreement or duty which Employee has to any
other Person to keep in confidence any confidential information belonging to
others or not to compete with others. Employee shall not disclose to Employer or
use on its behalf any confidential information belonging to others.
12. Intellectual Property Rights. Employee acknowledges that the
proprietary rights to any original works, concepts, software, manuals, programs,
routines, inventions, trademarks, servicemarks, and tradenames made, developed,
or conceived by Employee, whether singularly or in conjunction with another
Person, during the term of this Agreement (collectively "Inventions") shall be
the property of Employer. Accordingly, Employee agrees as follows:
(a) Employee hereby assigns, and shall assign in the future, any and
all of Employee's rights in or to all Inventions.
(b) Employee shall promptly disclose in writing to Employer any
Invention. If requested by Employer, Employee will execute, file, and prosecute
any and all applications and assignments necessary or proper to vest in Employer
the complete rights in and to any Inventions.
(c) If Employer chooses to pursue any patent or other application for
any Invention, Employer shall bear all costs and fees in connection with the
application.
(d) If Employer declines in writing to pursue any patent or other
application for an Invention, Employee may with the written consent of Employer
pursue the application in Employee's own name and at Employee's own expense,
provided that Employer shall have a perpetual, world-wide, royalty-free license
and right to use, or to adapt and develop in any way, any and all Inventions,
whether or not protectable under any applicable law.
(e) Upon the termination of this Agreement for any reason, Employee
shall deliver to Employer any and all notes, records, documents and other
material relating to any completed or incomplete Inventions which Employee
worked on prior to such termination.
(f) Except as set forth on Schedule C attached to and incorporated in
this Agreement, Employee shall not assert any rights to any Inventions as having
been made or acquired by Employee prior to being employed by Employer, or since
then and not covered by this Agreement.
(g) Employee need not assign to Employer any rights to any invention,
etc. wholly conceived and developed by Employee after the termination of this
Agreement, unless the conception or development of such invention, etc. involves
the use of confidential or proprietary information obtained by Employee while
employed by Employer.
13. Governing Law and Forum. All questions regarding this Agreement shall
be governed by the laws of Virginia, except that in the case of an issue
regarding the reasonableness of any restrictive covenants in Sections 10, 11 or
12 of this Agreement, the parties agree to apply the law of the state wherein
Employer files legal action to enforce any restrictive covenant. Any suit
relating to this Agreement must be brought in the Circuit or General District
Courts of the City of Virginia Beach, Virginia, provided, however, Employer may
file legal action in connection with the enforcement of any of the restrictive
covenants contained in this Agreement in any state or federal court where
Employer in its discretion deems it appropriate for its protection.
14. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their heirs, personal representatives,
successors and assigns.
15. Assignability. The rights and obligations of Employee under this
Agreement may not be assigned or delegated. The rights and obligations of
Employer may be assigned or delegated without the consent of Employee.
16. Offsets Against Compensation. Employee authorizes Employer to offset
against any compensation or other amounts owing to Employee any sums that
Employee owes to Employer or Approved Financial Corp., evidenced in writing
including under the Share Purchase Agreement of even date herewith between
Employee and Approved Financial Corp.
17. Notices. Any notice or other communication required or permitted by
this Agreement shall be in writing and addressed to Employer at its
administrative headquarters and to Employee at his residence, as indicated by
the records of the Employer, and shall be deemed to have been given, made and
received only:
(a) upon delivery, if personally delivered to a party;
(b) one business day after the date of dispatch, if by facsimile
transmission;
(c) one business day after deposit, if delivered by a nationally
recognized courier service offering guaranteed, overnight
delivery; or
(d) three days after deposit in the United States mail, certified
mail, postage prepaid, return receipt requested.
18. Headings. The headings in this Agreement are for convenience only and
are not a part of the substantive agreement of the parties, nor shall the
headings be used in the interpretation or construction of this Agreement.
19. Number and Gender. Whenever used in this Agreement, the singular shall
include the plural, and the plural shall include the singular. The masculine
gender shall include the feminine and the neuter.
20. Severability. If any provision of this Agreement is determined to be
unenforceable, the remainder of this Agreement shall be construed and enforced
as if the unenforceable provision had not been contained in this Agreement, and
each provision of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
21. Entire Agreement. This Agreement is intended to be a complete,
exclusive, and final expression of the parties' agreements concerning Employee's
employment, merging and replacing all prior negotiations, offers,
representations, warranties and agreements. To the extent that Employee was
employed by Employer prior to the date of this Agreement, this Agreement is in
confirmation of the agreements previously reached and under which the parties
have been working. No course of prior dealing between the parties, no usage of
trade, and no parole or extrinsic evidence of any nature shall be used to
supplement or modify any of the terms of this Agreement.
22. Modification and Waiver. The provisions of this Agreement may not be
modified or waived, including the waiver of the provisions of this Section,
except by a written instrument, signed by the party against whom such
modification or waiver is sought to be enforced.
23. Survival. Any provision of this Agreement which imposes any obligation
upon Employee which may extend beyond the term of this Agreement shall survive
the termination of this Agreement.
24. Third Party Beneficiaries. The provisions of this Agreement are
intended to benefit only the parties to this Agreement. No person not a party to
this Agreement shall be deemed to be a third party beneficiary of this
Agreement, nor shall any such person be empowered to enforce the provisions of
this Agreement, except to the extent such a person becomes a permitted assignee
of one of the parties.
25. Attorney's Fees. In the event of any action at law, in equity,
arbitration or otherwise between the parties in relation to this Agreement, the
non-prevailing party, in addition to any other sums which such party shall be
required to pay pursuant to the terms and conditions of this Agreement, at law,
in equity, arbitration or otherwise shall also be required to pay to the
prevailing party all costs and expenses of such litigation, including reasonable
attorney fees.
26. Non-Waiver. The failure of the Employer at any time to require the
performance by the Employee of any of the provisions, covenants and conditions
hereof shall in no way affect its right thereafter to enforce the same; nor
shall the waiver by the Employer of any breach of this Agreement, term,
provision, covenant or condition hereof be taken or held to be a waiver of any
succeeding breach of any agreement, term, provision, covenant or condition. The
failure by Employer to require performance by any other employee of any
provision, covenant or condition in that employee's employment agreement shall
in no way affect Employer's right to enforce this Agreement or any covenant
herein.
WITNESS the following signatures and seals:
EMPLOYER:
MOFC INC.
By:
Title:
EMPLOYEE:
XXXXX X. XXXXX
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S C H E D U L E S
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SCHEDULE A
ADDITIONAL SPECIFIC DUTIES ASSIGNED
UPON EXECUTION OF EMPLOYMENT AGREEMENT
Xxxxx X. Xxxxx shall serve in the position of Chief Operating Officer and
Executive Vice President. He shall be responsible for supervision of the current
offices of MOFC, Inc. d/b/a Consumer One Financial, and any other offices
mutually agreed to in writing by Xxxxx X. Xxxxx and Employer.
SCHEDULE B
COMPENSATION SCHEDULE
1. Base Salary. Salary will be One Hundred Forty Thousand Dollars
($140,000.00) per year.
2. Group Benefits. Xxxxx shall be entitled to group benefits as contained
in the stated written policy of Purchaser which may from time to time be
revised.
3. Vacation Xxxxx shall be entitled to three (3) weeks of paid vacation.
4. Bonus. In each year when Purchaser reaches the "Profit Target" for
offices under Xxxxx' supervision, Xxxxx shall be eligible for a bonus of up to
100% of his Base Salary. The Profit in the Profit Target is defined to mean the
pre-tax net income attributable to the offices supervised by Xxxxx. The Profit
Target is One Million Six Hundred Thousand Dollars ($1,600,000.00). The bonus
will be based on achieving that portion of the Profit Target that exceeds
$800,000.00 (the "Excess Portion"). There will be no bonus if $800,000.00 or
less of the Profit Target is reached. If more than $800,000.00 of the Profit
Target is reached the Bonus shall be the product of multiplying the Base Salary
($140,000.00) by the percentage of the Excess Portion reached.
Example:Assume $1,200,000.00 of Profit Target Reached
1,200,000 - 800,000 = 400,000 = 50% x 140,000 = $70,000 Bonus
------------------- -------
800,000 800,000
5. Compensation After Termination. If (i) Employee terminates his
employment; (ii) it is terminated due to death, disability, or for cause as
defined in this Agreement; or (iii) this Agreement expires or either party
elects not to renew as provided herein, this contract shall cease, and no
further compensation or benefits under this Employment Agreement shall be paid
to Employee. If this Agreement is terminated by Employer without cause in breach
of this Agreement, then Employee in lieu of any other damages or compensation
shall be entitled to severance pay in an amount equal to the annual Base
Compensation multiplied by a percentage equal to the number of days left in the
initial three (3) year term at termination divided by 1095.
6. Commission. Xxxxx shall receive 50% commission on front and back end
fees on all loans he generates (not to exceed 10 loans per month). Front end
fees exclude underwriting fee, doc preparation fee and processing fee.
SCHEDULE C
Employee has no inventions which Employee claims to have an interest in,
except those expressly listed below. If there are none, then specify "none."
NONE
