1
EXHIBIT 10.4
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (this "Agreement") is entered into as of
January 1, 1996, by and between PACIFIC UNITED GROUP, INC., a Delaware
corporation (hereinafter referred to as "EMPLOYER") and XXXXXX X. XXXXXXXXXX
(hereinafter referred to as "XXXXXXXXXX") on the following terms and
conditions:
1. TERM OF AGREEMENT; DUTIES.
(a) Term. EMPLOYER hereby agrees to employ XXXXXXXXXX as
Executive Vice President of EMPLOYER, Executive Vice President of Pacific
Unified Mortgage, Inc., a Delaware corporation ("PUM"), and Executive Vice
President of Pacific Thrift and Loan Company, Inc., a California corporation
("Pacific Thrift"), all of which are operating subsidiaries of the EMPLOYER,
for a one-year term, commencing on the date hereof, and XXXXXXXXXX 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 one-year term, unless, at
least six months prior to the end of the initial term or any renewal term
hereof, XXXXXXXXXX gives written notice to the Board of Directors of EMPLOYER
(the "Board"), or EMPLOYER gives written notice to XXXXXXXXXX, of an intent to
terminate this Agreement at the end of such term.
(b) Duties. XXXXXXXXXX, subject to the direction and
control of the Board, shall devote all of XXXXXXXXXX'X productive time,
attention and energies to discharging, and shall perform, such executive duties
and managerial responsibilities as may from time to time be specified by
EMPLOYER, and will use XXXXXXXXXX'X best efforts to promote the interests of
EMPLOYER and its subsidiaries and affiliates. The performance of such duties
and responsibilities shall be XXXXXXXXXX'X exclusive employment for
compensation; provided, however, that nothing herein contained shall be deemed
to limit XXXXXXXXXX'X right to engage in other activities that do not interfere
with XXXXXXXXXX'X duties hereunder, with the consent of the Board.
2. COMPENSATION.
(a) In consideration for the services to be rendered by
XXXXXXXXXX hereunder during the term of XXXXXXXXXX'X employment, including all
services to be rendered as an officer and executive of EMPLOYER, its
subsidiaries and affiliates, EMPLOYER agrees to compensate XXXXXXXXXX as
follows:
(i) During the term of this Agreement, EMPLOYER
shall pay XXXXXXXXXX a salary at an annual base rate of one hundred thirty five
thousand dollars ($135,000) per year,
2
which shall be adjusted annually to reflect any increase from the previous year
in the Consumer Price Index for the Los Angeles, California area (the "Base
Salary"). 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
XXXXXXXXXX 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) XXXXXXXXXX shall be reimbursed for
XXXXXXXXXX'X reasonable and actual out-of-pocket expenses incurred by
XXXXXXXXXX in performance of XXXXXXXXXX'X duties and responsibilities
hereunder, provided that XXXXXXXXXX shall first furnish to EMPLOYER proper
vouchers and/or receipts.
(iii) XXXXXXXXXX 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) XXXXXXXXXX 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
XXXXXXXXXX by Pacific Thrift and/or Presidential Mortgage Company, a California
Partnership ("Presidential") 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, XXXXXXXXXX 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 XXXXXXXXXX, terminate the employment relationship provided
for in this Agreement. In such event, XXXXXXXXXX'X requirement to render
services hereunder and EMPLOYER'S requirement to compensate XXXXXXXXXX
hereunder shall terminate and come to an end upon the date provided in such
notice. In
3
that event, XXXXXXXXXX shall be entitled to receive, as disability
compensation: (i) XXXXXXXXXX'X Base Salary for one year following termination
of this Agreement payable not less frequently than monthly, and (ii) 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
XXXXXXXXXX any payments on account of any physical or mental disability of
XXXXXXXXXX as specified above, shall be reduced by the amount of any payments
to XXXXXXXXXX under any such disability income policy. Any payments to
XXXXXXXXXX under any state disability insurance shall not reduce the amount
payable to XXXXXXXXXX under this Agreement.
4. DEATH. In the event of XXXXXXXXXX'X death during the term
hereof, this Agreement shall terminate immediately. In such event,
XXXXXXXXXX'x personal representative shall be entitled to receive, as a death
benefit, in addition to any other payments which XXXXXXXXXX'x personal
representative may be entitled to receive under any Benefit Plans, XXXXXXXXXX'X
Base Salary for one year following XXXXXXXXXX'X death, payable not less
frequently than monthly.
EMPLOYER may maintain life insurance on the life of XXXXXXXXXX in
favor of the EMPLOYER. XXXXXXXXXX shall have no interest whatsoever in any
such policy or policies, except as otherwise provided in any split dollar life
insurance agreements, but XXXXXXXXXX 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 XXXXXXXXXX at
any time for cause. "Cause" for discharge shall mean (i) theft or embezzlement
by XXXXXXXXXX from EMPLOYER or its affiliates, (ii) fraud or other acts of
dishonesty by XXXXXXXXXX in the conduct of EMPLOYER'S business or the
fulfillment of XXXXXXXXXX'X assigned responsibilities hereunder, (iii)
XXXXXXXXXX'X conviction of, or plea of nolo contendere to, any felony or any
crime involving moral turpitude, (iv) XXXXXXXXXX'X willfully and knowingly
taking any action which is materially injurious to EMPLOYER'S business or
reputation. Within 10 business days following receipt of written notice of
termination for Cause, XXXXXXXXXX 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
3
4
EMPLOYER has grounds to terminate XXXXXXXXXX for Cause. If the Board does not
determine that Cause exists, XXXXXXXXXX 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 XXXXXXXXXX demand
a hearing before the Board as a condition to pursuing any claim or action with
respect to the matters contained in this Agreement. The occurrence of any event
constituting cause for discharge shall permit, but not require, EMPLOYER to
terminate XXXXXXXXXX for Cause; provided, however, that EMPLOYER'S decision not
to terminate the XXXXXXXXXX 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 XXXXXXXXXX for Cause, EMPLOYER shall be
obligated to provide to XXXXXXXXXX only the Base Salary provided for in Section
2 (a) (i) herein through the date of termination of XXXXXXXXXX at the rate in
effect on the date of such termination.
6. TERMINATION WITHOUT CAUSE. Should EMPLOYER terminate this
Agreement for reasons other than those specified in Sections 3, 4, 5, or 7
herein, XXXXXXXXXX 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
XXXXXXXXXX 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 XXXXXXXXXX
pursuant to this Section 6 is collectively referred to herein as the
"Termination Payment".)
7. CORPORATE CHANGES.
(a) Definition. XXXXXXXXXX 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
4
5
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
this Section 7, XXXXXXXXXX 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. Upon termination pursuant to this Section 7,
EMPLOYER shall additionally pay to XXXXXXXXXX a lump sum payment, to be paid
within five (5) days after the date of XXXXXXXXXX'X notice pursuant to Section
7 (a) herein, 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 7. (The sum of all
amounts and benefits to be provided by EMPLOYER to XXXXXXXXXX pursuant to this
Section 7 (b) is collectively referred to herein as the "Corporate Changes
Termination Payment"). Notwithstanding the foregoing, if XXXXXXXXXX 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
5
6
be paid to XXXXXXXXXX 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 XXXXXXXXXX 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 XXXXXXXXXX would exceed the
Reduced Amount. The determination of the Corporate Changes Termination
Payment, the Reduced Amount and the net after tax amount payable to XXXXXXXXXX
on the full Aggregate Amount shall be made by the XXXXXXXXXX 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 XXXXXXXXXX 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 XXXXXXXXXX'X benefit, whether paid or
payable pursuant to this Agreement or otherwise, net of all taxes imposed on
the XXXXXXXXXX with respect thereto under Sections 1 and 4999 of the Code,
determined by applying the highest marginal rate under Section 1 of the Code.
8. RIGHTS TO PROPRIETARY INFORMATION.
(a) For purposes of this Agreement, the term "Proprietary
Information" means and includes: 1. 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 XXXXXXXXXX learns of or
acquires through his employment by EMPLOYER; and 2. 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 XXXXXXXXXX is exposed or has access as a
consequence of his employment by EMPLOYER. All of the
6
7
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 XXXXXXXXXX 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. XXXXXXXXXX hereby assigns to EMPLOYER
any rights XXXXXXXXXX may have or acquire in Proprietary Information or Rights
pertaining to the Proprietary Information. XXXXXXXXXX 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. XXXXXXXXXX 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. XXXXXXXXXX'x obligation to assist
EMPLOYER or any person designated by it in obtaining and enforcing Rights
relating to Proprietary Information shall continue beyond the cessation of his
employment. It is provided, however, that EMPLOYER shall compensate XXXXXXXXXX
at a reasonable rate after the cessation of employment for time actually spent
by XXXXXXXXXX upon EMPLOYER's request for such assistance. In the event that
EMPLOYER is unable, after reasonable effort, to secure XXXXXXXXXX'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, XXXXXXXXXX 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 XXXXXXXXXX.
(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, XXXXXXXXXX will keep in
strictest confidence and trust all Proprietary Information, and XXXXXXXXXX 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
7
8
in the ordinary course of performing his duties as an employee of EMPLOYER.
XXXXXXXXXX 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. XXXXXXXXXX agrees that XXXXXXXXXX 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 XXXXXXXXXX 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) XXXXXXXXXX agrees that all material or other original
works of authorship written, created, or developed by XXXXXXXXXX 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 XXXXXXXXXX'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 Copyright Act (17 U.S.C. Section 101), and shall
be the sole and absolute property of EMPLOYER, its successors and assigns, and
XXXXXXXXXX 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) XXXXXXXXXX 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
XXXXXXXXXX, 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, XXXXXXXXXX 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
8
9
employment and after the cessation of employment, XXXXXXXXXX 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, XXXXXXXXXX
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, XXXXXXXXXX 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) XXXXXXXXXX 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 used by EMPLOYER in its operations. In the event of
his breach of those obligations, XXXXXXXXXX therefore agrees that EMPLOYER
shall be entitled to estimated or liquidated damages, as defined herein. For
each former employee of EMPLOYER whom XXXXXXXXXX solicits, diverts, recruits,
or employs in violation of this paragraph 9, and for each broker or mortgage
loan customer of EMPLOYER whom such former employee handled for EMPLOYER and
whom the former employee contacts or otherwise services or works with for his
benefit or for the benefit of anyone in privity with XXXXXXXXXX, including any
competitor of EMPLOYER or any subsidiary or affiliate of EMPLOYER with whom
XXXXXXXXXX accepts employment in breach of this paragraph 9, XXXXXXXXXX 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 former employer with EMPLOYER, and (ii) the
amount of cost to EMPLOYER to recruit and train a replacement for each such
former employee plus the first six (6) month's salary paid to the
replacement(s) for the former employee. If the former 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 former employee.
XXXXXXXXXX further agrees that the cost to recruit and train
9
10
replacement(s) for each former employee as described in this paragraph 9 will
be part of EMPLOYER's damages and that the profit formula for former employees
who had broker or mortgage loan business contact, and the first six (6) months
salary paid to the replacement(s) for former employees, are conservative
estimates of the value, or a portion of the value, of the former 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 XXXXXXXXXX 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.
(b) This Agreement shall inure to the benefit of, and be
enforceable by, XXXXXXXXXX'X personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
XXXXXXXXXX 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:
10
11
If to EMPLOYER:
Pacific United Group, 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
Pacific United Group, Inc.
00000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Attention: Board of Directors
If to XXXXXXXXXX:
Xxxxxx X. Xxxxxxxxxx
__________________________
__________________________
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 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. XXXXXXXXXX shall be
11
12
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 XXXXXXXXXX, 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.
"XXXXXXXXXX"
________________________________
XXXXXX X. XXXXXXXXXX
"EMPLOYER"
PACIFIC UNITED GROUP, INC.
By: _____________________________
Title:___________________________
12
