EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into this 30th day
of September, 1996, by and between FIRST MORTGAGE CORPORATION, a California
Corporation ("Employer") and CLEMENT ZIROLI ("Employee").
RECITAL
Employee presently serves as Chief Executive Officer and a member and
Chairman of Employer's Board of Directors (the "Board"). Employer and Employee
desire to set forth herein their agreement regarding the terms and conditions
upon which Employee shall henceforth serve as Chief Executive Officer and as a
member and Chairman of the Board which such terms and conditions are consistent
with the performance goals heretofore established by Compensation Committee of
Employer (the "Committee").
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which hereby is acknowledged, Employer
and Employee hereby agree as follows:
1. Employment, Term of Employment. Employer hereby employs Employee, and
Employee hereby accepts employment ("Employment") with Employer, in accordance
with the terms and conditions of this Agreement. The term of Employee's
Employment (the "Term of Employment") shall commence on the first day of
October, 1996 and end on the 31st day of March, 1997, unless otherwise
terminated, pursuant to the provisions of Agreement.
In the event Employer and Employee have not entered into a new Agreement
for the fiscal year beginning April 1, 1997, the terms of this Agreement will
continue in full force and effect on a month to month term until a new
Employment Agreement is executed by the parties or Employment is otherwise
terminated.
2. Position, Duties, Authority and Exclusivity of Services.
2.1 Position. During the term of Employment, Employee shall serve as
the Chief Executive Officer and as a member and Chairman of the Board. Upon the
request of the Board, Employee shall also serve, without additional
remuneration, as Chief Executive Officer and as a member of the Board of
Directors of any direct or indirect subsidiaries of Employer specified by the
Board.
2.2 Location of Employee's Performance. The principal location in which
Employee shall be required to perform his duties hereunder shall be the
principal business office of Employer in Diamond Bar, California, or in such
other place as such principal business office may be relocated with Employee's
prior written consent. Employer shall provide Employee with an office and
working facilities that are customary for an officer in Employee's position and
that are sufficient to enable Employee to perform his duties hereunder.
2.3 Duties and Authority. Employee's duties hereunder shall be the
usual and customary duties of the offices in which he shall serve and shall not
be inconsistent with the provisions of the charter documents of Employer or
applicable law. Employee shall have such executive power and authority as is
customary for an officer in his position and is reasonably required to enable
him to perform his duties hereunder.
2.4 Exclusivity of Services . Employee shall devote himself to the
performance of his duties hereunder with a level of diligence commensurate with
Employee's position. So long as Employee does not violate the noncompetition or
confidentiality provisions as provided for within this Agreement or fail to
perform his duties hereunder, Employee shall be entitled to (i) to serve in any
capacity with any other business or professional organization, civic,
educational or any governmental entity or professional or trade association and
(ii) to make and manage personal business investments of his choice and of any
kind. Employee shall not be required to obtain Board approval in order to
engage in the activities described in the preceding sentence.
3. Compensation.
3.1 Base Salary. Payment for services rendered during the Term of
Employment, paid to Employee, shall be computed upon a base annual salary (the
"Base Salary") of not less than $370,000 per annum, payable in semi-monthly or
monthly installments. If Employee is entitled to receive Base Salary for any
period that is less than one calendar month, the Base Salary for such period
shall be computed by prorating the annual Base Salary over such period based
upon the actual number of days therein. The Board and the Compensation
Committee shall review the Base Salary not later than sixty days prior to the
expiration of this Agreement for the purpose of determining whether a merit
increase is
appropriate based upon Employer's performance and the performance of Employee.
3.2 Bonuses.
(1) During the term of this Employment Agreement which is the
1997 fiscal year ending March 31, 1997, the Employee shall be entitled to
receive an annual cash bonus (the "Bonus"), based upon the formula established
by the Committee which is set forth in Exhibit "A" attached hereto and made a
part hereof.
The combined Bonus as hereinabove set forth is payable by Employer to
Employee upon the issuance of the Audited Financial Statements at the close of
the corporate fiscal year but in no event later than ninety days following the
close of the corporate fiscal year. Provided, however, based upon financial
information then available, Employee will be paid a sum equal to one-twelfth (1
/ 12) of the estimated combined Bonus at the end of each calendar month during
the term of this Agreement, or any extension thereto as an advance payment,
provided further, that within the sole discretion of the Board a reserve amount
may be deducted from any such advance payment or payments pending final Bonus
accounting after the termination of this Agreement.
4. Employee Benefits, During the Term of Employment, Employee shall be
entitled to receive all rights and benefits (collectively referred to herein as
"Benefits") for which he is otherwise eligible under any profit-sharing plan,
health and welfare plan, life, disability or medical insurance plan or policy or
other employee benefit plan that Employer provides from time to time for senior
officers, provided that, as minimum Benefits (1) Employer shall provide Employee
with health insurance and with a right to participate in a stock option plan, a
qualified profit-sharing plan, in each instance with terms at least as favorable
as those currently received by Employee, and (ii) Employer shall maintain, and
pay all premiums on, a Term Life Insurance Policy on Employee's life, such
policy to be in an amount of at least $1,000,000 and the beneficiary thereof to
be Employer (the "Term Life Insurance Policy"). Upon the termination of
Employees' Employment for any reason other than death, the said Term Life
Insurance Policy shall be cancelled.
5. Expense Reimbursement, Vacations and Perquisites.
5.1 Business Expense Reimbursement. Provided that Employee properly
accounts therefor, Employee shall be entitled to receive full reimbursement for
all reasonable out-of-pocket expenses (regardless of whether such expenses are
deductible by Employer) incurred by him during the Term of Employment in
accordance with the policies and procedures established by Employer. Employer
shall remain obligated to reimburse Employee for such expenses upon the
termination of Employee's Employment for any reason.
5.2 Vacations. Employee shall be entitled to receive whatever paid
vacations are provided to Employer's other senior officers, provided that
Employee shall be entitled to a minimum of four weeks paid vacation during each
calendar year of Employment, prorated for any period that is less than one
calendar year. Vacation time shall accrue on a daily basis during each calendar
year and, upon the termination of Employee's Employment for any reason, Employee
shall be entitled to be paid an amount based upon his Base Salary at the rate
applicable immediately prior to such termination for any accrued by unused
vacation time.
5.3 Perquisites.
(a) During the Term of Employment, Employer shall provide
Employee with full-time use of, and shall reimburse Employee for all reasonable
expenses incurred by Employee in connection with, the company automobile
currently being used by Employee. Employer shall also, at its expense, replace
such automobile with an automobile of comparable quality as and when deemed
appropriate by the Board and pay all such reasonable expenses thereon.
(b) During the Term of Employment, Employee shall be entitled to
receive all other perquisites that Employer provides from time to time for
senior officers. At any time during the Term of Employment, Employer may
increase any one or more of such additional perquisites but may not reduce any
of such perquisites from then existing levels unless such reduction applies to
all senior officers.
(c) Employee's right to receive perquisite shall cease upon the
termination of his Employment for any reason.
6. Termination of Employment.
6.1 General. This Section 6 describes the consequences of a
termination of Employee's Employment, provided that all other provisions of this
Agreement shall continue to govern Employer and Employee after such termination
of Employment unless otherwise provided herein.
6.2 Employee's Voluntary Termination of Employment. Employee shall
have the right at any time during the Term of Employment, upon not less than
ninety days prior written notice to Employer, to terminate his Employment.
Employee's right to receive Base Salary, Benefits, vacation time and perquisites
shall cease as of the date of such Employment termination, subject to any earned
but unpaid Base Salary and Bonuses pursuant to Section 3.2 which said Bonuses,
if any, shall be payable at the time set forth in said Section 3.2 that may be
due prorated to the date of termination. Employee's termination of his
Employment by reason of his Disability (Section 6.3) shall not be regarded as a
voluntary termination of Employment within the meaning of this Section 6.2.
6.3 Employee's Disability or Death.
(a) If Employee suffers a "Disability", either Employer or
Employee may terminate Employee's Employment by giving the other party at least
thirty days' prior written notice of such termination, and such Employment shall
automatically terminate as of the expiration of such notice period unless
Employee resumes full-time performance of his duties hereunder prior to the
expiration of such period. For purposes of this Agreement, the term
"Disability" means a physical or mental disability of Employee, as certified in
a written statement from a physician mutually approved by Employer and Employee,
that results in Employee being unable to perform his duties hereunder on a full-
time basis for (i) 120 consecutive days, or (ii) 180 days (regardless of whether
such days are consecutive) during the term of this Agreement.
(b) If Employee's Employment terminates by reason of his
Disability or death, Employee (or, in the event of his death, Employee's estate
and beneficiaries) shall be entitled to receive any earned but unpaid Base
Salary, Bonus and vacation time accrued to date of death.
6.4 Employer's Termination of Employment for Cause.
(a) Employer shall be entitled to terminate Employee's
Employment at any time for "Cause", which shall mean a termination of Employment
by reason of (i) Employee's conviction of a felony, (ii) Employee's willful and
continued failure to perform his duties hereunder, or (iii) Employee's willful
and gross misconduct that is materially and demonstrably injurious to Employer,
provided that Employee's inability to perform his duties because of a Disability
shall not constitute a basis for Employer's termination of Employee's Employment
for Cause. Notwithstanding the foregoing, Employee's Employment shall not be
subject to termination for Cause without (i) Employer's delivery to Employee a
notice of intention to terminate, such notice to describe the reasons for the
proposed Employment termination and actual termination date, (ii) an opportunity
for Employee within the period prior to his proposed termination to cure any
such breach (if curable) giving rise to the proposed termination, (iii) an
opportunity for Employee, together with his counsel, to be heard before the
Board, and (iv) Employer's delivery to Employee of a notice of termination
stating that a majority of the authorized number of Employer's directors has
found that Employee was guilty of the conduct described above and specifying the
particulars thereof.
(b) Upon the effective date of the termination of Employee's
Employment for Cause, Employee's right to receive Base Salary, Bonuses,
Benefits, vacation time and perquisites shall cease. Subject, however, to such
sums as may be due as provided for in Section 6.2.
7. Confidentiality; Competition.
7.1 Confidentially. Employee shall at no time, either during his
Employment or following the termination of his Employment for any reason, use or
disclose to any person, directly or indirectly, any business secret, customer
list or other confidential information concerning the business or policies of
Employer or of any direct or indirect subsidiary of Employer, except to the
extent that such use or disclosure is (i) necessary to the performance of
Employee's Employment hereunder, (ii) required by applicable law, (iii)
authorized by Employer, or (iv) lawfully obtainable from other sources. Upon
the termination of his Employment, Employee shall return to Employer all
memoranda, notes and other documents in
his possession that relate to the business secrets, customer lists and other
confidential information of Employer and Employer's direct and indirect
subsidiaries.
7.2 Competition During the Term of Employer's Employment.
(a) During his Employment, Employee shall not, directly or
indirectly (as owner, principal, agent, partner, officer, employee, independent
contractor, consultant, shareholder or otherwise), compete in any manner with
the business then being conducted by Employer or any direct or indirect
subsidiary of Employer.
(b) The provisions of Section 7.2(a) hereof shall not in any
manner be construed as prohibiting Employee from serving in any capacity with
any civic, educational or charitable organization or any governmental entity or
professional or trade association.
7.3 Unfair Competition After the Term of Employer's Employment.
For the one-year
period immediately following the termination of his Employment for any reason
other than a
termination without Cause (Section 6.5) or a constructive termination (Section
6.6), in order to
prevent Employee from competing unfairly with Employer, Employee shall not,
directly or indirectly (as owner, principal, agent, partner, officer, employee,
independent contractor, consultant, shareholder or otherwise) (i) solicit for
the purpose of hiring any employee or consultant of Employer or of any direct or
indirect subsidiary of Employer, or (ii) solicit for the purpose of providing
any services to, or cause any other person to solicit for the purpose of
providing any services to, any client or customer of Employer or of any direct
or indirect subsidiary of Employer.
7.4 Remedies. Employee acknowledges that damages would be an
inadequate remedy for his breach of any of the provisions of
Sections 7.1, 72 or 7.3 hereof, and that his breach of any of
such provisions will result in immeasurable and irreparable
harm to Employer.
Therefore, in addition to any other remedy to which Employer may be entitled by
reason of Employee's breach of any such provision, Employer shall be entitled to
seek and obtain temporary, preliminary and permanent injunctive relief from any
court of competent jurisdiction restraining Employee from committing or
continuing any breach of any provision of Section 7 1, 7.2 or Z 3.
8. General Provisions.
8.1 Indemnification. To the extent permitted by applicable law and
the Articles of Incorporation and Bylaws of Employer (as from time to time in
effect), Employer shall indemnify Employee and hold him harmless with respect to
any and all acts or decisions made by him in good faith while performing
services for Employer, regardless of whether such services were performed prior
to the date of this Agreement or during the Term of Employment. To the same
extent, Employer shall pay on a current basis all expenses, including, without
limitation, reasonable attorneys' fees and the amounts of court approved
settlements, actually incurred by Employee in connection with any appeal
thereon, which has been and/or may be brought against Employee by reason of
Employee's service for Employer. Employee shall be protected to the same extent
as Employer's other officers under any officers' and directors' liability
insurance policies that Employer may, in its sole discretion, purchase. The
foregoing obligations of Employer shall survive the termination of Employee's
Employment for any reason.
8.2 Notices. All notices and other communications required or
permitted by this Agreement shall be delivered to Employer or Employee, as the
case may be, in writing, either personally, by facsimile transmission or by
registered, certified or express mail, return receipt requested, postage
prepaid, to the address for such party specified below or to such other address
as Employer or Employee may from time to time advise the other party, and shall
be deemed given and received as of actual personal delivery or on the date of
delivery shown on any such transmission or return receipt:
If to Employer:
First Mortgage Corporation
3530 Fallowfield Drive
Diamond Bar, CA 91765
Attention: Board of Directors
If to Employee:
Clement Ziroli
23615 Falcons View
Diamond Bar, CA 91765
8.3 Amendments and Termination; Entire Agreement. This Agreement may be
amended or terminated only by a writing executed by Employer and Employee. This
Agreement constitutes the entire agreement or Employer and Employee relating to
the subject matter hereof and supersedes all prior oral and written
understandings and agreements relating to such subject matter.
8.4 Successors and Assigns. This Agreement shall be binding upon,
and shall benefit, Employer and Employee and their respective successors and
assigns. Without the prior written consent of the other party, neither Employer
nor Employee shall assign any of such party's obligations hereunder.
8.5 Calculation of Time. Wherever in this Agreement a period of time
is stated in a number of days, it shall be deemed to mean calendar days.
However, when any period of time so stated would end upon a Saturday, Sunday or
legal holiday, such period shall be deemed to end upon the next day following
that is not a Saturday, Sunday or legal holiday.
8.6 Further Assurances. Each party shall perform any further acts
and execute and deliver any further documents that may be reasonably necessary
or advisable to carry out the provisions of this Agreement.
8.7 Provisions Subject to Applicable Law. All provisions of this
Agreement shall be applicable only to the extent that they do not violate any
applicable law, and are intended to be limited to the extent necessary so that
they will not render this Agreement invalid, illegal or unenforceable under any
applicable law. If any provision of this Agreement or any application thereof
shall be held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of other provisions of this Agreement or of any other
application of such provision shall in no way be affected thereby.
8.8 Waiver of Rights. Neither party shall be deemed to have waived
any right or remedy that it has under this Agreement unless this Agreement
expressly provides a period of time within which such right or remedy must be
exercised and such period has expired, or unless such party has expressly waived
the same in writing. The waiver by either party of a right or remedy hereunder
shall not be deemed to be a waiver of any other right or remedy or of any
subsequent right or remedy of the same kind.
8.9 Headings: Gender and Number. The headings contained in this Agreement
are for reference purposes only and shall not affect in any manner the meaning
or interpretation of this Agreement. Where appropriate to the context of this
Agreement, use of the singular shall be deemed also to refer to the plural, and
uses of the plural to the singular, and pronouns of certain gender shall be
deemed to comprehend either or both of the other genders. The terms "hereof",
"herein", "hereby" and variations thereof shall, whenever used in this
Agreement, refer to this Agreement as a whole and not to any particular section
hereof. The term "person" refers to any natural person, corporation,
partnership or other association or entity.
8.10 Counterparts. This Agreement may be executed in two
counterparts, and by each party on a separate counterpart, each of which shall
be deemed an original, but both of which taken together shall constitute but one
and the same instrument.
8.11 Expenses Incurred in Implementing This Agreement. Employer shall
bear all costs and expenses incurred in connection with the negotiation,
preparation and interpretation of this Agreement, including, without limitation,
the fees and expenses of Employee's attorneys.
8.12 Governing Laws, Arbitration and Expenses Resulting from
Litigation. This Agreement shall be governed by, and construed and enforced in
accordance with, the internal laws of the State of California. Except with
respect to an action for injunctive relief brought by Employer in a court of
competent jurisdiction pursuant to Section 74 hereof, all disputes arising
between Employer and Employee concerning the enforcement of this Agreement shall
be submitted to arbitration, before three arbitrators, in accordance with the
Rules of the American Arbitration Association. All arbitration proceedings
shall be held in Los Angeles, California. The award of the arbitrators in any
arbitration proceeding shall be final and may be enforced in any court of
competent jurisdiction. The unsuccessful party to such arbitration proceeding
or to any court action that is permitted by this Agreement shall pay to the
successful party all costs and expenses, including, without limitation,
reasonably attorneys' fees, incurred therein by the successful party, all of
which shall be included in and as a part of the award or judgment rendered in
such proceeding or action. Notwithstanding anything to the contrary in this
Agreement, if an arbitration proceeding involving Employer's obligation to make
any payments hereunder to (or for the account of) Employee is commenced by
either Employer or
Employee, Employer shall be obligated to continue making all such disputed
payments unless and until the award of the arbitrators specifies that Employee
is not entitled to such payments, in which event Employee shall be obligated to
refund to Employer all such previously received amounts to which he is not
entitled.
IN WITNESS WHEREOF, Employer and Employee have executed and delivered this
Agreement as of the date first above written.
EMPLOYER
FIRST MORTGAGE CORPORATION
By:
Its:
EMPLOYEE: CLEMENT ZIROLI
EXHIBIT A
CLEMENT ZIROLI
(a) Loan Production Bonus
The Loan Production Bonus shall be calculated based on the following
formula:
(1) 0.005% of wholesale mortgage loan production (funding)
(2) 0.010% of retail mortgage loan production (funding)
(b) Annual Profit Bonus
The Annual Profit Bonus shall be calculated based on the following
schedule:
Annual corporate net income before income taxes Incremental bonus
Percentage
$0 $3,000,000 7.00% of this increment
$3,000,001 $5,000,000 4.75% of this increment
$5,000,001 $7,000,000 4.50% of this increment
$7,000,001 $9,000,000 4.25% of this increment
$9,000,001 $11,000,000 4.00% of this increment
$11,000,001 $13,000,000 3.75% of this increment
Over $13,000,000 3.50% of this increment
(9/96)