EXHIBIT 10.9
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement"), entered into as of the 31st
day of March, 1996, by and between WESTMARK GROUP HOLDINGS, INC., a Colorado
corporation, and WESTMARK MORTGAGE CORPORATION, a California corporation
(collectively referred to as "Employer"), and NORMAN J. BIRMINGHAM ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as provided herein; and
WHEREAS, Employee desires to accept such employment.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby
accepts employment with Employer upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Employer to
elect and remove officers, Employee will serve Westmark Group Holdings, Inc. as
its President and Chief Executive Officer and will faithfully and diligently
perform the services and functions relating to such offices or otherwise
reasonably incident to such offices, provided that all such services and
functions will be reasonable and within Employee's area of expertise. Employee
will, during the term of this Agreement (or any extension thereof), devote
one-half of his full business time, attention and skills and best efforts to the
promotion of the business of Employer. The foregoing will not be construed as
preventing Employee from making investments in other businesses or enterprises
provided that (a) Employee agrees not to become engaged in any other business
activity that interferes with his ability to discharge his duties and
responsibilities to Employer and (b) Employee does not violate any other
provision of this Agreement. The parties acknowledge that Employee shall spend
the other half of his business time and efforts as an officer of Heart Labs of
America, Inc.
3. TERM. The term of this Agreement will commence as of the date hereof
and will end on that date in the year, 1999, unless earlier terminated by either
party pursuant to the terms hereof. The term of this Agreement is referred to
herein as the "Term." Assuming all conditions of this Agreement have been
satisfied and there has been no breach of the Agreement during its initial term,
Employee may extend the term for additional one (1) year terms at his election
("Extended Term"), written notice of which must be given at least sixty (60)
days prior to the end of such preceding term.
4. COMPENSATION. As compensation for the services rendered under this
Agreement, Employee will be entitled to receive the following:
(a) SALARY. Commencing upon the date of this Agreement, Employee
will be paid a minimum annual salary of $87,500.00, payable in accordance with
the then current payroll policies of Employer or as otherwise agreed to by the
parties (the "Salary"). At any time and from time to time the Salary may be
increased for the remaining portion of the term if so determined by the Board of
Directors of Employer after a review of Employee's performance of his duties
hereunder.
(b) OPTIONS. Commencing on the date of this Agreement, Employee
shall be issued a five year option to purchase 45,000 shares of common stock of
the Company, all of which shares shall vest immediately and will be exercisable
throughout the term at a price of $2.25 per share. Employee shall be issued an
option to purchase an additional 45,000 shares at a price of $2.25 per share
which shall vest in the following manner: if the Company reaches or exceeds
$480,000.00 of net income, after tax, for fiscal year 1996, all of the options
vest, and become exercisable on April 15, 1997. If the Company fails to meet the
earnings threshold, the options will vest on a pro rata basis (for example, if
the Company earns $240,000.00 only 22,500 options shall vest). Any unvested
options will carry over to the succeeding year. The options shall expire on the
earlier of April 1, 2004 or five years from the date they become fully vested.
(c) EXPENSES. Upon submission of a detailed statement and reasonable
documentation, Employer will reimburse Employee in the same manner as other
executive officers for all reasonable and necessary or appropriate out-of-pocket
travel and other expenses incurred by Employee in rendering services required
under this Agreement.
(d) BENEFITS; INSURANCE.
(i) MEDICAL, DENTAL AND VISION BENEFITS. During this
Agreement, Employee and his dependents will be entitled to receive such
group medical, dental and vision benefits as Employer may provide to its
other employees, provided such coverage is reasonably available, or be
reimbursed if Employee is carrying his own similar insurance.
(ii) BENEFIT PLANS. The Employee will be entitled to
participate in any benefit plan or program of the Employer which may
currently be in place or implemented in the future.
(iii) OTHER BENEFITS. During the Term, Employee will be
entitled to receive, in addition to and not in lieu of base salary, bonus
or other compensation, such other benefits and normal perquisites as
Employer currently provides or such additional benefits as Employer may
provide for its executive officers in the future.
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(e) VACATION. Employee will be entitled to ________ weeks of paid
vacation per year.
5. CONFIDENTIALITY. In the course of the performance of Employee's duties
hereunder, Employee recognizes and acknowledges that Employee may have access to
certain confidential and proprietary information of Employer or any of its
affiliates. Without the prior written consent of Employer, Employee shall not
disclose any such confidential or proprietary information to any person or firm,
corporation, association, or other entity for any reason or purpose whatsoever,
and shall not use such information, directly or indirectly, for Employee's own
behalf or on behalf of any other party. Employee agrees and affirms that all
such information is the sole property of Employer and that at the termination
and/or expiration of this Agreement, at Employer's written request, Employee
shall promptly return to Employer any and all such information so requested by
Employer.
The provisions of this Section 5 shall not, however, prohibit
Employee from disclosing to others or using in any manner information that:
(a) has been published or has become part of the public domain other
than by acts, omissions or fault of Employee;
(b) has been furnished or made known to Employee by third parties
(other than those acting directly or indirectly for or on behalf of Employee) as
a matter of legal right without restriction on its use or disclosure;
(c) was in the possession of Employee prior to obtaining such
information from Employer in connection with the performance of this Agreement;
or
(d) is required to be disclosed by law.
6. INDEMNIFICATION. The Corporation shall to the full extent permitted by
law indemnify, defend and hold harmless Employee from and against any and all
claims, demands, liabilities, damages, loses and expenses (including reasonable
attorney's fees, court costs and disbursements) arising out of the performance
by him of his duties hereunder except in the case of his willful misconduct.
7. TERMINATION. This Agreement and the employment relationship created
hereby will terminate upon the occurrence of any of the following events:
A. TERMINATION WITHOUT CAUSE BY THE COMPANY. The Company may terminate the
Employee's employment pursuant to the terms of this Agreement without cause by
written notice to the Employee. Such termination will become effective upon the
date specified in such notice, provided that such date is at least 60 days from
the date of such notice. In the
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event of such termination, the Company shall pay the Employee an amount equal to
twelve months salary and all stock options shall vest immediately.
B. TERMINATION WITH CAUSE BY THE COMPANY. The Company may terminate the
Employee's employment pursuant to the terms of this Agreement at any time for
cause by giving written notice of termination, and termination will become
effective upon the giving of such notice. However, Employee will not be deemed
to have been terminated "for cause" unless at least two-thirds of the members of
the Board of Directors of Westmark Group Holdings, Inc. so determine. Upon any
such termination for cause for any period subsequent to the effective date of
termination, the Employee shall have no right to compensation or stock options
under Section 4 or participate in any employee benefit programs which may then
be in effect.
For purposes of Section 7(B), "Just Cause" means (i) Employee has
willfully, intentionally and continuously failed to substantially perform his
duties as specified under this Agreement, after a demand for substantial
performance is delivered to the Employee by the Employer which specifically
identifies the manner in which Employer believes Employee has not substantially
performed has duties; (ii) Employee has willfully engaged in gross misconduct
materially and demonstrably injurious to the Employer; (iii) the Employee
commits acts of dishonesty or disloyalty to Employer or misappropriates Company
funds or otherwise defrauds the Company: (iv) the Employee materially breaches
any provision of Section 5 of this Agreement; (v) material failure by Employee
to comply with applicable laws or government regulations; or (vi) Employee's
criminal conviction by any state or federal court of a felony.
In the case of termination for items (i), (ii) or (iii) of the preceding
paragraph, Employee shall be given at least one (1) written notice describing in
reasonable detail the perceived deficiencies in Employee's performance, and
Employee shall be given at least thirty (30) days' opportunity to correct such
perceived deficiencies prior to any termination.
C. DEATH OR DISABILITY. This Agreement and the obligations hereunder will
terminate upon the death or disability of the Employee. For purposes of this
Section 7C, "Disability" shall mean for a period of three months in any twelve
month period the Employee is incapable of substantially fulfilling the duties
set forth in Section 2 of this Agreement because of physical, mental or
emotional incapacity resulting from injury, sickness or disease. Upon any such
termination upon death or disability, the Company will pay the Employee or his
legal representative, as the case may be, his annual salary at such time
pursuant to Section 4 through the date of such termination of employment.
D. CONTINUING EFFECT. Notwithstanding any termination of the Employee's
employment as provided in this Section 7, the provisions of Section 5 shall
remain in full force and effect.
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E. CONSIDERATION. The payments (if any) required to be paid by the Company
to Employee pursuant to Section 7 shall be in full and complete satisfaction of
any and all obligations owing to Employee under this Agreement.
8. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
9. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorney's fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
10. NOTICES. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
will be deemed to have been duly given if given in writing and personally
delivered or within two days if sent by mail, registered or certified, postage
prepaid with return receipt requested, as follows:
If to Employer: Westmark Group Holdings, Inc.
355 N. E. Fifth Avenue, Suite 4
Delray Beach, Florida 33483
Attention: Board of Directors
If to Employee: Norman J. Birmingham
355 N.E. Fifth Avenue, Suite 4
Delray Beach, Florida 33483
Notices delivered personally will be deemed communicated as of actual receipt.
11. ENTIRE AGREEMENT. This Agreement and the agreements contemplated
hereby constitute the entire agreement of the parties regarding the subject
matter hereof, and supersede all prior agreements and understanding, both
written and oral, among the parties, or any of them, with respect to the subject
matter hereof.
12. SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
this Agreement, such provision will be fully severable and this Agreement will
be construed and enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions hereof will remain
in full force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore,
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in lieu of such illegal, invalid or unenforceable provision there will be added
automatically as part of this Agreement a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
13. GOVERNING LAW. This Agreement and the rights and obligations of the
parties will be governed by and construed and enforced in accordance with the
substantive laws (but not the rules governing conflicts of laws) of the state of
Florida.
14. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
15. GENDER AND NUMBER. When the context requires, the gender of all words
used herein will include the masculine, feminine and neuter and the number of
all words will include the singular and plural.
16. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
EMPLOYER:
WESTMARK GROUP HOLDINGS, INC.
By__________________________________________
Name:
Title:
EMPLOYEE:
NORMAN J. BIRMINGHAM
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