EXHIBIT 10.10
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), entered into as of the 25th
day of April, 1997, by and between WESTMARK MORTGAGE CORPORATION, a California
corporation (the "Company"), and PAYTON STORY ("Executive").
W I T N E S S E T H:
WHEREAS, Company desires to employ Executive as provided herein; and
WHEREAS, Executive 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. Company hereby employs Executive and Executive hereby
accepts employment with Company upon the terms and conditions hereinafter set
forth.
2. DUTIES. Subject to the power of the Board of Directors of Company to
elect and remove officers, Executive will serve Westmark Mortgage Corporation as
its President 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 Executive's area of expertise. Executive will, during the term of this
Agreement (or any extension thereof), devote his full business time, attention
and skills and best efforts to the promotion of the business of Company. The
foregoing will not be construed as preventing Executive from making investments
in other businesses or enterprises provided that (a) Executive agrees not to
become engaged in any other business activity that interferes with his ability
to discharge his duties and responsibilities to Company and (b) Executive does
not violate any other provision of this Agreement.
3. TERM. Subject to the terms and conditions hereof, the term of
employment of Executive will commence as of the date hereof (the "Commencement
Date") and will end on that date in the year, 2000, 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, the Company may offer to extend the term for additional one (1) year terms
at its election ("Extended Term"), written notice of which must be given at
least sixty (60) days prior to the end of such preceding term. In the event the
Company does not offer to extend the Term of this Agreement, Executive shall be
entitled to severance pay equal to six months Salary as defined below.
4. COMPENSATION AND BENEFITS DURING THE EMPLOYMENT TERM.
(a) SALARY. Commencing upon the date of this Agreement, Executive
will be paid the first year an annual base salary of $126,000, the second year
an annual base salary of $138,000, the third year an annual base salary of
$150,000, payable in accordance with the then current payroll
policies of Company 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 Company after
a review of Executive's performance of his duties hereunder. Executive will not
be entitled to receive sales commissions.
(b) AUTOMOBILE ALLOWANCE. In addition to the Executive's salary, the
Executive shall receive a $400 per month car allowance. The Company shall also
pay all expenses and insurance relevant to the use of the automobile. The
Company shall provide the Executive with the use of a cellular telephone and the
use of a home personal computer.
(c) INCENTIVE STOCK OPTIONS. On the Commencement Date, the Company
and the Executive shall enter into a Stock Option Agreement (the "Stock Option
Agreement") pursuant to which the Company shall grant to the Executive options
(the "Options") as follows:
(i) 100,000 shares of Common Stock at the exercise price of
$1.00 per share after the first year provided, however, that said stock option
grant is expressly conditioned upon and subject to either the achievement by the
Company of net income for said period of $2,150,000 or an average closing bid
price for the common stock of the Company of $2.00 or more for the thirty days
prior to the vesting date of one year.
(ii) 50,000 shares of Common Stock at the exercise price of
$1.25 per share after eighteen months provided, however, that said stock option
grant is expressly conditioned upon and subject to either the achievement by the
Company of net income for months 13 through 18 of $1,343,750 or an average
closing bid price for the common stock of the Company of $2.25 or more for the
thirty days prior to the vesting date of eighteen months.
(iii) 100,000 shares of Common Stock at the exercise price of
$1.50 per share after twenty-four months provided, however, that said stock
option grant is expressly conditioned upon and subject to either the achievement
by the Company of net income for months 13 through 24 of $2,687,500 or an
average closing bid price for the common stock of the Company of $2.50 or more
for the thirty days prior to the vesting date of twenty-four months.
(iv) 50,000 shares of Common Stock at the exercise price of
$1.75 per share after thirty months provided, however, that said stock option
grant is expressly conditioned upon and subject to either the achievement by the
Company of net income for months 25 through 30 of $1,679,687 or an average
closing bid price for the common stock of the Company of 2.8125 or more for the
thirty days prior to the vesting date of thirty months.
(v) 100,000 shares of Common Stock at the exercise price of
$2.00 after thirty-six months provided, however, that said stock option grant is
expressly conditioned upon and subject to either the achievement by the Company
of net income for months 25 through 36 of $3,359,375 or an average closing bid
price for the common stock of the Company of 3.125 or more for the thirty days
prior to the vesting date of thirty-six months. The Options shall be issued
pursuant to the Company's 1994 Stock Option Plan (the "Plan"), a copy of which
is attached hereto, marked Exhibit "A" and by this reference made a part hereof.
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(vi) NET INCOME. For the purpose of this paragraph, the term
"net income" shall be defined to mean gross revenue less current expenses in
accordance with G.A.A.P. (Generally Accepted Accounting Principles).
(d) EXPENSES. Upon submission of a detailed statement and reasonable
documentation, Company will reimburse Executive in the same manner as other
executive officers for all reasonable and necessary or appropriate out-of-pocket
travel and other expenses incurred by Executive in rendering services required
under this Agreement.
(e) BENEFITS; INSURANCE.
(i) MEDICAL, DENTAL AND VISION BENEFITS. During this
Agreement, Executive and his dependents will be entitled to receive such group
medical, dental, and vision benefits as Company is providing to its other
executives and employees.
(ii) BENEFIT PLANS. The Executive will be entitled to
participate in any benefit plan or program of the Company which may currently be
in place or implemented in the future.
(iii) OTHER BENEFITS. During the Term, Executive 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 Company
currently provides or such additional benefits as Company may provide for its
executive officers in the future. The board of directors of the Company shall
promulgate a bonus plan for Executive and key personnel of the Company within
thirty days of the date of this Agreement or the close of the pending capital
raise transaction, whichever event shall first occur.
(f) VACATION. Executive will be entitled to four weeks of paid
vacation per year.
5. CONFIDENTIALITY. In the course of the performance of Executive's duties
hereunder, Executive recognizes and acknowledges that Executive may have access
to certain confidential and proprietary information of Company or any of its
affiliates. Without the prior written consent of Company, Executive 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 Executive's own
behalf or on behalf of any other party. Executive agrees and affirms that all
such information is the sole property of Company and that at the termination
and/or expiration of this Agreement, at Company's written request, Executive
shall promptly return to Company any and all such information so requested by
Company.
The provisions of this Section 5 shall not, however, prohibit
Executive 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 Executive;
(b) has been furnished or made known to Executive by third parties
(other than those acting directly or indirectly for or on behalf of Executive)
as a matter of legal right without restriction on its use or disclosure;
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(c) was in the possession of Executive prior to obtaining such
information from Company 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 Executive from and against any and all
claims, demands, liabilities, damages, losses 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 gross negligence.
7. TERMINATION. A termination of this Agreement is either (i) for the
death or disability under section 7 (a) or 7 (b); (ii) with cause under Section
7 (c); or (iii) for good reason under Section 7 (d). All other terminations
shall be considered a breach of this Agreement.
(a) DISABILITY. The Company shall have the right to terminate the
employment of the Executive under this Agreement for disability in the event
Executive suffers an injury, illness, or incapacity of such character as to
substantially disable him from performing his duties without reasonable
accommodation by the Company hereunder for a period of more than one hundred
eighty (180) consecutive days upon the Company giving at least thirty (30) days
written notice of termination; provided, however, that if the Executive is
eligible to receive disability payments pursuant to a disability policy paid for
by the Company, the Executive shall assign such benefits to the Company for all
periods as to which he is receiving full payment under this Agreement.
(b) DEATH. This Agreement will terminate on the Death of the
Executive.
(c) WITH CAUSE. The Company may terminate this Agreement at any time
because of (i) Executive's material breach of any term of this Agreement, or
(ii) the willful engaging by the Executive in misconduct which is materially
injurious to the Company provided, in each instance, that the Company shall not
terminate this Agreement pursuant to the foregoing, unless the Company shall
first have delivered to the Executive a notice which specifically identifies
such breach or misconduct and the Executive shall have cured the same within
thirty days after receipt of such notice. In addition, the Company may terminate
this Agreement at any time in the event the Executive is convicted of committing
any acts of dishonesty or is determined by a court or jury either in a criminal
or civil proceeding, to have committed any fraudulent acts.
(d) GOOD REASON. The Executive may terminate his employment for
"Good Reason" if:
(i) he is assigned, without his express written consent, any
duties inconsistent with his positions, duties, responsibilities, or status with
the Company as of the date hereof, or a change in his reporting responsibilities
or titles in effect as of the date hereof.
(ii) his compensation is reduced;
(iii) the Company shall file a petition in bankruptcy or
re-organization under the federal bankruptcy statutes or an involuntary petition
is filed against the Company and not removed or
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withdrawn within thirty (30) days, or the Company does not pay any salary or
expense due hereunder and then fails either to pay such amount within thirty
days after written notice from Executive, or to contest in good faith such
notice. Further, if such contest is not resolved within thirty (30) days, the
Company shall submit such dispute to arbitration under Section 13;
(iv) the Company commits any material breach of this
Agreement, which breach is not cured by the company within thirty (30) days of
written notice of said breach from Executive;
(v) in the event Executive terminates his employment for good
reason as herein above set forth, Executive shall be entitled to six months
severance pay equal to six months salary as defined herein above, together with
any other compensation or benefits which may have accrued up to and including
the date of termination.
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 Company: Westmark Group Holdings, Inc.
355 N. E. Fifth Avenue, Suite 4
Delray Beach, Florida 33483
Attention: Board of Directors
If to Executive: Payton Story
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
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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, 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. ARBITRATION. If a dispute should arise regarding this Agreement, all
claims, disputes, controversies, differences or other matters in question
arising out of this relationship shall be settled finally, completely, and
conclusively in accordance with the substantive law of the State of Florida by
arbitration, in accordance with the Commercial Arbitration Rules of the American
Arbitration Association (the "Rules"). A decision of the arbitrator shall be
final, conclusive and binding on the Company and Executive. Any arbitration held
in accordance with this paragraph shall be private and confidential and no
person shall be entitled to attend the hearings except the arbitrator,
Executive, Executive's attorneys, a representative of the Company, the Company's
attorneys, and advisors to or witnesses for any party. The matters submitted to
arbitration, the hearings and proceedings and the arbitration award shall be
kept and maintained in the strictest confidence by Executive and the Company and
shall not be discussed, disclosed or communicated to any persons except as may
be required for the preparation of expert testimony. On request of any party,
the record of the proceeding shall be sealed and may not be disclosed except
insofar, and only insofar, as may be necessary to enforce the award of the
arbitrator and any judgement enforcing an award. The prevailing party shall be
entitled to recover reasonable and necessary attorneys' fees and costs from the
non-prevailing party and the determination of such fees and costs and the award
thereof shall be included in the claims to be resolved by the arbitrator
hereunder.
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.
17. VENUE, JURISDICTION, AND GOVERNING LAW. This Agreement has been
negotiated and entered into in the State of Florida. The validity,
interpretation, construction, and enforcement of this Agreement shall be
construed, interpreted, and governed pursuant to Florida law. Venue, in the
event of any arbitration proceedings, shall be the County of Palm Beach, State
of Florida.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the day and year first above written.
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COMPANY:
WESTMARK MORTGAGE CORPORATION
By: _________________________
Name: _______________________
Title: ______________________
EXECUTIVE:
_____________________________
PAYTON STORY
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