EXHIBIT 10.23
EMPLOYMENT AGREEMENT
This employment agreement (the "Agreement") is effective as of January
1, 2002 (the "Effective Date"), by and between AMERICAN NATIONAL FINANCIAL,
INC., a California corporation (the "Company"), and BARBARA A. FERGUSON (the
"Employee"). In consideration of the mutual covenants and agreements set forth
herein, the parties agree as follows:
1. Employment and Duties. Subject to the terms and conditions of this
Agreement, the Company employs the Employee to serve in an executive and
managerial capacity as Executive Vice President of the Company, and the Employee
accepts such employment and agrees to perform such reasonable responsibilities
and duties commensurate with the aforesaid positions as set forth in the
Articles of Incorporation and the Bylaws of the Company. Any change in such
titles or delegation of duties inconsistent with such titles shall be deemed a
Termination Without Cause under Section 7(b) of this Agreement.
2. Term. The term of this Agreement shall commence on the Effective
Date and shall continue for a period of four (4) years ending December 31, 2005,
subject to prior termination as set forth in Section 7, below (the "Term"). The
Term may be extended at any time upon mutual agreement of the parties.
3. Salary. During the Term, the Company shall pay the Employee a
minimum base annual salary, before deducting all applicable withholdings, of
$240,000 per year, payable at the times and in the manner dictated by the
Company's standard payroll policies. Such minimum base annual salary may be
periodically reviewed and increased (but not decreased) at the discretion of the
Compensation Committee of the Board of Directors to reflect, among other
matters, cost of living increases and performance results.
4. Other Compensation and Fringe Benefits. In addition to any executive
bonus, pension, deferred compensation and stock option plans which the Company
may from time to time make available to the employee upon mutual agreement, the
Employee shall be entitled to the following:
(a) The standard Company benefits enjoyed by the Company's other
top executives.
(b) Payment by the Company of the Employee's initiation and
membership dues in all social and/or recreational clubs as
deemed necessary and appropriate by the Employee to maintain
various business relationships on behalf of the Company;
provided, however, that the Company shall not be obligated to
pay for any of the Employee's personal purchases and expenses
at such club.
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(c) Provision by the Company during the Term and any extensions
thereof to the Employee and her dependents of medical and
other insurance coverage under the Company's Executive Medical
Plan.
(d) Provision by the Company of supplemental disability insurance
sufficient to provide two-thirds of the Employee's
pre-disability minimum base annual salary.
(e) Employee shall be entitled to receive an annual incentive
bonus for each calendar year included in this Agreement based
on the Company's performance during the preceding year as
determined by the Compensation Committee of the Board of
Directors. The annual bonus shall be paid no later than March
15th of the following year and is fully vested at the end of
each year in the event of a non-renewal of this Agreement by
the Company. Subject to Section 7 below, the annual bonus
shall be pro-rated for any partial employment year.
The Company shall deduct from all compensation payable under this
Agreement to the Employee any taxes or withholdings the Company is required to
deduct pursuant to state and federal laws or by mutual agreement between the
parties
5. Vacation. For and during each year of the Term and any extensions
thereof, the Employee shall be entitled to reasonable paid vacation periods
consistent with her position with the Company. In addition, the Employee shall
be entitled to such holidays consistent with the Company's standard policies or
as the Company's Board of Directors may approve.
6. Expense Reimbursement. In addition to the compensation and benefits
provided herein, the Company shall, upon receipt of appropriate documentation,
reimburse the Employee each month for her reasonable travel, lodging,
entertainment, promotion and other ordinary and necessary business expenses.
7. Termination.
(a) For Cause. The Company may terminate this Agreement
immediately for cause upon written notice to the Employee, in
which event the Company shall be obligated to pay the Employee
that portion of the minimum base annual salary due her through
the date of termination. Cause shall be limited to (i) the
persistent failure to perform duties consistent with a
commercially reasonable standard of care; (ii) the willful
neglect of duties; (iii) criminal or other illegal activities
involving dishonesty; or (iv) a material breach of this
Agreement; provided that in the event the Company shall desire
to terminate this Agreement pursuant to subsection (iv),
above, it shall first provide the Employee with notice of and
a reasonable opportunity (the time for which shall not exceed
30 days), if possible, to cure the material breach.
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(b) Without Cause. Either party may terminate this Agreement
immediately without cause by giving written notice to the
other. If the Company terminates under this Section 7(b), then
it shall pay to the Employee an amount equal to the product of
(i) the Employee's minimum annual base salary in effect as of
the date of termination, plus the greater of either (x) the
total annual bonus paid, payable, or which would have been
payable to the Employee under this Agreement (had it been in
effect) for 2001 and payable in 2002 or (y) the highest bonus
paid for any year during which this Agreement was in effect
("Base Year Bonus"), times (ii) the number of years (including
partial years) remaining in the Term or the number 3 (three),
whichever is greater. The Company shall make such payment in a
lump sum on or before the fifth day following the date of
termination, or as otherwise directed by the Employee. In
addition, all options granted to the Employee which had not
vested as of the date of termination hereunder shall vest
immediately and the Company shall maintain in full force and
effect for the continued benefit of the Employee for the
number of years (including partial years) remaining in the
Term, or 3 years, whichever is greater, all employee benefit
plans and programs in which the Employee was entitled to
participate immediately prior to the date of termination,
provided that the Employee's continued participation is
possible under the general terms and provisions of such plans
and programs. In the event that the Employee's participation
in any such plan or program is prohibited, the Company shall,
at its expense, arrange to provide the Employee with benefits
substantially similar to those which the Employee would
otherwise have been entitled to receive under suc h plans and
programs for which his continued participation is prohibited.
If the Employee terminates under this Section 7(b), then the
Company shall be obligated to pay the Employee the minimum
annual base salary due her through the date of termination.
(c) Disability. If the Employee fails to perform her duties
hereunder on account of illness or other incapacity for a
period of nine consecutive months, then the Company shall have
the right upon written notice to the Employee to terminate
this Agreement without further obligation by paying the
Employee the minimum base annual salary, without offset, for
the remainder of the Term in a lump sum or as otherwise
directed by the Employee.
(d) Death. If the Employee dies during the Term, then this
Agreement shall terminate immediately and the Employee's legal
representatives shall be entitled to receive the minimum
annual base salary for the remainder of the Term in a lump sum
or as otherwise directed by the Employee's legal
representative.
(e) Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Section 7 by
seeking other employment or otherwise, nor shall any
compensation or other payments received by
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the Employee after the date of termination reduce any payments
due under this Section 7.
(f) Effect of Termination. Termination for any reason or for no reason
shall not constitute a waiver of the Company's rights under this
Agreement nor a release of the Employee from any obligation hereunder
except his obligation to perform her day-to-day duties as an employee.
8. Severance Payment.
(a) The Employee may terminate her employment hereunder for "Good
Reason," which for purposes of this Agreement shall mean a
"change in control of the Company." A "change in control of
the Company," for purposes of this Agreement, shall be deemed
to have occurred if (i) there shall be consummated (x) any
consolidation or merger of the Company other than a
consolidation or merger of the Company in which the holders of
the Company's Common Stock immediately prior to the merger own
more than 50% of the voting securities of the surviving
corporation immediately after the merger, or (y) any sale,
lease exchange or other transfer (in one transaction or a
series of related transactions) of all, of substantially all,
of the assets of the Company, or (ii) the stockholders of the
Company approve any plan or proposal for the liquidation or
dissolution of the Company, or (iii) any "person" (such as
that term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")), other
than the Company or any "person" who, on the date hereof, is a
director or officer of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), of securities of the Company representing 30%
or more of the combined voting power of the Company's then
outstanding securities, or (iv) during any period of two (2)
consecutive years during the Term or any extensions thereof,
individuals, who, at the beginning of such period, constitute
the Board of Directors, cease for any reason to constitute at
least a majority thereof, unless the election of each director
who was not a director at the beginning of such period has
been approved in advance by directors representing at least
two-thirds of the directors then in office who were directors
at the beginning of the period.
(b) If the Employee terminates her employment for Good Reason, or,
if after a change in control of the Company, the Company shall
terminate the Employee's employment in breach of this
Agreement or pursuant to Section 7(b), then:
(i) The Company shall pay the Employee her minimum base
annual salary due her through the date of
termination.
(ii) In lieu of any further salary and bonus payments or
other payments due to the Employee for periods
subsequent to the date
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of termination, the Company shall pay, as severance
to the Employee, an amount equal to the product of
(A) the Employee's minimum base annual salary in
effect as of the date of termination plus the Base
Year Bonus, multiplied by (B) the number of years
(including partial years) remaining in the Term or
the number 3 (three), whichever is greater.
(iii) All options granted to the Employee which had not
vested as of the date of termination hereunder shall
vest immediately; and
(iv) The Company shall maintain in full force and effect,
for the continued benefit of the Employee for the
number of years (including partial years) remaining
in the Term, all employee benefit plans and programs
in which the Employee was entitled to participate
immediately prior to the date of termination,
provided that the Employee's continued participation
is possible under the general terms and provisions of
such plans and programs. In the event that the
Employee's participation in any such plan or program
is prohibited, the Company shall, at its expense,
arrange to provide the Employee with benefits
substantially similar to those which the Employee
would otherwise have been entitled to receive under
such plans and programs from which her continued
participation is prohibited.
(c) For purposes of this Section 8 and Section 7 hereof, the
Employee shall not be required to mitigate the amount of any
payment provided for in Sections 7 and 8 by seeking other
employment or otherwise, nor shall any compensation or other
payments received by the Employee after the date of
termination reduce any payments due under such Sections.
9. Indemnification for Taxes. The Company shall indemnify Employee for
any and all taxes, penalties, additions to tax and interest on tax deficiencies
of any kind (collectively, "Taxes") with respect to any and all payments and
benefits provided by this Agreement or other agreements with Employee which are
subject (if at all) to the excise tax (Excess Tax") pursuant to Section 4999 of
the Internal Revenue Code of 1986, as amended. This indemnification shall extend
to any and all Taxes with respect to any and all reimbursements hereunder such
that, on a net-after-tax basis, Employee is in the same position that Employee
would have been in if no payments made by Company to Employee had been subject
to the Excise Tax (and, therefore, no indemnification payments hereunder had
been necessary).
10. Non-Delegation of Employee's Rights. The obligations, rights and
benefits of the Employee hereunder are personal and may not be delegated,
assigned or transferred in any manner whatsoever, nor are such obligations,
rights or benefits subject to involuntary alienation, assignment or transfer.
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11. Confidential Information. The Employee acknowledges that in her
capacity as an employee of the Company she will occupy a position of trust and
confidence and she further acknowledges that she will have access to and learn
substantial information about the Company and its operations that is
confidential or not generally known in the industry including, without
limitation, information that relates to purchasing, sales, customers, marketing,
and the Company's financial position and financing arrangements. The Employee
agrees that all such information is proprietary or confidential, or constitutes
trade secrets and is the sole property of the Company. The Employee will keep
confidential, and will not reproduce, copy or disclose to any other person or
firm, any such information or any documents or information relating to the
Company's methods, processes, customers, accounts, analyses, systems, charts,
programs, procedures, correspondence or records, or any other documents used or
owned by the Company, nor will the Employee advise, discuss with or in any way
assist any other person, firm or entity in obtaining or learning about any of
the items described in this Section 11. Accordingly, the Employee agrees that
during the Term and at all times thereafter she will not disclose, or permit or
encourage anyone else to disclose, any such information, nor will she utilize
any such information, either along or with others, outside the scope of her
duties and responsibilities with the Company.
12. Non-Competition During Employment Term. The Employee agrees that,
during the term and any extensions thereof, she will devote substantially all
her business time and effort, and give undivided loyalty, to the Company. She
will not engage in any way whatsoever, directly or indirectly, in any business
that is competitive with the Company or its affiliates, nor solicit, or in any
other manner work for or assist any business which is competitive with the
Company or its affiliates. In addition, during the Term and any extensions
thereof, the Employee will undertake no planning for or organization of any
business activity competitive with the work she performs as an employee of the
Company, and the Employee will not combine or conspire with any other employee
of the Company or any other person for the purpose of organizing any such
competitive business activity.
13. Non-Competition After Employment Term. The parties acknowledge that
as an executive officer of the Company the Employee will acquire substantial
knowledge and information concerning the business of the Company as a result of
her employment. The parties further acknowledge that the scope of business in
which the Company is engaged as of the Effective Date is national and very
competitive and one in which few companies can successfully compete. Competition
by an executive officer such as the Employee in that business after this
Agreement is terminated would severely injure the Company. Accordingly, for a
period of one year after this Agreement is terminated or the Employee leaves the
employment of the Company for any reason whatsoever, except as otherwise stated
herein below, the Employee agrees (i) not to become an employee, consultant,
advisor, principal, partner or substantial shareholder of any firm or business
that in any way competes with the Company in any of its presently-existing or
then- existing products and markets; and (ii) not to solicit any person or
business that was at the time of such termination and remains a customer or
prospective customer, or an employee of the Company. Notwithstanding any of the
foregoing provisions to the
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contrary, the Employee shall not be subject to the restrictions set forth in
this Section 13 under the following circumstances:
(a) If the Employee's employment with the Company is terminated by
the Company without cause;
(b) If the Employee's employment with the Company is terminated as
a result of the Company's unwillingness to extend the Term of
this Agreement; or,
(c) If the Employee leaves the employment of the Company for Good
Reason pursuant to Section 8, above.
14. Return of Company Documents. Upon termination of this Agreement,
Employee shall return immediately to the Company all records and documents of or
pertaining to the Company and shall not make or retain any copy or extract of
any such record or document.
15. Other Employment and Location. Anything to the contrary hereinabove
notwithstanding, Company acknowledges that Employee may serve as a Director
and/or Chairman of the Board of certain other companies and will direct a
reasonable portion of her time to fulfilling her duties in such capacities.
Company acknowledges that Employee serving as a Director and/or Chairman of the
Board of other companies shall not constitute a violation of this Agreement or
any provision hereof including but not limited to Sections 11, 12 and 13, so
long as Employee dedicates a reasonable amount of her time to her duties
hereunder. The Employee shall not be required to move from [Orange County],
California, to perform her duties hereunder during the Term without his written
consent.
16. Improvements and Inventions. Any and all improvements or
inventions, which the Employee may make or participate in during the period of
his employment, shall be the sole and exclusive property of the Company. The
Employee will, whenever requested by the Company, execute and deliver any and
all documents which the Company shall deem appropriate in order to apply for and
obtain patents for improvements or inventions or in order to assign and convey
to the Company the sole and exclusive right, title and interest in and to such
improvements, inventions, patents or applications.
17. Actions. The parties agree and acknowledge that the rights conveyed
by this Agreement are of a unique and special nature and that the Company will
not have an adequate remedy at law in the event of a failure by the Employee to
abide by its terms and conditions nor will money damages adequately compensate
for such injury. It is, therefore, agreed between the parties that, in the event
of a breach by the Employee of any of his obligations contained in this
Agreement, the Company shall have the right, among other rights, to damages
sustained thereby and to obtain an injunction or decree of specific performance
from any court of competent jurisdiction to restrain or compel the Employee to
perform as agreed herein. The Employee agrees that this Section 17 shall
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survive the termination of her employment and she shall be bound by its terms at
all times subsequent to the termination of her employment for so long a period
as Company continues to conduct the same business or businesses as conducted
during the Term or any extensions thereof. Nothing herein contained shall in any
way limit or exclude any other right granted by law or equity to the Company.
18. Amendment. This Agreement contains, and its terms constitute, the
entire agreement of the parties, and it may be amended only by a written
document signed by both parties to this Agreement.
19. Governing Law. California law shall govern the construction and
enforcement of this Agreement and the parties agree that any litigation
pertaining to this Agreement shall be adjudicated in courts located in
California. This Agreement supercedes and replaces any prior agreements or
understandings between the parties with respect to the subject matter hereof.
20. Attorneys' Fees. If any party finds it necessary to employ legal
counsel or to bring an action at law or other proceedings against the other
party to enforce any of the terms hereof, the party prevailing in any such
action or other proceeding shall be paid by the other party its reasonable
attorneys' fees as well as court costs, all as determined by the court and not a
jury.
21. Severability. If any section, subsection or provision hereof is
found for any reason whatsoever, to be invalid or inoperative, that section,
subsection or provision shall be deemed severable and shall not affect the force
and validity of any other provision of this Agreement. If any covenant herein is
determined by a court to be overly broad thereby making the covenant
unenforceable, the parties agree and it is their desire that such court shall
substitute a reasonable judicially enforceable limitation in place of the
offensive part of the covenant and that as so modified the covenant shall be as
fully enforceable as if set forth herein by the parties themselves in the
modified form. The covenants of the Employee in this Agreement shall each be
construed as an agreement independent of any other provision in this Agreement,
and the existence of any claim or cause of action of the Employee against the
Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense to the enforcement by the Company of the covenants in this Agreement.
22. Notices. Any notice, request, or instruction to be given hereunder
shall be in writing and shall be deemed given when personally delivered or three
(3) days after being sent by United States Certified Mail, postage prepaid, with
Return Receipt Requested, to the parties at their respective addresses set forth
below:
To the Company: American National Financial, Inc.
1111 East Katella Avenue, Suite 220
Orange, California 92867
Attention: Michael C. Lowther
Chief Executive Officer
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To the Employee: Barbara A. Ferguson
2611 Seaview Avenue
Corona del Mar, California 92625
23. Waiver of Breach. The Waiver by any party of any provisions of this
Agreement shall not operate or be construed as a waiver of any prior or
subsequent breach by the other party.
IN WITNESS WHEREOF the parties have executed this Agreement to be
effective as of the date first set forth above.
AMERICAN NATIONAL FINANCIAL, INC.
By:
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Michael C. Lowther
Its: Chief Executive Officer
BARBARA A. FERGUSON
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