EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of April 1, 2001 (this
"Agreement"), is by and between Premier Mortgage Resources, Inc., and its
affiliates United National Mortgage LLC ("UNM") and United National Inc.
("UNI"), and a Nevada corporation having its executive offices at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the
"Executive").
Whereas the Company wishes to assure itself of the services of the
Executive, and the Executive desires to be employed by the Company, upon the
terms and conditions hereinafter set forth.
Now, therefore, for the consideration of the Executive's continued
employment, and with the parties intending to be legally bound, the Company and
the Executive hereby agree as follows:
1. DEFINITIONS. Unless defined elsewhere in this Agreement,
capitalized terms contained herein shall have the meanings set forth or
incorporated by reference in Section 19.
2. EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive hereby accepts such employment by the Company and/or any subsidiary of
the Company, during the term set forth in Section 3 and on the other terms and
conditions of this Agreement.
3. TERM.
(a) The initial term of this Agreement shall commence On April 1,
2001, and, subject to Section 3(b), shall terminate at the close of business on
the third anniversary of that date.
(b) The term of this Agreement set forth in Section 3(a) shall be
extended or further extended, as the case may be, without any action by the
Company or the Executive, on the third anniversary of the date hereof and on
each subsequent anniversary of the date hereof, for an additional period of one
year, until either party gives written notice to the other party in advance of
any anniversary of the date hereof, in the manner set forth in Section 15, that
the term in effect when such notice is given is not to be extended or further
extended, as the case may be, beyond the year following the next anniversary.
4. POSITION, DUTIES AND RESPONSIBILITIES, RIGHTS.
(a) During the term of this Agreement, the Executive shall serve as,
and be elected to and hold the office and title of Chairman of the Board,
President and Chief Executive Officer of the Company and its affiliates, UNI and
UNM. As such, the Executive shall report only to the Board of Directors of the
Company, and shall have all of the powers and duties usually incident to the
office of Chairman of the Board and Chief Executive Officer, and shall have
powers to perform such other reasonable additional duties as may from time to
time be lawfully assigned to the Executive by the Board of Directors.
(b) During the term of this Agreement, the Board of Directors and
the stockholders of the Company shall cause the Executive to be elected and
re-elected to the Board of Directors of the Company or its subsidiaries (and to
be appointed to any committees thereof), and the Executive agrees, if elected,
to serve on such Board(s) of Directors and committee(s) during the term of this
Agreement, without any additional compensation beyond that provided in this
Agreement.
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(c) During the term of this Agreement, the Executive agrees to
devote substantially all the Business Executive's time, efforts and skills to
the affairs of the Company during the Company's normal business hours, except
for vacations, illness and incapacity, but nothing in this Agreement shall
preclude the Executive from devoting reasonable periods to (i) manage the
Executive's personal investments, (ii) participate in professional, educational,
public interest, charitable, civic or community activities, including activities
sponsored by trade organizations, and (iii) serve as a director or member of an
advisory committee of any corporation not in competition with the Company or any
of its subsidiaries, or as an officer, trustee or director of any charitable,
educational, philanthropic, civic, social or industry organizations, or as a
speaker or arbitrator, provided that the performance of the Executive's duties
or responsibilities in any of such capacities does not materially interfere with
the regular performance of the Executive's duties and responsibilities
hereunder.
5. PLACE OF PERFORMANCE. In connection with the Executive's
Employment by the Company, the Executive shall be based at the Company's current
principal executive offices, or if moved within 20 miles of the existing
location, and shall not be required to be absent therefrom on travel status or
otherwise for more than a reasonable time each year as necessary or appropriate
for the performance of the Executive's duties hereunder.
6. COMPENSATION.
(a) During the term of this Agreement, the Company shall pay the
Executive, and the Executive agrees to accept a base salary at the rate of not
less than $ 146,000.00 per year, with increases in such rate in accordance with
the Company's regular administrative practices of salary increases applicable to
senior officers from time to time during the term of this Agreement, but not
less than the annual CPI index (the annual base salary as increased from time to
time during the term of this Agreement being hereinafter referred to as the
"Base Salary"). The Base Salary shall be paid in installments no less frequently
than monthly. Any increase in Base Salary or other compensation shall not limit
or reduce any other obligation of the Company hereunder, and once established at
an increased specified rate, the Executive's Base Salary hereunder shall not
thereafter be reduced.
(b) During the term of this Agreement, the Executive shall be a full
participant in any and all of the Company's short and long-term incentive plans
and equity compensation plans in which senior officers of the Company
participate that are in effect on the date hereof or that may hereafter be
adopted, including, without limitation, the Company's 2001 Stock Incentive Plan
(the "Stock Incentive Plan"), with at least the same reward opportunities, if
any, that are provided to other senior officers of the Company from time to time
during the term of this Agreement, provided that in no event shall the Executive
be granted stock options, restricted stock awards or other stock-based long-term
incentives after a Change in Control less often than annually, nor on terms and
conditions (including performance goals) less favorable to the Executive than
those which (a) are granted to officers or employees of similar position and
status in the Company, or (b) were granted to the Executive during the term of
this Agreement prior to such Change in Control (or, if shorter, during the three
years preceding the Change in Control), nor on fewer than the following number
of shares:
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(i) The average annual number of shares awarded (in the case of
restricted stock awards), or underlying options granted, to the Executive during
the term of this Agreement prior to such change in Control (or, if shorter,
during the two years preceding the Change in Control); or
(ii) If greater than the number described in clause (i) above,
the number of shares whose Fair Market Value on the date the shares are optioned
or awarded to the Executive equals the average annual Fair Market Value
(determined on the respective grant or award date) of the shares that were
optioned or awarded to the Executive during the term of this Agreement prior to
such Change in Control (or, if shorter, during the two years preceding the
Change in Control).
(c) During the term of this Agreement, the Executive shall be
eligible to receive an annual bonus of 5% of the Company's and affiliates'
pre-tax earnings payable in cash by April 15 of each year.
(d) During the term of this Agreement, the Executive shall be
entitled to (i) perquisites, including, without limitation, an office and
secretarial and clerical staff, (ii) $600 monthly car allowance and expenses
incurred therewith by the Executive, and (iii) fringe benefits, including,
without limitation, parking and health insurance, in each case at least equal
to, and on the same terms and conditions as, those attached to the Executive's
office on the date hereof, as the same may be improved from time to time during
the term of this Agreement, as well as to reimbursement, upon proper accounting,
of all reasonable expenses and disbursements incurred by the Executive in the
course of the Executive's duties.
(e) The Executive, the Executive's dependents and beneficiaries
shall be entitled to all benefits and service credit for benefits during the
term of this Agreement to which senior officers of the Company and their
dependents and beneficiaries are entitled as the result of the employment of
such officers during the term of this Agreement under the terms of employee
plans and practices of the Company and its subsidiaries, including, without
limitation, any pension plans, profit sharing plans, any non-qualified deferred
compensation plans and related trusts, the Company's life insurance plans,
including three paid week vacation annually, its disability benefit plans, its
vacation and holiday pay plans, its medical, dental and welfare plans, and other
present or successor plans and practices of the Company and its subsidiaries for
which senior officers, their dependents and beneficiaries are eligible, and to
all payments and other benefits under any such plan or practice subsequent to
the term of this Agreement as a result of participation in such plan or practice
during the term of this Agreement.
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7. TERMINATION OF EMPLOYMENT.
(a) The term of this Agreement shall terminate upon the death of the
Executive.
(b) The Company may terminate the Executive's employment during the
term of this Agreement for Cause as provided in Section 7(b)(i) or in the event
of Disability as provided in Section 7(b)(ii).
(i) This Agreement shall be considered terminated for "Cause'
only:
(A) If the Executive engages in gross misconduct in the
performance of the Executive's duties hereunder;
(B) if the Executive knowingly engages in an act of dishonesty
intended to result in substantial personal enrichment at the expense of the
Company, an act of fraud or embezzlement, or any conduct resulting in a felony
conviction;
and, in the case of each of clauses (A) and (B) above, the
applicable conditions set forth in Section 7(e) are satisfied.
Anything in this Section 7(b) to the contrary notwithstanding, the
Executive's employment shall in no event be considered terminated by the Company
for Cause if termination takes place (I) as the result of bad judgment or
negligence on the part of the Executive other than gross misconduct, (II) for
any act or omission in respect of which a determination could properly be made
that the Executive met the applicable standard of conduct prescribed for
indemnification or reimbursement or payment of expenses of an officer or
director under the Bylaws or Certificate of Incorporation of the Company or the
laws of the State of Delaware or the directors' or officers' liability insurance
of the Company in each case as in effect at the time of such act or omission,
(III) as the result of an act or omission which occurred more than three
calendar months prior to the Executive's having been given Notice of Termination
for such act or omission unless the commission of such act or such omission was
not or could not reasonably have been, at the time of such commission or
omission, known to a member of the Board of Directors (other than the
Executive), in which case more than three calendar months from the date the
commission of such act or such omission was or could reasonably have been so
known, (IV) as the result of a continuing course of action which commenced and
was or could reasonably have been known to a member of the Board of Directors
(other than the Executive) more than three calendar months prior to Notice of
Termination having been given to the Executive for such course of action, or (V)
because of an act or omission believed by the Executive in good faith to have
been in, or not opposed to, the interests of the Company.
(ii) The term "Disability" as used in this Agreement means an
accident or physical or mental illness, which prevents the Executive from
substantially performing the Executive's duties hereunder for six consecutive
months. The term of this Agreement shall end as of the close of business on the
last day of such six-month period but without prejudice to any payments due to
the Executive in respect of disability under this Agreement or any plan or
practice of the Company.
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(c) The Executive may terminate the Executive's employment during
the term of this Agreement for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (i) any assignment to the Executive without the
Executive's express written consent of any duties, functions, authority or
responsibilities other than those contemplated by, or any material limitation or
expansion without the Executive's express written consent of the duties,
functions authority or responsibilities of the Executive in any respect not
Contemplated by, Section 4(a), including, without limitation, a change in
reporting relationships, any such assignment, limitation or expansion being
deemed a continuing breach of this Agreement, (ii) a reduction of the
Executive's rate of compensation or any other failure by the Company to comply
with Section 6, (iii) failure by the Company to comply with Section 5, or any
other obligation of the Company, including bankruptcy, reorganization or
insolvency;(iv) failure by the Company to obtain the assumption of, and the
agreement to perform, this Agreement by any successor as contemplated in Section
11(a), (v) such assignment, limitation or expansion described in the foregoing
clause (i), reduction described in the foregoing clause (ii) or failure
described in the foregoing clauses (ii), (iii) or (iv), as the case may be, is
not cured within 30 days after receipt by the Company of written notice from the
Executive describing such event or (vi) a determination by the Executive made in
good faith that, as a result of a detrimental change in circumstances after a
Change in Control significantly affecting the Executive's position, the
Executive is unable properly to carry out all of the authorities, powers,
functions, duties and responsibilities attached to the Executive's position and
contemplated by Section 4(a), and the situation is not remedied within 30 days
after receipt by the Company of written notice from the Executive of such
determination.
(d) Notwithstanding anything to the contrary set forth herein,
subject to the Bylaws of the Company, the Board of Directors shall have the
right by majority vote of the entire membership of the Board of Directors to
terminate the Executive's employment for any reason other than Cause at any
time, subject to the consequences of such termination as set forth in Section 8.
(e) In no event shall the Company be entitled to terminate the
Executive's employment during the term of this Agreement for Cause pursuant to
Section 7(b), unless and until all of the following take place, provided that
Sections 7(e)(i) through (iii) shall not apply to any termination for Cause
pursuant to Section 7(b)(i)(B:
(i) The Secretary of the Company, pursuant to a
resolution duly adopted by the affirmative vote of not less than a
majority of the entire membership of the Board of Directors at a
meeting called for that purpose, gives written notice to the Executive
(the "Warning Notice") setting forth with particularity (A) the
specific provision of this Agreement that the Executive is alleged to
have failed to satisfy, (B) the acts or omissions alleged to constitute
such failure, (C) the date on which the Executive shall be given a
reasonable opportunity to appear before and be heard by the Board of
Directors concerning the allegations, which date shall be not less than
30 nor more than 90 days after the Executive's receipt of the Warning
Notice, and (D) the loss of rights under this Agreement that shall
occur unless the Executive diligently and in good faith takes
reasonable steps to remedy such failure within 30 days after the
Executive's receipt of the Warning Notice; and
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(ii) The Executive does not diligently and in good
faith take all reasonable steps to remedy such failure within 30 days
after the Executive's receipt of the Warning Notice; and
(iii) The Executive is given a reasonable opportunity
to appear before and be heard by the Board of Directors concerning the
allegations, in accordance with the Warning Notice; and
(iv) the Secretary of the Company gives the Executive a
certified copy of a resolution duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board of
Directors after any opportunity to appear before the Board of Directors
required by Section 7(e)(iii), at a meeting called for that purpose,
that sets forth the Board of Director's finding that the Executive both
(A) failed to satisfy the specific provision of this Agreement set
forth in the Warning Notice previously given, or if no such Warning
Notice is required pursuant to this Section 7(c), the specific
provision of the Agreement set forth in such resolution, and (B) if
Sections 7(e)(i) through (iii) apply, did not diligently and in good
faith take all reasonable steps to remedy such failure within 30 days
after the Executive's receipt of the Warning Notice, and that in all
cases specifies the particulars thereof in detail.
(f) Any termination by the Company pursuant to Section 7(b) or by
the Executive pursuant to Section 7(c) shall be communicated by a written Notice
of Termination to the other party hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which indicates the specific
termination provision in this Agreement relied upon and sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provisions so indicated.
(g) "Date of Termination" shall mean (i) if the Executive's
employment is terminated by the Executive's death, the date of the Executive's
death, (ii) if the Executive's employment is terminated pursuant to Section
7(b)(ii), 30 days after Notice of Termination is given (provided that the
Executive shall not have returned to the performance of the Executive's duties
on a full-time basis during such 30 day period), and (iii) if the Executive's
employment is terminated for any other reason, the date on which a Notice of
Termination is given.
8. COMPENSATION ON TERMINATION. The parties recognize and agree that, if the
Company terminates the Executive's employment during the term of this Agreement
other than pursuant to Section 7(b), or if, in connection with or following a
Change in Control, the Executive's position is eliminated or the Executive is no
longer the chief executive officer of the Company with all power, authority and
responsibility normally attended to such office and consistent with his prior
position, or if the Executive terminates the Executive's employment during the
term of this Agreement for Good Reason pursuant to Section 7(c), the actual
damages to the Executive would be difficult if not impossible to ascertain and
agree that the Executive's sole remedy shall be a right to receive amounts
determined and paid in accordance with the provisions of this Section 8. The
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 8 by seeking other employment or otherwise, nor shall any
compensation earned by the Executive in other employment or otherwise reduce the
amount of any payment provided for in this Section 8. Any severance pay will not
be a condition to waiving any other right of the executive.
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(a) If the Company shall terminate the Executive's employment during
the term of this Agreement other than pursuant to Section 7(b), or if, in
connection with or following a Change in Control, the Executive's position is
eliminated or the Executive is no longer the chief executive officer of the
Company with all power, authority and responsibility normally attendant to such
office and consistent with his prior position, or if the Executive shall
Terminate the Executive's employment during the term of this Agreement for Good
Reason pursuant to Section 7(c), then, as severance pay or liquidated damages or
both:
(i) The Company shall pay the Executive the Executive's full
Base Salary through the Date of Termination at the rate in effect at the time
Notice of Termination is given, together with any other amounts payable to the
Executive under Section 6 for periods prior to the Date of Termination and all
outstanding stock options shall become immediately vested and exercisable;
(ii) The Company shall pay the Executive a lump sum payment, on
the tenth day after the Date of Termination, equal to 299% of (A) the Base
Salary at the rate in effect as of the Date of Termination, plus (B) the average
annual incentive award awarded to the Executive by the Company or any subsidiary
of the Company for any of the five most recent fiscal years for which annual
incentive award determinations were made before the Date of Termination, except
as limited by applicable law; provided, however, that notwithstanding the
foregoing, under no circumstances shall the Company pay the Executive a payment
that would result in an "Excess Parachute Payment," as defined in Section
280G(b) of the Code; provided, further, that in the event any payment under this
clause (ii) would constitute an Excess Parachute Payment, such payment shall be
reduced to the extent necessary so that the payment does not constitute an
Excess Parachute Payment; and
(iii) The Company shall pay any amounts payable under Section
17, including three years of Company paid family medical coverage.
(b) If the Executive's employment terminates under any circumstance
that does not entitle the Executive to payments under Section 8(a) (including a
termination by reason of the death or Disability of the Executive, or by reason
of the Company or the Executive electing not to extend or further extend the
term of this Agreement pursuant to Section 3(b)), the Executive shall not be
entitled to receive any compensation under Section 6 accruing after the date of
such termination, or any payment under Section 8(a) (other than Section 9).
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(c) Nothing in Section 8(a) or 8(b) shall deprive the Executive of
any rights, payments, benefits or service credit for benefits after termination
of employment which were earned pursuant to any provision of this Agreement or
any plan or practice of the Company on or prior to such termination including,
without limitation, any pension or welfare benefits and any rights under the
Company's pension, deferred compensation or stock option or other benefit plans
and any legal fees and expenses payable pursuant to Section 17.
9. INDEMNIFICATION. The Company shall indemnify the Executive to the
fullest extent permitted by the Nevada Revised Statutes, as amended from time to
time, and our Company's Bylaws for all amounts (including, without limitation,
judgments, fines, settlement payments, expenses and attorneys' fees) incurred or
paid by the Executive in connection with any action, suit, investigation or
proceeding arising out of or relating to the performance by the Executive of
services for, or the acting by the Executive as a director, officer or employee
of, the Company, or any subsidiary of the Company or any other Person at the
Company's request. Nothing in this Section 9 or elsewhere in this Agreement is
intended to prevent the Company from indemnifying the Executive to Any greater
extent than is required by this Section 9.
10. NON-COMPETITIONS; NON-SOLICITATION.
(a) In consideration of this Agreement, the Executive agrees that,
for the period ending on the later of (i) the first anniversary of the
termination of the Executive's employment with the Company by the Company for
Cause or by the Executive without Good Reason, and the Executive will not,
directly or indirectly (whether as a sole proprietor, partner or venturer,
stockholder, director, officer, employee, consultant or in any other capacity as
principal or agent or through any Person, subsidiary or employee acting as
nominee or agent):
(i) conduct or engage in or be interested in or associated with
any Person which conducts or engages in a business like Premier within the
upstate New York area;
(ii) take any action, directly or indirectly, to finance,
guarantee or provide any other material assistance to any Person engaged in a
business like Premier;
(iii) Solicit, contact or accept business of any client or
counterpart whom the Company served or conducted business with or whose name
became known to the Executive as a potential client or counterpart while in the
employ of the Company or during the Non-Competition Period;
Or
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(iv) influence or attempt to influence any Person that is a
contracting party with the Company at any time during the Non-Competition Period
to terminate any written or oral agreement with the Company.
For purposes of this Section 10, the term "Premier Business" shall
mean the mortgage banking business as conducted by the Companies.
(b) The Executive shall not, whether for the Executive's own account
or in conjunction with or on behalf of any other Person, solicit or entice away
from the Company any officer, employee or customer of the Company during the
term hereof or the Non-Competition Period nor engage, hire, employ, or induce
the employment of any such Person whether or not such officer, employee or
customer would commit a breach of contract by reason of leaving service or
transferring business.
(c) The restrictive provisions hereof shall not prohibit the
Executive from (i) having an equity interest in the securities of any entity
engaged in the Business or any business with respect to which the Executive
obtained confidential or proprietary data or information, which entity's
securities are listed on a nationally-recognized securities exchange or
quotation system or traded in the over-the-counter market, to the extent that
such interest does not exceed 5% of the outstanding equity interests of such
entity, (ii) investing as a passive investor in an entity engaging in the
Business that is not so listed or traded, so long as such interest does not
exceed 5% of the outstanding equity interests of such entity or (iii) with the
Prior written consent of the Company, serving as a director or other advisor to
any other Person.
(d) The Executive agrees that the covenants contained in this
Section 10 are reasonable covenants under the circumstances, and further agrees
that if in the opinion of a court of competent jurisdiction, such restraint is
not reasonable in any respect, such court shall have the right, power and
authority to excise or modify such provision or provisions of these covenants
which as to such court shall appear not reasonable and to enforce the remainder
thereof as so amended.
11. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or a majority
all of the business and/or assets of the Company to expressly assume and agree
to perform this Agreement in the same manner and to the extent that the Company
would be required to perform it if no such succession had taken place; provided
that no such agreement with a successor shall release the Company without the
Executive's express written consent. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle the Executive to compensation from the Company
in the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive's employment were terminated by the Company other
than pursuant to Section 7(b), except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination.
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(b) If the Executive should die while any amounts are due and
payable to the Executive hereunder, all such amounts, unless otherwise provided
herein, shall be paid in accordance with the terms of the Agreement to the
Executive's devisees, legatee, or other designee or, if there be no such
designee, to the Executive's estate.
(c) Except as to withholding of any tax under the laws of the United
States or any state or locality, neither this Agreement nor any right or
interest hereunder nor any amount payable at any time hereunder shall be subject
in any manner to alienation, sale, transfer, Assignment, pledge, attachment, or
other legal process, or encumbrance of any kind by the Executive or the
beneficiaries of the Executive or by legal representatives without the Company's
prior written consent, nor shall there be any right of set-off or counterclaim
in respect of any debts or liabilities of the Executive, the Executive's
beneficiaries or legal representatives against any right or interest hereunder
or any amount payable at any time hereunder to the Executive, the Executives
beneficiaries or legal representatives; provided, however, that nothing in this
Section 11 shall preclude the Executive from designating a beneficiary to
receive any benefit payable on the Executive's death, or the legal
representatives of the Executive from assigning any rights hereunder to the
Person or Persons entitled thereto under the Executive's will Or, in case of
intestacy, to the Person or Persons entitled thereto under the laws of intestacy
applicable to the Executive's estate.
12. PARTIES. This Agreement shall be binding upon and shall inure to
the benefit of the Company and the Executive, the Executive's heirs,
beneficiaries and legal representatives.
13. ENTIRE AGREEMENT; AMENDMENT.
(a) This Agreement contains the entire understanding of the
parties with respect to the subject matter hereof and
supersedes any and all other agreements between the parties
with respect to the subject matter hereof.
(b) Any amendment of this Agreement shall not be binding unless in
writing and signed by both (i) an officer or director of the Company duly
authorized to do so and (ii) the Executive.
14. ENFORCEABILITY. In the event that any provision of this
Agreement is determined to be invalid or unenforceable, the remaining terms and
conditions of this Agreement shall be unaffected and shall remain in full force
and effect, and any such determination of invalidity or enforceability shall not
affect the validity or enforceability of any other provision of this Agreement.
15. NOTICES. All notices which may be necessary or proper for either
the Company or the Executive to give to the other shall be in writing and shall
be sent by hand delivery, registered or certified mail, return receipt
requested, overnight courier or facsimile, if to the Executive, to him at c/o
Premier Mortgage Resources, Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, if to the Company. Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, with a copy to Law Office of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd., ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq. Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, and shall be deemed given when
sent, provided that any Notice of Termination or other notice given pursuant to
Section 7 shall be deemed given only when received. Either party may by like
notice to the other party change the address at which the Executive or it is to
receive notices hereunder.
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16. GOVERNING LAW. THIS AGREEMENT IS EXECUTED IN THE STATE OF NEW
YORK AND SHALL BE GOVERNED BY, AND BE ENFORCEABLE IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF
LAWS THEREOF.
17. LEGAL FEES AND EXPENSES. To induce the Executive to execute this
Agreement and to provide the Executive with reasonable assurance that the
purposes of this Agreement will not be frustrated by the cost of its enforcement
should the Company fail to perform its obligations under this Agreement, the
Company shall pay and be solely responsible for any reasonable attorneys' fees
and expenses and court costs incurred by the Executive and any of the
executive's beneficiaries, heirs or legal representatives as a result of the
Company's failure to perform this Agreement or any provision hereof to be
performed by the Company.
18. EFFECTIVE DATE. This Agreement shall become effective upon its
execution, this 1st day of April 2001.
19. DEFINITIONS. The following terms, when capitalized in this
Agreement, shall have the meanings set forth or incorporated by reference in
this Section 19.
(a) "Base Salary" shall have the meaning set forth in Section 6(a).
(b) "Board of Directors" means the Board of Directors of the
Company, as constituted from time to time.
(c) "Cause" shall have the meaning set forth in Section 7(b)(i).
(d) "Change in Control" means a change in control of the Company of
a nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A under the Exchange Act, whether or not the
Company is subject to the Exchange Act at such time; provided, however, that
without limiting the generality of the foregoing, such a Change in Control shall
in any event be deemed to occur if and when:
(i) Any person (as such term is used in Sections 13(d) and
14(d)(2) of the Exchange Act), the Company, its subsidiaries and affiliates (as
defined in Rule 12b-2 under the Exchange Act), becomes the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing (A) more than 15% of the combined voting
power of the Company's then outstanding securities, and (B) more than the
percentage of the combined voting power of the Company's then outstanding
securities beneficially owned, directly or indirectly, at that time by the Rhode
Family Members;
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(ii) stockholders approve a merger or consolidation as a result
of which securities representing less than 70% of the combined voting power of
the outstanding voting securities of the surviving resulting corporation will be
beneficially owned, directly or indirectly, in the aggregate by the former
stockholders of the Company;
(iii) stockholders approve either (A) an agreement for the sale
or disposition of all or substantially all of the Company's assets to an entity
which is not a subsidiary of the Company, or (B) a plan of complete liquidation;
or
(iv) the Persons who were members the Board of Directors
immediately before a tender offer by any Person other than the Company or a
subsidiary or affiliate of the Company, or before a merger, consolidation, or
contested election, or before any combination of such transactions, cease to
constitute a majority of the Board of Directors as a result of such transaction
or transactions.
(e) "Code" means the Internal Revenue Code of 1986, as amended.
(f) "Company" means Premier Mortgage Resources, Inc., Inc., a Nevada
corporation, and any successors to its business and/or assets, which executes
and delivers an agreement provided for in Section 11(a) or which otherwise
becomes bound by all the terms and conditions of this Agreement by operation of
law.
(g) "Date of Termination" shall have the meaning set forth in
Section 7(g).
(h) "Disability" shall have the meaning set forth in Section
7(b)(ii).
(i) "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
(j) "Fair Market Value" means Fair Market Value as defined in the
Stock Incentive Plan.
(k) "Good Reason" shall have the meaning set forth in Section 7(c).
(l) "Non-Competition Period" shall have the meaning set forth in
Section 10(a).
(m) "Notice of Termination" shall have the meaning set forth in
section 7(f).
(n) "Person" means any individual, corporation, partnership, Limited
Liability Company, limited duration company, trust or other entity of any nature
whatsoever.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
Premier Mortgage Resources, Inc.
By:
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and CEO
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