INCENTIVE BONUS AGREEMENT
THIS INCENTIVE BONUS AGREEMENT (this "Agreement") is made
and entered into as of April 24, 2000, by and between AMRESCO,
INC., a Delaware corporation (together with its subsidiaries,
"AMRESCO"), L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Executive") and each other
person listed on Exhibit A hereto (together with the Executive,
the "Eligible Employees").
R E C I T A L S:
A. AMRESCO recognizes that the current business environment
makes it difficult to attract and retain highly qualified
executives who can utilize their talents to increase and
maximize stockholder value unless a certain degree of
security can be offered with respect to such individuals'
compensation and continued employment; and
B. AMRESCO desires to reward the Eligible Employees for
services provided in connection with the management of
AMRESCO and for the Eligible Employees' services in
connection with improvements in, and realization of, the
value of AMRESCO; and
C. The Board of Directors of AMRESCO (the "Board") believes
that it is in the best interests of AMRESCO and its
stockholders for AMRESCO to align the economic interest of
the Eligible Employees with those of AMRESCO and its
stockholders and provide the Eligible Employees with
compensation which is reasonable and currently competitive
with those of other corporations in similar financial and
business situations and, in order to accomplish these
objectives, the Board has caused AMRESCO to enter into this
Agreement; and
D. The Eligible Employees and AMRESCO have reached the
following agreement relating to the Eligible Employees'
rendering of personal services to AMRESCO.
A G R E E M E N T:
NOW, THEREFORE, in consideration of the premises, and the
mutual promises and conditions contained herein, the parties
hereto agree as follows:
1. TERM. This Agreement shall commence on the date hereof, and
shall continue until March 31, 2005. On March 31, 2005 (and on
each one-year anniversary thereafter) the term hereof shall be
extended automatically for successive one-year periods, unless no
fewer than thirty (30) days prior to March 31, 2005, or the
appropriate March 31 thereafter, AMRESCO shall have delivered
written notice to the Executive that AMRESCO wishes to terminate
the automatic annual renewal of this Agreement. Notwithstanding
termination of any Eligible Employees' employment, this Agreement
shall remain in effect until all of the obligations hereunder of
the parties are satisfied.
2. BONUS AWARDS.
2.1 Awards. Each Eligible Employee will be eligible to receive
an Award (defined in this Section 2.1) if (a) such Eligible
Employee is employed by AMRESCO on the date of a Change of
Control (defined in Section 4); (b) such Eligible Employee's
employment is terminated by AMRESCO without Cause (defined in
Section 3.1) prior to a Change of Control; or (c) such Eligible
Employee terminates his or her employment for Good Reason
(defined in Section 3.2) prior to a Change of Control.
Termination of an Eligible Employee's employment under the
circumstances described in item (b) or item (c) of the
immediately-preceding sentence is referred to herein as a
"Termination Event." An Eligible Employee's "Award" shall be an
amount equal to the product of the Bonus Pool (as defined in
Section 2.3 and as applicable to the Termination Event or Change
of Control that gives rise to such Award) multiplied by the
percentage set forth opposite such Eligible Employee's name on
Exhibit A; provided, however, that an Eligible Employee's Award
may be adjusted as provided in Section 2.3(c) and the percentage
set forth opposite an Eligible Employee' name may be adjusted as
set forth in Section2.2.
2.2 Termination of Status as an Eligible Employee. A person
listed on Exhibit A shall cease to be an Eligible Employee
hereunder (and shall cease to be eligible for any Award) if,
prior to the occurrence of a Change of Control or a Termination
Event relating to such person, such person's employment is (a)
terminated by AMRESCO for Cause or (b) terminated by such person
for any reason other than for Good Reason (each a
"Disqualification Event"). If any person ceases to be an Eligible
Employee due to any Disqualification Event, the percentages set
forth on Exhibit A opposite the name of the individuals who
continue to be Eligible Employees shall automatically be
increased, pro rata (without the need for any amendment hereto),
such that the sum of the adjusted percentages is equal to the sum
of (x) the percentages of such individuals as in effect prior to
such adjustments, plus (y) the percentage set forth opposite the
name of the person who was the subject of the Disqualification
Event.
2.3 Bonus Pool. The "Bonus Pool" shall be determined as
follows:
(a) Termination Event. If the Bonus Pool is to be
calculated for an Award or Awards to be paid in
connection with a Termination Event, the Bonus Pool shall
be $5.0 million.
(b) Change of Control. If the Bonus Pool is to be
calculated for an Award or Awards to be paid in
connection with a Change of Control, the Bonus Pool shall
be an amount equal to the remainder of (i) the sum of (A)
$5.0 million and (B) ten percent (10%) of the Actual
Value (defined in this Section 2.3) of the Company in
excess of $200.0 million, minus (ii) the amount (if any)
paid by AMRESCO as an Award or Awards in connection with
any Termination Event occurring prior to the date of such
Change of Control.
(c) Adjustment for Change of Control within Six
Months of a Termination Event. If an Eligible Employee
receives an Award in connection with a Termination Event,
and AMRESCO is subject to a Change of Control that is
effective not more than six (6) months after the date of
such Termination Event, then AMRESCO shall determine
whether the Bonus Pool for the Change of Control is
greater than $5.0 million. If the Change of Control
Bonus Pool is larger, then AMRESCO shall pay to such
Eligible Employee an additional payment (a "Top-Up")
equal to the remainder of (i) the product of (A) the
Bonus Pool (as calculated for such Change of Control)
multiplied by (B) the percentage set forth opposite such
Eligible Employee's name on Exhibit A (as in effect as of
the Termination Event), minus (ii) the Amount of the
Award paid upon such Termination Event.
(d) Maximum Bonus Pool. Notwithstanding any provision
hereof to the contrary, the total Bonus Pool paid out to all
the Eligible Employees shall not exceed $25.0 million.
"Actual Value" means the total enterprise value of AMRESCO
(determined without giving effect to the payment of any Award or
Awards to be paid or to be paid hereunder and further determined
as if any distributions to, or stock repurchases from, AMRESCO's
stockholders (to the extent any such transactions occur during
the period beginning on the date hereof and ending on the date of
any Change of Control) had not occurred, but instead determining
Actual Value as if AMRESCO had retained the funds used in such
transactions), as determined in good faith by mutual agreement of
the Board and the Executive (who is hereby appointed to serve as
attorney-in-fact for such purpose on behalf of each Eligible
Employee); provided, however, that if the Executive and the Board
are not able to agree on the Actual Value of the Company (or a
formula for determining Actual Value) by a date that is not less
than ten (10) business days before the date of the proposed
Change of Control, then such Actual Value shall be as determined
by an investment banking firm of nationally-recognized reputation
that is mutually acceptable to the Board and the Executive. If
the Executive ceases at any time to be an Eligible Employee, or
otherwise becomes unable to serve as the attorney-in-fact
hereunder, then the next Eligible Employee (as listed on Exhibit
A) who continues as an Eligible Employee shall serve as attorney-
in-fact for all the Eligible Employees for the purposes set forth
in this paragraph and for the purpose of receiving any non-
renewal notices under Section 1.
2.4 Payment of Bonuses. AMRESCO shall pay each Award in cash in
a lump sum, minus applicable payroll withholdings, not later than
(a) the 30th day after the Date of Termination or (b) the date on
which the Change of Control of AMRESCO occurs, as applicable.
3. TERMINATION OF EMPLOYMENT.
3.1 Cause. For the purposes hereof, AMRESCO shall have "Cause"
to terminate an Eligible Employee's employment hereunder upon (a)
the willful and continued failure by such Eligible Employee to
perform his or her duties with AMRESCO (other than any such
failure resulting from incapacity due to physical or mental
illness) after the Board delivers to such Eligible Employee a
written demand for substantial performance which specifically
identifies the manner in which the Board believes that such
Eligible Employee has not substantially performed his or her
duties or (b) the willful engaging by such Eligible Employee in
gross misconduct materially and demonstrably injurious to
AMRESCO. For purposes of this Section 3.1, no act, or failure to
act, on an Eligible Employee's part shall be considered "willful"
if, in such Eligible Employee's sole judgment, his or her action
or omission was done, or omitted to be done, in good faith and
with a reasonable belief that his or her action or omission was
in the best interests of AMRESCO. Notwithstanding the foregoing,
solely for purposes of clauses (a) and (b) of the first sentence
of this Section 3.1, no Eligible Employee shall be terminated for
Cause unless and until there shall have been delivered to such
Eligible Employee a copy of a resolution duly adopted by the
affirmative vote of not less than two-thirds (2/3) of the entire
authorized membership of the Board at a meeting of the Board
called and held for the purpose (after reasonable notice and an
opportunity for such Eligible Employee, together with counsel for
such Eligible Employee, to be heard before the Board), finding
that in the good faith opinion of the Board such Eligible
Employee was guilty of conduct set forth above in clauses (a) or
(b) of the first sentence of this Section 3.1 and specifying the
particulars thereof in reasonable detail.
3.2 Good Reason. An Eligible Employee may terminate his or her
employment for Good Reason. For purposes hereof, "Good Reason"
shall mean:
(a) Without such Eligible Employee's express written consent,
the assignment to him or her of any duties inconsistent with his
or her positions, duties, responsibilities and status with
AMRESCO as of a date immediately prior to such changed
assignment, or a change in his or her reporting responsibilities,
titles or offices, or any removal of such Eligible Employee from,
or any failure to re-elect such Eligible Employee to, any of such
positions, except in connection with the termination of his or
her employment for Cause, death, retirement or by such Eligible
Employee other than for Good Reason;
(b) A reduction by AMRESCO in such Eligible Employee's base
salary as in effect as of the date hereof and as increased from
time to time;
(c) A reduction by AMRESCO in the bonus payable to such Eligible
Employee in any year below a percentage (however, for ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ it shall be a reduction of his bonus below $50,000) of
such Eligible Employee's then base salary equal to the average
percentage of such Eligible Employee's base salary represented by
the bonuses received by such Eligible Employee for the three (3)
years (or, if shorter, the years of such Eligible Employee's
employment by AMRESCO) immediately preceding the year in which a
termination of employment occurs as percentages of his or her
base salary in each of such three (3) years (or shorter number of
years). By way of example, but not in limitation of the
provisions of this paragraph (c), assume a termination of
employment occurs in 2001, and such Eligible Employee received
bonuses for each of 1998, 1999, and 2000 as follows: 30% of his
or her base salary for 1998; 50% of his or her base salary for
1999; and 50% of his or her base salary for 2000. If such
Eligible Employee receives a bonus for 2001 which is less than
43.33% of his or her 2001 base salary, such Eligible Employee
shall have "Good Reason" for terminating his or her employment
under this Section 3.2. If such Eligible Employee was only
employed during 1999 and 2000, using the same facts as recited
herein, such Eligible Employee would have "Good Reason" to
terminate his or her employment if his or her 2001 bonus was less
than 50% of his or her 2001 base salary;
(d) AMRESCO's requiring such Eligible Employee to be based
anywhere other than either AMRESCO's offices at which such
Eligible Employee is based as of the date hereof or at AMRESCO's
offices which are no more than 75 miles from the offices at which
such Eligible Employee is based as of the date hereof, except for
required travel on AMRESCO's business to an extent substantially
consistent with his or her business travel obligations as of the
date hereof, or, in the event such Eligible Employee consents to
any relocation beyond such 75-mile radius, the failure by AMRESCO
to pay (or reimburse such Eligible Employee) for all reasonable
moving expenses incurred by him or her relating to a change of
his or her principal residence in connection with such relocation
and to indemnify such Eligible Employee against any loss (defined
as the difference between the actual sale price of such residence
and the greater of (i) his or her aggregate investment in such
residence or (ii) the fair market value of such residence as
determined by a real estate appraiser designated by such Eligible
Employee and reasonably satisfactory to AMRESCO) realized on the
sale of such Eligible Employee's principal residence in
connection with any such change of residence;
(e) The failure by AMRESCO to continue in effect any benefit or
compensation plan (including but not limited to any stock option
plan, pension plan, life insurance plan, health and accident plan
or disability plan) in which such Eligible Employee is
participating as of the date hereof (or plans providing
substantially similar benefits), the taking of any action by
AMRESCO which would adversely affect such Eligible Employee's
participation in or materially reduce his or her benefits under
any of such plans or deprive him or her of any material fringe
benefit enjoyed by him or her, or the failure by AMRESCO to
provide such Eligible Employee with the number of paid vacation
days to which he is then entitled on the basis of years of
service with AMRESCO in accordance with AMRESCO's normal vacation
policy in effect as of the date hereof;
(f) Any failure of AMRESCO to obtain the assumption of, or the
agreement to perform, this Agreement by any successor as
contemplated in Section 6.1;
(g) Any purported termination of such Eligible Employee's
employment which is not effected pursuant to a Notice of
Termination satisfying the requirements of Section 3.3 (and, if
applicable, Section 3.1); and for purposes hereof, no such
purported termination shall be effective; or
(h) Eligible Employee's death or his or her incapacity due to
physical or mental illness results in his or her absence from his
or her duties with AMRESCO on a full-time basis for one hundred
twenty (120) consecutive days.
For purposes of this Section 3.2, any good faith
determination of "Good Reason" made by an Eligible Employee shall
be conclusive and binding on the parties.
3.3 Notice of Termination. Any termination pursuant to the
foregoing provisions of this Article 3 (including termination due
to an Eligible Employee's death) shall be communicated by written
Notice of Termination to the other party hereto. For purposes
hereof, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision herein relied upon
and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of such
Eligible Employee's employment under the provision so indicated.
In the event that such Eligible Employee seeks to terminate his
or her employment with AMRESCO pursuant to Section 3.2, he or she
must communicate his or her written Notice of Termination to
AMRESCO within sixty (60) days of being notified of such action
or actions by AMRESCO which constitute Good Reason for
termination.
3.4 Date of Termination. "Date of Termination" shall mean (a)
if this Agreement is terminated pursuant to Section 3.2, the date
specified in the Notice of Termination and (b), if such Eligible
Employee's employment is terminated for any other reason, the
date on which a Notice of Termination is given.
4. Change of Control. For purposes hereof, a "Change of
Control" shall mean any one of the following: (i) Continuing
Directors (the Term "Continuing Director" means any individual
who is a member of the Board on the date hereof or was nominated
for election as a director by, or whose nomination as a director
was approved by, the Board with the affirmative vote of a
majority of the Continuing Directors.) no longer constitute a
majority of the Board; (ii) any person or group of persons (as
defined in Rule 13d-5 under the Securities Exchange Act of 1934,
as amended {Rule 13d-5}), together with his or its affiliates,
becomes the beneficial owner, directly or indirectly, of 25% or
more of AMRESCO's then outstanding securities entitled generally
to vote for the election of AMRESCO's directors; (iii) the merger
or consolidation of AMRESCO with any other entity if AMRESCO is
not the surviving entity and any person or group of persons (as
defined in Rule 13d-5), together with his or its affiliates, is
the beneficial owner, directly or indirectly, of 25% or more of
the surviving entity's then outstanding securities entitled
generally to vote for the election of the surviving entity's
directors; or (iv) the sale of all or substantially all of the
assets of AMRESCO or the liquidation or dissolution of AMRESCO.
5. Taxes.
5.1 Gross-Up Payment. In the event it shall be determined
that any payment, distribution or benefit of any type by AMRESCO
to or for the benefit of such Eligible Employee, whether paid or
payable or distributed or distributable pursuant to the terms
hereof or otherwise (the "Total Payments"), would constitute a
"parachute payment" as defined in Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), and would be
subject to the excise tax imposed by Section 4999 of the Code, or
any interest or penalties with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
collectively referred to as the "Excise Tax"), then such Eligible
Employee shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by such
Eligible Employee of all taxes (including additional excise taxes
imposed upon the Gross-Up Payment), such Eligible Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Total Payments. AMRESCO shall pay the Gross-Up
Payment to such Eligible Employee within thirty (30) business
days after such Eligible Employee's Termination Date or the
Change of Control whichever is appropriate.
5.2 Determination by Accountant. All determinations required to
be made under this Article 5, including whether a Gross-Up
Payment is required and the amount of such Gross-Up Payment,
shall be made by the independent accounting firm retained by
AMRESCO on the date of the Termination Date or Change of Control
(the "Accounting Firm"), which shall provide detailed supporting
calculations both to AMRESCO and such Eligible Employee within
fifteen (15) business days of the Termination Date or Change of
Control, if applicable, or such earlier time if requested by
AMRESCO. If the Accounting Firm determines that no Excise Tax is
payable by such Eligible Employee, it shall furnish such Eligible
Employee with an opinion that he or she has substantial authority
not to report any Excise Tax on his or her federal income tax
return. Any determination by the Accounting Firm shall be
binding upon AMRESCO and such Eligible Employee. As a result of
the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not
have been made by AMRESCO should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder.
In the event that AMRESCO exhausts its remedies pursuant to
Section 5.3 and such Eligible Employee thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and
any such Underpayment shall be promptly paid by AMRESCO to or for
the benefit of such Eligible Employee.
5.3 Notification Required. Such Eligible Employee shall notify
AMRESCO in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by AMRESCO of the
Gross-Up Payments. Such notification shall be given as soon as
practicable but no later than ten (10) business days after such
Eligible Employee knows of such claim and shall apprise AMRESCO
of the nature of such claim and the date on which such claim is
requested to be paid. Such Eligible Employee shall not pay such
claim prior to the expiration of the thirty (30) day period
following the date on which it gives such notice to AMRESCO (or
such shorter period ending on the date that any payment of taxes
with respect to such claim is due). If AMRESCO notifies such
Eligible Employee in writing prior to the expiration of such
period that it desires to contest such claim, such Eligible
Employee shall:
(a) give AMRESCO any information reasonably requested by AMRESCO
relating to such claim;
(b) take such action in connection with contesting such claim as
AMRESCO shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation
with respect to such claim by an attorney paid by AMRESCO
reasonably selected by AMRESCO,
(c) cooperate with AMRESCO in good faith in order to effectively
contest such claim,
(d) permit AMRESCO to participate in any proceedings relating to
such claim, provided, however, that AMRESCO shall bear and pay
directly all costs and expenses (including additional interest
and penalties) incurred in connection with such contest and shall
defend, indemnify and hold such Eligible Employee harmless, on an
after-tax basis, for any Excise Tax or income tax, including
interest and penalties with respect thereto, imposed as a result
of such representation any payment of costs and expenses.
Without limitation on the foregoing provisions of this Section
5.3, AMRESCO shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo
any and all administrative appeal, proceedings, hearings and
conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct such Eligible Employee
to pay the tax claimed and ▇▇▇ for a refund, or contest the claim
in any permissible manner, and such Eligible Employee agrees to
prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and
in one or more appellate courts, as AMRESCO shall determine;
provided, however, that if AMRESCO directs such Eligible Employee
to pay such claim and ▇▇▇ for a refund, AMRESCO shall advance the
amount of such payment to such Eligible Employee, on an interest-
free basis and shall defend, indemnify and hold such Eligible
Employee harmless, on an after-tax basis, from any Excise Tax or
income tax, including interest or penalties with respect thereto,
imposed with respect to such advance or with respect to any
imputed income with respect to such advance; and further provided
that any extension of the statute of limitations relating to the
payment of taxes for the taxable year of such Eligible Employee
with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore,
AMRESCO's control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder
and such Eligible Employee shall be entitled to settle or
contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
5.4 Repayment. If, after the receipt by such Eligible Employee
of an amount advanced by AMRESCO pursuant to Section 5.1, such
Eligible Employee becomes entitled to receive any refund with
respect to such claim, such Eligible Employee shall (subject to
AMRESCO's complying with the requirements of Section 5.3)
promptly pay to AMRESCO the amount of such refund (together with
any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by such Eligible Employee of an
amount advance by AMRESCO pursuant to Section 5.1, a
determination is made that such Eligible Employee shall not be
entitled to any refund with respect to such claim and AMRESCO
does not notify such Eligible Employee in writing of its intent
to contest such denial of refunding prior to the expiration of
thirty (30) days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the
amount of such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid.
5.5 Mitigation or Set-off of Amounts Payable Hereunder.
Such Eligible Employee shall not be required to mitigate the
amount of any payment provided for in Article 2 or this Article 5
by seeking other employment or otherwise, nor shall the amount of
any payment provided for in this Article 5 be reduced by any
compensation earned by such Eligible Employee as the result of
employment by another employer after the Date of Termination, or
otherwise. AMRESCO's obligations hereunder also shall not be
affected by any set-off, counterclaim, recoupment, defense or
other claim, right or action which AMRESCO may have against such
Eligible Employee.
6. SUCCESSORS; BINDING AGREEMENT.
6.1 Successors of AMRESCO. AMRESCO will require any successor
(whether direct or indirect, by purchase, merger, consolidation
or otherwise) to all or substantially all of the business and/or
assets of AMRESCO, by agreement in form and substance
satisfactory to such Eligible Employee, expressly to assume and
agree to perform this Agreement in the same manner and to the
same extent that AMRESCO would be required to perform it if such
Eligible Employee had terminated employment but no such
succession had taken place. Failure of AMRESCO to obtain such
agreement prior to the effectiveness of any such succession shall
be a breach hereof and shall entitle such Eligible Employee to
compensation from AMRESCO in the same amount and on the same
terms as such Eligible Employee would be entitled hereunder if
such Eligible Employee terminated his or her employment for Good
Reason, except that for purposes of implementing the foregoing,
the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used herein, "AMRESCO, INC."
shall mean AMRESCO as hereinbefore defined and any successor to
its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this Section 6.1 or which
otherwise becomes bound by all the terms and provisions hereof by
operation of law.
6.2 Such Eligible Employee's Heirs, etc. This Agreement shall
inure to the benefit of and be enforceable by such Eligible
Employee's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and
legatees. If such Eligible Employee should die while any amounts
would still be payable to him or her hereunder as if he or she
had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms
hereof to his or her designee or, if there be no such designee,
to his or her estate.
6.3 Notice. For the purposes hereof, notices and all other
communications provided for herein shall be in writing and shall
be deemed to have been duly given when delivered or mailed by
United States registered or certified mail, return receipt
requested, postage prepaid, addressed to AMRESCO at its principal
place of business and to such Eligible Employee at his or her
address as shown on the records of AMRESCO, provided that all
notices to AMRESCO shall be directed to the attention of the
Chief Executive Officer of AMRESCO with a copy to the Secretary
of AMRESCO, or to such other in writing in accordance herewith,
except that notices of change of address shall be effective only
upon receipt.
6.4 Miscellaneous. No provisions hereof may be amended,
modified, waived or discharged unless such amendment, waiver,
modification or discharge is agreed to in writing signed by such
Eligible Employee and such officer as may be specifically
designated by the Board (which shall in any event include
AMRESCO's Chief Executive Officer). No waiver by either party
hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision hereof to be
performed by such other party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not set
forth expressly herein. This Agreement is in addition to any and
all severance compensation agreements, severance plans, severance
policies, practices, arrangements or programs, written or
unwritten, that the Employer may have had in effect for such
Eligible Employee from time to time prior to the date hereof.
6.5 Validity. The invalidity or unenforceability of any
provisions hereof shall not affect the validity or enforceability
of any other provision hereof, which shall remain in full force
and effect.
6.6 Non-Exclusivity of Rights. Nothing herein shall prevent or
limit such Eligible Employee's continuing or future participation
in any benefit, bonus, incentive or other plans, practices,
policies or programs, including, but not limited to any severance
agreement(s) to which such Eligible Employee is a party to,
provided by AMRESCO and for which such Eligible Employee may
qualify, nor shall anything herein limit or otherwise affect such
rights as such Eligible Employee may have under any stock option
or other agreements with AMRESCO. Amounts which are vested
benefits or which such Eligible Employee is otherwise entitled to
receive under any plan, practice, policy or program of AMRESCO at
or subsequent to the Date of Termination or Change of Control
shall be payable in accordance with such plan, practice, policy
or program.
6.7 Legal Expenses. AMRESCO agrees to pay, upon written demand
therefor by such Eligible Employee, all legal fees and expenses
which such Eligible Employee may reasonably incur as a result of
any dispute or contest (regardless of the outcome thereof) by or
with AMRESCO or others regarding the validity or enforceability
of, or liability under, any provision hereof (including as a
result of any contest about the amount of any payment pursuant to
Section 5.2), plus in each case interest at the "applicable
Federal rate" (as defined in Section 1274(d) of the Code). In any
such action brought by such Eligible Employee for damages or to
enforce any provisions hereof, he shall be entitled to seek both
legal and equitable relief and remedies, including, without
limitation, specific performance of AMRESCO's obligations
hereunder, in his or her sole discretion.
6.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but
all of which together will constitute one and the same
instrument.
6.9 Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Texas, without giving
effect to principles of conflict of laws.
6.10 Captions and Gender. The use of captions, Article and
Section headings herein is for purposes of convenience only and
shall not effect the interpretation or substance of any
provisions contained herein. Similarly, the use of the masculine
gender with respect to pronouns herein is for purposes of
convenience and includes either sex who may be a signatory.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
AMRESCO, INC.
By:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: President and
Chief Executive Officer
L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Exhibit A
Name Share
1. L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 40%
2. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 20%
3. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 20%
4. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 10%
5. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 10%