Employment Agreement - Countrywide Asset Management Corp. and Kathleen H. Rezzo
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") has been executed as of January 1,
1997 by and between Countrywide Asset Management Corporation ("Employer") and
Kathleen H. Rezzo ("Officer").
WITNESSETH:
WHEREAS, Employer desires to obtain the benefit of continued services of Officer
and Officer desires to continue to render services to Employer and its
affiliates.
WHEREAS, Employer and Officer desire to set forth the terms and conditions of
Officer's employment with Employer and its affiliates under this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein
contained, the parties hereto agree as follows:
1. TERM. Employer agrees to employ Officer and Officer agrees to serve Employer
and its affiliates, in accordance with the terms hereof, for a term beginning
on the date first written above and ending on December 31, 2000, unless
earlier terminated in accordance with the provisions hereof.
2. POSITION, DUTIES AND RESPONSIBILITIES. Employer and Officer hereby agree
that, subject to the provisions of this Agreement, Employer will employ
Officer and Officer will serve Employer as Executive Vice President of CWM
Mortgage Holdings, Inc. ("Holdings") and as Executive Vice President of
Independent National Mortgage Corporation ("Indy Mac") and Independent
Lending Corporation and President and Chief Executive Officer of Construction
Lending Corporation of America, Builder Division. Employer agrees that
Officer's duties hereunder shall be the usual and customary duties of such
office and such further duties shall not be inconsistent with the provisions
of applicable law. Officer shall have such executive power and authority as
shall reasonably be required to enable her to discharge her duties in the
offices which she may hold. All compensation paid to Officer by Employer or
any of its affiliates shall be aggregated in determining whether Officer has
received the benefits provided for herein, but without prejudice to the
allocation of costs among the entities to which Officer renders services
hereunder. Employer and Officer hereby agree that the portion of Officer's
services which are provided to Indy Mac are to be treated for federal income
tax purposes as services provided by Officer as an employee of Indy Mac.
Officer agrees that Employer and Indy Mac shall make a determination as to
the portion of the total compensation payable to Officer hereunder which
shall be allocated to and deemed paid by Indy Mac for purposes of section
162(m) and related provisions of the Internal Revenue
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Code. If Employer requests Officer to relocate outside of Los Angeles County
in connection with the relocation of Holdings' headquarters, Officer shall
have the option of agreeing to such relocation and the terms of this contract
shall continue in full force and effect. If Officer declines to relocate,
either Officer or Employer shall provide the other party with a Notice of
Termination in accordance with Section 5(f) and the rights and obligations of
both parties shall cease upon such termination and Paragraphs 5(d) and 9(k)
will not be applicable. If Employer requests Officer to relocate outside of
Los Angeles County and the Holdings' headquarters are not also relocating,
Officer shall have the option of agreeing to such relocation and the terms of
this contract shall continue in full force and effect. If Officer declines
to relocate, Employer's request to relocate shall be deemed a termination
other than for Cause pursuant to Section 5(d).
3. SCOPE OF THIS AGREEMENT AND OUTSIDE AFFILIATIONS. During the term of this
Agreement, Officer shall devote her full business time and energy, except as
expressly provided below, to the business, affairs and interests of Employer
and its affiliates, and matters related thereto, and shall use her best
efforts and abilities to promote their respective interests. Officer agrees
that she will diligently endeavor to promote the business, affairs and
interests of Employer and its affiliates and perform services contemplated
hereby, in accordance with the policies established by the Board, which
policies shall be consistent with this Agreement. Officer agrees to serve
without additional remuneration as an officer of Holdings or of one or more
(direct or indirect) subsidiaries or affiliates of Employer or Holdings as
the Board may from time to time request, subject to appropriate authorization
by the affiliate or subsidiary involved and any limitation under applicable
law. Officer's failure to discharge an order or perform a function because
Officer reasonably and in good faith believes such would violate a law or
regulation or be dishonest shall not be deemed a breach by her of her
obligations or duties pursuant to any of the provisions of this Agreement,
including without limitation pursuant to Section 5(c) hereof.
During the course of Officer's employment as a full-time officer hereunder,
Officer shall not, without the consent of the Board, compete, directly or
indirectly, with Employer in the business then conducted by Employer or any
of its affiliates.
Officer may make and manage personal business investments of her choice and
serve in any capacity with any civic, educational or charitable organization,
or any governmental entity or trade association, without seeking or obtaining
approval by the Board, provided such activities and services do not
materially interfere or conflict with the performance of her duties
hereunder.
4. COMPENSATION AND BENEFITS.
a. BASE SALARY. Employer shall pay to Officer a base salary in respect of the
fiscal year of Employer (a "Fiscal Year") ending December 31, 1997 at the
annual rate of $180,000 (the "Annual Rate"). In respect of the Fiscal
Years ending in 1998, 1999, and 2000, the Compensation Committee of the
Board (the "Compensation Committee) may, based upon the recommendation of
Michael W. Perry and the performance of Officer and Employer,
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increase the Annual Rate. While any such increase shall be at the
discretion of the Compensation Committee, it is anticipated that, for any
Fiscal Year, a good performance review would result in an increase in the
Annual Rate of 5%, but could exceed such percentage if warranted.
Officer's Annual Rate may not be reduced during the term of this
Agreement. If Employer reduces Officer's Annual Rate during the term of
this Agreement, then such reduction may be treated by Officer as a
termination other than for Cause pursuant to Section 5(d) below.
b. INCENTIVE COMPENSATION. Employer shall pay to Officer for each of the
Fiscal Years ending during the term of this Agreement an incentive
compensation award in an amount determined pursuant to the Annual
Incentive Plan attached hereto as Appendix A. The incentive compensation
award payable to Officer for any Fiscal Year shall be paid no later than
thirty (30) days after completion of the applicable audited financial
statements for such Fiscal Year. For the purpose of any allocation of
Officer's incentive compensation pursuant to Section 2 above, it is
understood that the calculation of earnings of Holdings includes Holdings'
equity interest in the earnings of Indy Mac.
c. STOCK OPTIONS. Beginning with the 1997 Fiscal Year and in respect of each
of the following Fiscal Years during the term of this Agreement, Employer
may grant to Officer stock options for such number of shares of Employer's
common stock as the Compensation Committee in its sole discretion
determines, taking into account Officer's and Employer's performance and
the competitive practices then prevailing regarding the granting of stock
options. Subject to the foregoing, it is anticipated that the number of
shares in respect of each annual stock option grant shall be in accordance
with the number of shares granted to senior executives of Indy Mac. The
stock options described in this Section 4(c) in respect of a Fiscal Year
shall be granted at the same time as Employer grants stock options to its
other senior executives in respect of such Fiscal Year.
All stock options granted in accordance with this Section 4(c): (i) shall
be granted pursuant to Employer's current stock option plan, or such other
stock option plan or plans as may be or come into effect during the term
of this Agreement, (ii) shall have a per share exercise price equal to the
fair market value (as defined in the current Plan or such other plan or
plans) of the common stock at the time of grant, (iii) shall become
exercisable in three equal installments on each of the first three
anniversaries of the date of grant, (iv) shall become immediately and
fully exercisable in the event that Officer's employment is terminated due
to death or Disability or by Employer other than for Cause (as defined in
Section 5(c)), and (v) shall be subject to such other reasonable and
consistent terms and conditions as may be determined by the Compensation
Committee and set forth in the agreement evidencing the award.
d. ADDITIONAL BENEFITS. Officer shall also be entitled to all rights and
benefits for which she is otherwise eligible under any bonus plan, stock
purchase plan, participation or extra compensation plan, executive
compensation plan, pension plan, profit-sharing plan, life and medical
insurance policy, or other plans or benefits, which Employer or its
subsidiaries may provide for him, or provided she is eligible to
participate therein, for
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senior officers generally or for employees generally, during the term of
this Agreement (collectively, "Additional Benefits"). This Agreement shall
not affect the provision of
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any other compensation, retirement or other benefit program or plan of
Employer. If Officer's employment is terminated hereunder, pursuant to
Section 5(a), 5(b) or 5(d), Employer shall continue for the period
specified in Section 5(a), 5(b) or 5(d) hereof, to provide benefits
substantially equivalent to Additional Benefits (other than qualified
pension or profit sharing plan benefits and option, equity or stock
appreciation or other incentive plan benefits as distinguished from
health, disability and welfare type benefits) on behalf of Officer and her
dependents and beneficiaries which were being provided to them immediately
prior to Officer's Termination Date, but only to the extent that Officer
is not entitled to comparable benefits from other employment.
e. DEFERRAL OF AMOUNTS PAYABLE HEREUNDER. In the event Officer should desire
to defer receipt of any cash payments to which she would otherwise be
entitled hereunder, she may present such a written request to the
Compensation Committee which, in its sole discretion, may enter into a
separate deferred compensation agreement with Officer.
5. TERMINATION. The compensation and benefits provided for herein and the
employment of Officer by Employer shall be terminated only as provided for
below in this Section 5:
a. DISABILITY. In the event that Officer shall fail, because of illness,
injury or similar incapacity ("Disability"), to render for four (4)
consecutive calendar months, or for shorter periods aggregating eighty
(80) or more business days in any twelve (12) month period, services
contemplated by this Agreement, Officer's full-time employment hereunder
may be terminated, by written Notice of Termination from Employer to
Officer; and thereafter, Employer shall continue, from the Termination
Date until Officer's death or December 31, 2000, whichever first occurs
(the "Disability Payment Period"), (i) to pay compensation to Officer, in
the same manner as in effect immediately prior to the Termination Date, in
an amount equal to (1) fifty percent (50%) of the then existing base
salary payable immediately prior to the termination, minus (2) the amount
of any cash payments to her under the terms of Employer's disability
insurance or other disability benefit plans or employer's tax-qualified
Defined Benefit Pension Pan, and any compensation she may receive pursuant
to any other employment, and (ii) to provide during the Disability Payment
period the benefits specified in the last sentence of Section 4(d) hereof.
The determination of Disability shall be made only after 30 days notice to
Officer and only if Officer has not returned to performance of her duties
during such 30-day period. In order to determine Disability, both Employer
and Officer shall have the right to provide medical evidence to support
their respective positions, with the ultimate decision regarding
Disability to be made by a majority of Employer's disinterested directors.
b. DEATH. In the event that Officer shall die during the term of this
Agreement, Employer shall pay Officer's base salary for a period of twelve
(12) months following the date of Officer's death and in the manner
otherwise payable hereunder, to such person or persons as Officer shall
have directed in writing or, in the absence of a designation, to her
estate (the "Beneficiary"). Employer shall also (1) pay to such
Beneficiary (x) an amount equal
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to the incentive compensation that would have been payable to Officer
pursuant to Section 4(b) in respect of the Fiscal Year in which the
Officer's death occurs multiplied by a fraction, the numerator of which is
the number of days in such Fiscal Year through the date of Officer's death
and the denominator of which is 365 and (y) any unpaid incentive
compensation payable to Officer pursuant to Section 5(b) in respect of the
Fiscal Year immediately preceding the Fiscal Year in which her death
occurs and (2) provide during the twelve-month period following the date
of Officer's death the benefits specified in the last sentence of Section
4(d) hereof. If Officer's death occurs while she is receiving payments for
Disability under Section 5(a) above, such payments shall cease and the
Beneficiary shall be entitled to the payments and benefits under this
Subsection 5(b), which shall continue for a period of twelve months
thereafter at the full rate of base salary in effect immediately prior to
the Disability. This Agreement in all other respects will terminate upon
the death of Officer; provided, however, that (i) the termination of the
Agreement shall not affect Officer's entitlement to all other benefits in
which she has become vested or which are otherwise payable in respect of
periods ending prior to its termination, and (ii) to the extent not
otherwise vested, all outstanding stock options granted to Officer
pursuant to Section 4(c) will vest upon her death.
c. CAUSE. Employer may terminate Officer's employment under this Agreement
for "Cause." A termination for Cause is a termination by reason of (i) a
material breach of this Agreement by Officer (other than as a result of
incapacity due to physical or mental illness) which is committed in bad
faith or without reasonable belief that such breach is in the best
interests of Employer and which is not remedied within a reasonable period
of time after receipt of written notice from Employer specifying such
breach, or (ii) Officer's conviction by a court of competent jurisdiction
of a felony, or (ii) entry of an order duly issued by any federal or state
regulatory agency having jurisdiction in the matter removing Officer from
office of Employer or its affiliates or permanently prohibiting her from
participation in the conduct of the affairs of Employer of any of its
affiliates. If Officer shall be convicted of a felony or shall be removed
from office and/or temporarily prohibited from participating in the
conduct of Employer's or any of its affiliates' affairs by any federal or
state regulatory authority having jurisdiction in the matter, Employer's
obligations under Sections 4(a), 4(b), 4(c), and 4(f) hereof shall be
automatically suspended provided, however, that if the charges resulting
in such removal or prohibition are finally dismissed or if a final
judgment on the merits of such charges is issued in favor of Officer, or
if the conviction is overturned on appeal, then Officer shall be
reinstated in full with back pay for the removal period plus accrued
interest at the rate then payable on judgments. During the period that
Employer's obligations under Sections 4(a), 4(b), 4(c), and 4(f) hereof
are suspended, Officer shall continue to be entitled to receive Additional
Benefits under Section 4(d) until the conviction of the felony or removal
from office has become final and non-appealable. When the conviction of
the felony or removal from office has become final and non-appealable, all
of Employer's obligations hereunder shall terminate; provided, however,
that the termination of Officer's employment pursuant to this Section 5(c)
shall not affect Officer's entitlement to all benefits in which she has
become vested or which are otherwise payable in respect of periods ending
prior to her termination of employment. Anything herein to the contrary
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notwithstanding, termination for Cause shall not include termination by
reason of Officer's job performance or a job performance rating given to
Officer for her job performance or the financial performance of Holdings
or any affiliated company.
d. SEVERANCE. If during the term of this Agreement, Officer's employment
shall be terminated by Employer other than for Cause, then Employer shall
(1) pay Officer in a single payment as soon as practicable after the
Termination Date, but in no event later than thirty (30) days thereafter,
(A) an amount in cash equal to one year of Officer's base salary at the
Annual Rate at the Termination Date and (B) an amount equal to the
incentive compensation paid or payable to Officer pursuant to Section 4(b)
in respect of the Fiscal Year immediately preceding the Fiscal Year in
which Officer's Termination Date occurs (the "Bonus Rate"); provided,
however, that in the event the first anniversary of the Termination Date
occurs on a date prior to the end of a Fiscal Year, Employer shall also
pay Officer an amount equal to the product of (x) the Bonus Rate and (y) a
fraction, the numerator of which is (I) the number of days elapsed since
the end of the immediately preceding Fiscal Year through the end of the
Severance Period and (II) the denominator of which is 365, and (2) until
the first anniversary of the Termination Date, provide the benefits
specified in the last sentence of Section 4(d) hereof. Employer shall also
pay in a single payment as soon as practicable after the Termination Date,
but in no event later than thirty (30) days thereafter, any unpaid
incentive compensation payable to Officer pursuant to Section 4(b) in
respect of the Fiscal Year immediately preceding the Fiscal Year in which
Officer's Termination Date occurs.
e. RESIGNATION. If during the term of this Agreement, Officer shall resign
voluntarily, all of her rights to payment or benefits hereunder shall
immediately terminate; provided, however, that the termination of
Officer's employment pursuant to this Section 5(e) shall not affect
Officer's entitlement to all benefits in which she has become vested or
which are otherwise payable in respect of periods ending prior to her
termination of employment.
f. NOTICE OF TERMINATION. Any purported termination by Employer or by Officer
shall be communicated by a written Notice of Termination to the other
party hereto which indicates the specific termination provision in this
Agreement, if any, relied upon and which sets forth in reasonable detail
the facts and circumstances, if any, claimed to provide a basis for
termination of Officer's employment under the provision so indicated. For
purposes of this Agreement, no such purported termination shall be
effective without such Notice of Termination. The "Termination Date" shall
mean the date specified in the Notice of Termination, which shall be no
less than 30 or more than 60 days from the date of the Notice of
Termination. Notwithstanding any other provision of this Agreement, in the
event of any termination of Officer's employment hereunder for any reason,
Employer shall pay Officer her full base salary through the Termination
Date, plus any Additional Benefits which have been earned or become
payable, but which have not yet been paid as of such Termination Date.
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g. NOTICE OF NON-RENEWAL OF AGREEMENT. Employer shall provide Officer with a
minimum of six (6) months' written notice ("Non-Renewal Notice") if
Employer does not intend to renew the term of this Agreement. Following
such notice, Officer shall be permitted to seek and gain employment
elsewhere and such action shall be deemed to not be a violation of Section
9(k). In the event that Employer provides Officer with a Non-Renewal
Notice, Officer shall be entitled to all incentive compensation earned,
but not paid, during her employment through the date of termination. If
Employer does not provide the Non-Renewal Notice to Officer and Employer
terminates Officer for any reason other than for Cause within six (6)
months from the end of the term of this Agreement, Officer shall be
entitled to severance payment pursuant to Section 5(d). If Employer does
not provide the Non-Renewal Notice to officer and the parties cannot agree
on terms of a new agreement, then upon January 1, 2001, this Agreement
shall terminate and Officer shall not be subject to the restrictions set
forth in Paragraph 9(k), however, Officer shall be entitled to all
incentive compensation earned, but not paid, during her employment through
the date of termination.
6. REIMBURSEMENT OF BUSINESS EXPENSES. During the term of this Agreement,
Employer shall reimburse Officer promptly for all business expenditures to
the extent that such expenditures meet the requirements of the Code for
deductibility by Employer for federal income tax purposes or are otherwise in
compliance with the rules and policies of Employer and are substantiated by
Officer as required by the Internal Revenue Service and rules and policies of
Employer.
7. ARBITRATION. With the exception of disputes arising under or with respect to
Sections 9(h) or 9(k) hereof, any and all disputes arising out of or relating
to this Agreement, between Employer and Officer, shall be resolved by
arbitration. Any party hereto electing to commence an action shall give
written notice to the other parties hereto of such election. The dispute
shall be settled by arbitration in accordance with the then current rules of
the California Employment Dispute Resolution Association; provided, however,
in the event the parties are unable to agree on an arbitrator within twenty
(20) days after receipt of the aforementioned notice of arbitration, a single
arbitrator shall be selected by the Chief Judge of the Superior Court of the
State of California for the County of Los Angeles. The award of such
arbitrator may be confirmed or enforced in any court of competent
jurisdiction. The costs and expenses of the arbitrator, including the
reasonable attorneys' fees and costs of each of the parties, shall be
apportioned between the parties by such arbitrator, based upon such
arbitrator's determination of the merits of their respective positions. Any
party to the arbitration may demand production of documents from any other
party, to be produced no fewer than thirty (30) days prior to the first date
set for arbitration. Any party may notice up to two (2) depositions for
discovery purposes in preparation for arbitration. Other than as expressly
stated, no discovery shall be permitted except in accordance with California
law. The Federal Arbitration Act shall govern the interpretation and
application of this arbitration clause.
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8. INDEMNITY. To the extent permitted by applicable law, the Certificate of
Incorporation and the By-Laws of Employer (as from time to time in effect)
and any indemnity agreements entered into from time to time between Employer
and Officer, Employer shall indemnify Officer and hold her harmless for any
acts or decisions made by her in good faith while performing services for
Employer, and shall use reasonable efforts to obtain coverage for her under
liability insurance policies now in force or hereafter obtained during the
term of this Agreement covering the other officers or directors of Employer.
9. MISCELLANEOUS.
a. SUCCESSION. This Agreement shall inure to the benefit of and shall be
binding upon Employer, its successors and assigns, but without the prior
written consent of Officer, this Agreement may not be assigned other than
in connection with a merger or sale of substantially all the assets of
Employer or similar transaction. Notwithstanding the foregoing, Employer
may assign, whether by assignment agreement, merger, operation of law or
otherwise, this Agreement to Holdings or Indy Mac, or to any successor of
either of them, subject to such assignee's express assumption of all
obligations of Employer hereunder, and Officer hereby consents to any
such assignment. The failure of any successor to or assignee of the
Employer's business and/or assets in such transaction to expressly assume
all obligations of Employer hereunder shall be deemed a material breach
of this Agreement by Employer. The obligations and duties of Officer
hereby shall be personal and not assignable.
b. NOTICES. Any notices provided for in this Agreement shall be sent to
Employer at its corporate headquarters, Attention: General
Counsel/Secretary, with a copy to the Chairman of the Compensation
Committee at the same address, or to such other address as Employer may
from time to time in writing designate, and to Officer at such address as
she may from time to time in writing designate (or her business address
of record in the absence of such designation). All notices shall be
deemed to have been given two (2) business days after they have been
deposited as certified mail, return receipt requested, postage paid and
properly addressed to the designated address of the party to receive the
notices.
c. ENTIRE AGREEMENT This instrument contains the entire agreement of the
parties relating to the subject matter hereof, and it replaces and
supersedes any prior agreements between the parties relating to said
subject matter. No modifications or amendments of this Agreement shall be
valid unless made in writing and signed by the parties hereto.
d. WAIVER. The waiver of the breach of any term or of any condition of this
Agreement shall not be deemed to constitute the waiver of any other
breach of the same or any other term or condition.
e. CALIFORNIA LAW. This Agreement shall be construed and interpreted in
accordance with the laws of California.
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f. ATTORNEYS' FEES IN ACTION ON CONTRACT. If any litigation shall occur
between the Officer and Employer, which litigation arises out of or as a
result of this Agreement or the acts of the parties hereto pursuant to
this Agreement, or which seeks an interpretation of this Agreement, the
prevailing party in such litigation, in addition to any other judgment or
award, shall be entitled to receive such sums as the court hearing the
matter shall find to be reasonable as and for the attorneys' fees of the
prevailing party.
g. CONFIDENTIALITY. Officer agrees that she will not divulge or otherwise
disclose, directly or indirectly, any trade secret or other confidential
information concerning the business or policies of Employer or any of its
subsidiaries which she may have learned as a result of her employment
during the term of this Agreement or prior thereto as an employee,
officer or director of or consultant to Employer or any of its
subsidiaries, except to the extent such use or disclosure is (i)
necessary or appropriate to the performance of this Agreement and in
furtherance of Employer's best interests, (ii) required by applicable law
or in response to a lawful inquiry from a governmental or regulatory
authority, (iii) lawfully obtainable from other sources, or (iv)
authorized by Employer. The provisions of this subsection shall survive
the expiration, suspension or termination, for any reason, of this
Agreement.
h. REMEDIES OF EMPLOYER. Officer acknowledges that the services she is
obligated to render under the provisions of this Agreement are of a
special, unique, unusual, extraordinary and intellectual character, which
gives this Agreement peculiar value to Employer. The loss of these
services cannot be reasonably or adequately compensated in damages in an
action at law and it would be difficult (if not impossible) to replace
these services. By reason thereof, Officer agrees and consents that if
she violates any of the material provisions of this Agreement, Employer,
in addition to any other rights and remedies available under this
Agreement or under applicable law, shall be entitled during the remainder
of the term to seek injunctive relief, from a tribunal of competent
jurisdiction, restraining Officer from committing or continuing any
violation of this Agreement.
i. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain
in full force and effect, and if any provision is held invalid or
unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstances.
j. NO OBLIGATION TO MITIGATE. Officer shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment or otherwise and, except as provided in Section 5(a)(i)(2)
hereof, no payment hereunder shall be offset or reduced by the amount of
any compensation or benefits provided to Officer in any subsequent
employment.
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k. COVENANT NOT TO COMPETE
(i) IN GENERAL. Officer agrees that while she is employed by Employer
during the term of this Agreement and for a period of one year after
the termination of such employment for whatever reason other than any
termination by Employer, either for Cause or other than for Cause (the
"Non-Compete Period"), she shall not, within North America:
(A) engage in any business, whether as an employee, consultant,
partner, principal, agent, representative or stockholder (other
than as a stockholder of less than a one percent (1%) equity
interest) or in any other corporate or representative capacity
with any other business whether in corporate, proprietorship, or
partnership form or otherwise, where such business is engaged in
any activity which competes with the business of Employer (or its
subsidiaries or affiliates) as conducted on the date Officer's
employment terminated or which will compete with any proposed
business activity of Employer (or its subsidiaries or affiliates)
in the planning stage on such date;
(B) solicit business from, or perform services for, any company or
other business entity which at any time during the two-year period
immediately preceding Officer's termination of employment with
Employer was a client of Employer (or its subsidiaries or
affiliates) (including without limitation any lessee, vendor or
supplier); or
(C) offer, or cause to be offered, employment, either on a full-time,
part-time or consulting basis, to any person who was employed by
Employer (or its subsidiaries or affiliates) on the date Officer's
employment terminated, unless Officer shall have received the
prior written consent of Employer.
(ii) CONSIDERATION. The consideration for the foregoing covenant not to
compete, the sufficiency of which is hereby acknowledged, is
Employer's agreement to continue to employ Officer and provide
compensation and benefits pursuant to this Agreement, including but
not limited to Section 5(d).
(iii) EQUITABLE RELIEF AND OTHER REMEDIES. Officer acknowledges and agrees
that Employer's remedies at law for a breach or threatened breach of
any of the provisions of this Section would be inadequate and, in
recognition of this fact, Officer agrees that, in the event of such a
breach or threatened breach, in addition to any remedies at law,
Employer, without posting any bond, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other
equitable remedy which may then be available.
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(iv) REFORMATION. If the foregoing covenant not to compete would otherwise
be determined invalid or unenforceable by a court of competent
jurisdiction, such court shall exercise its discretion in reforming
the provisions of this Section to the end that Officer be subject to a
covenant not to compete, reasonable under the circumstances,
enforceable by Employer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EMPLOYER
By:___________________________
Name:_________________________
Title:________________________
Officer:
______________________________
in her individual capacity
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APPENDIX A
ANNUAL INCENTIVE PLAN
. Production/Profitability Bonus:
Year Maximum Amount Minimum Amount
1997 $250,000 $0
1998 $325,000 $0
1999 $400,000 $0
2000 $475,000 $0
2.00% of annual net income of Construction Lending Corporation of America -
- Builder Division, as determined by the Chief Financial Officer and
President of CWM Mortgage Holdings, Inc. in their sole discretion.
. Discretionary Bonus:
*Maximum Amount: 30% of Base Salary Minimum Amount: $0
*Criteria:
(DISCRETIONARY BONUS)
1. POTENTIAL DISCRETIONARY BONUS AMOUNT: From $0 up to 30% of base salary,
------------------------------------
based on your manager's evaluation of your performance.
2. BONUS DISCOUNT FACTOR FOR COMPANY EARNINGS:
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1997 EARNINGS PER SHARE (FULLY DILUTED)
FOR CWM MORTGAGE HOLDINGS, INC. DISCRETIONARY BONUS AMOUNT
------------------------------- --------------------------
less than $1.31 0%
$1.31 to $1.60 50%
$1.61 to $1.73 75%
greater than $1.74 100%
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Discretionary Bonus con't
Earnings per share for CWM Mortgage Holdings, Inc. shall be determined on the
basis of the annual audit conducted by CWM's independent accountants.
earnings' goals for 1998, 1999 and 2000 shall be set in accordance with CWM'S
goals established immediately prior to such year.
If earnings per share for CWM Mortgage Holdings, Inc. fall between any two
threshold amounts set forth above, the Bonus Discount Factor shall not be
interpolated by the corresponding percentage.
3. Actual Discretionary Bonus Amount.
---------------------------------
The Actual Discretionary Bonus Amount shall be calculated by multiplying (x)
the Potential discretionary Bonus Amount in Part 1 above (from $0 up to 30% of
base salary) times (y) the Bonus Discount Factor determined pursuant to Part 2
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above.
Example: $27,000 (Potential Discretionary Bonus Amount) x 50% ($1.50 per
------- share earnings for 1997) = $13,500 (Actual Discretionary Bonus
Amount).
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