Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1 Filing Table of Contents
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2: EX-10.1 Material Contract HTML 1.05M
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9: EX-10.16 Material Contract HTML 119K
10: EX-10.17 Material Contract HTML 116K
11: EX-10.18 Material Contract HTML 114K
12: EX-10.19 Material Contract HTML 66K
3: EX-10.2 Material Contract HTML 53K
13: EX-10.20 Material Contract HTML 103K
14: EX-10.21 Material Contract HTML 179K
4: EX-10.3 Material Contract HTML 126K
5: EX-10.4 Material Contract HTML 742K
6: EX-10.5 Material Contract HTML 43K
7: EX-10.6 Material Contract HTML 79K
15: EX-21.1 Subsidiaries of the Registrant HTML 12K
16: EX-23.1 Consent of Experts or Counsel HTML 9K
SECOND AMENDED & RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT
THIS SECOND
AMENDED & RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
is made this 1st day of March, 2010 and is effective as of February 24, 2006
(the “Effective Date”), by and between Prommis Solutions Holding Corp.,
a Delaware corporation(“Holdings”),
and Jennifer Dorris, a resident of the State of Georgia (referred to herein as “You”). This Agreement amends and restates in its
entirety that certain Amended and Restated Executive Employment Agreement by
and between Holdings and You dated as of December 22, 2008 (the “Previous
Agreement”).
RECITALS
WHEREAS, Holdings and
its subsidiaries (collectively, the “Company”) are engaged in providing
certain outsourced services to its customers, including law firms, relating to
their bankruptcy, foreclosure and post-foreclosure/real-estate owned (REO)
needs (the “Business”);
WHEREAS, You and
Holdings are parties to the Previous Agreement; and
WHEREAS, You and
Holdings desire to amend and restate the Previous Agreement in its entirety on
the terms set forth herein.
NOW, THEREFORE, for and in
consideration of Your employment by the Company, the above premises and the
mutual agreements hereinafter set forth, You and the Company agree that the
Previous Agreement is amended and restated in its entirety as follows:
1.Definitions.
(a) “Affiliate” means any entity with whom the Company
would be considered a single employer under section 414(b) or 414(c) of the
Code.
(b) “Cause” shall mean (i) Your commission of any act of
fraud or dishonesty with respect to the Company, or any of its Affiliates, or
any of their customers or suppliers; (ii) Your conviction of any felony; (iii) Your
reporting to work under the influence of alcohol or illegal drugs, the use of
illegal drugs (whether or not at the workplace) or other repeated conduct which
causes the Company or any of its Affiliates substantial public disgrace or
disrepute or substantial economic harm; (iv) Your repeated failure, after written
notice specifying such failure and a reasonable opportunity during a period of
no fewer than thirty (30) days to cure such failure, to perform Your duties
hereunder responsibly (other than a failure resulting from Your Total
Disability); or (v) Your breach of Sections 5, 6, 7, 8
or 9 of this Agreement.
(c) “Change in Circumstance” means (i) a substantial
adverse alteration in the nature or status of Your responsibilities without
Your written consent, (ii) without Your written consent, a material reduction
in employee benefits other than a reduction generally applicable to all
similarly situated executives of the Company or (iii) without Your written
consent, relocation of the Company’s principal place of business outside a
fifty (50) mile radius of Atlanta, Georgia or (iv) You are required to engage
in activities, which in your reasonable judgment would constitute a material
violation of any rule, order, injunction, censure, regulation or guideline
issued
by any state professional association or regulatory or administrative body
(whether governmental, quasi-governmental or private nature) responsible for
oversight of attorney conduct, professional responsibility or the practice of
law.
(d) “Change in Control” means (i) the transfer of all or
substantially all of the Company’s total assets on a consolidated basis to an
unaffiliated third party; or (ii) any sale, transfer, or issuance or series of
sales, transfers and/or issuances of voting securities by Holdings or any
holders of Common Stock which results in any Person or group of Persons (as the
term “group” is used under the Securities Exchange Act of 1934), other than
Great Hill Equity Partners II, L.P. and its Affiliates, owning more than 50% of
the voting securities outstanding at the time of such sale, transfer or
issuance or series of sales, transfers and/or issuances.
(e) “Code” means the Internal Revenue Code of 1986, as
amended, or any successor thereto.
(f) “Person” means an individual, a partnership, a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
(g) “Total Disability” shall mean Your inability, through
physical or mental illness or accident, to perform the essential functions of
Your usual duties and responsibilities hereunder (as such duties are
constituted on the date of the commencement of such disability) for a period of
at least ninety (90) consecutive days following reasonable accommodation, all
as determined by an independent medical doctor licensed to practice medicine in
the State of Georgia retained by the Board to make such determination. Total Disability shall be deemed to have
occurred on the first day following the expiration of such period.
2.Employment; Duties.
(a) From and after the date hereof, You shall serve as the
President of the Company and shall have the normal duties, responsibilities,
functions and authority of a President, subject to the power and authority of
the Chief Executive Officer and the Board of Directors (the “Board”) of
Holdings. During the Employment Period,
You shall render such administrative, financial and other executive and
managerial services to the Company and its Affiliates which are consistent with
Your position as the Chief Executive Officer and the Board may from time to
time direct.
(b) During the Employment Period, You shall report to the Chief
Executive Officer and the Board and shall devote Your best efforts and Your
full business time and attention (except for permitted vacation periods,
reasonable periods of illness or other incapacity, and time spent fulfilling
continuing legal education requirements) to the business and affairs of the
Company and its Affiliates. You shall
perform Your duties, responsibilities and functions to the Company and its
Affiliates hereunder to the best of Your abilities in a diligent, trustworthy,
professional and efficient manner and shall comply with the Company’s and its
Affiliates’ policies and procedures in all material respects. In performing Your duties and exercising Your
authority under this Agreement, You shall support and implement the business
and strategic
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plans
approved from time to time by the Chief Executive Officer and Board. So long as You are employed by the Company or
any of its Affiliates, You shall not, without the prior written consent of the
Board, accept other employment or perform other services for compensation other
than for the Company and its Affiliates; provided that You may serve as
a member of the board of Express-1 Expedited Solutions, Inc.
3.Compensation.
(a) (1) From and after the date hereof, You shall be paid a base
salary of three hundred forty-six thousand dollars ($346,000) per year. The Board shall review your base salary
annually during the Employment Period and, in its sole discretion, may increase
(but not decrease) such base salary from time to time. The annual base salary payable to You under
this Section 3(a), as the same may be increased from time to time, shall
hereinafter be referred to as the “Base Salary”. The Base Salary shall accrue and be due and
payable in equal, or as nearly equal as practicable, semi-monthly installments
and the Company may deduct from each such installment all amounts required to
be deducted and withheld in accordance with applicable federal and state
income, FICA and other withholding tax requirements.
(2) If the Employment Period shall begin on other than the first
business day of a calendar month and/or if the Employment Period shall
terminate on other than the last day of a calendar month, Your compensation for
such month shall be prorated according to the number of days during such month
within the Employment Period.
(3) You shall be eligible to receive a bonus based upon criteria
to be established by the Board in its sole discretion (the “Bonus Payments”). All payments under this Section 3(a)(3) shall
be subject to all withholdings in accordance with applicable federal and state
income, FICA and other withholding tax requirements and shall be paid in
accordance with the Company’s practice for the timing of making bonus payments
to its employees, but in any event prior to March 15 of the year following the
year in which the Bonus Payment vests and becomes nonforfeitable.
(4) The Company has established the 2006 Equity Incentive Plan (“Equity
Incentive Plan”). Subject to the
terms and conditions of the Equity Incentive Plan, You shall be eligible to
receive stock option and/or restricted stock awards under the Equity Incentive
Plan from time to time as the Board of Directors, in its sole discretion,
determines appropriate.
(b) While You are performing the services described herein, the
Company shall, upon Your request, reimburse You for all reasonable and
necessary expenses incurred by You in connection with the performance of Your
duties of employment hereunder. All
reimbursements to You for expenses shall be reasonably documented and timely submitted
for reimbursement to the Company in accordance with the Company’s normal
reimbursement policies. The Company
shall reimburse, at Your request, reasonable fees for professional
organizations reasonably related to the bankruptcy and foreclosure industries. Such reimbursements shall be made as soon as
administratively practical following an appropriate request, provided You
submit Your request within thirty (30) days after You incur such expenses. Notwithstanding anything to the contrary
herein, in the event of a termination of this
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Agreement
for any reason, including for Cause, You shall be entitled to any
reimbursements accrued through Your termination date in accordance with this
paragraph.
(c) During the Employment Period, the Company shall provide
health, medical, disability and group term life insurance, and other employee
welfare benefit plans and fringe benefits to You (and, to the extent
applicable, Your eligible family members and dependents) in accordance with any
group plan or program established by the Company and the Company shall pay all
premiums and costs required to maintain such coverage. You shall also be eligible to participate in
any qualified and non-qualified retirement savings, defined benefit, and
deferred compensation plans that the Company sponsors for similarly situated
executives.
(d) You shall receive four (4) weeks paid vacation during each
full twelve (12) month period of the Employment Period. Such vacation period may be increased from
time to time and at any time by the Company in its sole discretion but shall in
no event be shortened to less than four (4) weeks per full twelve (12) month
period. Carryover of your accrued
vacation, if any, will be determined pursuant to the Company’s normal vacation
pay policies.
(e) During the Employment Period You shall be covered under the
Company’s director and officer insurance policy (which shall include a limited “employed
lawyer” coverage) for acts and omissions while an officer or director of the
Company in an amount of not less than $5 million dollars for each occurrence.
(f) During the Employment Period, the Company will maintain, at
its cost, a renewable long-term Total Disability plan that, subject to the
terms of such plan and any applicable plans, policies or programs, provides for
payment of not less than 60% of Your Base Salary for so long as any Total
Disability continues. In addition, the
Company shall reimburse You during the Employment Period the amount of premiums
payable by You with respect to a personal supplemental long-term disability
insurance policy providing for benefits equal to at least 40% of Your Base
Salary for so long as any Total Disability continues.
4.Term; Termination.
(a) The term of Your employment under this Agreement commenced
on the Effective Date and shall end on February 24, 2014 (the “Employment
Period”); provided that (i) the Employment Period shall terminate
immediately upon Your resignation (with or without a Change in Circumstance),
death or Total Disability, (ii) at Your election, the Employment Period shall
terminate upon the consummation of a Change in Control, and (iii) the
Employment Period may be terminated by the Company at any time prior to February24, 2012 for Cause or without Cause.
Except as otherwise provided herein, any termination of the Employment
Period shall be effective as specified in a written notice from the Company to
You. Solely for purposes of determining
Your right to compensation under Section 4(b) below, You will not be considered
to have terminated Your employment, and the Employment Period will not be
deemed to have terminated, unless you have a “separation from service” within
the meaning of Code Section 409A.
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(b) If the Employment Period is terminated by the Company prior
to February 24, 2012, other than as a result of (i) a termination by the
Company for Cause, (ii) Your resignation without a Change in Circumstance, (iii)
Your Death or (iv) your Total Disability:
(1) You shall continue to be paid the Base Salary for a period
of twelve (12) months following the effective date of the termination of Your
employment(the
“Severance Period”), with the payments being made on a semi-monthly
basis on the first and fifteenth day of each month and commencing as provided
in Section 4(b)(5);
(2) You shall receive a pro-rata percentage (based on the actual
number of days worked during the applicable period) of all Bonus Payments which
You would have otherwise received but for the termination of the Employment
Period at the time You otherwise would have received such Bonus Payments but
for Your termination; and
(3) the health, medical, life, and group life insurance coverage
afforded to You (and Your eligible family members and dependents) by the
Company or reimbursed by the Company, as set forth in Section 3(c) and (f),
shall be continued for the Severance Period; provided, however, that to the
extent any such benefits or payments are not exempt from Code Section 409A or
the Company is not able to provide such benefits or payments in a manner to
comply with Code Section 409A, the Company will make a lump sum payment to You
to cover the cost of these remaining benefits and payments over the Severance
Period no later than the 15th day of the third month following the end of the
calendar year during which Your employment terminates.
(4) You shall be entitled to the foregoing severance payments
and benefits if and only if (i) You have executed and delivered to the Company
the General Release in form and substance as set forth in Exhibit A
attached hereto and (ii) the General Release has become effective, and only for
so long as You have not revoked or breached the provisions of the General
Release or breached the provisions of Sections 5, 6, 7, 8
or 9 hereof. You shall not be
entitled any other salary, compensation or benefits after termination of the
Employment Period, except as otherwise specifically provided for in the Company’s
employee benefit plans.
(5) To the extent that severance payments or benefits pursuant
to this Agreement are conditioned upon the execution and delivery by You of a
release of claims, You shall forfeit all rights to such payments and benefits
unless such release is signed and delivered (and no longer subject to
revocation, if applicable) within sixty (60) days following the date of Your
termination of employment. If the
foregoing release is executed and delivered and no longer subject to revocation
as provided in the preceding sentence, then the following shall apply:
a) To the extent any such cash
payment or continuing benefit to be provided is not “deferred compensation” for
purposes of Code Section 409A, then such payment or benefit shall commence upon
the first scheduled payment date immediately after the date the release is
executed and no longer subject to revocation (the “Release Effective Date”). The first such cash payment
shall include payment of all amounts that otherwise would have been due prior
to the Release Effective Date under
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the
terms of this Agreement applied as though such payments commenced immediately
upon Your termination of employment, and any payments made thereafter shall
continue as provided herein. The delayed
benefits shall in any event expire at the time such benefits would have expired
had such benefits commenced immediately following Your termination of
employment.
b) To the extent any such cash
payment or continuing benefit to be provided is “deferred compensation” for
purposes of Code Section 409A, then such payments or benefits shall be made or
commence upon the sixtieth (60) day following Your termination of
employment. The first such cash payment
shall include payment of all amounts that otherwise would have been due prior
thereto under the terms of this Agreement had such payments commenced
immediately upon Your termination of employment, and any payments made
thereafter shall continue as provided herein.
The delayed benefits shall in any event expire at the time such benefits
would have expired had such benefits commenced immediately following Your
termination of employment.
c) The Company may provide, in
its sole discretion, that You may continue to participate in any benefits
delayed pursuant to this Section during the period of such delay, provided that
You shall bear the full cost of such benefits during such delay period. Upon the date such benefits would otherwise
commence pursuant to this Section, the Company may reimburse You the Company’s share
of the cost of such benefits, to the extent that such costs would otherwise
have been paid by the Company or to the extent that such benefits would
otherwise have been provided by the Company at no cost to You, in each case had
such benefits commenced immediately upon Your termination of employment. Any remaining benefits shall be reimbursed or
provided by the Company in accordance with the schedule and procedures
specified herein.
(c) In the event that (i) Your employment is terminated by the
Company for Cause, (ii) You resign without a Change in Circumstance or (iii) Your
employment is terminated by reason of Your death or Total Disability, You shall
only be entitled to receive Your Base Salary earned through the date of
termination or resignation and You shall not be entitled to any other salary,
compensation or benefits from the Company or its Affiliates thereafter, except
as otherwise specifically provided for under the Company’s employee benefit
plans and the Company shall pay You for any reimbursable expenses owed to you
through the effective date of the termination or Your employment.
(d) In the event that Your employment is terminated due to Your
death, the Company will provide Your eligible family members and dependents
with medical insurance coverage under the Company’s then current benefit plans
for a period of three (3) months following your death.
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(e) The Company will continue to maintain the insurance coverage
described in Section 3(e) for a period of thirty-six (36) months after the
termination of Your employment, regardless of the reason therefor.
(f) If required by Code Section 409A due to You being a “specified
employee” as defined in Code Section 409A, any amounts payable to You during
the first six months and one day following the date of termination pursuant to Section
4(b) shall be deferred until the date which is six months and one day
following such termination (and the first such cash payment shall include
payment of all amounts that otherwise would have been due prior thereto under
the terms of this Agreement had such payments commenced immediately upon Your
termination of employment, and any payments thereafter shall continue as
provided herein).
5.Confidential Information.
(a) Obligation to Maintain Confidentiality. You acknowledge
that the continued success of the Company and its Affiliates depends upon the
use and protection of a large body of confidential and proprietary
information. All of such confidential
and proprietary information now existing or to be developed in the future will
be referred to in this Agreement as “Confidential Information.” Confidential Information shall be deemed to
consist of all information of any sort (whether obtained prior to or after the
Effective Date) that is (i) related to the Company’s or its Affiliates’ (or
their respective predecessors as it relates to the Business) current or
potential business and (ii) is not generally or publicly known. Confidential Information includes, without
specific limitation, the information, observations and data obtained by You
during the course of Your employment with the Company concerning the business
and affairs of the Company and its Affiliates (and during the course of Your
employment with the Company’s and its Affiliates’ predecessors concerning the
Business), information concerning acquisition opportunities in or reasonably
related to the Company’s or its Affiliates’ business or industry of which You
become aware during the Employment Period, the persons or entities that are
current, former or prospective suppliers or customers of any one or more of
them during Your employment with the Company, as well as development,
transition and transformation plans, methodologies and methods of doing business,
strategic, marketing and expansion plans, including plans regarding planned and
potential customers, financial and business plans, employee lists and telephone
numbers, new and existing programs and services, prices and terms, customer
service, integration processes, requirements and costs of providing service,
support and equipment. Therefore, You
agree that You shall not disclose to any unauthorized person or use for Your
own account any of such Confidential Information without the Board’s prior
written consent, unless and to the extent that any Confidential Information (i)
is or subsequently becomes generally known to and available for use by the
public other than as a result of Your acts (ii) is rightfully
received by You from a third party who, to Your knowledge, is not under a duty
of confidentiality; or (iii) is
required to be disclosed pursuant to any applicable law or court order. You agree to deliver to the Company at the
end of the Employment Period, or at any other time the Company may request in
writing, all memoranda, notes, plans, records, reports and other documents (and
copies thereof) relating to the business of the Company or its Affiliates
(including, without limitation, all Confidential Information) that You may then
possess or have under Your control.
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(b) Third Party Information. You understand that the Company and its
Affiliates will receive from third parties confidential or proprietary
information (“Third Party Information”) subject to a duty on the Company’s
and its Affiliates’ part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the Employment Period and thereafter,
and without in any way limiting the provisions of Section 5(a) above,
You will hold Third Party Information in the strictest confidence and will not
disclose to anyone (other than personnel of the Company or its Affiliates who
need to know such information in connection with their work for the Company or
such Affiliates) or use, except in connection with his work for the Company or
its Affiliates, Third Party Information unless expressly authorized by a member
of the Board in writing.
6.Intellectual Property, Inventions and
Patents.
(a) You acknowledge that all discoveries, concepts, ideas,
inventions, innovations, improvements, developments, methods, methods of doing
business, processes, programs, designs, analyses, drawings, reports, data,
software, trade secrets, firmware, logos, software, patent applications,
copyrightable work and mask work (whether or not including any confidential
information) and all registrations or applications related thereto, all other
proprietary information and all similar or related information (whether or not
patentable) which relate to the Company’s or any of its Affiliates’ actual or
anticipated business, research and development or existing or future products
or services and which are conceived, developed, acquired, contributed to, made,
or reduced to practice by You (whether alone or jointly with others) while
employed by the Company or its predecessor and their Affiliates, whether before
or after the Effective Date (collectively, “Work Product”), belong to
the Company or such Affiliate. The
provisions of this Section 6 will apply to Work Product which is first
reduced to practice and developed during the Employment Period, whether or not
further development or reduction to practice may take place after termination
of this Agreement.
(b) You shall promptly disclose Work Product to the Board and,
at the Company’s expense, perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, providing testimony and executing
assignments, consents, powers of attorney and other instruments).
(c) Any copyrightable work falling within the definition of Work
Product shall be deemed a “work made for hire” under the copyright laws of the
United States, and ownership of all rights therein shall vest in the Company or
its Affiliate. To the extent that any
Work Product is not deemed to be a “work made for hire,” You hereby assign and
agree to assign to the Company or such Affiliate all right, title and interest,
including without limitation, the intellectual property rights that You may
have in and to such Work Product. You
agree to execute any documents and take any actions (at the Company’s expense)
that may be legally required to effect and confirm such transfer and assignment
and waiver.
(d) You understand, however, that there is no obligation being
imposed on You to assign to the Company or any Affiliate, any invention falling
within the definition of Work Product for which no equipment, supplies,
facility, or trade secret information of the Company or any of its Affiliates
(or any of their predecessors) was used and that was developed
8
entirely
on Your own time, unless: (i) such Work Product relates to the Company’s, or
its Affiliates’ businesses or their actual or demonstrably anticipated research
or development, or (ii) the Work Product results from any work performed by You
for the Company, or its Affiliates under this Agreement.
(e) You have identified and listed on Exhibit B all Work
Product that is or was owned by You or was written, discovered, made, conceived
or first reduced to practice by You alone or jointly with another person prior
to Your employment under this Agreement and with the Company’s and its
Affiliates’ predecessors. If no such
Work Product is listed, You represent to the Company that You do not now nor
have You ever owned, nor have You made, any such Work Product.
7.Non-Competition. In
further consideration of the compensation to be paid to You hereunder, You
acknowledge that during the course of your employment with the Company and its
Affiliates you will become familiar with the Company’s and its Affiliates’
trade secrets and with other Confidential Information concerning the Company
and its Affiliates and that Your services shall be of special, unique and
extraordinary value to the Company and its Affiliates, and therefore, You agree
that during your employment with the Company or any of its Affiliates and for a
period ofeighteen
(18) months after termination of your employment with the Company and its
Affiliates for any reason, you shall not, directly or indirectly, within the
Territory (as defined below), provide Services (as defined below) to any Person
(including You) which is at the time engaged in the Business. As used herein, the “Territory” shall mean
within a 50-mile radius of Roswell, Georgia, and “Services” shall mean services
provided by You to the Company or any of its Affiliates during the one year
period immediately preceding the termination of Your employment with the
Company. Nothing herein shall prohibit
You from being a passive owner of not more than 2% of the outstanding stock of
any class of a corporation which is publicly traded, so long as You have no
active participation in the business of such corporation.
8.Customer Non-Solicitation. You
agree that during your employment with the Company and for a period of eighteen
(18) months after termination of your employment with the Company for any
reason, you will not directly or indirectly on your own behalf or on behalf of
any other Person, except on behalf of the Company, (i) solicit or call upon any
customer or client or Prospective Customer of the Company or any of its
Affiliates with a view to providing to such customer or Prospective Customer
the services provided by the Company and its Affiliates in connection with the
Business; provided, however, that the restrictions set forth in
this clause (i) shall apply only to customers or Prospective Customers of the
Company and its Affiliates with whom You had Material Contact (as defined
below) during eighteen-month period immediately preceding the termination of
Your employment with the Company and its Affiliates, or (ii) induce or attempt
to induce any customer or licensee of the Company or any of its Affiliates to
cease doing business with the Company or such Affiliate (including, without
limitation, by making any negative or disparaging statements or communications
regarding the Company or its Affiliates).
As used herein, “Prospective Customer” shall mean any Person to whom the
Company or any of its Affiliates has sent or delivered a written servicing
proposal or contract in connection with the Business of the Company and its
Affiliates, and “Material Contact” shall mean contact between You and each
customer or Prospective Customer (A) with whom You dealt; (B) whose dealings
with the Company were coordinated or supervised by You;
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(C)
about whom You obtained Confidential Information in the ordinary course of
business as a result of Your association with the Company.
9.Employee Non-Solicitation. You
agree that during your employment with the Company and for a period of eighteen
(18) monthsafter
termination of your employment with the Company for any reason, you will not
directly or indirectly through another person or entity, except on behalf of
the Company, recruit, hire or attempt to recruit or hire, directly or by
assisting others, any other person who was an employee of the Company or any of
its Affiliates within the two-year period prior to your termination of
employment or is an employee of the Company or any of its Affiliates following
your termination of employment, or otherwise induce or attempt to induce any
employee of the Company or any Affiliate to leave the employ of the Company or
such Affiliate or in any way interfere with the relationship between the
Company or any Affiliate and any employee thereof.
10.Termination of Restrictive Covenants;
Practice of Law. In the event of a winding-up,
dissolution or general cessation of business by the Company, or the Company’s
failure to make the severance payments provided under Section 4(b) hereunder
which continues uncured for more than 90 days, the covenants set forth in Sections
7, 8 and 9 shall automatically terminate upon the occurrence of such event.Nothing contained in Sections 5, 6, 7, 8 or 9 is intended
to, nor shall, limit or restrict Your ability to engage in the practice of law,
and the Company hereby expressly permits You to engage in the practice of law
in the practice area of Your choosing, notwithstanding any provision of such
sections.
11.Enforcement. If,
at the time of enforcement of Sections 5, 6, 7, 8 or 9 of this Agreement, a
court holds that the restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree that the maximum period,
scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed to revise the restrictions contained herein to cover the maximum
period, scope and area permitted by law.
You agree that the covenants contained in Sections 5, 6, 7, 8 and 9 are
of the essence of this Agreement; that each of the covenants is reasonable and
necessary to protect the business, interest and properties of the Company; and
that irreparable loss and damage will be suffered by the Company should You
breach any of the covenants. Therefore,
You agree that in addition to all other remedies provided by law or in equity,
the Company and its Affiliates or their successors and assigns shall be
entitled to a temporary restraining order and temporary and permanent
injunction to prevent a breach or contemplated breach of any of the covenants
(without posting a bond or other security).
In addition, in the event of a breach or violation by You of Section 7,
the time period set forth therein shall be automatically extended by the amount
of time between the initial occurrence of the breach or violation and when such
breach or violation has been duly cured.
You acknowledge that the restrictions contained in Section 7 are
reasonable and that You have reviewed the provisions of this Agreement with
Your legal counsel.
12.Additional Acknowledgments. You acknowledge that
the provisions of Sections 5, 6, 7, 8 or 9 are in consideration of: (i) employment
with the Company, and (ii) additional good and valuable consideration as set
forth in this Agreement. In addition,
You agree and acknowledge that the restrictions contained in Sections 5, 6, 7,
8 or 9 do not preclude You from earning a livelihood, nor do they unreasonably
impose limitations on Your ability to earn a
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living. In addition, You acknowledge (i) that the
business of the Company and its Affiliates may be national in scope, (ii) notwithstanding
the state of incorporation or principal office of the Company or residence of
any of its respective employees (including You), it is expected that the
Company and its Affiliates will have business activities and have valuable
business relationships within its industry throughout the United States. You agree and acknowledge that the potential
harm to the Company and its Affiliates of the non-enforcement of Sections 5, 6,
7, 8 or 9 outweighs any potential harm to You of its enforcement by injunction
or otherwise. You acknowledge that You
have carefully read this Agreement and have given careful consideration to the
restraints imposed upon You by this Agreement, and are in full accord as to
their necessity for the reasonable and proper protection of confidential and
proprietary information and relationships of the Company and its Affiliates now
existing or to be developed in the future.
You expressly acknowledge and agree that each and every restraint
imposed by this Agreement is reasonable with respect to subject matter, time
period and geographical area.
13.Representations. You hereby represent
and warrant to the Company that (i) the execution, delivery and performance of
this Agreement by You does not and shall not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which You are a party or by which You are bound, (ii) You are not a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by the Company, this Agreement shall
be Your valid and binding obligation, enforceable against You in accordance
with its terms. You hereby acknowledge
and represent that You have consulted with independent legal counsel regarding
Your rights and obligations under this Agreement and that You fully understand the
terms and conditions contained herein.
14.Corporate Opportunity. During the
Employment Period, You shall submit to the Board all business, commercial and
investment opportunities or offers presented to You or of which You become
aware which relate to the Business at any time during the Employment Period (“Corporate
Opportunities”). Unless approved by
the Board, You shall not accept or pursue, directly or indirectly, any
Corporate Opportunities on Your own behalf.
15.Cooperation. During the Employment Period and thereafter,
You agree to cooperate with the Company and its Affiliates in any internal
investigation, any administrative, regulatory or judicial investigation or
proceeding or any dispute with a third party as reasonably requested by the Company
(including, without limitation, being available to the Company upon reasonable
notice for interviews and factual investigations, appearing at the Company’s
request to give testimony without requiring service of a subpoena or other
legal process, volunteering to the Company all pertinent information and
turning over to the Company all relevant documents which are or may come into
Your possession, all at times and on schedules that are reasonably consistent
with Your other permitted activities and commitments). In the event the Company
requires Your cooperation in accordance with this Section 15, the
Company shall reimburse You solely for reasonable travel expenses (including
lodging and meals) upon submission of receipts, and, to the extent such cooperation
takes place after the termination of the Severance Period, a per diem of five
hundred dollars ($500).
11
16. Survival. Sections 4 through 13 and 15 through 25,
inclusive, shall survive and continue in full force in accordance with their
terms notwithstanding the expiration or termination of the Employment Period.
17. Severability. In
case any one or more of the provisions of this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect by a court of
competent jurisdiction, the validity of the remaining covenants set forth
herein shall not be affected thereby.
18. Assignment. This
Agreement and the rights and obligations of the parties hereunder may not be
assigned, transferred, pledged or encumbered in any way without the prior
written consent of the other party and any attempted assignment, transfer,
pledge, encumbrance or other disposition absent such consent shall be null and
void.
19. Notices. Except
as otherwise specifically provided herein, any notice required or permitted to
be given to You pursuant to this Agreement shall be given in writing, and
personally delivered or mailed to You by certified mail, return receipt
requested, at the address set forth below Your signature on this Agreement or
at such other address as You shall designate by written notice to the Company
given in accordance with this Section 19, and any notice required
or permitted to be given to the Company shall be given in writing, and
personally delivered or mailed to the Company by certified mail, return receipt
requested, addressed to the Company at the address set forth under the signature
of the Company or at such other address as the Company shall designate by
written notice to You given in accordance with this Section 19.
Any notice complying with this Section 19 shall be deemed received
upon actual receipt by the addressee.
20. Waiver. The
waiver by either party hereto of any breach of this Agreement by the other
party hereto shall not be effective unless in writing, and no such waiver shall
operate or be construed as the waiver of the same or another breach on a
subsequent occasion.
21. Governing
Law. This
Agreement and the rights of the parties hereunder shall be governed by and
construed in accordance with the laws of the internal laws of the State of
Georgia without regard to conflicts of laws. In any action or proceeding
brought with respect to or in connection with this Agreement, You and the
Company both hereby irrevocably agree to submit to the jurisdiction and venue
of the courts of the State of Georgia, and both parties consent to receive
service of process in the State of Georgia.
You and the Company both agree that any action or proceeding in
connection with this Agreement shall be brought exclusively in a United States
court located in the State of Georgia.
22. Beneficiary. The
covenants, terms, and provisions set forth in this Agreement shall inure to the
benefit of and be enforceable by You, Your heirs, and legal representatives and
by the Company and its permitted successors, assigns, and
successors-in-interest, including, without limitation, any corporation, partnership,
or other entity with which the Company may be merged. The Company shall require
any such successor to expressly acknowledge and agree in writing to assume the
Company’s obligations hereunder. Except as expressly set forth herein, nothing
expressed or implied in this Agreement is intended to confer, nor anything
herein shall
12
confer,
upon any person other than the parties hereto any rights, remedies, obligations
or liabilities whatsoever.
23. Entire
Agreement. This Agreement embodies the entire agreement of the parties
hereto relating to Your employment by the Company in the capacity herein stated
and, except as specifically provided herein, no provisions of any employee
manual, personnel policies, Company directives or other agreement or document
shall be deemed to modify the terms of this Agreement. No amendment or
modification of this Agreement shall be valid or binding upon You or the
Company unless made in writing and signed by the parties hereto. All
prior understandings and agreements relating to Your employment by the Company,
in whatever capacity, are hereby expressly terminated. The parties have
participated jointly in the negotiation and drafting of this Agreement. If an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
24. Time of the Essence. Time
is of the essence of this Agreement and each of the provisions hereof.
25. Section 409A Compliance.
(a) The intent of the parties is that
payments and benefits under this Agreement comply with Internal Revenue Code Section 409A
and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”)
and, accordingly, to the maximum extent permitted, this Agreement shall be
interpreted to be in compliance therewith.
In no event whatsoever shall the Company be liable for any additional
tax, interest or penalty that may be imposed on You by Code Section 409A
or damages for failing to comply with Code Section 409A.
(b) For purposes of compliance with Code Section 409A,
(i) all expenses or other reimbursements under this Agreement shall be
made on or prior to the last day of the taxable year following the taxable year
in which such expenses were incurred by You, (ii) any right to reimbursement or in-kind benefits is not
subject to liquidation or exchange for another benefit, and (iii) no such reimbursement, expenses eligible for
reimbursement, or in-kind benefits provided in any taxable year shall in any
way affect the expenses eligible for reimbursement, or in-kind benefits to be
provided, in any other taxable year.
(c) For purposes of Code Section 409A,
Your right to receive any installment payment pursuant to this Agreement shall
be treated as a right to receive a series of separate and distinct
payments. Whenever a payment under this
Agreement specifies a payment period with reference to a number of days, the
actual date of payment within the specified period shall be within the sole
discretion of the Company.
(d) Notwithstanding any other provision
of this Agreement to the contrary, in no event shall any payment under this
Agreement that constitutes “deferred compensation” for purposes of Code Section 409A
be subject to offset by any other amount unless otherwise permitted by Code Section 409A.
13
[Signature Page Follows]
14
IN WITNESS WHEREOF, You and the
Company have executed and delivered this Agreement effective as of the date
first shown above.
I, JENNIFER DORRIS, in consideration of and subject
to the performance by Prommis Solutions Holding Corp., a Delaware corporation
(together with its affiliates, the “Company”), of its obligations under
the Second Amended and Restated Employment Agreement, dated as of [ ]
(the “Agreement”), do hereby release and forever discharge as of the
date hereof the Company and its affiliates and all present and former
directors, officers, agents, representatives, employees, successors and assigns
of the Company and its affiliates and the Company’s direct or indirect owners
(collectively, the “Released Parties”) to the extent provided below.
1. I understand that any payments or
benefits paid or granted to me under Section 4(b) of the Agreement
represent, in part, consideration for signing this General Release and are not
salary, wages or benefits to which I was already entitled. I understand and
agree that I will not receive the payments and benefits specified in Section 4(b) of
the Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach this
General Release. I also acknowledge and
represent that I have received all payments and benefits that I am entitled to
receive (as of the date hereof) by virtue of any employment by the Company.
2. Except as provided in paragraph 4 below
and except for the provisions of the Agreement which expressly survive the
termination of my employment with the Company, I knowingly and voluntarily (for
myself, my heirs, executors, administrators and assigns) release and forever
discharge the Company and the other Released Parties from any and all claims,
suits, controversies, actions, causes of action, cross-claims, counter-claims,
demands, debts, compensatory damages, liquidated damages, punitive or exemplary
damages, other damages, claims for costs and attorneys’ fees, or liabilities of
any nature whatsoever in law and in equity, both past and present (through the
date this General Release becomes effective and enforceable) against the
Company or any of the Released Parties which I, my spouse, or any of my heirs,
executors, administrators or assigns, may have, to the extent that I have
knowledge or could reasonably be expected to have knowledge of such matter or
the facts giving rise to such matter, and which arise out of or are connected
with my employment with, or my separation or termination from, the Company
(including, but not limited to, any allegation, claim or violation, arising
under: Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights
Act of 1991; the Age Discrimination in Employment Act of 1967, as amended
(including the Older Workers Benefit Protection Act); the Equal Pay Act of
1963, as amended; the Americans with Disabilities Act of 1990; the Family and
Medical Leave Act of 1993; the Worker Adjustment Retraining and Notification
Act; the Employee Retirement Income Security Act of 1974; any applicable
Executive Order Programs; the Fair Labor Standards Act; or
their state or local counterparts; or under any other federal, state or
local civil or human rights law, or under any other local, state, or federal
law, regulation or ordinance; or under any public policy, contract or tort, or
under common law; or arising under any policies, practices or procedures of the
Company; or any claim for wrongful discharge, breach of contract, infliction of
emotional distress, defamation; or any claim for costs, fees, or other
expenses, including attorneys’ fees incurred in these matters) (all of the
foregoing collectively referred to herein as the “Claims”).
3. I represent that I have made no
assignment or transfer of any right, claim, demand, cause of action, or other
matter covered by paragraph 2 above.
4. I agree that this General Release does
not waive or release any rights or claims that I may have under the Age
Discrimination in Employment Act of 1967 which arise after the date I execute
this General Release. I acknowledge and agree that my separation from
employment with the Company in compliance with the terms of the Agreement shall
not serve as the basis for any claim or action (including, without limitation,
any claim under the Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I
acknowledge and intend that it shall be effective as a bar to each and every
one of the Claims hereinabove mentioned or implied. I expressly consent that
this General Release shall be given full force and effect according to each and
all of its express terms and provisions. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the
event I should bring a Claim seeking damages against the Company, or in the
event I should seek to recover against the Company in any Claim brought by a
governmental agency on my behalf, this General Release shall serve as a
complete defense to such Claims. I further agree that I am not aware of any
pending claim of the type described in paragraph 2 as of the execution of this
General Release.
6. I agree that neither this General
Release, nor the furnishing of the consideration for this General Release,
shall be deemed or construed at any time to be an admission by the Company, any
Released Party or myself of any improper or unlawful conduct.
7. I agree that I will forfeit all amounts
payable by the Company pursuant to the Agreement if I challenge the validity of
this General Release. I also agree that if I violate this General Release by
suing the Company or the other Released Parties, I will pay all costs and
expenses of defending against the suit incurred by the Released Parties,
including reasonable attorneys’ fees, and return all payments received by me
pursuant to the Agreement.
8. I agree that this General Release and the
Agreement are confidential and agree not to disclose any information regarding
the terms of this General Release or the Agreement, except to my immediate family
and any tax, legal or other counsel I have consulted regarding the meaning or
effect hereof or as required by law, and I will instruct each of the foregoing
not to disclose the same to anyone.
17
9. Any non-disclosure provision in this
General Release does not prohibit or restrict me (or my attorney) from
responding to any inquiry about this General Release or its underlying facts
and circumstances by the Securities and Exchange Commission (SEC), the National
Association of Securities Dealers, Inc. (NASD), any other self-regulatory
organization or governmental entity.
10. I agree to reasonably cooperate with the
Company in any internal investigation, any administrative, regulatory, or
judicial proceeding or any dispute with a third party. I understand and agree
that my cooperation may include, but not be limited to, making myself available
to the Company upon reasonable notice for interviews and factual
investigations; appearing at the Company’s request to give testimony without
requiring service of a subpoena or other legal process; volunteering to the
Company pertinent information; and turning over to the Company all relevant
documents which are or may come into my possession all at times and on schedules
that are reasonably consistent with my other permitted activities and
commitments. I understand that in the event the Company asks for my cooperation
in accordance with this provision, the Company will reimburse me solely for
reasonable travel expenses, (including lodging and meals), upon my submission
of receipts.
11. I agree that as of the date hereof, I
have returned to the Company any and all property, tangible or intangible,
relating to its business, which I possessed or had control over at any time
(including, but not limited to, company-provided credit cards, building or
office access cards, keys, computer equipment, manuals, files, documents,
records, software, customer data base and other data) and that I shall not
retain any copies, compilations, extracts, excerpts, summaries or other notes
of any such manuals, files, documents, records, software, customer data base or
other data.
12. Notwithstanding anything in this General
Release to the contrary, this General Release shall not relinquish, diminish,
or in any way affect any rights or claims arising out of any breach by the
Company or by any Released Party of the Agreement after the date hereof.
13. Whenever possible, each provision of this
General Release shall be interpreted in, such manner as to be effective and
valid under applicable law, but if any provision of this General Release is
held to be invalid, illegal or unenforceable in any respect under any
applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other
jurisdiction, but this General Release shall be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.
BY SIGNING THIS GENERAL
RELEASE, I REPRESENT AND AGREE THAT:
1. I HAVE READ IT CAREFULLY;
2. I UNDERSTAND ALL OF ITS TERMS AND KNOW
THAT I AM GIVING UP IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS
UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED, TITLE VII
OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE EQUAL
18
PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF 1990; AND THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED;
3. I VOLUNTARILY CONSENT TO EVERYTHING IN
IT;
4. I HAVE BEEN ADVISED TO CONSULT WITH AN
ATTORNEY BEFORE EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND
CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;
5. I HAVE HAD AT LEAST 21 DAYS FROM THE DATE
OF MY RECEIPT OF THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON
,
TO CONSIDER IT AND THE CHANGES MADE SINCE THE
,
VERSION OF THIS
RELEASE ARE NOT MATERIAL AND WILL NOT RESTART THE REQUIRED 21-DAY PERIOD;
6. THE CHANGES TO THE AGREEMENT SINCE
,
EITHER ARE NOT MATERIAL OR WERE MADE AT MY REQUEST.
7. I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER
THE EXECUTION OF THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT
BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD HAS EXPIRED;
8. I HAVE SIGNED THIS GENERAL RELEASE
KNOWINGLY AND VOLUNTARILY AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE
ME WITH RESPECT TO IT; AND
9. I AGREE THAT THE PROVISIONS OF THIS
GENERAL RELEASE MAY NOT BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY
AN INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE OF THE COMPANY
AND BY ME.
