**Exhibit10.24**

 

**AMENDEDAND RESTATED EMPLOYMENT AGREEMENT**

 

This Amended and Restated Employment Agreement(“Agreement”) is made effective as of January1, 2003 (“Effective Date”), by and between American Mortgage Network,Inc., a Delaware corporation, and a subsidiary of American ResidentialInvestment Trust, Inc., a Maryland corporation (“Company”) and Jay Fuller (“Executive”).

 

WHEREAS Executive and Company entered into anEmployment Agreement dated February 11, 2002 (the “Original Agreement”); 

 

WHEREAS the Original Agreement expired on February 10,2003; and 

 

WHEREAS, Executive and Company each desire to amendand restate the Original Agreement as set forth below.

 

NOW, THEREFORE, in consideration of the promises andrespective covenants and agreements of the parties herein contained, Executiveand Company agree as follows:

 

1.                                       Employment.  Company hereby employs Executive, and Executive hereby accepts suchemployment, upon the terms and conditions set forth herein.

 

2.                                       Duties.

 

2.1                                 Position.  Executive is employed as Executive Vice President, National Productionand shall have the duties and responsibilities assigned by Company bothupon initial hire and as may be reasonably assigned from time to time.  Executive shall perform faithfully anddiligently all duties assigned to Executive. Company reserves the right to modify Executive’s position and duties atany time in its sole and absolute discretion, provided that the duties assignedare consistent with the position of a senior executive and that Executivecontinues to report to the Chief Executive Officer (“CEO”).

 

2.2                                 BestEfforts/Full-time.  Executive willexpend Executive’s best efforts on behalf of Company, and will abide by allpolicies and decisions made by Company, as well as all applicable federal,state and local laws, regulations or ordinances.  Executive will act in the best interest of Company at alltimes.  Executive shall devoteExecutive’s full business time and efforts to the performance of Executive’sassigned duties for Company, unless Executive notifies the Company’s CEO inadvance of Executive’s intent to engage in other paid work and receives theCEO’s express written consent to do so.

 

2.3                                 WorkLocation.  Executive’s principalplace of work shall be located at  10421Wateridge Circle, San Diego, California,or such other location as the parties may agree upon from time to time.

 

3.                                       Term.  The employmentrelationship pursuant to this Agreement shall be for a term commencing on theEffective Date set forth above and continuing for a period of one year following such date, unlesssooner terminated in accordance with paragraph 7 below.

 

4.                                       Compensation.

 

4.1                                 BaseSalary.  As compensation forExecutive’s performance of Executive’s duties hereunder, Company shall pay toExecutive an initial Base Salary of ThreeHundred Eighteen Thousand Eight Hundred Sixteen Dollars ($318,816.00)per year, payable in

 

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accordance with the normal payroll practices of Company, less requireddeductions for state and federal withholding tax, social security and all otheremployment taxes and payroll deductions. In the event Executive’s employment under this Agreement is terminatedby either party, for any reason, Executive will earn the Base Salary proratedto the date of termination.

 

4.2                                 Bonus.  Executive will be eligible to earn a bonusof up to 100 percent of Executive’s Base Salary based on achievement oftargeted goals and objectives, including net income, established by managementand approved by the Company’s Board of Directors (“Board of Directors”).  

 

4.3                                 Performanceand Salary Review.  Company willperiodically review Executive’s performance. Adjustments to salary or other compensation, if any, will be made byCompany in its sole and absolute discretion.

 

5.                                       FringeBenefits.  Executive will be eligiblefor all customary and usual fringe benefits generally available to executivesof Company subject to the terms and conditions of Company’s benefit plandocuments.  In addition, Executive shallbe eligible to accrue 27 days of Paid Time Off (“PTO”) per year and receivereimbursement of up to $2000 per year for a physical examination.  Company reserves the right to change oreliminate the fringe benefits on a prospective basis, at any time, effectiveupon notice to Executive.

 

6.                                       Business Expenses. Executive will be reimbursed for all reasonable, out-of-pocket businessexpenses incurred in the performance of Executive’s duties on behalf ofCompany.  To obtain reimbursement,expenses must be submitted promptly with appropriate supporting documentationin accordance with Company’s policies.

 

7.                                       Termination of Executive’s Employment.  

 

7.1                                 Terminationfor Cause by Company.  AlthoughCompany anticipates a mutually rewarding employment relationship withExecutive, Company may terminate Executive’s employment immediately at any timefor Cause.  For purposes of thisAgreement, “Cause” is defined as: (i) acts or omissions constituting grossnegligence, recklessness or willful misconduct on the part of Executive withrespect to Executive’s obligations or otherwise relating to the business ofCompany; (ii) Executive’s material breach of this Agreement or Company’sConfidentiality Agreement; (iii) Executive’s conviction or entry of a pleaof nolo contendere for fraud, misappropriation or embezzlement, or any felonyor crime of moral turpitude; (iv) Executive’s willful neglect of duties asdetermined in the sole and exclusive discretion of the Board of Directors; or(v) Executive’s chemical dependence, as certified by a licensed physician,resulting in impairment of Executive’s abilities to perform his dutieshereunder or substantial damage to the reputation of Company.  Notwithstanding the foregoing, thetermination of Executive’s employment shall not constitute termination for Causeunless Company first provides Executive with written notice of the breach andExecutive fails to cure the breach (if possible) within 30 days of thenotice.  During this 30 day noticeperiod, Executive shall be afforded the opportunity to make a presentation tothe Board of Directors regarding the matters referred to in the notice ofbreach.  In the event Executive’semployment is terminated in accordance with this subparagraph 7.1, Executiveshall be entitled to receive only the Base Salary then in effect and anyamounts payable pursuant to paragraphs 5 and 6, prorated to the date oftermination (“Standard Entitlements”). All other Company obligations to Executive pursuant to this Agreementwill become automatically terminated and completely extinguished.  Executive will not be entitled to receivethe Severance Package described in subparagraph 7.2 below.

 

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7.2                                 TerminationWithout Cause by Company/Severance. Company may terminate Executive’s employment under this Agreementwithout Cause at any time on 30 days’ advance written notice to Executive.  In the event of such termination, Executivewill receive the Standard Entitlements and will be eligible to receive a“Severance Package” as described in subparagraph (a) below, providedExecutive complies with all the conditions set forth in subparagraph (b)below.  All other Company obligations toExecutive will be automatically terminated and completely extinguished.  

 

(a)                                  Severance Package. The Severance Package will consist of the following:

 

(i)                                     SeverancePayment.  Executive will receive aSeverance Payment equivalent to one yearof Executive’s Base Salary then in effect on the date of termination,less required deductions for state and federal withholding tax, social securityand all other employment taxes and payroll deductions, payable in accordancewith Company’s regular payroll cycle. 

 

(ii)                                  BonusPayment.  Executive will receive aBonus Payment equivalent to the amount of Executive’s bonus for the immediatelypreceding year, less required deductions for state and federal withholding tax,social security and all other employment taxes and payroll deductions, payablein a lump sum payment within three months of the date of termination.

 

(iii)                               Continuationof Group Health Benefits.  Executivewill continue to receive group health insurance benefits on the same terms asduring Executive’s employmentfor one year following the date of termination, provided Company’s insurance carrier allows forsuch benefits continuation.  In theevent Company’s insurancecarrier does not allow such coverage continuation, Company agrees to pay the premiums required to continue Executive’s group health care coveragefor the one-year period, under the applicable provisions of the ConsolidatedOmnibus Budget Reconciliation Act of 1985 (“COBRA”), provided that Executive elects to continue andremains eligible for these benefits under COBRA, and does not obtain healthcoverage through another employer during this period.  

 

(b)                                 Conditionsto Receive Severance Package.  Executive will be eligible for the Severance Package provided thatExecutive: (a) complies with all surviving provisions of this Agreement asspecified in subparagraph 14.8 below; and (b) executes a full generalrelease, releasing all claims, known or unknown, that Executive may haveagainst Company arising out of or any way related to Executive’s employment ortermination of employment with Company. All other Company obligations to Executive will be automatically terminatedand completely extinguished. 

 

7.3                                 VoluntaryResignation by Executive for Good Reason/Severance.  Executive may voluntarily resign Executive’sposition with Company for Good Reason at any time on 30 days’ advance writtennotice to Company.  Executive will bedeemed to have resigned for Good Reason if resignation is made withinsix (6) months following the occurrence of any of the followingcircumstances:  (i) Company’smaterial breach of this Agreement; (ii) Executive’s Base Salary is reducedby more than 10% below Executive’s salary as provided for in this Agreement,unless the reduction is due to a voluntary change of Executive’sresponsibilities; (iii) Executive’sposition and/or duties are modified so that Executive’s duties are no longerconsistent with the position of a senior executive or Executive no longerreports to the CEO; or (iv) Company relocates Executive’s principalplace of work to a location more than thirty (30) miles from the locationspecified in subparagraph 2.3, without Executive’s prior written

 

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approval. Notwithstanding the foregoing, the termination of Executive’s employmentunder this subparagraph 7.3 shall not constitute voluntary resignation forGood Reason unless Executive first provides Company with written notice of thebreach and Company fails to cure the breach (if possible) within 30 days of thenotice.  In the event of Executive’sresignation for Good Reason, Executive will be entitled to receive the StandardEntitlements and the Severance Package described in subparagraph 7.2(a)above, provided Executive complies with all of the conditions in subparagraph7.2(b) above.  All other Companyobligations to Executive pursuant to this Agreement will become automaticallyterminated and completely extinguished.

 

7.4                                 VoluntaryResignation by Executive Without Good Reason.  Executive may voluntarily resign Executive’s position withCompany Without Good Reason at any time on 30 days’ advance writtennotice.  In the event of Executive’sresignation Without Good Reason, Executive will be entitled to receive only theStandard Entitlements and no other amount. All other Company obligations to Executive pursuant to this Agreementwill become automatically terminated and completely extinguished.  In addition, Executive will not be entitledto receive the Severance Package described in subparagraph 7.2 above.

 

7.5                                 TerminationUpon Death.  Executive’s employmentwill terminate immediately on Executive’s death.  In the event of such termination, Company shall provide a deathbenefit equal to: (i) Executive’s Base Salary then in effect, prorated forthe current year to the date of Executive’s death; (ii) an amount equal tothe bonus paid to Executive the previous year, prorated for the current year tothe date of Executive’s death; and (iii) any amounts payable pursuant toparagraphs 5 and 6 that at the date of Executive’s death, are accrued butunpaid (collectively “Death Benefit”). The Death Benefit shall be made in a lump sum payment within 90 days ofExecutive’s death to such person as Executive shall designate in a notice filedwith Company or, if no such notice is filed, the Death Benefit shall be paid toExecutive’s estate.

 

7.6                                 TerminationUpon Disability.  Executive’semployment may be terminated by Company as a result of Executive’s inability toperform the essential functions of Executive’s position, with or withoutreasonable accommodation, if required by law, due to a mental or physicaldisability.  In no event will Executive’semployment be terminated pursuant to this subparagraph 7.6 until 180consecutive days of paid leave have elapsed and Company has provided 30 days’written notice in advance of termination. In the event of termination pursuant to this subparagraph 7.6,Executive shall be entitled to receive only the Standard Entitlements.  All other Company obligations to Executivepursuant to this Agreement will become automatically terminated and completelyextinguished.  Executive will not beentitled to receive the Severance Package described in subparagraph 7.2 above.  

 

7.7                                 TerminationUpon Expiration of Agreement.  IfExecutive’s employment is not terminated in accordance withsubparagraphs 7.1-7.6, this Agreement will expire exactly one year fromthe Effective Date.  In the event ofexpiration of this Agreement, Executive shall be entitled to receive only theStandard Entitlements earned through the date of expiration.  All other Company obligations to Executivepursuant to this Agreement will become automatically terminated and completelyextinguished.  Executive will not beentitled to receive the Severance Package described in subparagraph 7.2 above.

 

8.                                       ConsultantAfter Termination.  In the eventExecutive’s employment is terminated pursuant to subparagraphs 7.1, 7.4 or7.7, Executive agrees to act as aconsultant for Company, if requested to do so by Company.  Executive will be paid a fixed monthly feeequal to 25 percent of Executive’s monthly base salary in effect at thetime of termination for up to six (6)months following the termination of the employment relationship (“ConsultantPayments”).  Consultant Payments shallbe made in arrears on or before the last business day

 

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ofeach month during which Executive has acted as a consultant.  Company may elect, in its sole and absolutediscretion, to terminate the Consultant Payments at any time upon 10 days’advance written notice to Executive.

 

9.                                       NoConflict of Interest.  During theterm of Executive’s employment with Company and during any period Executive isreceiving payments from Company pursuant to this Agreement, Executive must notengage in any work, paid or unpaid, that creates an actual conflict of interestwith Company.  Such work shall include,but is not limited to, directly competing with Company in any way, or acting asan officer, director, employee, consultant, stockholder, volunteer, lender, oragent of any business enterprise of the same nature as, or which is in directcompetition with, the business in which Company is now engaged or in whichCompany becomes engaged during the term of Executive’s employment with Company,as may be determined by the Board of Directors in its sole discretion.  If the Board of Directors believes such aconflict exists during the term of this Agreement, the Board of Directors mayask Executive to choose to discontinue the other work or resign employment withCompany.  If the Board of Directorsbelieves such a conflict exists during any period in which Executive is receivingpayments pursuant to this Agreement, the Board of Directors may ask Executiveto choose to discontinue the other work or forego the remaining payments.  In addition, Executive agrees not to referany client or potential client of Company to competitors of Company, withoutobtaining Company’s prior written consent, during the term of Executive’semployment and during any period in which Executive is receiving payments fromCompany pursuant to this Agreement. Notwithstanding the foregoing, Executive may work or perform servicesfor Company and its affiliates or a financial institution or similar entitythat is involved in the mortgage business so long as such entity is not engagedprimarily in managing real estate investment trusts or originating and/orselling mortgages, and Executive may own securities in any publicly heldcorporation, but only to the extent Executive does not own of record orbeneficially more than 1 percent of the outstanding beneficial ownership ofsuch corporation.  

 

10.                                 ConfidentialityAgreement and Return of Company Property. Executive agrees to abide by Company’s Confidentiality Agreement thatExecutive read and signed in connection with Executive’s employment by Company,which is incorporated herein by reference.  Executivefurther agrees that upon termination or expiration of Executive’s employment,Executive will return all Company property, including all confidential andproprietary information as described in the Confidentiality Agreement, allmaterials and documents containing trade secrets and copyrighted materials, allcorrespondence, management studies and any other materials or data relating toor connected with Executive’s employment, including all copies and excerpts ofthe same.

 

11.                                 Indemnification.  Company agrees to defend and indemnifyExecutive to the fullest extent provided by California Labor Codesection 2802 and/or Company’s Directors’ and Officers’ liability insurancepolicy.

 

12.                                 Injunctive Relief.  Executive acknowledges that Executive’sbreach of the covenants contained in paragraphs 9-10 (collectively “Covenants”)would cause irreparable injury to Company and agrees that in the event of anysuch breach, Company shall be entitled to seek temporary, preliminary andpermanent injunctive relief without the necessity of proving actual damages or postingany bond or other security.

 

13.                                 Agreement toArbitrate.  To the fullest extentpermitted by law, Executive and Company agree to arbitrate any controversy,claim or dispute between them arising out of or in any way related to thisAgreement, the employment relationship between Company and Executive and anydisputes upon termination of employment, including but not limited to breach

 

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of contract, tort, discrimination, harassment,wrongful termination, demotion, discipline, failure to accommodate, family andmedical leave, compensation or benefits claims, constitutional claims; and anyclaims for violation of any local, state or federal law, statute, regulation orordinance or common law.  By executing thisAgreement, Executive and Company are both waiving the right to a jury trialwith respect to any such disputes.  Forthe purpose of this agreement to arbitrate, references to “Company” include allparent, subsidiary or related entities and their employees, supervisors,officers, directors, agents, pension or benefit plans, pension or benefit plansponsors, fiduciaries, administrators, affiliates and all successors andassigns of any of them, and this agreement shall apply to them to the extentExecutive’s claims arise out of or relate to their actions on behalf ofCompany.  

 

13.1                           Consideration.  The mutual promise by Company and Executiveto arbitrate any and all disputes between them rather than litigate them beforethe courts or other bodies, provides the consideration for this agreement toarbitrate.

 

13.2                           Initiationof Arbitration.  Either party mayexercise the right to arbitrate by providing the other party with writtennotice of any and all claims forming the basis of such right in sufficient detailto inform the other party of the substance of such claims.  In no event shall the request forarbitration be made after the date when institution of legal or equitableproceedings based on such claims would be barred by the applicable statute oflimitations.

 

13.3                           ArbitrationProcedure.  The arbitration will beconducted in San Diego, Californiaby a single neutral arbitrator and in accordance with the then current rulesfor resolution of employment disputes of the American Arbitration Association(“AAA”).  The parties are entitled torepresentation by an attorney or other representative of their choosing.  The arbitrator shall have the power to enterany award that could be entered by a judge of the trial court of the State ofCalifornia, and only such power, and shall follow the law.  The parties agree to abide by and performany award rendered by the arbitrator. The arbitrator shall issue the award in writing and therein state theessential findings and conclusions on which the award is based.  Judgment on the award may be entered in anycourt having jurisdiction thereof.

 

13.4                           Costsof Arbitration.  Company shall bearthe costs of the arbitrator, forum and filing fees.  

 

14.                                 GeneralProvisions.

 

14.1                           Successorsand Assigns.  The rights andobligations of Company under this Agreement shall inure to the benefit of andshall be binding upon the successors and assigns of Company.  Executive shall not be entitled to assignany of Executive’s rights or obligations under this Agreement.

 

14.2                           Waiver.  Either party’s failure to enforce anyprovision of this Agreement shall not in any way be construed as a waiver ofany such provision, or prevent that party thereafter from enforcing each andevery other provision of this Agreement.

 

14.3                           Attorneys’Fees.  Each side will bear its ownattorneys’ fees in any dispute unless a statutory section at issue, if any,authorizes the award of attorneys’ fees to the prevailing party.

 

14.4                           Severability.  In the event any provision of this Agreementis found to be unenforceable by an arbitrator or court of competentjurisdiction, such provision shall be deemed modified to the extent necessaryto allow enforceability of the provision as so limited, it

 

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being intended that the parties shall receive the benefit contemplatedherein to the fullest extent permitted by law. If a deemed modification is not satisfactory in the judgment of sucharbitrator or court, the unenforceable provision shall be deemed deleted, andthe validity and enforceability of the remaining provisions shall not beaffected thereby. 

 

14.5                           Interpretation;Construction.  The headings setforth in this Agreement are for convenience only and shall not be used ininterpreting this Agreement.  ThisAgreement has been drafted by legal counsel representing Company, but Executivehas participated in the negotiation of its terms.  Furthermore, Executive acknowledges that Executive has had anopportunity to review and revise the Agreement and have it reviewed by legal counsel,if desired, and, therefore, the normal rule of construction to the effect thatany ambiguities are to be resolved against the drafting party shall not beemployed in the interpretation of this Agreement.

 

14.6                           GoverningLaw.  This Agreement will be governedby and construed in accordance with the laws of the United States and the Stateof California.  Each party consents tothe jurisdiction and venue of the state or federal courts in San Diego, California, if applicable,in any action, suit, or proceeding arising out of or relating to thisAgreement.

 

14.7                           Notices.  Any notice required or permitted by thisAgreement shall be in writing and shall be delivered as follows with noticedeemed given as indicated:  (i) bypersonal delivery when delivered personally; (ii) by overnight courierupon written verification of receipt; (iii) by telecopy or facsimiletransmission upon acknowledgment of receipt of electronic transmission; or(iv) by certified or registered mail, return receipt requested, uponverification of receipt.  Notice shallbe sent to the addresses set forth below, or such other address as either partymay specify in writing.

 

14.8                           Survival.  Sections 9 (“No Conflict of Interest”), 10(“Confidentiality Agreement”), 12 (“Injunctive Relief”), 13 (“Agreement toArbitrate”), 7.3 (“General Provisions”) and 15 (“Entire Agreement”) of thisAgreement shall survive Executive’s employment by Company.

 

 

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15.                                 EntireAgreement.  This Agreement,including the Company’s Confidentiality Agreement incorporated herein byreference, constitutes the entire agreement between the parties relating tothis subject matter and supersedes all prior or simultaneous representations,discussions, negotiations, and agreements, whether written or oral.  This Agreement may be amended or modifiedonly with the written consent of Executive and the CEO of Company.  No oral waiver, amendment or modificationwill be effective under any circumstances whatsoever.

 

THE PARTIES TO THIS AGREEMENT HAVE READ THE FOREGOING AGREEMENT ANDFULLY UNDERSTAND EACH AND EVERY PROVISION CONTAINED HEREIN. WHEREFORE, THEPARTIES HAVE EXECUTED THIS AGREEMENT ON THE DATES SHOWN BELOW.

 
|   |           | JAY FULLER                       |
|--------|----------------|----------------------------------|
|   |           |                             |
|   |           |                             |
| Dated: |   3/31/03 |                             |              /s/ Jay Fuller |
|   |           |                             |
|   |           |                             |
|   |           |                             |   |
|   |           | American Mortgage Network, Inc.  |
|   |           |                             |
|   |           |                             |
| Dated: |   3/31/03 |                             | By: |    /s/ John  Robbins |
|   |           | John Robbins                     |
|   |           | Chief Executive Officer          |
|   |           | 10421 Wateridge Circle, Ste. 250 |
|   |           | San Diego, CA 92121              |
|        |                |                                  |  |  |  |

 

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