Exhibit 10.15


 


SECOND AMENDED & RESTATED EXECUTIVE EMPLOYMENT
AGREEMENT


 


THIS SECOND
AMENDED & RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”)
is made this fifth day of January, 2010 and is effective as of February 27,
2010 (the “Effective Date”), by and between Prommis Solutions Holding
Corp. (f/k/a MR Processing Holding Corp.), a Delaware corporation  (“Holdings”), and Daniel D. Phelan,
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 2, 5, 6, 7,
8 or 9 of this Agreement.


 


(c)                                  “Code” means the Internal Revenue Code of 1986, as
amended, or any successor thereto.


 


(d)                                 “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.


 

















 


(e)                                  “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)                                  During the Employment Period, You shall serve as the
Vice-Chairman of the Board and shall have the normal duties, responsibilities,
functions and authority of a Vice-Chairman of the Board, subject to the power
and authority of the Board of Directors (the “Board”) of Holdings.  During the Employment Period, You shall also
assist the Company to implement any new strategic projects or services assigned
to You by Holdings’ Chief Executive Officer or the Board.  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 Board may from time to time direct.


 


(b)                                 During the Employment Period, You shall report to the Board
and with respect to any strategic projects, Holdings’ Chief Executive Officer,
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 plans approved from time to
time by the 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 other organizations and as a
member of the management committee of McCalla Raymer, LLC, a Georgia limited
liability company, in each case so long as You do not receive or accept,
directly or indirectly, any compensation for such service after the Effective
Date.


 


(c)                                  In consideration of the extension of Your employment with
the Company pursuant to this Agreement and the compensation and benefits
associated therewith, You agree that in the event You violate the restrictions
contained in the last sentence of Section 2(b) above, You shall (1) forfeit
all rights to any compensation described in this Agreement, and (2) promptly
pay an amount to the Company equal to the amount received by You in connection
with such other employment or performance of other services for compensation
other than for the Company and its Affiliates. 
For the avoidance of doubt, notwithstanding anything to the contrary in
the Option Agreement, a violation by You of the restrictions contained in the
last sentence of Section 2(b) above shall constitute “Cause” for
purposes of Your Option Agreement.


 


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3.                                      Compensation.


 


(a)                                  (1)                                  You shall be paid a base salary of four hundred five
thousand dollars ($405,000) 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,
bi-weekly 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)                                  The Company has
established the 2006 Equity Incentive Plan (the “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 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.


 


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(d)                                 You shall receive four (4) weeks of paid time off during
each full twelve (12) month period of the Employment Period.  Carryover of Your accrued paid time off, if
any, will be determined pursuant to the Company’s normal pay policies with
respect to paid time off.


 


(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 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 26, 2015 (the “Employment Period”);
provided that (i) the Employment Period shall terminate immediately upon Your
resignation, death or Total Disability and (ii) the Employment Period may be
terminated by the Company at any time prior to the expiration of the Employment
Period 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 (as defined below).


 


(b)                                 If the Employment Period is terminated by the Company prior
to the expiration of the Employment Period without Cause:


 


(1)                                  You shall continue to be paid the Base Salary for a period
beginning on the effective date of the termination of Your employment and
ending on February 26, 2015 (the “Severance Period”), with the payments
being made on a bi-weekly basis on the first and fifteenth day of each month
and commencing as provided in Section 4(b)(5);


 


(2)                                  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) (other
than disability insurance coverage), 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.


 


(3)                                  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


 


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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 to 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.


 


(4)                                  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 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


 


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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)                                  Subject to Section 2(b), in the event that (i) Your
employment is terminated by the Company for Cause, (ii) You resign 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.


 


(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


 


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industry
of which You become aware during Your employment with the Company, 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 Your employment with the Company, 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.


 


(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 Your employment with the Company,
whether or not further development or reduction to practice may take place
after termination of Your employment with the Company.


 


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(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 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 of eighteen (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 the State of 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.


 


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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 the twenty-four 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; or (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) months  after
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 2, 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 2, 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
2,


 


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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 all of the provisions of this Agreement
(including, without limitation, the forfeiture provisions contained in Section
2(c)) with Your legal counsel.


 


12.                               Additional Acknowledgments.  You acknowledge that
the provisions of Sections 2, 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 2, 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 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 2,
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, including, without limitation, the
forfeiture provisions contained in Section 2(c).


 


14.                               Corporate Opportunity.  During Your
employment with the Company, You shall submit to the Board all business,
commercial and investment opportunities or offers


 


10

















 


presented
to You or of which You become aware which relate to the Business at any time
during Your employment with the Company (“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).


 


16.                               Survival.  Sections 2(c), 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 Your employment with the Company.


 


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
sent in compliance with the provisions of this Section 19 shall be
deemed given on the third business day next succeeding the day on which it is
sent if sent by registered or certified mail or on the first business day
following the day on which the Notice was delivered to an overnight courier or,
if notice is given by email, upon email confirmation that such notice was
received.


 


11














 


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 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; provided, however, that nothing herein shall relieve You
from any liability for any breach by You of any representation, warranty,
covenant or agreement in the Previous Agreement prior to the Effective Date,
and the Company shall be entitled to any and all remedies at law and in equity
for any such breach.  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


 


12

















 


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.


 


[Signature Page Follows]


 


13

















 


IN WITNESS WHEREOF, You and the
Company have executed and delivered this Agreement effective as of the date
first shown above.


 


 


	
  THE
  COMPANY:

  	
   

  	
  YOU, THE EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
  PROMMIS
  SOLUTIONS HOLDING CORP.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/
  Daniel D. Phelan

  
	
  By:

  	
  /s/
  Denis Brosnan

  	
   

  	
  DANIEL
  D. PHELAN

  
	
   

  	
  Name:

  	
  Denis
  Brosnan

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer and

  	
   

  	
   

  
	
   

  	
   

  	
  President

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1544
  Old Alabama Road

  	
   

  	
  Address:

  
	
  Roswell,
  GA 30076

  	
   

  	
   

  



 

















 


Exhibit A


 


GENERAL
RELEASE


 


I, DANIEL PHELAN, in consideration of and subject to
the performance by Prommis Solutions Holdings 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.


 

















 


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 


 

















 


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.


 


 


	
  DATE: