Exhibit 10.1


 


EMPLOYMENT AGREEMENT


 


EMPLOYMENT
AGREEMENT (“Agreement”)
dated this 29th day of October 2004, by and between Glenn J. Mouridy
(the “Executive”) and MortgageIT Holdings, Inc. (“the Company”).


 


WITNESSETH


 


WHEREAS, the Company desires to assure itself of the
services of the Executive as its President and Chief Financial Officer for the
period provided in this Agreement, and the Executive is willing to serve in the
employ of the Company for such period, all in accordance with the terms and
conditions contained in this Agreement.


 


NOW,
THEREFORE, in
consideration of the mutual covenants herein set forth, Executive and the
Company do agree to the terms of employment as follows:


 


1.             Definitions.  The following words and terms shall have the meanings set forth below
for the purposes of this Agreement:


 


(a)           Affiliate.  Affiliate of any person or entity
means any stockholder or person or entity controlling, controlled by under
common control with such person or entity, or any director, officer or key executive
of such entity or any of their respective relatives. For purposes of this
definition, “control,” when used with respect to any person or entity, means
the power to direct the management and policies of such person or entity,
directly or indirectly, whether through ownership of voting securities, by
contracting or otherwise; and the terms “controlling” and “controlled” have
meanings that correspond to the foregoing.


 


(b)           Base
Salary.  “Base Salary” shall
have the meaning set forth in Section 3(a) hereof.


 


(c)           Cause.
 “Cause” shall mean (i) with
regard to the Company or its Affiliates, personal dishonesty or willful
misconduct having a material adverse affect upon the Company, (ii) material
breach of fiduciary duty with regard to the Company, (iii) grossly negligent
failure to perform the Executive’s material duties, provided that a refusal to
approve any financials or execute any documents based on such financials shall
not be Cause if Executive in good faith believes that the accounting in such
financials are not appropriate and so notifies the Chief Executive Officer and
the Chairman of the Audit Committee of the Board of Directors (iv) conviction
of, or pleading guilty or nolo contendere to, any felony (other than traffic
violations or as a result of vicarious liability) and/or (v) a material breach
of any provision of this Agreement which is not cured within ten (10) days
after the giving of written notice thereof.


 


(d)           Change
in Control.  “Change in
Control” shall mean the occurrence of any of the following events subsequent to
the date of this Agreement: (i) an event that would be required to be reported
in response to Item l(a) of Form 8-K or Item 6(e) of Schedule 14A of Regulation
14A pursuant to the Securities Exchange Act of 1934, as amended (“Exchange Act”),
or any successor thereto, whether or not any class of securities of the Company
is registered under the Exchange Act; (ii) any “person” (as such term is used
in Sections 13(d) and 14(d) of


 


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the
Exchange Act), other than a trustee or other fiduciary holding securities under
an employee benefit plan of the Company or any Affiliate of the Company, is or
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 25% or
more of the combined voting power of the Company’s then outstanding securities;
(iii) the sale or other disposition of all or substantially all of the assets
of the Company; (iv) the approval by the shareholders of any plan of
liquidation or dissolution; or (v) during any period of three consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company cease for any reason to constitute at least a majority
thereof unless the election, or the nomination for election by stockholders, of
each new director was approved by a vote of at least two-thirds of the
directors then still in office who were directors at the beginning of the
period.


 


(e)           Code.  “Code” shall mean the Internal
Revenue Code of 1986, as amended.


 


(f)            Confidential
and Proprietary Information. “Confidential and Proprietary
Information” shall mean any and all (i) confidential or proprietary information
or material not in the public domain about or relating to the business,
operations, assets or financial condition of the Company or any Affiliate of
the Company or any of the Company’s or any such Affiliate’s trade secrets; and
(ii) information, documentation or material not in the public domain by virtue
of any action by or on the part of the Executive, the knowledge of which gives
or may give the Company or any Affiliate of the Company an advantage over any
person not possessing such information. For purposes hereof, the term Confidential
and Proprietary Information shall not include any information or material (i)
that is known to the general public other than due to a breach of this
Agreement by the Executive or (ii) was disclosed to the Executive by a person
who the Executive did not reasonably believe was bound to a confidentiality or
similar agreement with the Company.


 


(g)           Date
of Termination. “Date of Termination” shall mean the date the
Company terminated the Executive’s employment for any reason, or, if the
Executive’s employment is terminated by the Executive, the date on which a
Notice of Termination is given or as specified in such Notice.


 


(h)           Disability.  “Disability” shall mean
termination because of any physical or mental impairment that has prevented
Executive from performing his material duties for the Company for six (6)
consecutive months.


 


(i)            Good
Reason. Termination by the Executive of the Executive’s employment
for “Good Reason” shall mean termination by the Executive because of one of the
following, without the Executive’s express written consent:


 


(i)
A change in Executive’s title, other than a change of said title to President;


 


(ii)
A material adverse change made by the Company which would reduce the Executive’s
then functions, authority, duties or responsibilities;


 


(iii)
Assignment to Executive of duties inconsistent with his position;


 


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(iv) Executive being required to report to anyone other than the Chief Executive
Officer;


 


(v)  A reduction by the Company in the Executive’s
Base Salary as the same may be increased from time to time; or


 


(vi)  A material breach by the Company of any
provision of this Agreement which is not cured within ten (10) days after the
giving of notice thereof.


 


(j)            IRS.  IRS shall mean the Internal
Revenue Service.


 


(k)           Notice
of Termination. Any termination of the Executive’s employment by the
Company for any reason, including without limitation for Cause or Disability
and any termination of the Executive’s employment by the Executive for any
reason, including without limitation for Good Reason, shall be communicated by
written “Notice of Termination” to the other party.  For purposes of this Agreement, a “Notice of
Termination” shall mean a dated notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated, and
(iii) specifies a date of Termination, which shall be not less than thirty (30)
nor more than ninety (90) days after such Notice of Termination is given.


 


2.                                      Term of Employment.


 


(a)           The Company hereby employs the
Executive as the President and Chief Financial Officer of the Company, and the
Executive hereby accepts said employment and agrees to render such services to
the Company, on the terms and conditions set forth in this Agreement.  The term of employment under this Agreement
shall be for a term of three years, commencing no later than November 1, 2004,
unless such term is extended as provided in this Section 2 or ends sooner as
provided in this Agreement.  On the third
annual anniversary of the date first above written and each annual anniversary
thereafter, the term of employment under this Agreement shall automatically be
extended for an additional one-year, unless the Executive or the Company gives
written notice to the other party of such party’s election not to extend the
term, with such notice to be given not less than sixty (60) days prior to any
such anniversary date.  If any party gives timely notice
that the term will not be extended, then such employment under this Agreement
shall terminate at the conclusion of its remaining term. References herein to
the term shall refer both to the initial term and successive terms.  Any notice of nonrenewal by the Company shall
be treated as a termination without Cause as of the end of the then term.


 


(b)           During the term of this Agreement,
the Executive shall report to the Chief Executive Officer (the “CEO”) and
perform executive services for the Company as reasonably prescribed by the CEO,
consistent with his position or positions and have the authority, duties and
responsibilities commensurate with his position or positions.  Among other duties, the Executive initially
shall be responsible for managing (i) financial reporting, analysis, and
controls, including compliance with financial reporting obligations for
SEC/Sarbanes-Oxley requirements, (ii) capital markets, hedging, and loan pricing
activities, (iii) the portfolio of mortgage-related assets, (iv) merger and
acquisition efforts, (v) the Home Closer business; (vi) the Information
Technology department; (vii) credit risk management; (viii) strategic planning;


 


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(ix)
treasury; (x) consumer lending compliance; and (xi)
internal audits.  For so long as the
Executive manages these areas, all employees in these areas shall report to the
Executive or his designee.


 


3.             Compensation and Benefits.


 


(a)           (i) 
The Company shall pay the Executive for his services during the term of
this Agreement a minimum base salary of $400,000 per year (as increased, “Base
Salary”), which may be increased from time to time in such amounts as may be
determined by the Company.


 


(ii)  A pro rata bonus based on
an annual bonus of $400,000 shall be payable for the period between the
commencement of employment under this Agreement and December 31, 2004.  For the years commencing on January 1, 2005
and January 1, 2006, respectively, in addition to his Base Salary, the
Executive shall receive a bonus of $400,000, and also be eligible to receive an
additional bonus of $400,000 provided that the Company meets or exceeds its
business objectives for the year, as articulated in its approved budget for
that year (or a lesser or no bonus for lesser achievement of objectives).  The guaranteed bonuses for 2004, 2005 and
2006 shall be paid before the end of the respective years.


 


(iii)  For the year commencing January 1, 2007 and
for each year thereafter, the Executive shall be eligible to receive a bonus of
$800,000 provided that the Company meets or exceeds its business objectives for
the year, as articulated in its approved budget for that year (or a lesser or
no bonus for lesser achievement of objectives.)


 


(iv)  In addition to the compensation described in
Sections 3(a)(i)(ii) and (iii) of this Agreement, the Executive shall be
granted, on the date of commencement of his employment, 100,000 shares of restricted
stock of the Company (“Restricted Stock”), such shares to vest in equal parts
on the first, second, and third annual anniversary of the date of the grant,
pursuant to the Company’s 2004 Long-term Incentive Plan (the “Plan”).  Subparagraph 3.02 of the Plan shall not be
interpreted by the committee responsible for administering the Plan in any
manner that would deprive Executive of any then vested equity grant.


 


(b)           During the term, the Executive shall
be entitled to take paid annual vacation in accordance with the Company’s established
policies, but such vacation shall not be less than four (4) weeks per year. The
Executive shall not be entitled to receive any additional compensation from the
Company for failure to take a vacation, nor shall the Executive be able to
accumulate unused vacation time from one year to the next, except to the extent
authorized by the Company or as Company policies or practice may otherwise
provide.


 


(c)           During the Term, the Executive shall
be entitled to participate in such benefit plans and fringe programs as
provided to other senior executives of the Company at a level commensurate with
his position and such other fringes as agreed upon by the Executive and the
Company.


 


4.             Expenses. The Company shall reimburse the Executive or
otherwise provide for or pay for all reasonable expenses incurred by the
Executive in furtherance of or in connection with the business of the Company,
including, but not by way of limitation, professional dues,


 


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subject to
such reasonable documentation and other limitations as may be established by
the Company. If such expenses are paid in the first instance by the Executive,
the Company shall reimburse the Executive therefor.


 


5.             Termination.


 


(a)           Subject to the notice requirements of
Section 1(b), the Company shall have the right, at any time, to terminate the
Executive’s employment hereunder for any reason, including, without limitation,
termination for Cause or, while the Executive is Disabled, Disability, and the
Executive shall have the right to terminate his employment hereunder for any
reason or no reason.


 


(b)           In the event that (i) the Executive’s
employment is terminated by the Company for Cause or (ii) the Executive
terminates his employment hereunder other than for Disability, death or Good
Reason, the Executive shall have no right pursuant to this Agreement to
compensation or other benefits for any period after the applicable date of
Termination other than for Base Salary accrued through the date of Termination,
incurred but unreimbursed business expenses, accrued but unused vacation in
accordance with Company policy, any bonus earned for any prior completed fiscal
year, any amounts or benefits due under any benefit, fringe or equity plans or
program in accordance with their terms and any rights to indemnification and
directors’ and officers’ liability insurance coverage (“Accrued Obligations”).


 


(c)           In the event that the Executive’s
employment is terminated as a result of Disability or Death during the first
year of this Agreement, the Executive, or his estate, shall receive one-quarter
of his annual Base Salary.  In the event
that the Executive has been employed for more than a year pursuant to this
Agreement, and the Executive’s employment is thereafter terminated as a result
of Disability or Death during the term of this Agreement, the Executive, or his
estate, shall receive one-half of his annual Base Salary.  In addition, the Executive, or his estate,
shall receive his Accrued Obligations and a pro rata bonus based on actual
results for the year of termination multiplied by a fraction, the numerator of
which is the number of days during the fiscal year during which Executive was
employed by the Company and the denominator of which is 365 (the “Pro Rata
Bonus”).  Until terminated, Executive
shall receive all of his compensation and benefits while incapacitated.


 


(d)           In the event that (i) the Executive’s
employment is terminated by the Company for other than Cause, Disability, or
the Executive’s death or (ii) such employment is terminated by the Executive
for Good Reason, then the Company shall:


 


(A)          (i) if the Executive’s employment is terminated during his
first six months with the Company, pay to the Executive a cash severance of
$400,000; (ii) if the Executive has been employed by the Company for more than
six months but less than two years, pay the Executive a cash severance amount
equal to $800,000; or (iii) if the Executive has been employed by the Company
for two years or more, pay the Executive the greater of (y) $800,000 or (z) the
lesser of (aa) two (2) times the average of the Executive’s total cash
compensation (i.e., his Base Salary plus any bonus) received for the two fiscal
years preceding the termination or (bb) $1.6 million.  Notwithstanding the foregoing, in the event
such termination is upon or within two (2) years after a Change in Control, or
in contemplation thereof, (iii)(z)(aa) above shall apply notwithstanding
Executive’s period of employment and without the limitation in (z)(bb) and if


 


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prior
to the end of two full fiscal years having been completed, based on the one (1)
fiscal year completed or if prior to that based on an annualization of
compensation for the period employed. 
Any payment of cash severance under this Agreement shall be made in
equal installments on the first business day of the first six months following
the termination of Executive’s employment;


 


(B)           pay or
provide to Executive his Accrued Obligations and any Pro Rata Bonus, if any;
and


 


(C)           maintain and provide, subject to any
applicable laws, rules or regulations, for a period ending at the earlier of
(i) the first anniversary of the termination or (ii) the date of the Executive’s
employment by another employer, at the same cost to the Executive as had
obtained during his employment, the Executive’s continued participation in all
life insurance, disability, and health benefit plans in which the Executive was
participating immediately prior to termination; and


 


(D)          fully vest Executive
in any unvested portion of the Restricted Stock granted pursuant to Section
3(a)(iv).


 


(e)           Release and Satisfaction.  With respect to the Executive (and his heirs,
successors and assigns), payment by the Company of the severance amounts
provided under this Section 5 shall release, relinquish and forever discharge
the Company and any director, officer, employee, shareholder, corporate parent,
or agent of the Company from any and all claims, damages, losses, costs,
expenses, liabilities or obligations, whether known or unknown (other than any
such claims, damages, losses, costs, expenses, liabilities or obligations to
the extent covered by any indemnification arrangement of the Company with
respect to the Executive) which the Executive has incurred or suffered or may
incur or suffer as a result of the Executive’s employment by the Company or the
termination of such employment.  The
foregoing shall not affect Executive’s entitlements upon termination hereunder
or any rights to indemnification or directors’ and officers’ liability
insurance coverage.


 


(f)            No Mitigation/No Offset.  With regard to any termination, the Executive
shall have no obligation to mitigate the amounts due hereunder and the amounts
due hereunder shall be paid without offset for any other amounts earned by
Executive.  The amounts due hereunder
shall be paid without setoff, counterclaim or affirmative defense.


 


6.             Special
Provision.  Exhibit A hereto shall apply.


 


7.             Restrictions Respecting Competing
Businesses, Confidential Information, etc.


 


(a)           The Executive acknowledges and agrees
that by virtue of the Executive’s position and involvement with the business
and affairs of the Company, the Executive will develop substantial expertise
and knowledge with respect to all aspects of the Company’s business, affairs
and operations and will have access to all significant aspects of the business
and operations of the Company and to Confidential and Proprietary
Information.  The Company acknowledges
that Executive has been in the Company’s business for some time and has
inherent knowledge of the business before joining the Company.


 


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(b)           The Executive hereby covenants and
agrees that, during the term of employment and thereafter, unless otherwise authorized
by the Company in writing, the Executive shall not, directly or indirectly,
under any circumstance: (i) disclose to any other person or entity (other than
in the regular course of business of the Company) any Confidential and
Proprietary Information, other than pursuant to applicable law, regulation or
subpoena or with the prior written consent of the Company; (ii) act or fail to
act so as to impair the confidential or proprietary nature of any Confidential
and Proprietary Information; (iii) use any Confidential and Proprietary
Information other than for the sole and exclusive benefit of the Company; or
(iv) offer or agree to, or cause or assist in the inception or continuation of,
any such disclosure, impairment or use of any Confidential and Proprietary
Information. Following the term of employment, upon request the Executive shall
return all documents, records and other items containing any Confidential and
Proprietary Information to the Company (regardless of the medium in which
maintained or stored).  Notwithstanding
the foregoing, Executive may disclose information as he deems appropriate in
the good faith performance of his duties while employed pursuant to this
Agreement, may comply with legal process and regulatory inquiry after notifying
the CEO and General Counsel of the Company of his intention to do so, and may
retain his rolodex and similar address books.


 


(c)           The Executive covenants and agrees
that while the Executive is employed by the Company, and for the six month
period following a termination of Executive’s employment resulting from either
the Executive’s resignation without Good Reason or the Company’s termination of
Executive for Cause, the Executive shall not, directly or indirectly, manage,
operate or control, any Competing Business or, directly or indirectly, except
in the good faith performance of his duties, induce or influence any customer
or other Person that has a business relationship with the Company, or any
Affiliate of the Company, to discontinue or reduce the extent of such
relationship.  For purposes of this
Agreement, the Executive shall be deemed directly or indirectly interested in a
business if he is engaged or interested in that business as a stockholder,
director, officer, or executive, agent, partner, individual proprietor,
consultant, advisor or otherwise, but not if the Executive’s interest is
limited solely to the ownership of not more than 5% of the securities of any
class of equity securities of a corporation or other person whose shares are
listed or admitted to trade on a national securities exchange or are quoted on
the Nasdaq Stock Market or a similar means if the Nasdaq Stock Market is no longer
providing such information.  For purposes
of this section, Competing Business means any publicly traded residential
mortgage real estate investment trust.


 


(d)           While the Executive is employed by
the Company and for one (1) year after the Executive ceases to be employed by
the Company, the Executive shall not, directly or indirectly, for himself or on
behalf of any other person, firm or entity, solicit or attempt to solicit,
employ, engage or retain any person who is or was, at any time during the three
(3) month period preceding the termination of Executive’s employment with the
Company, an employee of the Company or an Affiliate, provided the foregoing
shall not be violated by advertising not specifically targeted at the Company’s
employees.


 


(e)           The parties agree that nothing in
this agreement shall be construed to limit or negate the common law of torts,
confidentiality, trade secrets, fiduciary duty and obligations where such laws
provide the Company with any broader, further or other remedy or protection
than those provided herein.


 


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(f)            Because the breach of any of the
provisions of this Section 7 will result in immediate and irreparable injury to
the Company for which the Company will not have an adequate remedy at law, the
Company shall be entitled, in addition to all other rights and remedies, to
seek a degree of specific performance of the restrictive covenants contained in
this Section 7 and to a temporary and permanent injunction enjoining such
breach, without posting bond or furnishing similar security.


 


8.             Withholding.  All payments required to be made by the Company hereunder to the
Executive shall be subject to the withholding of such amounts, if any, relating
to tax and other payroll deductions as the Company may reasonably determine
should be withheld pursuant to any applicable law or regulation.


 


9.             Assignability.  The Company may assign this Agreement and its rights and obligations
hereunder in whole, but not in part, to any corporation or other entity with or
into which the Company may hereafter merge or consolidate or to which the
Company may transfer all or substantially all of their respective assets, if in
any such case said corporation or other entity shall by operation of law or
expressly in writing (delivered to Executive) assume all obligations of the
Company hereunder as fully as if it had been originally made a party hereto,
but may not otherwise assign this Agreement or its rights and obligations
hereunder.  The Executive may not assign
or transfer this Agreement or any rights or obligations hereunder, except as
provided in any benefit plan and all rights to receive payments shall upon his
death be available to his estate.


 


10.          Notice.  For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by certified or registered mail, return receipt
requested, postage prepaid, or properly delivered to Federal Express (or a
comparable overnight delivery service), addressed to the respective addresses
set forth on the signature page hereto. Any notice, request, demand or other
communication delivered or sent in the manner aforesaid shall be deemed given
or made (as the case may be) upon the earliest of (a) the date it is actually
received, (b) the business day after the day on which it is delivered by hand,
(c) the business day after the day on which it is properly delivered to Federal
Express (or a comparable overnight delivery service), or (d) the third business
day after the day on which it is deposited in the United States mail. The
Company or the Executive may change their respective addresses by notifying the
other party or parties of the new addresses in any manner permitted by this
Section 10.


 


11.          Amendment; Waiver.  No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing and
signed by the Executive and such officer, officers or directors as may have
apparently been designated by the Board of Directors of the Company to sign on
their behalf.  No waiver by any party
hereto at any time of any breach by any other party hereto of, or compliance
with, any condition or provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.


 


12.          Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the laws of the United
States where applicable and otherwise by the substantive laws of the State of
New York, without regard to any conflicts of


 


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laws
provisions thereof.  Each party to this
Agreement hereby irrevocably consents to the jurisdiction of the United States
District Court for the Southern District of New York and the courts of the
state of New York located in the County of New York in any action to enforce,
interpret or construe any provision of this Agreement or of any other agreement
or document delivered in connection with this Agreement, and also hereby
irrevocably waives any defense of improper venue, forum  non  conveniens
or lack of personal jurisdiction to any such action brought in those
courts.  Each party further irrevocably
agrees that any action to enforce, interpret or construe any provision of this
Agreement will be brought only in one of those courts.  Each party hereby waives its right to trial
by jury.


 


13.          Legal Fees


 


(a)           The Company shall pay the reasonable legal
fees and disbursements of all attorneys in connection with the negotiation and
entering into of this Agreement.


 


(b)           In the event of any controversy or
dispute pursuant to Section 12 hereof, the court shall award the Executive his
costs and legal fees and disbursements if it determines, in its sole
discretion, that the Executive has prevailed in such dispute or controversy and
that an award of reasonable legal fees is appropriate under the circumstances.


 


14.          Indemnification.  The
Company shall indemnify Executive to the fullest extent permitted by law for
any action or inaction as an officer, director or fiduciary of the Company, any
Affiliate or any benefit plan of either. 
Both during and after the term while liability exists the Company shall
cover the Executive under directors’ and officers’ liability insurance to the
greatest extent any other officer or director is covered.


 


15.          Nature of Obligations. Nothing contained herein shall create or
require the Company to create a trust of any kind to fund any benefits which
may be payable hereunder, and to the extent that the Executive acquires a right
to receive benefits from the Company hereunder, such right shall be no greater
than the right of any unsecured general creditor of the Company.


 


16.          Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.


 


17.          Validity. The invalidity, illegality or
unenforceability of any provision of this Agreement, in whole or in part, shall
not affect the validity, legality or enforceability of any other provisions of
this Agreement, which shall remain in full force and effect.


 


18.          Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.


 


19.          Entire Agreement. This Agreement embodies the entire agreement
between the Company and the Executive with respect to the matters agreed to
herein. All prior agreements between the Company and the Executive with respect
to the matters agreed to herein are hereby superseded
and shall have no force or effect.


 


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IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written.


 


 


	
   

  	
  MortgageIT Holdings, Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ DOUG W. NAIDUS

  	
   

  
	
   

  	
   

  	
   

  	
  Doug W. Naidus

  
	
   

  	
   

  	
   

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  	
  33
  Maiden Lane

  
	
   

  	
   

  	
   

  	
  New
  York, New York 10038

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Executive

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/
  GLENN J. MOURIDY

  	
   

  
	
   

  	
   

  	
   

  	
  Glenn
  J. Mouridy

  
	
   

  	
   

  	
   

  	
  At
  the last address on the

  
	
   

  	
   

  	
   

  	
  records
  of the Company

  
						



 


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EXHIBIT A TO


EMPLOYMENT AGREEMENT


 


EXCISE TAX TREATMENT


 


(a)           In the event that the Executive shall
become entitled to payments and/or benefits provided by this Agreement or any
other amounts in the “nature of compensation” (whether pursuant to the terms of
this Agreement or any other plan, arrangement or agreement with the Company,
any person whose actions result in a change of ownership or effective control
covered by Section 280G(b)(2) of the Code or any person affiliated with the
Company or such person) as a result of such change in ownership or effective
control (collectively the “Company Payments”), and such Company Payments will
be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code
(and any similar tax that may hereafter be imposed by any taxing authority),
the Company Payments shall be reduced to one dollar less than the amount which
would result in such Company Payments being subject to the Excise Tax if after
taking into account the Excise Tax and all U.S. federal, state and local income
and payroll tax upon the Company Payments if the net amount retained by the
Executive would be greater in the event of such reduction in Company Payments
than if such reduction in Company Payments did not occur.  The reduction shall, unless the Executive
elects otherwise, be in such order that provides Executive with the greatest
after tax amount possible.


 


(b)           In the event that the Internal Revenue
Service or court ultimately makes a determination that the excess parachute
payments or the base amount is an amount other than as determined initially, an
appropriate adjustment shall be made, as applicable to reflect the final
determination.


 


(c)           To the extent permitted under Revenue
Procedure 2003-68, the value determination shall be recalculated to the extent
it would be beneficial to the Executive, at the request of the Executive.  All determinations hereunder shall be made by
accountants or legal counsel designated by Executive, who shall be reasonably
acceptable to the Company.  The Company
shall pay the cost of the accountants or legal counsel, who shall provide
detailed supporting calculations both to the Company and the Executive, and, if
requested by the Company or the Executive, a written opinion to such
effect.  The determination of the
accountants or legal counsel shall be final and binding upon the Company and
the Executive, subject to (b) above.


 


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