EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“
Agreement ”)
is made and entered into as of the 13th day of March, 2008, by and
between
Rubicon Real Estate and Mortgages, Inc.,
a
California corporation (“
RREM ”),
and
Craig Triance (“
Triance ”).
W I T N E S S E T H:
WHEREAS ,
RREM is a wholly-owned subsidiary of Rubicon Financial Incorporated
(“RBCF”), a publicly traded Delaware corporation with a
principal place of business at 19200 Von Karman Ave., Suite 350,
Irvine, California 92612.
WHEREAS ,
the officers, managers and/or directors of RREM and RBCF are of the
opinion that Triance has education, experience and/or expertise
which is of value to RREM and its stockholders, and
WHEREAS ,
RREM and Triance desire to enter into this Employment Agreement,
pursuant to which Triance shall be employed by RREM, to set forth
the respective rights, duties and obligations of the parties
hereto.
NOW THEREFORE ,
in consideration of the promises and covenants contained herein,
and other good and valuable consideration, the receipt and
sufficiency of which the parties hereto acknowledge, RREM and
Triance agree as follows:
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1.
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EMPLOYMENT:
RREM
hereby agrees to employ Triance and Triance hereby accepts such
employment, upon the terms and conditions hereinafter set
forth.
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2.
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TERM:
For
purposes of this Agreement, “
Term ”
shall mean the original term (as defined in
Section 2.1 below),
if Renewal Term is initiated, then “Term” shall mean
the renewal term period.
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2.1
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Original Term. The
Term of this Agreement shall commence on March 15, 2008 and expire
on March 31, 2009 unless sooner terminated pursuant to the terms
and provisions herein stated.
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2.2
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Renewal. At
any time prior to the expiration of the Original Term, as stated
above, RREM and Triance may, by mutual written agreement, extend
Triance’s employment under the terms of this Agreement for
such additional periods as they may agree.
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3.1
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Salary. RREM
shall pay Triance a base salary of Eight Thousand Dollars ($8,000)
per month during the Original Term of this Agreement. Such salary
shall be payable in accordance with RREM’s normal policies
but in no event less often than semi-monthly (the “
Salary ”).
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3.2
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Stock Option Plan/Stock Purchase Plan.
Triance
shall also be eligible to participate in RBCF’s Stock Option
Plans and Stock Purchase Plans, if any, during the Term of this
Agreement.
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4.1
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General Benefits. Triance
shall be entitled to receive or participate in all benefit plans
and programs of RREM and/or RBCF currently existing or hereafter
made available to executives or senior management of RREM and/or
RBCF, including but not limited to, medical insurance, dental
insurance, pension and profit sharing plans, 401(k) plans,
incentive savings plans, stock option plans, group life insurance,
and other fringe benefits.
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4.2
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Vacation. Triance
shall be entitled during each twelve (12) month period during the
Term of this Agreement to a vacation of two (2) weeks during which
time Triance’s compensation will be paid in full. Unused days
of vacation will be compensated in accordance with RREM’s
policy as established by RREM from time to time. Triance may take
the vacation periods at any time during the year as long as Triance
schedules time off as to not create hardship on RREM. In addition,
Triance shall have such other days off as shall be determined by
RREM and shall be entitled to paid sick leave and paid holidays in
accordance with RREM’s policy.
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5.1
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Position.
Triance
is employed as CEO/President and a nominated Member of the Board of
Directors RREM
and
shall perform such services and duties as are defined in
Addendum A ,
Job Description, attached hereto, and as are normally associated
with such position, subject to the direction, supervision and rules
and regulations of RREM.
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5.2
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Place of Employment.
The
place of Triance’s employment and the performance of
Triance’s duties will be at RREM’s corporate
headquarters or at such location as agreed upon by RREM and
Triance.
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5.3
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Extent of Services. Triance
shall at all times and to the best of his ability perform his
duties and obligations under this Agreement in a reasonable manner
consistent with the interests of RREM. The precise services of
Triance may be extended or curtailed, from time to time at the
discretion of RREM, and Triance agrees to render such different
and/or additional services of a similar nature as may be assigned
from time to time by RREM.
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5.3.1 Except
as otherwise agreed by RREM and Triance in writing, it is expressly
understood and agreed that Triance’s employment is fulltime
and of a critical nature to the success of RREM and is therefore
exclusive. Triance may not be employed by other entities or
otherwise perform duties and undertakings on behalf of others or
for his own interest unless pre-approved by the Board of Directors.
RREM acknowledges that Triance presently, or may in the future,
serve on the Board of Directors of other companies and such action
shall not be a breach of this section;
provided ,
however ,
that such companies either: (a) are listed on
Addendum B ,
attached hereto; or (b) do not compete with RREM or interfere with
the performance of Triance’s duties pursuant to this
Agreement, as determined in the reasonable judgment of the Board of
Directors.
5.3.2 Additionally,
RREM recognizes that Triance has, or may have in the future,
non-passive equity positions in other companies, which either: (a)
are listed on
Addendum B attached
hereto; or (b) do not compete with RREM in the reasonable judgment
of the Board of Directors. RREM recognizes that such equity
positions may occasionally require some limited attention from
Triance during normal business hours. However, Triance agrees that
if such time is considered excessive by the Board of Directors,
Triance shall be so advised and noticed by RREM and Triance shall
be required to make appropriate adjustments to ensure his duties
and obligations under this Agreement are fulfilled.
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5.4
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Licenses and Registrations. During
the term of this Agreement, Triance shall maintain in good standing
all required licenses and registrations required for the proper
performance of his duties and functions.
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6.
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TERMINATION:
The
Term of this Agreement shall end upon its expiration pursuant
to
Section 2 hereof,
provided that this Agreement shall terminate prior to such date:
(a) upon Triance’s resignation, death or permanent disability
or incapacity; or (b) by RREM at any time for “
Cause ”
(as defined in
Section 6.4 below)
or without Cause.
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6.1
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By Resignation. If
Triance resigns with “
Good Reason ”
(as defined below), this Agreement shall terminate but, Triance
shall continue to receive, for a one-month period, Triance’s
Salary payable in periodic installments on RREM’s regular
paydays, at the rate then in effect. For purposes of this
Agreement, “
Good Reason ”
shall mean: (i) the assignment to Triance of duties substantially
and materially inconsistent with the position and nature of
Triance’s employment, the substantial and material reduction
of the duties of Triance which is inconsistent with the position
and nature of Triance’s employment, or the change of
Triance’s title indicating a substantial and material change
in the position and nature of Triance’s employment; or (ii) a
reduction in compensation and benefits that would substantially
diminish the aggregate value of Triance’s compensation and
benefits without Triance’s written consent. If Triance
resigns without Good Reason, Triance shall be entitled to receive
Triance’s Salary only through the date of such
resignation.
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6.2
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By Reason of Incapacity or Disability.
If
Triance becomes so incapacitated by reason of accident, illness, or
other disability that Triance is unable to carry on substantially
all of the normal duties and obligations of Triance under this
Agreement for a continuous period of thirty (30) days (the
“
Incapacity Period ”),
this Agreement shall terminate. For purposes of the foregoing,
Triance’s permanent disability or incapacity shall be
determined in accordance with RREM’s disability insurance
policy, if such a policy is then in effect, or if no such policy is
then in effect, such permanent disability or incapacity shall be
determined by RREM’s Board of Directors in its good faith
judgment based upon Triance’s inability to perform normal and
reasonable duties and obligations.
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6.3
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By Reason of Death. If
Triance dies during the Term of this Agreement, RREM shall pay to
the estate of Triance any earned Salary only through the date of
Triance’s death.
Other
death benefits, if any, will be determined in accordance with the
terms of RREM’s benefit plans and programs.
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6.4
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For Cause. If
the Term of this Agreement is terminated by RREM for Cause Triance
shall be entitled to receive Triance’s Salary only through
the date of termination. However, if a dispute arises between RREM
and Triance that is not resolved within sixty (60) days and neither
party initiates arbitration proceedings pursuant to
Section 14.8 ,
RREM shall have the option to pay Triance the lump sum of two (2)
months base of Triance’s Salary at the time of termination
(the “
Severance Payment ”)
rather than Triance’s Salary through the date of termination.
Such determination to pay the Severance Payment in lieu of
Triance’s Salary shall be made in the reasonable judgment of
the Board of Directors. If RREM elects to make a payment to Triance
of the Severance Payment, the parties hereto agree that such
payment shall be Triance’s complete and exclusive remedy for
such a termination for Cause. For purposes of this Agreement,
“
Cause ”
shall mean: (i) any
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