Exhibit
10.1
EMPLOYMENT
AGREEMENT
AGREEMENT made
as of the 30 th day of December, 2005 by and between DELTA
FINANCIAL CORPORATION, a Delaware corporation (the
“Corporation”), and Sidney A. Miller (the
“Executive”).
W I T N E S S E T
H:
In
consideration of the representations, warranties and conditions
contained herein, the parties hereto agree as follows:
1. Position and Responsibilities
1.1. The Executive shall serve in an executive
capacity as Chairman of the Board of the Corporation. The Executive
shall perform such functions and undertake such responsibilities as
are customarily associated with such capacity. The Executive shall
hold such directorships and executive officerships in the
Corporation and any subsidiary to which, from time to time, he may
be elected or appointed during the term of this
Agreement.
1.2. The Executive shall devote his best efforts to
the business and affairs of the Corporation and to the promotion of
its interests.
1.3. The principal executive offices of the
Corporation shall be maintained in Long Island, New York and the
Executive shall not be required to relocate outside of Long Island,
New York without his consent.
2.1. The term of employment shall be three years,
commencing with the date hereof, unless sooner terminated as
provided in this Agreement. The initial term of employment and any
extension thereof is herein referred to as the
“Term.”
2.2. Notwithstanding the provisions of Section 2.1
hereof, the Corporation shall have the right, on written notice to
the Executive, to terminate the Executive’s employment for
Reasonable Cause, such termination to be effective as of the date
on which notice is given or as of such later date otherwise
specified in the notice.
2.3. For purposes of this Agreement, the term
“Reasonable Cause” shall mean any of the following
actions by the Executive: (a) failure to comply with any of the
material terms of this Agreement, which shall not be cured within
30 days after the Executive’s receipt of written notice from
the Board of Directors; (b) engagement in gross misconduct
injurious to the Corporation or an affiliate of the Corporation,
which shall not be cured within 30 days after the Executive’s
receipt of written notice from the Board of Directors; (c) knowing
and willful neglect or refusal to attend to the material duties
reasonably assigned to him by the Board of Directors, which shall
not be cured within 30 days after the Executive’s receipt of
written notice from the Board of Directors; (d) intentional
misappropriation of property of the Corporation or an affiliate of
the Corporation to the Executive’s own use; (e) the
commission by the Executive of an act of embezzlement; (f)
Executive’s conviction for a felony or if criminal penalties
are imposed on Executive relating to any individual income taxes
due and owing by Executive; or (g) Executive’s engaging in
any activity which would constitute a material conflict of interest
with the Corporation which shall not be cured within 30 days after
the Executive’s receipt of written notice from the Board of
Directors. If the provisions contained in subsections (a), (b), (c)
or (g) above cannot be cured within 30 days due to the nature of
the breach, the cure period shall then be extended for a reasonable
period of time; provided, however, the Executive undertakes and
continues in good faith to cure the same.
3.1. (a)
The Corporation shall pay or cause
Delta Funding Corporation to pay to the Executive for the services
to be rendered by the Executive hereunder a salary at the rate of
$250,000 per annum. The salary shall be payable in equal
installments in accordance with the Corporation’s normal
payroll practices.
(b) In addition, at the discretion of the
Compensation Committee of the Board of Directors (the
“Compensation Committee”), after consideration of the
Corporation’s actual performance relative to its financial
and operational objectives for any particular period, and the
performance of the Executive, as well as such other factors deemed
appropriate by the Compensation Committee in its discretion, the
Corporation may also pay the Executive an annual bonus with respect
to each fiscal year of the Corporation. Such Bonus, if any, may be
paid in cash, in shares of Delta Financial Corporation’s
Common Stock, par value $.01 per share (the "Common Stock") or in
any combination of cash and shares of Common Stock, as determined
in the discretion of the Compensation Committee. Nothing herein
contained shall, however, obligate the Corporation to pay any
annual bonus to the Executive, it being understood that any such
bonus shall be in the sole discretion of the Compensation Committee
and that the amount thereof, if any, may vary depending upon actual
performance of the Corporation and the Executive as determined in
the discretion of the Board.
3.2.
The Executive shall be entitled to
participate in, and receive benefits from, any insurance, medical,
disability, bonus, incentive compensation (including grants of
non-qualified stock options under any of Delta’s Stock Option
Plans, as determined by the Corporation) or other employee benefit
plan, if any are adopted, of the Corporation or any subsidiary
which may be in effect at any time during the course of his
employment by the Corporation and which shall be generally
available to the Executive on terms no less favorable than to other
senior executives of the Corporation or its subsidiaries. The
Corporation agrees to reimburse Executive for all medical costs and
expenses incurred by him which are not covered by the
Corporation’s group medical plans, up to an aggregate maximum
amount of $100,000 per annum, upon submission of appropriate and
itemized documentation.
3.3.
The Corporation agrees to pay the
Executive a car allowance of $1,200 per month.
3.4.
The Corporation agrees to reimburse
the Executive for all reasonable and necessary business expenses
incurred by him on behalf of the Corporation in the course of his
duties hereunder upon the presentation by the Executive of
appropriate vouchers therefor.
3.5.
The Executive will be entitled each
year of this Agreement to a paid vacation of five weeks, no more
than half of which can be carried forward to future
years.
3.6.
Upon termination of this Agreement
for Cause or due to death or incapacity of the Executive (as
defined in Section 4.1), the Executive (or his estate) shall be
entitled to all unpaid compensation (including pro-rata Bonus) and
benefits accrued to the date of termination.
3.7.
The Executive shall not be required
to mitigate damages or the amount of any payment provided to him
under this Agreement by seeking
