EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of November 1, 2000, is made by and between
First American Capital Corporation, a Kansas corporation (the "Company"), and
Xxxxxxx X. Xxxxxxxx ("Executive").
RECITALS
WHEREAS, the Company desires to employ Executive pursuant to the terms and
conditions of this Agreement; and
WHEREAS, Executive desires to be employed by the Company pursuant to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the Company and Executive agree as follows:
1. Term of Employment.
(a) Initial Term; Effective Date. Subject to the terms and
conditions set forth herein, the Company hereby employs Executive, and
Executive hereby accepts such employment, which shall commence on the
Effective Date (as defined below) and shall terminate as of the earliest of:
i. two (2) years from the Effective Date ("Initial Term"); or
ii. the earliest occurrence of an event described in Section 13(a)
of this Agreement.
For purposes of this Agreement, the term "Effective Date" shall mean
November 1, 2000.
(b) Renewal Terms. Following the expiration of the Initial Term,
unless this Agreement has previously terminated in accordance with Section
1(a) hereof, this Agreement shall automatically renew for consecutive one-year
periods ("Renewal Terms"); provided, however, that either party may terminate
this Agreement effective as of the expiration of the Initial Term or any
renewal Term by giving the other party written notice of such termination
at least thirty(30) days prior to the expiration of such Initial Term or
any Renewal Term.
2. Duties of Executive. Executive shall be initially employed in the
position of Secretary/Treasurer, to perform the duties normally attendant with
and incident to such position, as more fully described in the Bylaws of the
Company, and as assigned to Executive by the President or the Board of Directors
of the Company.
3. Extent of Services. Executive shall devote full time during normal
business hours to the business of the Company (other than as permitted and
directed by the President). Executive shall not be precluded outside normal
business hours from other business activities so long as such other business
activities do not detract from Executive's activities on behalf of the Company.
4. Compensation. During the term of this Agreement and for all services
rendered by Executive to or for the Company:
(a) Base Salary. The Company shall pay Executive a gross annual
base salary of Seventy Thousand Dollars ($70,000) ("Base Salary"), which shall
be paid in monthly installments in arrears. The payment of compensation
authorized under this Agreement shall be subject to applicable withholdings
for federal, state and local taxes and for other reductions authorized by
Executive under authorized employee benefit plans. The Board of Directors
of the Company shall review the Base Salary of Executive at least annually
and shall adjust the same as the Board deems appropriate.
(b) Incentive Bonus. Only with respect to new life insurance
business directly generated by the FA2000, traditional term and universal
products of First Life America Corporation ("FLAC") from and after November
1, 2000, Executive shall be eligible to receive a monthly incentive bonus
equal to one percent (1%) of first-year target insurance premium collected
and recorded as revenue by FLAC (not including any overfunding payments by
a policyholder) ("Monthly Incentive Bonus"). Only with respect to new
life insurance business directly generated by the FA2000 product of FLAC
during the time period commencing on the Effective Date and ending two
(2) years thereafter, Executive shall be eligible to receive a monthly
incentive bonus equal to one percent insurance premium collected and
recorded as revenue by FLAC (not including any overfunding payments by a
policyholder) ("FA2000 Renewal Bonus"). Any Monthly Incentive Bonus and
any FA2000 Renewal Bonus shall be payable at the end of each month in
which the underlying target insurance premium has been collected and
recorded as revenue by FLAC. Without limitation, it is acknowledged and
agreed by the parties hereto that nothing herein provides for any
incentive bonus on insurance business of FLAC comprised of annuities,
single-premium juvenile products (or products derivative therefrom)
or acquired, assumed, reinsured or coinsured insurance business, or any
other products not expressly provided for herein.
(c) Other Bonus. The Board of Directors may, at is discretion,
grant performance bonuses to Executive based on outstanding performance.
5. Executive Benefits. During the term of Executive's employment
hereunder, Executive shall be eligible to participate in employee benefit
plans or programs of the Company, if any, generally made available to all
other employees of the Company, subject to the eligibility criteria, rules,
plan provisions and regulations applicable to such plans. At this time,
the plans and programs to be made available to Executive are set forth
on Exhibit A attached hereto. Nothing contained herein shall be construed
as negating or limiting the ability of the Company to amend, modify or
terminate such employee benefit plans or programs, in its sole
discretion.
6. Expenses. The Company shall reimburse Executive for Executive's
reasonable travel, meals, entertainment and other similar expenses
reasonably incurred in the performance of Executive's duties, as long
as such expenses are accompanied by valid receipts and any other
documentation required pursuant to any applicable Company policy.
Any expenses not so approved or not accompanied by appropriate receipts
shall not be reimbursed.
7. Disclosure of Information.
(a) Executive acknowledges that, in and as a result of employment
hereunder, he will be making use of, acquiring knowledge of and/or
adding to confidential or proprietary information relating to the
Company and its affiliates, including, without limitation, the
Company's lists of customers and accounts, systems, procedures,
policies, manuals, advertising, marketing plans, marketing strategies,
trade secrets, business plans, financial data, strategies, methods of
conducting business, price lists, formulas, processes, procedures,
standards, know-how, manuals, techniques, technology, confidential
reports and all other information, knowledge, or data of any kind
or nature relating to the products, services, or business of the
Company or any subsidiary, parent or other affiliate of the
Company (collectively, "Confidential Information"). As a material
inducement to the Company to enter into this Agreement, Executive
covenants and agrees that he shall not, at any time, during or
following the term of his employment with the Company, directly,
except in furtherance of the Company business and in accordance
with the Company policies, use, disseminate, divulge or
disclose, for any purpose whatsoever, any Confidential Information.
(b) Upon termination of employment with the Company, whether
such termination was by Executive or the Company, all documents,
records, notebooks and similar repositories of or documents containing
any Confidential Information, including all existing copies or
extractions thereof, then in Executive's possession or in Executive's
control, whether prepared by him or others, shall be the sole property of
the Company. Upon termination, all documents, records, notebooks and
similar repositories of or documents containing any Confidential
information, including all existing copies or extractions
thereof, shall be promptly returned to the Company.
(c) Executive shall disclose and assign to the Company all
inventions and processes, whether or not patentable, made by him
individually or jointly with others in the performance of the duties
of his employment with the Company. Termination of this Agreement
shall not release Executive from this obligation.
(d) Executive expressly agrees that he will not assert any
rights to any ideas, inventions, discoveries, concepts, and methods,
or improvements thereof, or know-how related thereto of the Company or its
affiliates. All such ideas, inventions, discoveries, concepts, and methods,
or improvements thereof, are and shall be the sole and absolute property
of the Company or its affiliates.
8. Restrictive Covenant. By his employment with the Company,
Executive will acquire additional and intimate knowledge about the
customers, financial data, price and business negotiations and
business techniques of the Company, as they may now exist or as they
may be developed in the future. Executive acknowledges and agrees
that he will utilize the Company's ideas, techniques and expertise
in performing his duties hereunder.
In order to avoid the inadvertent disclosure of the Company's
confidential matters, and as consideration for all of the benefits
provided to Executive hereunder, Executive hereby covenants and
agrees that during his employment with the Company and for two (2)
years from and after the effective date of the termination of his
employment with the Company, Executive shall not, directly, either
by himself or through others, or as an individual, partner, employee,
agent, officer, stockholder or otherwise:
(a) solicit, divert, take away or attempt to take away the business
of the Company's present or past customers, or the customers of any
affiliated or related companies of the Company, in any business or
enterprise competing with the Company or any affiliated or related
companies of the Company, or do anything to impair the prospects of
sales or business retention of the Company or any affiliated or
related companies of Company, including, without limitation,
accept any commission, compensation or benefit, directly or indirectly,
on any product written in replacement of any product produced or
underwritten by the Company or any affiliated or related companies of
the Company; or
(b) solicit, hire, employ or endeavor to employ any of the Company's
employees or employees of any affiliated or related companies of the
Company or agents or agency personnel of Company or any affiliated or
related Companies of Company; or
(c) be associated with or employed in any sales or production
capacity by or on behalf of any person, partnership, firm,
corporation or other business association engaged or seeking to engage
in any business or enterprise competing directly or indirectly with
the Company or any affiliated or related companies of the Company.
For purposes of this paragraph, the references to "employee" shall
be any individual employed by the Company at the time of such hiring,
solicitation or other act, or any individual so employed at any time
during the six (6) month period preceding such hiring, solicitation or
other act.
9. Accounting for Profits. Executive covenants and agrees that,
if he shall violate any of his covenants or agreements under Sections
7 or 8 hereof, the Company shall be entitled to an accounting and
repayment of all profits, compensation, commissions, remunerations
or benefits which Executive directly or indirectly has realized
and/or may realize as a result of, growing out of or in connection
with any such violation. Such remedy shall be in addition to and not
in limitation of any injunctive relief or other rights or remedies to
which the Company is or may be entitled at law or in equity or under
this Agreement.
10. Reasonableness of Restrictions.
(a) Executive has carefully read and considered the provisions
of Sections 7, 8 and 9 hereof and, having done so, agrees that the
restrictions set forth therein (including, but not limited to, the
time period of restriction and the geographical areas of restriction
set forth in Section 8 hereof) are fair and reasonable and are
reasonably required for the protection of the interests of the Company.
(b) Executive represents that his experience, capabilities and
personal assets are such that this Agreement does not deprive him
from either earning a livelihood in the unrestricted business
activities which remain open to him or from otherwise adequately
and appropriately supporting himself and his family.
(c) In the event that any of the provisions of Sections 7, 8
or 9 shall be held to be invalid or unenforceable, the remaining
provisions shall nevertheless continue to be valid and enforceable as
though the invalid or unenforceable parts had not been included therein.
In the event that any provision of Sections 7 or 8 relating to time
period and/or areas of restriction shall be declared by a court of
competent jurisdiction to exceed the maximum time period or areas
such court deems reasonable and enforceable, said time period and/or
areas of restriction shall be deemed to become and thereafter be
the maximum time period and/or areas which such court deems reasonable and
enforceable.
11. Conflict of Interest. Executive agrees and acknowledges that
he is to devote his entire business time arid effort to the Company's
business (other than as permitted and directed by the President) and
shall not be engaged in any personal fmancial interest which may be in
conflict with the interest of the Company. Executive acknowledges and
agrees that he will not accept the receipt of payments, gifts, entertainment,
or other fees which go beyond common courtesies usually associated with
accepted business practices and which might be regarded as placing
him under some obligation to a third party dealing with or desiring to
deal with the Company. This does not preclude the acceptance of items
of minor or nominal value of which are of such nature as would indicate
they are merely tokens of respect or friendship and not related to any
particular transactions. Executive agrees that during the course of his
employment hereunder he shall not accept any additional fees, compensations,
commissions, wages, salaries or remuneration from a third party, without
the consent of the President of the Company.
12. Termination of Employment.
(a) The employment of Executive under this Agreement, during either
the Initial Term or Renewal Term, will terminate as of the earliest of:
i. Death of the Executive;
ii. In the event Executive's disability resulting in an inability
to perform his essential job functions with or without a reasonable
accommodation for a period of, in general, ninety (90) consecutive days,
as determined in the sole discretion of the Company and in compliance with
applicable law;
iii. By the mutual written agreement of Executive and the Company;
iv. Immediately upon a determination by the Company that "cause" exists
for such termination;
v. Immediately upon the effective date of FLAC's discontinuance of
offering for sale the FA2000 product in Kansas;
vi. Thirty (30) days after notice is given by the Company in the
event termination of Executive is without "cause"; and
vii. Thirty (30) days after notice is given by Executive in the
event he resigns from his employment.
(b) For purposes of this Agreement, the term "cause" shall include,
without limitation, Executive's material breach of this Agreement,
fraud against the Company, misappropriation of the Company's assets,
embezzlement, theft, malfeasance, willful misconduct, material failure
to follow the Company's rules and regulations, neglect of material duties
Executive is required to perform under this Agreement, and the conviction
or guilty or nob contendere plea to a crime involving drug abuse,
violence, dishonesty or theft.
(c) In the event employment of the Executive is terminated pursuant
to any of Sections 13(a)(i), 13(a)(ii), 13(a)(v) or 13(a)(vi):
i. The Company shall provide a severance payment to Executive (or,
in the case of death, his estate) in an amount equal to one (1) year's
Base Salary. Severance payments referred to in this Section 1 3(c)(i)
will commence within thirty (30) days of termination and will be paid
in twelve (12) equal monthly installments; and
ii. The Company shall continue to pay the Executive (or, in the
case of death, his estate) the FA2000 Renewal Bonus, as more fully
described in Section 4(b) hereof, for the number of calendar year(s)
following the date of termination that is equal to the number of complete
calendar year(s) of service that the Executive provides to the Company
commencing on June 1, 1999.
(d) Other than as expressly provided herein, the Company shall have
no further liability to Executive under this Agreement for the payment
of unaccrued compensation or benefits under Sections 4 and 5, including,
without limitation, any incentive bonus, following the termination of
Executive's employment hereunder, except for any benefits that by law
must continue after Executive's termination.
(e) At any time during the term of this Agreement and, specifically,
after notice of termination of this Agreement by either party, the
Company may, in its discretion, exclude Executive from the Company's
workplace.
13. Delegation of Duties and Assignment of Rights. Executive may not
delegate the performance of any of his obligations or duties hereunder,
or assign any rights hereunder, without the prior written consent of the
Company. Any such purported delegation or assignment in the absence of
any such written consent shall be void. The Company may assign all of
its rights and obligations under this Agreement in writing, with notice
to Executive, to a person or entity acquiring the principal assets used
or useful in the operation of the Company's business or portion thereof
for which Executive is involved. In the event of an assignment by the
Company, each reference in this Agreement to the Company shall include
the assignee from and after the date
of such assignment.
14. Burden and Benefit. This Agreement shall be binding upon, and
shall inure to the benefit of, the Company and Executive, and their
respective heirs, personal and legal representatives, successors and
permitted assigns. Executive shall have no right or power to assign
this Agreement.
15. Governing Law. The construction and interpretation of this
Agreement shall at all times and in all respects be governed by the
laws of the State of Kansas. The parties agree that appropriate
jurisdiction and venue in any actions relating to this Agreement
and the subject matter hereof shall be in the District Courts of Shawnee
County, Kansas.
16. Severability. The provisions of this Agreement (including
particularly, but not limited to, the provisions of Sections 7, 8
and 9 hereof) shall be deemed severable, and the invalidity or
unenforceability of any one or more of the provisions hereof shall
not affect the validity and enforceability of the other provisions hereof.
17. Notices. Any notice required to be given hereunder shall be
sufficient and deemed given when in writing, and sent by certified
or registered mail, return receipt requested, first-class postage
prepaid, or by courier service, to his last known residence in the
case of Executive, and to its principal office in the case of the Company,
Attn: President of the Company.
18. Remedies. Executive acknowledges and agrees that a breach
by him of the provisions of this Agreement will cause the Company
irreparable injury and damage. Executive, therefore, expressly agrees
that the Company shall be entitled to injunctive and other equitable
relief to prevent a breach of this Agreement, or any part thereof by
Executive, or by Executive's partners, agents, representatives,
servants, employers, employees and/or any and all persons directly
or indirectly acting for or with him, and to secure its enforcement, in
addition to any other remedy to which the Company might be entitled.
Executive and the Company expressly waive the posting of any bond
or surety required prior to the issuance of an injunction hereunder.
However, in the event that the court refuses to honor the waiver of
bond hereunder, Executive and the Company hereby expressly agree to a
bond in the amount of $100. Any and all of the Company's remedies for
the breach of this Agreement shall be cumulative and the pursuit of one
remedy shall not be deemed to exclude any and all other remedies with
respect to the subject matter hereof.
19. JURY TRIAL. THE COMPANY AND EXECUTIVE HEREBY WAWE TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY
AGAINST THE OTHER ON ANY MATFER ARISING OUT OF OR IN ANY WAY CONNECTED
OR RELATED TO THIS AGREEMENT.
20. Termination of Prior Agreements. All prior agreements and/or
arrangements, oral or written, relating to the employment of the
Executive by the Company and/or its subsidiaries, including the
termination of such employment, are hereby terminated and superseded
by this Agreement.
21. Entire Agreement. This Agreement contains the entire agreement
and understanding by and between the Company and Executive with respect
to the employment herein referred to, and no representations, promises,
agreements or understandings, written or oral, not herein contained
shall be of any force or effect. No change or modification hereof shall
be valid or binding unless the same is in writing and signed by the party
intended to be bound. No waiver of any provision of this Agreement shall
be valid unless the same is in writing and signed by the party against
whom such waiver is sought to be enforced. No valid waiver of any
provision of or breach of this Agreement at any time shall be deemed
a waiver of any other provision or subsequent breach of this Agreement
at such time or will be deemed a valid waiver of such provision or
subsequent breach at any other time.
IN WITNESS WHEREOF, the Company and Executive have duly executed this
Agreement as of the day and year first above written.
THE COMPANY: EXECUTIVE:
FIRST AMERICAN CAPITAL
CORPORATION
By: /s/ Xxxx Xxxxx /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxx Xxxxxxx X. Xxxxxxxx
Title: President
EXHIBIT A
Benefit Plans
1. Health insurance for Executive and his dependents.
2. Term life insurance on the life of Executive in the amount of $100,000.
3. 401(k) or similar plan (with employer matching of _____% of first
_____% deferred by Executive).
4. Executive shall be entitled to three (3) weeks vacation per year,
to be taken at times during the year at the discretion of Executive.
However, in scheduling said vacation, Executive agrees to do so in such
a manner that will not materially adversely impact upon the operations
of the Company.
5. Stock options available pursuant to any plan adopted by the Company.
6. Disability insurance.
3
4
5
6
7
8
EXIIIBIT A
6.Disability insurance.
