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Exhibit 6(d)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement ") entered into as of this 31
day of July, 1998, between Dow GuaranteeCorp. (the "Company"), and Xxxxx X.
Xxxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive and to ensure the
continued availability to the Company of the Executive's services, and the
Executive is willing to accept such employment and render such services, all
upon and subject to the terms and conditions contained in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth in this Agreement, and intending to be legally bound, the Company and
the Executive agree as follows:
1. TERM OF EMPLOYMENT.
(a) Term. The Company hereby employs the Executive, and the
Executive hereby accepts employment with the Company, for a period
commencing on the date of this Agreement and ending five years thereafter
(the "Term").
(b) CONTINUING EFFECT. Notwithstanding any termination of this
Agreement at the end of the Term or otherwise, the provisions of Sections
6 and 7 shall remain in full force and effect and the provisions of
Section 7 shall be binding upon the legal representatives, successors and
assigns of the Executive.
2. DUTIES.
(a) GENERAL DUTIES. The Executive shall serve as the Company's
Vice-President and director and shall be responsible for and have such
duties and responsibilities that are customary for executives who act in
such capacity for similar size corporations. The Executive shall report
directly to the Company's President. The Executive shall also perform such
services for such subsidiaries of the Company as may be necessary. The
Executive shall use her best efforts to perform her duties and discharge
her responsibilities pursuant to this Agreement competently, carefully and
faithfully.
(b) DEVOTION OF TIME. The Executive shall devote all of her time,
attention and energies during normal business hours (exclusive of periods
of sickness and disability and of such normal holiday and vacation periods
as have been established by the Company) to the affairs of the Company.
The Executive shall not enter the employ of or serve as a consultant to,
or in any way perform any services with or without compensation
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to, any other persons, business or organization without the prior consent
of the Board of the Company; provided, that the Executive shall be
permitted to devote a limited amount of her time, without compensation, to
professional charitable or similar organizations.
(c) ADHERENCE TO INSIDE INFORMATION POLICIES. The Executive
acknowledges that America's Senior Financial Services, Inc. ("AMSE"), the
sole shareholder of the Company, is publicly-held and, as a result, has
implemented inside information policies designed to preclude its employees
and those of its subsidiaries from violating the federal securities laws
by trading on material, non-public information or passing such information
on to others in breach of any duty owed to AMSE or its subsidiaries
including the Company. The Executive shall promptly execute any agreements
and amendments and supplement thereto generally distributed by AMSE from
time to time to its employees requiring such employees to abide by its
inside information policies.
3. COMPENSATION, EXPENSES AND OFFICE
(a) SALARY. For the services of the Executive to be rendered under
this Agreement, the Company shall pay the Executive an annual salary of
$70,000 during the Term. The Company shall pay the Executive her annual
compensation in equal installments no less frequently than monthly in
accordance with the normal payroll practices of the Company or of the
Company's sole shareholder, AMSE.
(b) EXPENSES. In addition to any compensation received pursuant to
Section 3 (a), the Company shall reimburse or advance funds to the
Executive for all reasonable travel and expenses incurred in connection
with the performance of her duties under this Agreement, provided that the
Executive properly accounts for such expenses to the Company in accordance
with AMSE's practices. Such reimbursement or advances shall be made in
accordance with policies and procedures of AMSE in effect from time to
time relating to reimbursement of or advances to executive officers.
4. BENEFITS.
(a) VACATION. For each 12-month period during the Term, the
Executive shall be entitled to four weeks of vacation without loss of
compensation or other benefits to which she is entitled under this
Agreement, to be taken at such times as the Executive may select and the
affairs of the Company may permit.
(b) EXECUTIVE BENEFIT PROGRAMS. The Executive is entitled to
participate in any pension, 401(k), insurance or
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other employee benefit plan that is currently maintained by the Company
for its executive officers, including programs of life and medical
insurance and reimbursement of membership fees in civic, social and
professional organizations. However, any changes in these benefits after
the date of this Agreement which result in increased costs to the Company
shall not be made unless approved by AMSE.
5. TERMINATION.
(a) TERMINATION FOR CAUSE. The Company may terminate the Executive's
employment pursuant to the terms of this Agreement at any time for cause
by given written notice of termination. Such termination will become
effective upon the giving of such notice. upon any termination for cause,
the Executive shall have no right to compensation, or reimbursement
under Section 3 or to participate in any employee benefit programs under
Section 4 for any period subsequent to the effective date of termination.
For purposes of this Section 5(a), "cause" shall mean: (i) the Executive
is convicted of a felony or misdemeanor or commits a criminal act; (ii)
the Executive, in carrying out her duties hereunder, has acted with
ordinary negligence, gross negligence or intentional misconduct resulting,
in any case, in harm to the Company; (iii) the Executive misappropriates
Company funds or otherwise defrauds the Company; (iv) the Executive
breaches heris fiduciary duty to the Company resulting in profit to her,
directly or indirectly; (v) the Executive materially breaches any
agreement with the Company; (vi) the Executive breaches any provision of
Section 6 or Section 7; (vii) the Executive fails to competently perform
her duties under Section 2; (viii) the Executive suffers from active
alcoholism or drug addiction or otherwise uses alcohol to excess or uses
drugs in any form except strictly in accordance with the recommendation of
a physician or dentist; or (ix) it is later determined that the Executive
fraudulently concealed facts or made material misrepresentations in
connection with the sale by the Executive of her common stock of the
Company to AMSE.
(b) DEATH OR DISABILITY. Except for the conditions and obligations
contained in this Section 5(b), this Agreement and the obligations of
the Company hereunder will terminate upon the death or disability of the
Executive. For purposes of this Section 5(b), "disability" shall mean that
for a period of three months in any 12-month period the Executive is
incapable of substantially fulfilling the duties set forth in Section 2
because of physical, mental or emotional incapacity resulting from injury,
sickness or disease. However, the references in Section 5(a)(viii) above
shall not be deemed a "disability" as defined in this Section 5(b).
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Upon termination by death or disability, the Company shall pay the
Executive or heris legal representative, as the case may be, her unpaid
salary at such time pursuant to Section 3(a) through the date of such
termination of employment. Such sums shall be paid upon the same terms and
conditions as if this Agreement were in full force and effect.
(c) CONTINUING EFFECT. Notwithstanding any termination of the
Executive's employment as provided in this Section 5 or otherwise, the
provisions of sections 6 and 7 shall remain in full force and effect.
6. NON-COMPETITION AGREEMENT.
(a) COMPETITION WITH THE COMPANY. During the term of this Agreement
and for a period of 24 months commencing on the date of termination of the
Executive's employment with the Company, the Executive shall not, directly
or indirectly, compete with the Company by managing or operating, either
full or part-time, a business in the same or similar industry or
industries currently or during the term of this Agreement conducted, or
planned to be conducted by the Company anywhere in the United States.
However following termination of the Executive's employment with the
Company, the Executive may take a sales position with a business in the
same or similar industry or industries as the Company.
(b) SOLICITATION OF CUSTOMERS OR PROSPECTS. During the periods in
which the provisions of Section 6(a) shall be in effect, the Executive,
directly or indirectly, shall not seek business from any Customer or
Prospect (as defined below) on behalf of any enterprise or business other
than the Company, refer any business from any Customer or Prospect to any
enterprise or business other than the Company or receive commissions based
on sales or otherwise relating to the business from any Customer or
Prospect, from any enterprise or business other than the Company. For
purposes of this Section 6, the term "Customer" means any person, firm,
corporation, partnership, association or other entity, government or
nonprofit organization to which the Company or any of its affiliates sold
or provided goods or services during the 24-month period prior to the time
at which any determination is required to be made as to whether any such
person, firm, corporation, partnership, association or other entity is a
Customer. For purposes of this Section 6 the term "Prospect" means any
person, firm, corporation, partnership, association, other entity,
government or non-profit organization with which an employee of the
Company has had at least one written communication or meeting with during
the 90 days prior to the date of termination of the Executive's employment
with the Company which written communication or meeting related to the
Company selling goods or services to such Prospects.
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(c) NO PAYMENT. The Executive acknowledges and agrees that no
separate or additional payment shall be required to be made to her in
consideration of her undertakings in this Section 6.
7. NONDISCLOSURE OF CONFIDENTIAL INFORMATION. The Executive acknowledges
that during her employment she shall learn and shall have access to confidential
information regarding the Company and AMSE, its affiliates, including without
limitation (i) confidential or secret plans, programs, documents, agreements or
other material relating to the business, services or activities of the Company,
AMSE and its affiliates and (ii) trade secrets, market reports, customer
investigations, customer lists and other similar information that is proprietary
information of the Company and AMSE or, its affiliates (collectively referred to
as "Confidential Information"). The Executive acknowledges that such
Confidential Information as is acquired and used by the Company or its
affiliates is a special, valuable and unique asset. All records, files,
materials and Confidential Information obtained by the Executive in the course
of her employment with the Company are confidential and proprietary and shall
remain the exclusive property of the Company or its affiliates, as the case may
be. The Executive shall not, except in connection with and as required by her
performance of her duties under this Agreement, for any reason use for her own
benefit or the benefit of any person or entity with which she may be associated
or disclose any such Confidential Information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever without the
prior written consent of the Board and AMSE, unless such Confidential
Information previously shall have become public knowledge through no action by
or omission of the Executive.
8. EQUITABLE RELIEF.
(a) The Company and the Executive recognize that the services to be
rendered under this Agreement by the Executive are special, unique and of
extraordinary character, and that in the event of the breach by the
Executive of the terms and conditions of this Agreement or if the
Executive, without the prior consent of the Board and AMSE, shall leave
her employment for any reason and take any action in violation of Section
6 or Section 7, the Company and AMSE shall be entitled to institute and
prosecute proceedings in any court of competent jurisdiction referred to
in Section 8(b) below, to enjoin the Executive from breaching the
provisions of Section 6 or Section 7. In such action, the Company and AMSE
shall not be required to plead or prove irreparable harm or lack of an
adequate remedy at law. Nothing contained in this Section 8 shall be
construed to prevent the Company and AMSE from seeking such other remedy
in arbitration in case of any breach of this Agreement by the Executive,
as the Company and AMSE may elect.
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(b) Any proceeding or action must be commenced in Miami, Florida
where the Company maintains its executive offices. The Executive and the
Company irrevocably and unconditionally submit to the jurisdiction of such
courts and agree to take any and all future action necessary to submit to
the jurisdiction of such courts. The Executive and the Company irrevocably
waive any objection that they now have or hereafter irrevocably waive any
objection that they now have or hereafter may have to the laying of venue
of any suit, action or proceeding brought in any such court and further
irrevocably waive any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. Final
judgment against the Executive or the Company in any such suit shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment, a certified or true copy of which shall be conclusive evidence
of the fact and the amount of any liability of the Executive or the
Company therein described, or by appropriate proceedings under any
applicable treaty or otherwise.
9. ASSIGNABILITY. The rights and obligations of the Company under this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company, provided that such successor or assign shall acquire all
or substantially all of the assets and business of the Company. The Executive's
obligations hereunder may not be assigned or alienated and any attempt to do so
by the Executive shall be void.
10. SEVERABILITY.
(a) The Executive expressly agrees that the character, duration and
geographical scope of the provisions set forth in this Agreement are
reasonable in light of the circumstances as they exist on the date hereof.
Should a decision, however, be made at a later date by a court of
competent jurisdiction that the character, duration or geographical scope
of such provisions is unreasonable, then it is the intention and the
agreement of the Executive and the Company that this Agreement shall be
construed by the court in such a manner as to impose only those
restrictions on the Executive's conduct that are reasonable in the light
of the circumstances and as are necessary to assure to the Company the
benefits of this Agreement. If, in any judicial proceeding, a court shall
refuse to enforce all of the separate covenants deemed included herein
because taken together they are more extensive than necessary to assure to
the Company the intended benefits of this Agreement, it is expressly
understood and agreed by the parties hereto that the provisions of this
Agreement that, if eliminated, would permit the remaining separate
provisions to be enforced in such proceeding shall be deemed eliminated,
for the purposes of such proceeding, from this Agreement.
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(b) If any provision of this Agreement otherwise is deemed to be
invalid or unenforceable or is prohibited by the laws of the state or
jurisdiction where it is to be performed, this Agreement shall be
considered divisible as to such provision and such provision shall be
inoperative in such state or jurisdiction and shall not be part of the
consideration moving from either of the parties to the other. The
remaining provisions of this Agreement shall be valid and binding and of
like effect as though such provision were not included.
11. NOTICES AND ADDRESSES. All notices, offers, acceptance and any other
acts under this Agreement (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressees in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To the Company:
Dow Guarantee Corp.
0000 Xxxxxxxxx 0xx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
With a Copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx, P.A.
000 X.X. Xxxxxxx Xxx, 0xx Xxxxx
Xxxxx Xxxx Xxxxx, XX 00000
Facsimile: 000-000-0000
To the Executive:
Xxxxx X. Xxxxx
Dow Guarantee Corp.
0000 Xxxxxxxxx 0xx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be conclusive evidence of successful facsimile delivery.
Time shall be counted to, or from, as the case may be, the delivery in person or
by mailing.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument. The execution of this
Agreement may be by actual or facsimile signature.
13. ARBITRATION. Except as provided in Section 8 hereof, any controversy,
dispute or claim arising out of or relating to this Agreement, or its
interpretation, application, implementation,
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breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Dade County, Florida (unless the
parties agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding the parties agree to provide all
discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof.
14. ATTORNEY'S FEES. In the event that there is any controversy or claim
arising out of or relating to this Agreement, or to the interpretation, breach
or enforcement thereof, and any action or proceeding including an arbitration
proceeding is commenced to enforce the provisions of this Agreement, the
prevailing party shall be entitled to an award by the court or arbitrator, as
appropriate, of reasonable attorney's fees, costs and expenses.
15. GOVERNING LAW. This Agreement and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
17. ADDITIONAL DOCUMENTS. The parties hereto shall execute such additional
instruments as may be reasonably required by their counsel in order to carry out
the purpose and intent of this Agreement and to fulfill the obligations of the
parties hereunder.
18. SECTION AND PARAGRAPH HEADINGS. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written.
WITNESSES: DOW GUARANTEE CORP.
/s/ By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
/s/
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/s/ /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
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