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EXHIBIT 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is entered into as of the 10th day of April, 2001
by and between CERES GROUP, INC., a Delaware corporation, referred to in this
Agreement as "Employer," and XXXXX X. XXXXX, referred to in this Agreement as
"Employee."
RECITALS:
Employer is engaged in the insurance business and maintains its corporate
office in the City of Strongsville, Ohio; and
Employee is willing to continue to be employed by Employer, and Employer is
willing to continue to employ Employee on the terms, covenants and conditions
set forth in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Employer shall employ Employee as Chief Marketing Officer, solely
subject to the supervision and pursuant to the assignments, advices
and directions of Employer. Employee's duties and responsibilities
shall continue to include duties and responsibilities as are
customarily performed by one holding such a position for Employer
and/or other similar businesses or enterprises."
2. The duration of employment pursuant to this Agreement shall be for a
period of two (2) years, commencing on April 1, 2001 through June 30,
2003; provided, however, that this Agreement shall automatically renew
for succeeding one (1) year terms, unless the Employer provides
Employee with at least sixty (60) days' advance written notice that
this Agreement and Employee's employment shall terminate as of the
close of business on June 30 of the then-current original or renewal
termination date (as the case may be). However, regardless of any
provisions of this Agreement to the contrary, or which could be
construed to the contrary, in that event, or in the event Employee
shall leave the employment of Employer at any time other than as a
voluntary quit or for cause under Section 16, Employee shall be
entitled to severance pay equal to eighteen (18) months of Employee's
then-current annual salary (less normal administrative deductions),
payable in eighteen (18) equal monthly installment on the first day of
each month, such payments to be in lieu of any other severance or
termination payment from Employer.
In the event that Employee's employment is terminated in connection
with a "change of control" of Employer, Employee shall be entitled to
receive cash compensation equal to two (2) years of Employee's
then-current annual salary (less normal administrative deductions),
payable in lump sum within thirty (30) days of such "change of
control," such payment to be in lieu of any other severance or
termination payment contained herein. . "Change of control" shall mean
the occurrence of any of the following events:
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(i) a tender offer shall be made and consummated for the
ownership of 50.1% or more of the outstanding voting
securities of Employer;
(ii) Employer shall be merged or consolidated with another
corporation and, as a result of such merger or
consolidation, less than 50.1% of the outstanding voting
securities of the surviving or continuing corporation shall
be owned in the aggregate by the former stockholders of
Employer as the same shall have existed immediately prior to
such merger or consolidation; or
(iii) Employer shall sell substantially all of its operating
assets to another corporation which is not a wholly-owned
subsidiary;
(iv) a person, within the meaning of Section 3(a)(9) or of
Section 13(d)(3) (as in effect on the date hereof) of the
Exchange Act shall acquire, other than by reason of
inheritance, (50.1%) or more of the outstanding voting
securities of Employer (whether directly, indirectly,
beneficially or of record). In determining whether a Change
of Control has occurred, gratuitous transfers made by a
person to an affiliate of such person (as determined by the
Board of Directors of Employer), whether by gift, devise or
otherwise, shall not be taken into account. For purposes of
this Agreement, ownership of voting securities shall take
into account and shall include ownership as determined by
applying the provisions of Rule 13d-3(d)(1)(i) as in effect
on the date hereof pursuant to the Exchange Act."
3. During this Agreement, Employer shall pay Employee (according to
Employer's normal payroll procedures) and Employee agrees to accept
from Employer, in full payment for services under this Agreement, a
salary set by the Board of Directors and Employee shall receive annual
reviews and merit increases.
Employee shall also participate in Employer's bonus plan for officers
or such other incentive compensation or plans as may be established by
the Board of Directors of Employer (the "Officer Bonus Plan").
Employee's bonus shall be payable as soon as it reasonably can be
determined. Notwithstanding the foregoing, Employee shall be entitled
to defer the receipt of his salary and/or bonus pursuant to procedures
adopted or plans maintained by Employer.
In addition to the above stated salary, Employer agrees that it will
reimburse Employee for any and all necessary, customary and usual
business expenses incurred by Employee, subject to Employer's
then-current policies regarding such expenses.
In addition to the above salary and reimbursement, Employee shall be
provided all fringe benefits on the same basis that Employer normally
provides to a regular full-time employee holding Employee's position
with Employer, including, but not limited to, health/dental insurance,
life insurance, holidays, vacations (etc.)."
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4. Employee shall devote all Employee's time, attention, knowledge, and
skill solely and exclusively to the business and interest of Employer,
and Employer shall be entitled to all of the benefits, emoluments,
profits or other issues arising from or incident to any and all work,
services and advice of Employee, and Employee expressly agrees that
during the term of this Agreement, Employee will not be interested,
directly or indirectly, in any form, fashion or manner, as partner,
officer, director, stockholder, advisor, employee or in any other form
or capacity, in any other business similar to Employer's business or
any allied trade.
5. Employee further specifically agrees that Employee will not, at any
time during the term of this Agreement and for three (3) years
following the termination of this Agreement for any reason, in any
manner, either directly or indirectly, communicate to any person, firm
or corporation any information of any kind concerning any matters
affecting or relating to the business of Employer, including, without
the limiting the generality of the foregoing, the lists or names of
any of its policyholders or customers or agents, the prices it obtains
or has obtained or at which it sells or has sold its products, or any
other information of, about or concerning the business of Employer,
its manner of operation, its plans, processes or other data of any
kind, nature or description without regard to whether any or all of
the foregoing matters would be deemed confidential, material,
proprietary or important, and significantly affect the effective and
successful conduct of the business of Employer, and its goodwill, and
that any breach of the terms of this paragraph is a material breach of
this Agreement.
During Employee's employment hereunder and, in the event of a change
of control or termination of Employee's employment for any reason
other than for cause (under Section 16) or a voluntary quit, for a
period of one (1) year, Employee shall not engage, directly or
indirectly, whether as an owner, partner, employee, officer, director,
agent, consultant or otherwise, in any location where Employer or any
of its subsidiaries is engaged in business after the date hereof and
prior to the termination of Employee's employment, in a business the
same or similar to, any business now, or at any time after the date
hereof and prior to Employee's termination, conducted by Employer or
any of its subsidiaries, provided, however, that the mere ownership of
5% or less of the stock of a company whose shares are traded on a
national securities exchange or are quoted on the National Association
of Securities Dealers Automated Quotation System shall not be deemed
ownership which is prohibited hereunder.
Employee agrees that regardless of any termination of this Agreement,
during or at the end of this Agreement or any renewal thereof,
Employee will not, for a period of one (1) year thereafter, (i) hire,
retain or recruit any of Employer's insurance agents for the purpose
of performing services for Employee or another insurance company, or
(ii) contact or solicit, directly or indirectly, any person, firm or
entity connected with Employer, including its customers or clients,
for the purpose of diverting work or business from the Employer.
No termination of this Agreement shall terminate the rights and
obligations of the parties under this Section, but such rights and
obligations shall serve such termination in accordance with the terms
of this Section.
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6. Following the termination of this Agreement for any reason, Employee
hereby agrees and acknowledges that Employee will continue to have a
duty of loyalty to Employer, and to the officers, directors,
shareholders and employees of Employer, and in recognition of that
duty of loyalty, Employee agrees that Employee shall not indulge in
any conduct which may reflects adversely upon, nor make any statements
disparaging of, Employer, or the officers, directors, shareholders or
employees of Employer.
7. Employee agrees that the remedy at law for any violation or threatened
violation by Employee of Sections 4, 5 and 6 will be inadequate and
that, accordingly, Employer shall be entitled to injunctive relief in
the event of a violation or threatened violation without being
required to post bond or other surety. The foregoing remedies shall be
in addition to, and not in limitation of, any other rights or remedies
to which Employer is or may be entitled at law, or in equity, or under
this Agreement.
8. Notwithstanding any other provisions of this Agreement, this Agreement
shall be deemed automatically terminated upon death. In such event,
Employer shall pay to Employee's personal representative or executor
any compensation accrued but unpaid as of such date. Upon the payment
of such accrued compensation, Employer shall have no further
obligations under this Agreement, including, but not limited to, an
obligation to pay a salary, severance or termination pay or any other
form of compensation, or to provide any further fringe benefits of any
kind or nature.
9. This written Agreement contains the sole and entire agreement between
the parties and shall supersede any and all other agreements, whether
oral or written, between the parties. The parties acknowledge and
agree that neither of them has made any representation with respect to
the subject matter of this Agreement or any representations inducing
its execution and delivery, except such representations as are
specifically set forth in this writing, and the parties acknowledge
that they have relied on their own judgment in entering into the same.
The parties further acknowledge that any statements or representations
that may have been made by either of them to the other are void and of
no effect and that neither of them has relied on such statements or
representations in connection with its dealings with the other.
10. The terms of this Agreement are to be confidential, and Employee shall
disclose its terms only to Employee's attorney, tax advisor and/or
spouse, if any, subject to disclosure that may be necessary to comply
with applicable law or in the event of a dispute leading to mediation
and/or arbitration.
11. It is agreed that no waiver or modification of this Agreement or of
any covenant, condition or limitation contained in it shall be valid
unless it is in writing and duly executed by the party to be charged
with it, and that no evidence of any waiver or modification shall be
offered or received in evidence in any proceeding, arbitration or
litigation between the parties arising out of or affecting this
Agreement, or the rights or obligations of any party under it, unless
such waiver or modification is in writing, duly executed as above. The
parties agree that the
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provisions of this paragraph may not be waived, except by a duly
executed writing.
12. If a dispute of any kind arises from or relates in any manner to this
Agreement or the breach thereof, and if such dispute cannot be settled
through direct discussions, the parties agree to endeavor to first
settle the dispute in an amicable manner by mediation administered by
and through the American Arbitration Association in accordance with
its Commercial Mediation Rules before resorting to arbitration.
Thereafter, any unresolved controversy or claim arising from or
relating to this Agreement or breach thereof shall be settled by
arbitration administered by and through the American Arbitration
Association in accordance with its Commercial Arbitration Rules,
provided however that only one arbitrator shall be appointed, which
arbitrator shall be an attorney licensed in the State of Ohio or an
active or retired judge, having experience in employment contracts,
and judgment on the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
13. The parties agree that it is their intention and covenant that this
Agreement be construed in accordance with and under and pursuant to
the laws of the State of Ohio.
14. This Agreement shall be binding on and inure to the benefit of the
respective parties and their executors, administrators, heirs,
personal representative, successors and assigns.
15. Employee shall have the right to voluntarily quit Employee's
employment and terminate this Agreement by giving sixty (60) days'
advance written notice to Employer at the address provided herein at
its Home Office. Notwithstanding any other provision of this
Agreement, if Employee shall so voluntarily quit and terminate this
Agreement, Employer shall have nor further obligations pursuant to the
terms of this Agreement, except to pay to Employee accrued salary to
the date of termination.
16. Notwithstanding any other provisions of this Agreement to the
contrary, Employee's employment and this Agreement may be terminated
by the Employer at any time without further compensation or severance
pay or fringe benefits for significant just and sufficient cause. For
purposes of this paragraph, "significant just and sufficient cause"
shall mean any action or non-action involving a material breach of the
terms and conditions of this Agreement by Employee which cannot be
promptly cured or rectified by Employee to the Employer's reasonable
satisfaction, or gross or repeated insubordination or a major conflict
or interference with the Employer's best interests or business
operations.
17. Upon termination of this Agreement for any reason, Employee shall
immediately return any property of Employer, including, but not
limited to, any equipment, credit cards, advertising materials,
booklets, training guides or any other such similar information,
materials or documents that Employee has in Employee's possession or
control.
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18. All notices required to be provided under the terms of this Agreement
shall be sent by United States mail, certified, return receipt
requested, and to the following addresses:
TO EMPLOYER:
Ceres Group, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxx 00000
TO EMPLOYEE:
Xxxxx X. Xxxxx
000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxx 00000
ACKNOWLEDGMENT BY EMPLOYEE: BY SIGNING THIS AGREEMENT, I AFFIRM THAT I HAVE
CAREFULLY READ AND CONSIDERED ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND THAT SUCH TERMS AND CONDITIONS ARE UNDERSTOOD, ACCEPTED AND
AGREED.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date
first above written.
EMPLOYER: EMPLOYEE:
CERES GROUP, INC. XXXXX X. XXXXX
By: /s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxx
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Its: Chief Executive Officer
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