Exhibit 10.41
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement is made on September 1, 1998, between XXXXXX &
COMPANY INSURANCE SERVICES INC. d.b.a. PACIFIC HERITAGE ADMINISTRATORS
("Employer"), and XXXXXX X. XXXXXXX ("Executive").
RECITALS
--------
A. Executive is and has been employed by Employer or its predecessor
company for more than five (5) years as President of Pacific Heritage
Administrators. Through such experience, he has acquired outstanding and
special skills and abilities and an extensive background in and knowledge of
Employer's business and the industry in which it is engaged.
D. Employer desires assurance of the continued association and services
of Executive in order to retain his experience, skill, abilities, background and
knowledge, and is therefore willing to engage his services on the terms and
conditions set forth below.
E. Executive desires to continue in the employ of Employer and is willing
to do so on those terms and conditions.
NOW, THEREFORE, in consideration of the above recitals and of the mutual
promises and conditions in this Agreement, it is agreed as follows:
TERMS AND CONDITIONS
--------------------
1. Duties and Authority. Employer shall employ Executive as President of
--------------------
Employer. Executive's position as President is to remain in effect until
changes are deemed necessary and approved by action of the Employer's Board of
Directors.
2. Outside Business Activities. During his employment, Executive shall
---------------------------
devote his full energies, interest, abilities and productive time to the
performance of this Agreement and shall not, without Employer's prior written
consent, render to others services of any kind for compensation, or engage in
any other business activity that would materially interfere with the performance
of his duties under this Agreement. His compensation, unless otherwise
specifically set by the Board of Directors of Employer, shall be paid solely by
Employer.
3. Covenant Not to Compete During Employment Term. During the employment
----------------------------------------------
term, Executive shall not, directly or indirectly, whether as a partner,
employee, creditor, shareholder or otherwise, promote, participate in or engage
in any activity or other business competitive with Employer's business.
4. Term of Employment. Subject to earlier termination as provided in
------------------
this Agreement, Executive shall be employed beginning January 1, 1998, and
ending December 31, 2001. Executive's compensation and benefits described under
Section 6, below, shall begin on January 1, 1998 and shall be prorated as
necessary.
5. Place of Employment. Unless the parties agree otherwise in writing
-------------------
during the employment term, Executive shall perform the services he is required
to perform under this Agreement at Employer's offices, located at 000 X.X.
Xxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxx, provided, however, that Employer may from
time to time require Executive to travel temporarily to other locations on
Employer's business.
6. Executive's Compensation and Benefits.
-------------------------------------
(a) Basic Salary. Employer shall pay a basic salary to Executive at
------------
a rate of $110,000 per year, payable on a semi-monthly basis, effective January
1, 1998. The basic salary payable to Executive under this Section 6(a) shall be
subject to increases based upon the personal performance of Executive and the
business performance of Employer as determined by periodic reviews and
evaluations to be conducted at least annually.
(b) Incentive Compensation. In addition to the basic salary provided
----------------------
for in Section 6(a) above, Employer shall pay to Executive as incentive
compensation a bonus based on Employer's financial performance. The bonus shall
be negotiated annually, but shall not be less than 50% of 3% of Employer's
operating results, and shall be calculated quarterly for the periods ended March
31, June 30, September 30, and December 31, respectively. The Employer's
operating results shall be based on an EBITDA (earnings before interest, taxes,
depreciation, and amortization) basis. The bonus shall be paid to Executive
within 30 days of the end of each quarterly period. To the extent Employer's
operating results for a particular quarterly period are later adjusted, any
over-payment or under-payment of Executive's bonus will be adjusted in the next
quarterly period (or, if necessary, such additional quarterly periods until the
discrepancy is resolved).
(c) Additional Benefits. During the employment term, Executive shall
-------------------
be entitled to receive all other benefits of employment generally available to
Employer's other executive and managerial employees when and as he becomes
eligible for them, including group health benefits, dental insurance, life
insurance (at three (3) times salary), and five (5) weeks of annual paid
vacation. Vacation allowance to increase by one (1) week every four (4) years,
beginning with the effective date of this Agreement. Executive's vacation
benefits shall be subject to Employer's policies on limitations on accruing
vacation time.
- 2 -
(d) Expenses. During the employment term, Employer shall reimburse
--------
Executive for reasonable out-of-pocket expenses incurred in relation to
Employer's business, including all travel expenses, food and lodging while away
from home, subject to documentation to be submitted monthly and such other
policies as Employer may from time to time reasonably establish for its
employees.
(e) Automobile Allowance. During the employment term, Employer shall
--------------------
furnish to Executive an automobile allowance of $700 per month as an alternative
to any other automobile travel expense otherwise payable under company policy.
7. Employer's Ownership of Intangibles. All processes, inventions,
-----------------------------------
patents, copyrights, trademarks and other intangible rights that may be
conceived or developed by Executive, either alone or with others, during the
term of Executive's employment, whether or not conceived or developed during
Executive's working hours, and with respect to which the equipment, supplies,
facilities or trade secret information of Employer was used, or that relate to
the business of Employer or to Employer's actual or demonstrably anticipated
research and development, or that result from any work performed by Executive
for Employer, shall be the sole property of Employer. Executive shall disclose
to Employer all inventions conceived during the term of employment, whether or
not the property of Employer under the terms of the preceding sentence, provided
that such disclosure shall be received by Employer in confidence. Executive
shall execute all documents, including patent applications and assignments,
required by Employer to establish Employer's rights under this Section.
8. Indemnification by Employer. Employer shall, to the maximum extent
---------------------------
permitted by law, indemnify and hold Executive harmless against expenses,
including reasonable attorneys' fees, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with a proceeding arising
by reason of Executive's employment by Employer or any of its direct or indirect
subsidiaries. Employer shall advance to Executive any expenses incurred in
defending such proceeding to the maximum extent permitted by law.
9. Termination of Agreement.
------------------------
(a) Termination for Cause. Employer may terminate this Agreement at
---------------------
any time without notice if Executive commits any material act of dishonesty,
discloses confidential information, is guilty of gross carelessness or
misconduct, or unjustifiably neglects his duties under this Agreement. In the
event Executive is terminated for cause under this Section 9(a), he shall be
paid his basic salary due under Section 6(a) through the date of his
termination, all rights under Section 6(b) shall be lost.
- 3 -
(b) Termination on Resignation. Executive may terminate this
--------------------------
Agreement by giving Employer three (3) months' prior written notice of his
resignation. In the event Executive resigns under this Section 9(b), he shall be
entitled to receive three (3) months' basic salary due under Section 6(a), and
any bonus due under Section 6(b) will be prorated through the date of his
resignation.
(c) Termination on Death. If Executive dies during the initial term
--------------------
or during any renewal terms of this Agreement, this Agreement shall be
terminated on the last day of the calendar month of his death. In the event
Executive dies, he or his estate shall be entitled to the basic salary due under
Section 6(a) through the end of the month in which his death occurs, and any
bonus due under Section 6(b) shall be prorated through the end of the month in
which is death occurs.
10. Effect of Combination or Dissolution. This Agreement shall not be
------------------------------------
terminated by Employer's voluntary or involuntary dissolution or by any merger
in which Employer is not the surviving or resulting corporation, or on any
transfer of all or substantially all of Employer's assets. In the event of any
such merger or transfer of assets, the provisions of this Agreement shall be
binding on and inure to the benefit of the surviving business entity or the
business entity to which such assets shall be transferred.
11. Disclosure of Confidential Information and Trade Secrets Prohibited.
-------------------------------------------------------------------
In the course of his employment, Executive may have access to confidential
information and trade secrets relating to Employer's business. Except as
required in the course of his employment by Employer, Executive will not,
without Employer's prior consent, either during his employment by Employer or
for three (3) years after termination of this employment, directly or
indirectly, disclose to any third person any such confidential information or
trade secrets.
12. Disclosure of Customer Information and Solicitation of Other Employees
----------------------------------------------------------------------
Prohibited. In the course of his employment, Executive will have access to
----------
confidential records and data pertaining to Employer's customers and to the
relationship between these customers and Employer's employees. Such information
is considered secret and is disclosed to Executive in confidence. During his
employment by Employer and for three (3) years after termination of that
employment, Executive shall not directly or indirectly, disclose or use any such
information, except as required in the course of his employment by Employer. In
addition, for three (3) years after termination of his employment, Executive
shall not induce or attempt to induce any employee of Employer to discontinue
employment with Employer for the purpose of employment with any competitor of
Employer.
- 4 -
13. Payment Upon Termination or Permanent Disability. Notwithstanding any
------------------------------------------------
provision of this Agreement, if Employer terminates this Employment Agreement
for any reason other than cause or Executive becomes permanently disabled or
unable to perform his duties as President, Employer shall pay Executive (i) an
amount equal to six (6) months' basic salary due under Section 6(a), at
Executive's then current rate of compensation; (ii) any accrued, but unpaid,
bonus due under Section 6(b); and (iii) for a period of six (6) months, all
benefits, including the automobile allowance described in Section 6(f), to which
Executive would otherwise be entitled had the Agreement not been so terminated.
If Executive is permanently disabled, any obligations under this Section 13
shall be reduced, on a dollar-for-dollar basis, by any disability insurance
payments made to Executive during the six (6) month period.
14. Miscellaneous Provisions.
------------------------
(a) Integration. This Agreement contains the entire agreement
-----------
between the parties and supersedes all prior oral and written agreements,
understandings, commitments and practices between the parties, including all
prior employment agreements, whether or not fully performed by Executive before
the date of this Agreement. No amendments to this Agreement may be made except
by mutual consent and in writing signed by both parties.
(b) Choice of Law. The formation, construction, and performance of
-------------
this Agreement shall be construed in accordance with the laws of the State of
California.
(c) Notices. Any notice to Employer required or permitted under this
-------
Agreement shall be given in writing by Executive, either by personal service or
by registered or certified mail, postage prepaid, addressed to Employer at its
then principal place of business. Any such notice to Executive shall be given
in a like manner and, if mailed, shall be addressed to Executive at his home
address then known in Employer's files. For the purpose of determining
compliance with any time limit in this Agreement, a notice shall be deemed to
have been duly given (i) on the date of service, if served personally on the
party to whom notice is to be given, or (ii) on the fifth business day after
mailing, if mailed to the party to whom the notice is to be given in the manner
provided in this Section.
(d) Remedies. If either party obtains a judgment against the other
--------
by reason of breach of this Agreement, a reasonable attorneys' fee as fixed by
the court shall be included in such judgment.
(e) Severability. If any provision of this Agreement is held invalid
------------
or unenforceable, the remainder of this Agreement shall nevertheless remain in
full force and effect. If any provision is held invalid or unenforceable with
respect to particular circumstances, it shall nevertheless remain in full force
and effect in all other circumstances.
- 5 -
Executed by the parties as of the day and year first above written.
"Employer"
XXXXXX & COMPANY INSURANCE
SERVICES, INC., d.b.a. PACIFIC
HERITAGE ADMINISTRATORS
By:/s/ Xxxxx X. Xxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxx, Chairman
By:/s/ Xxxx Xxxxxxx
---------------------------------
Xxxx Xxxxxxx, Chief Executive Officer
"Executive"
By:/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
- 6 -
