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Exhibit 99.7
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement"),
dated as of the 15th day of April, 1999, by and between AmerUs Life Holdings,
Inc., an Iowa corporation ("AMH"), and Xxxxxx X. Xxxxxx, a resident of Clive,
Iowa ("Employee").
W I T N E S S E T H:
WHEREAS, AmerUs Group Co. ("AmerUs Group"), Employee and AmerUs Bank
were parties to that certain Employment Agreement dated as of November 21, 1997,
as amended (the "Prior Agreement"); and
WHEREAS, on August 1, 1998, Employee became an employee of AMH in
connection with AmerUs Group's sale of AmerUs Bank; and
WHEREAS, in consideration of the value of Employee to AMH, AMH desires
to employ and retain Employee as its Executive Vice President, and AMH and
Employee desire to amend and restate the Prior Agreement to reflect changes in
the employment relationship between AMH and Employee, on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the covenants
contained hereinbelow, and other good and valuable considerations, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. EMPLOYMENT. AMH hereby agrees to employ Employee as its Executive
Vice President, and Employee hereby agrees to accept such employment and to
perform the services specified herein upon the terms and conditions hereinafter
set forth.
2. TERM. The term of employment hereunder shall commence as of April
15, 1999, and continue until November 20, 2000, unless sooner terminated in
accordance with the provisions hereof. Notwithstanding anything contained in
this Agreement to the contrary, on November 21, 2000, the provisions contained
Paragraphs 3, 4, 7.1, 8.1, 8.2, 8.5, 21, 22 and 23 and the first sentence of
Paragraph 7.2(a) hereof shall cease to have any force or effect and shall be
deleted (except for any definitions contained therein and used elsewhere in this
Agreement), and Paragraph 8.3 hereof shall be deleted and replaced with the
following new Paragraph 8.3:
"8.3. Termination of Employee Without Good Reason.
Employee is an "at-will" employee and her employment may be
terminated at any time with or without Cause and unless the
employment of Employee is terminated for Good Reason as
described in Paragraph 7.3 hereof or by AMH following a Change
of Control as described in Paragraph 7.4(a) hereof, she will
not be entitled to any compensation, payments or benefits
under this Agreement."
The remaining provisions of this Agreement shall continue for so long as
Employee continues to be an employee of AMH.
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3. COMPENSATION.
3.1 Base Compensation. Employee shall receive as compensation
for her services hereunder an annual salary of $240,000, which sum
shall be payable in equal semimonthly installments (the "Base
Compensation") during the term hereof. Employee's Base Compensation
shall be reviewed at least annually by the Board of Directors of AMH
(the "Board of Directors"), and Employee shall be entitled to such
increases in her Base Compensation as the Board of Directors may
determine based on her performance and other relevant criteria.
3.2 Bonus and Related Matters. Employee shall also be entitled
to participate in any bonus, incentive, and/or supplemental retirement
plans or arrangements that AMH may establish and maintain from time to
time. Employee's benefits under such plans and arrangements shall be
determined pursuant to the terms of such plans and arrangements and
shall be commensurate with her position within AMH vis-a-vis other
members of executive management of AMH. Upon the submission of properly
documented expense account reports, AMH shall reimburse Employee for
legitimate expenses incurred in the course of her employment.
4. VACATION, INSURANCE AND AUTOMOBILE ALLOWANCE. Employee shall be
entitled to participate in any life and health insurance benefits which are
generally extended, from time to time, to the employees of AMH, to reasonable
vacations, consistent with AMH's policies, and to an automobile allowance in
such amount as determined from time to time by the Board of Directors.
5. DUTIES. Employee shall faithfully and diligently perform her duties
under this Agreement as prescribed, from time to time, by the Chief Executive
Officer of AMH.
6. EXTENT OF SERVICE. Employee shall devote substantially all of her
business time, attention and energy to AMH and its Affiliates (as that term is
defined in Paragraph 7.4(c) hereof) and shall not, during the term of her
employment, be actively engaged in any managerial or employment capacity in any
other business activity for gain, profit or other pecuniary advantage which
detracts significantly from Employee's performance of her duties and
responsibilities to AMH and its Affiliates.
7. TERMINATION.
7.1. Death or Disability. This Agreement shall terminate
automatically upon the death of Employee or if her employment ceases as
a result of "Termination by Disability." For purposes herein,
Termination by Disability shall be deemed to occur if Employee's
employment with AMH is terminated because of her "disability" as
determined under AMH's primary long-term disability plan (the "LTD
Plan"). The effective date of Employee's Termination by Disability
hereunder shall be the effective date of her "disability" under the LTD
Plan.
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7.2. Cause or Without Cause.
(a) Cause. AMH may terminate the employment of
Employee under this Agreement for "Cause." AMH shall have
"Cause" to terminate Employee's employment for Employee's
personal dishonesty, gross negligence, willful misconduct,
breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful
violation of any law, rule, or regulation (other than traffic
violations or similar offenses) or final cease-and-desist
order, or material breach of any provision of this Agreement.
(b) Without Cause. Employee agrees and understands
that she is employed by AMH on an "at will" basis and that the
Board of Directors may terminate her employment at any time
without Cause.
7.3 Termination by Employee for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean the occurrence of both (i) a
"Change of Control," as defined in Paragraph 7.3(c) below, without
Employee being offered "Comparable Employment," as provided in
Paragraph 7.4 hereof, and (ii) a "Material Event," as defined in
Paragraph 7.3(d) below:
(a) If the employment of Employee is terminated by
Employee for Good Reason, Employee shall be entitled to the
severance payment and benefits provided in Paragraph 8.4
hereof.
(b) Any offer of Comparable Employment following a
Change of Control shall remain open for at least fifteen (15)
days after such offer is extended to Employee. If Employee
does not accept an offer of Comparable Employment following a
Change of Control within fifteen (15) days after it is
offered, all rights of Employee under this Agreement shall
cease.
(c) For purposes of this Agreement, a "Change of
Control" shall mean any Transaction or series of Transactions
involving AMH or any Affiliate of AMH which results in either
(i) AMHC not directly or indirectly owning or controlling
shares of stock of AMH sufficient to cast a majority of the
votes necessary to elect members of the Board of Directors of
AMH ("Voting Control"); (ii) the individuals who, prior to
such Transaction, constituted the board of directors of AMHC
ceasing to constitute at least a majority thereof, unless the
election, or the nomination for election of each director of
AMHC for a period of two (2) years following the consummation
of such Transaction was approved by a vote of at least
two-thirds of the directors of AMHC then still in office who
were directors of AMHC prior to such Transaction; (iii) the
individuals who, prior to such Transaction, constituted the
board of directors of AMH ceasing to constitute at least a
majority thereof, unless the election, or the nomination for
election of each director of AMH for a period of two (2) years
following the consummation of such Transaction was approved by
a vote of at
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least two-thirds of the directors of AMH then still in office
who were directors of AMH prior to such Transaction; or (iv)
the acquisition by any Person other than AMHC or its
subsidiaries of the beneficial ownership, as defined in Rule
13d-3 of the Securities Exchange Act of 1934, of more than
twenty-five percent (25%) of the shares of stock of AMH which
are entitled to elect the board of directors of AMH at any
time that AMHC does not have beneficial ownership of the
Voting Control of AMH; provided, however, that in the case of
(i), (ii) and (iii), a Transaction which is a Demutualization
shall not constitute a Change of Control if the directors
elected or nominated for election to either AMHC's or AMH's
respective board of directors by AMHC's or AMH's respective
stockholders following the Demutualization were the directors
of AMHC or AMH, respectively, prior to such Demutualization,
or if the election, or the nomination for election, by AMHC's
or AMH's respective stockholders, of each director of AMHC or
AMH, respectively, for a period of two (2) years following the
consummation of such Demutualization was approved by a vote of
at least two-thirds of the directors of AMHC or AMH then still
in office who were the respective directors of AMHC or AMH
prior to such Demutualization.
(d) For purposes of this Agreement, "Material Event"
shall mean the occurrence of any one of the following events
without Employee's express written consent:
(1) The assignment to Employee of any duties
substantially inconsistent with her current position,
duties, responsibilities or status with AMH or a
substantial reduction of her duties or
responsibilities, as compared with her duties or
responsibilities prior to such reduction, or any
removal of Employee from, or any failure to re-elect
her to, the position she held at the time of such
removal or failure to re-elect, except in connection
with termination of her employment for Cause;
(2) A reduction in the amount of Employee's
Base Compensation, a material reduction in payments
received by Employee under any bonus or incentive
plans in which Employee participates or a material
reduction in any other employee perquisites to which
Employee is entitled;
(3) The relocation of Employee's principal
office to a location more than thirty-five (35) miles
from the location of such office immediately prior to
such relocation;
(4) Any breach by AMH of any of the
provisions of this Agreement, any executive severance
agreement between AMH and Employee, or any failure by
AMH to carry out any of its obligations hereunder.
(e) For purposes of this Agreement, "AMHC" shall mean
American Mutual Holding Company; "Transaction" shall mean any
merger, consolidation,
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tender or exchange offer, dissolution, liquidation, sale or
exchange of stock, business combination, sale or exchange of
all or substantially all assets, demutualization or other
similar transaction or combination of the foregoing by or
between persons who were not under common control prior to
such transaction; and "Demutualization" shall mean any
transaction in which more than fifty percent (50%) of the
assets of AMHC are (i) distributed or otherwise transferred to
the members of AMHC or (ii) are offered to the members of
AMHC.
7.4. Termination of Employment by AMH Following Change of
Control.
(a) If the employment of Employee is terminated by
AMH following a Change of Control, and such termination is not
for Cause, Employee shall be entitled to the severance payment
and benefits provided in Paragraph 8.4 hereof; provided,
however, that if Employee accepts an offer of Comparable
Employment, the provisions of Paragraph 7.4(b) hereof shall
apply rather than this Paragraph 7.4(a).
(b) If Employee timely accepts an offer of Comparable
Employment following a Change of Control and if within two (2)
years following the date such offer of Comparable Employment
is accepted either (i) the employment of Employee is
terminated by AMH without Cause or (ii) a Material Event
occurs and Employee elects to terminate her employment with
AMH (which will also be considered a termination of employment
by Employee for Good Reason for purposes hereof), then
Employee shall be entitled to the severance payment and
benefits provided in Paragraph 8.4 hereof.
(c) For purposes of this Agreement, "Comparable
Employment" shall mean employment with AMH, an Affiliate
thereof or a third party involved in any Change of Control on
terms and conditions (including without limitation geographic
location) which in the aggregate are at least substantially
comparable to the terms and conditions of employment
prevailing with respect to Employee immediately preceding a
Change of Control (without regard to the benefit provided in
Paragraph 8.4(a)(ii) hereof). For purposes of this Agreement,
"Affiliate" shall mean with respect to any Person, any Person
which, directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common
control with such entity; provided, however, that any Person
which owns directly or indirectly ten percent (10%) or more of
the securities having ordinary voting power for the election
of directors or any other governing body of a corporation or
ten percent (10%) or more of the partnership or other
ownership interests of any other Person (other than as a
limited partner of such Person) will be deemed to control such
Person. For purposes of this Agreement, "Person" shall mean an
individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company,
trust, unincorporated organization or government or any agency
or political subdivision thereof.
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(d) If Employee accepts the offer of Comparable
Employment, all references to AMH contained in this Agreement
shall, where appropriate, be considered references to
Employee's new employer.
7.5. Notice of Termination. Any termination of the employment
of Employee shall be communicated by a Notice of Termination to the
other party hereto. If there is any dispute or controversy under this
Agreement with respect to Employee's entitlement to the severance
payment and benefits provided in Paragraph 8.4 hereof, or the amount of
same, except in the event of a termination for Cause by AMH, AMH shall
continue to pay Employee the full compensation and benefits in effect
when the Notice of Termination was given (including without limitation
Base Compensation and payments under any bonus and incentive plans in
which Employee participates), until the earlier of the date when the
dispute is finally resolved or twelve (12) months from the date when
the Notice of Termination was given. Amounts paid under the preceding
sentence shall be offset against and shall reduce any other amounts due
under this Agreement, including any severance payment or benefits
provided in Paragraph 8.4 hereof and any arbitration award under
Paragraph 14 hereof. For purposes of this Agreement, "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Employee's employment under the provision so
indicated. For purposes of this Agreement, "Termination Date" shall
mean the date on which the employment of Employee with AMH terminates.
8. COMPENSATION DURING DISABILITY OR UPON TERMINATION OF EMPLOYMENT.
8.1. Disability. During any period that Employee fails to
perform her duties hereunder as a result of incapacity due to physical
or mental illness, she shall continue to receive her Base Compensation
at the rate then in effect until a Termination by Disability occurs as
defined in Paragraph 7.1 hereof. Thereafter, Employee's benefits shall
be determined in accordance with AMH's LTD Plan, including any
supplemental plan for other members of executive management in which
Employee participates or any substitute plans then in effect, and AMH
shall have no further obligations to her under this Agreement.
8.2. Death. If the employment of Employee is terminated
because of her death prior to the expiration of the term of this
Agreement, then her estate, heirs or beneficiaries shall not be
entitled to any benefits pursuant to this Agreement, but they shall be
entitled to any benefits payable to them pursuant to the terms of
applicable employee benefit plans or insurance arrangements sponsored
by AMH.
8.3. Voluntary Termination Without Good Reason or Termination
for Cause. In the event Employee voluntarily ceases employment with AMH
without Good Reason prior to expiration of the term of this Agreement
or in the event her employment is terminated for Cause by AMH prior to
the expiration of the term of this Agreement, AMH shall pay her Base
Compensation through the Termination Date at the rate in effect
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at the time the Notice of Termination is given and AMH shall have no
further obligation to her under this Agreement.
8.4 Termination for Good Reason or Without Cause.
(a) In the event the employment of Employee is
terminated by Employee for Good Reason as described in
Paragraph 7.3 hereof or by AMH following a Change of Control
as described in Paragraph 7.4(a) hereof, AMH shall pay to
Employee the following severance payment and benefits, which
severance payment shall be paid in a lump sum within
thirty-five (35) days following the Termination Date:
(i) Any amount of Employee's Base
Compensation earned but unpaid through the
Termination Date; and
(ii) In lieu of any further salary, bonus,
compensation or other payments of any kind to
Employee for periods after the Termination Date, an
amount equal to:
(A) the sum of:
(I) Employee's Base
Compensation, plus
(II) the greater of (a) the
amount of Employee's bonuses
(whether in cash, stock or
otherwise) under AMH's Management
Incentive Plan, the AmerUs Group MIP
Deferral Plan and any similar or
successor plans providing bonuses on
deferred compensation during the
twelve (12) months immediately
preceding the Termination Date
(including any portion of such
bonuses that were deferred by
Employee, but not including any
employer match on any such deferred
amount); (b) the amount of such
bonuses (as described in clause (a))
during the twenty-four (24) months
immediately preceding the
Termination Date divided by the
number two (2); or (c) the amount of
the bonuses (as described in clause
(a)) that would have been paid
during the twenty-four (24) months
immediately preceding the
Termination Date if the Plan Target
Level (as defined by the Plans (as
that term is defined in Paragraph
8.4(c) below)) had been achieved
divided by the number two (2);
B) multiplied by the number two (2);
and
(iii) An amount equal to the contributions
from AMH Employee would have otherwise been entitled
to under the Plans if Employee had remained an
employee of AMH until and including December 31 of
the calendar year in which Employee's employment
terminates and Employee
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had earned the amounts set forth in Paragraph
8.4(a)(ii)(A) hereof through said December 31st;
provided, however, if Section 280G(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), is applicable, the
amount of all payments made under this Agreement shall be
limited to the extent necessary so that, within the meaning of
Section 280G(b)(2)(A)(ii) of the Code, the aggregate present
value of the payments in the nature of compensation to (or for
the benefit of) Employee which are contingent on a Change of
Control (with a Change of Control for this purpose being
defined in terms of a "change" described in either Section
280G(b)(2)(A)(i)(I) or (II) of the Code) are limited to an
amount equal to 2.999 multiplied by the "base amount," as such
term is defined in Section 280G(b)(3) of the Code.
(b) In the event the employment of Employee is
terminated by Employee for Good Reason as described in
Paragraph 7.3 hereof or by AMH following a Change of Control
as described in Paragraph 7.4(a) hereof, AMH shall continue to
provide to Employee the benefits described in this Paragraph
8.4(b). AMH shall maintain in full force and effect, for the
benefit of Employee for two (2) years after the Termination
Date, all employee welfare benefit plans and programs or
arrangements in which Employee was entitled to participate
immediately prior to the Termination Date; provided, however,
that Employee's continued participation is possible under the
general terms and provisions of such plans, programs and
arrangements. In the event that Employee's continued
participation in any such plan, program or arrangement is not
possible, AMH shall arrange to provide Employee with
substantially equivalent benefits. At the end of the period of
coverage, Employee shall have the option to have assigned to
Employee at no cost and with no apportionment of prepaid
premiums any assignable insurance policy owned by AMH and
relating specifically to Employee. Notwithstanding the
foregoing, Employee's period of continued coverage under any
such plan, program or arrangement (or any AMH-arranged
provision of such benefits) shall terminate as of the date
Employee becomes eligible to participate in a similar plan,
program or arrangement of another employer. Employee shall be
deemed to be "eligible to participate" for this purpose even
if Employee is required to pay an employee premium and even if
the new plan, program or arrangement imposes preexisting
condition limitations or restrictions. In addition, Employee
shall be fully vested in all of her account in the All*AmerUs
Savings & Retirement Plan and the All*AmerUs Supplemental
Executive Retirement Plan.
(c) Except as provided in Paragraph 8.4(b) hereof,
Employee shall not be entitled to any benefits under the
All*AmerUs Savings & Retirement Plan, the All*AmerUs
Supplemental Executive Retirement Plan, the All*AmerUs Excess
Benefit Plan, the Interim Benefit Supplement or the American
Mutual Life Insurance Company Performance Share Plan
(collectively, the "Plans") as of the
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Termination Date other than the benefits earned pursuant to
the specific terms of said Plans.
(d) Employee shall not be required to mitigate the
amount of any payment provided for in this Paragraph 8.4 by
seeking other employment or otherwise, nor shall the amount of
any payment provided in this Paragraph 8.4 (other than the
earlier termination of certain employee benefits as described
in Paragraph 8.4(b) above) be reduced by any compensation
earned by Employee as the result of employment by another
employer after the Termination Date, or otherwise. AMH's
obligations to pay Employee the compensation and make the
arrangements provided herein shall be absolute and
unconditional and shall not be affected by any circumstances
including, without limitation, any set-off (except as provided
in Paragraphs 7.5 and 15.2 hereof) counterclaim, recoupment,
defense or other right which AMH may have. All amounts payable
by AMH hereunder shall be paid without notice and demand.
8.5 Indemnification. Employee shall be entitled throughout the
term of this Agreement and thereafter to indemnification by AMH in
respect of any actions or omissions as an employee, officer or director
of AMH (or any successor pursuant to Paragraph 9 hereof) or of any
Affiliate of AMH to the fullest extent permitted by law.
9. SUCCESSORS; BINDING AGREEMENT. This Agreement shall be binding on
and inure to the benefit of the successors and assigns of AMH. This Agreement
shall inure to the benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
10. NOTICE. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when hand delivered or mailed by registered mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth below, provided that all notices to AMH shall be directed to the
attention of the Chief Executive Officer of AMH, with a copy to the Secretary of
AMH, or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
AMH: Chief Executive Officer
AmerUs Life Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Secretary
AmerUs Life Holdings, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
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EMPLOYEE: Xxxxxx X. Xxxxxx
00000 Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
11. AMENDMENT; WAIVER. No provisions of this Agreement may be modified,
waived or amended unless such waiver, modification or amendment is agreed to in
writing and signed by (i) Employee, and (ii) such officer as may be specifically
designated by the Board of Directors to act on behalf of AMH for such purpose,
and such provisions shall be modified, waived or amended only to the extent set
forth in such writing.
12. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not effect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
14. ARBITRATION. Any dispute, disagreement or other question arising
from this Agreement or the interpretation thereof shall be settled by
arbitration in accordance with the commercial rules then in effect of the
American Arbitration Association, except that the arbitrator(s) shall be
selected in accordance with the following procedure: such dispute, disagreement
or other question shall be referred to and decided by a single arbitrator if the
parties can agree upon one within fifteen (15) days after either of the parties
shall notify the other, as provided in Paragraph 7.5 of this Agreement, that it
wishes to avail itself of the provisions of this Paragraph 14; otherwise, such
dispute, disagreement or other question shall be referred to and decided by
three arbitrators, one to be appointed by AMH and one to be appointed by
Employee, each such appointment to be made within ten (10) days after the
expiration of the fifteen (15) day period referred to above, and the third
arbitrator to be appointed by the first two arbitrators within twenty (20) days
after the expiration of such ten (10) day period. If the first two arbitrators
cannot reach agreement on the third arbitrator within said twenty (20) day
period, the third arbitrator shall be an impartial arbitrator appointed by the
President of the American Arbitration Association within thirty (30) days after
the expiration of said twenty (20) day period. Hearings of the arbitrator(s)
shall be held in Des Moines, Iowa, unless the parties agree otherwise. Judgment
upon an award rendered by the arbitrator(s) may be entered in any court of
competent jurisdiction, including courts in the State of Iowa. Any award so
rendered shall be final and binding upon the parties hereto. Except as otherwise
provided in Paragraph 15 hereof all costs and expenses of the arbitrator(s)
shall be paid as determined by such arbitrator(s), and all costs and expenses of
experts, witnesses and other persons retained by the parties shall be borne by
them respectively.
15. INDEMNIFICATION FOR EXPENSES; ADVANCEMENT OF EXPENSES.
15.1. Indemnification. AMH shall pay, and indemnify Employee
against, all costs and expenses, including without limitation the fees
and expenses of attorneys, arbitrators, experts and witnesses, incurred
by or on behalf of Employee in connection
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with any arbitration or legal claim or proceeding arising from this
Agreement or the interpretation thereof, to the extent that Employee is
successful, on the merits or otherwise, in any such claim or
proceeding. If Employee is not wholly successful in such claim or
proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such claim or
proceeding, then AMH shall indemnify Employee against all such costs
and expenses incurred by her or on her behalf in connection with each
successfully resolved claim, issue or matter.
15.2. Advance of Expenses. AMH shall advance all such costs
and expenses incurred by or on behalf of Employee in connection with
any such claim or proceeding referred to in Paragraph 15.1 hereof
within twenty (20) days after the receipt by AMH of a statement or
statements from Employee requesting such advance or advances, whether
prior to or after final disposition of such claim or proceeding. Such
statement or statements shall reasonably evidence the costs and
expenses incurred by Employee and shall be preceded or accompanied by
an undertaking by or on behalf of Employee to repay any costs and
expenses advanced if it shall ultimately be determined that Employee is
not entitled to be indemnified against such costs and expenses, and,
furthermore, if Employee fails to repay any costs and expenses that are
advanced, then such amounts shall be offset against and shall reduce
any other amounts due under this Agreement.
16. INTEREST. AMH shall pay Employee interest at a rate of ten percent
(10%) per annum on any benefits payable to Employee hereunder not paid on the
date provided for herein from such date until the date of payment.
17. GENERAL CREDITOR. Nothing contained in this Agreement and no action
taken pursuant to the provisions of this Agreement shall create or be construed
to create a trust of any kind or a fiduciary relationship between AMH and
Employee or any other person, nor shall any money or property of AMH be
segregated for the benefit of Employee to satisfy the obligations of AMH
hereunder. To the extent that Employee acquires a right to receive payments
hereunder, such rights shall be no greater than the right of any general
unsecured creditor of AMH. Except as expressly provided herein, each payment
shall be made in cash from the general assets of AMH.
18. NO ASSIGNMENT. The right of Employee or any other person to the
payment of amounts or other benefits under this Agreement shall not be assigned,
alienated, hypothecated, placed in trust, disposed of, transferred, pledged or
encumbered (except by will or by the laws of descent and distribution), and, to
the extent permitted by law, no such amount or payment shall in any way be
subject to any legal process to subject the same to the payments of any claim
against Employee or any other person.
19. NONVESTED RIGHTS. The rights and benefits of Employee under this
Agreement are nonvested rights and benefits of Employee.
20. TAX WITHHOLDING. AMH will have the right to withhold from any
transfer or payment made to Employee or to any other person hereunder, whether
such payment is to be made in cash or other property, all applicable federal,
state, city or other taxes or foreign taxes as
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shall be required in the determination of AMH, pursuant to any statute or
governmental regulation or ruling.
21. DISCLOSURE OF INFORMATION. Employee hereby acknowledges that she
will have access to confidential information of AMH and of corporations
affiliated with AMH and that such information may constitute valuable, special
and unique property of AMH and such other corporations. Employee will not,
during or after the term of her employment hereunder, disclose any such
confidential information to any person or entity for any reason or purpose
whatsoever, including, without limitation, the disclosure of the terms and
conditions of this Agreement, except as may be required by law. If Employee
becomes legally compelled to disclose any confidential information, Employee
will provide AMH prompt notice thereof so that AMH may seek a protective order
or other appropriate remedy and Employee will cooperate with AMH in that effort.
If such protective order or other remedy is not obtained, Employee (a) will
furnish only that portion of the confidential information that Employee is
advised by written opinion of counsel is legally required and (b) will exercise
her best effort to obtain reliable assurance that confidential treatment will be
accorded such confidential information.
22. AGREEMENT NOT TO SOLICIT EMPLOYEES OR AGENTS. Employee agrees that,
for a period of three (3) years following the termination of her employment with
AMH, neither she nor any affiliate shall, either alone or on behalf of any
business engaged in competition with AMH, solicit or induce, or in any manner
attempt to solicit or induce any person employed by, or an agent of, AMH to
terminate his or her contract or employment or agency, as the case may be, with
AMH.
23. NON-DISPARAGEMENT. Employee agrees that during and after the term
of this Agreement she will not (a) take any action that will demean, disparage,
or criticize AMH, its subsidiaries, divisions, or affiliates or any of their
respective officers, employees, agents, directors, or stockholders, or (b) make
any negative or adverse remarks whatsoever to any third party, including without
limitation, actual or potential customers, investors of AMH, and past, current,
or future employees, agents, and/or consultants of AMH, concerning the business,
operations, technologies, products, services, marketing strategies, pricing
policies, management, affairs and financial condition of AMH, its subsidiaries,
divisions, affiliates, and/or their successors, assigns, stockholders, officers,
directors, and employees; provided, however, that nothing contained in this
Paragraph shall be deemed to prohibit Employee from truthfully responding to
inquiries pursuant to legal process, providing information as required by law,
conducting internal employee performance appraisals, providing information to
the Board of Directors or AMH's officers, employees, and investors as necessary
in the performance by Employee of her duties.
24. RETURN OF DOCUMENTS. Employee agrees that upon her termination from
AMH, whether voluntary or otherwise, Employee shall deliver to AMH all notes,
letters, documents, and records which may contain proprietary information which
are then in her possession or control and shall destroy any and all copies and
summaries thereof not returned to AMH.
25. INJUNCTIVE RELIEF. Notwithstanding the provisions of Paragraph 14
hereof, in the event of a breach or threatened breach by Employee of the
provisions of this Agreement,
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AMH shall be entitled to an injunction to prevent irreparable injury to AMH. In
this regard, Employee understands and agrees that any breach by Employee of the
provisions of this Agreement will result in serious and irreparable injury to
AMH and its business and that the remedy at law alone will be an inadequate
remedy for such breach.
26. GOVERNING LAW. The terms and provisions of this Agreement,
including without limitation the provisions for arbitration under Paragraph 14
hereof, shall be construed in accordance with, and governed by, the laws of the
State of Iowa, except to the extent federal law applies.
27. AMENDMENT AND RESTATEMENT; ENTIRETY. This Agreement amends,
restates and replaces in its entirety the Prior Agreement. This Agreement
represents the entire understanding and agreement between the parties hereto
with respect to the subject matter hereto, and upon the execution and delivery
of this Agreement, neither AMH nor Employee shall have any further rights,
obligations or liabilities under the Prior Agreement or any other written or
oral agreement relating to the subject matter hereof.
28. IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above set forth.
AMERUS LIFE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------
Name: Xxxxx X. Xxxxxx
Title: CEO
/s/ Xxxxxx Xxxxxx
---------------------------
XXXXXX X. XXXXXX
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