EXHIBIT 10(i)
EMPLOYMENT AGREEMENT
The Agreement is made as of September 1, 1995 between PIONEER FINANCIAL
SERVICES, INC., a Delaware corporation with its principal place of business at
0000 X. Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter "Pioneer Financial"); and
XXXXXX X. XXXXXX, an individual residing at 000 X. Xxxxxxxx Xxxxx, Xxxxxxxx, XX
00000.
W I T N E S S E T H:
WHEREAS, Pioneer Financial is an insurance holding company which has life
and accident and health insurance subsidiaries and affiliated administrative
service and marketing companies; and
WHEREAS, Xxxxxx is currently President of the Health Division of Pioneer
Financial and Xxxxxx possesses valuable skills, expertise and abilities in the
life and accident and health insurance business; and
WHEREAS, Pioneer Financial is desirous of retaining the services of Xxxxxx
as a key managerial employee; and
WHEREAS, Xxxxxx desires to be employed by Pioneer Financial on the terms
set forth herein;
NOW, THEREFORE, for and in consideration of the covenants contained herein,
Pioneer Financial hereby employs Xxxxxx and Xxxxxx accepts such employment with
Pioneer Financial upon the terms and conditions hereinafter set forth.
1. Employment. Pioneer Financial hereby employs Xxxxxx and Xxxxxx hereby
agrees to be employed by Pioneer Financial for a term (the "Term") of three (3)
years commencing on September 1, 1995, and continuing through August 31, 1998,
to perform the duties set forth herein.
2. Duties. Subject to the control of the Board of Directors of Pioneer
Financial, Xxxxxx shall serve during the Term as President of the Health
Division of Pioneer Financial or in such other senior executive offices or
capacities as the Board of Directors of Pioneer Financial may from time to time
determine; and in such capacity shall render such services as the Board of
Directors of Pioneer Financial shall direct. Xxxxxx shall have such executive
powers and authority as may reasonably be required by him in order to discharge
such duties in an efficient and proper manner.
3. Compensation. Pioneer Financial shall in the aggregate pay to Xxxxxx
for all services to be rendered hereunder:
(a) Base Salary. An annual base salary in an amount of not less than
Three Hundred Thousand Dollars ($300,000); provided that the Board of Directors
of Pioneer Financial shall annually make a review of Xxxxxx'x salary and
increase such annual base salary as it deems appropriate; and
(b) Bonus. Such annual bonus, as may be determined by the
Compensation Committee of the Board of Directors of Pioneer Financial, based
upon the achievement of such Pioneer Financial company-wide performance
standards as may be established by such Committee.
4. Stock Options. Simultaneously with the execution and delivery of this
Agreement, Pioneer Financial is issuing to Xxxxxx options to purchase an
aggregate of 75,000 shares of Pioneer Financial common stock. Such options are
being issued subject to the approval by the stockholders of Pioneer Financial of
an appropriate amendment to the Pioneer Financial 1994 Omnibus Stock Incentive
Program (the "Plan") which would, among other things, increase the number of
options which may be granted under the Plan to any participant in any year. Such
options are exercisable as follows: 25,000 on or after the date of the
execution and delivery of this Agreement at $15.25 per share; and 25,000 on or
after September 1, 1996 at $16.75 per share; 25,000 on or after September 1,
1997 at $18.50 per share; provided, however, that none of such options are
exercisable within six months of the date of grant. Such options are (x) vested
upon grant, (y) but are exercisable only if Xxxxxx is employed by Pioneer
Financial or one of its subsidiaries at the time they can first be exercised;
and (z) have been issued on such other terms and conditions as are contained in
the Option Agreement relating thereto.
5. Benefits. During his employment hereunder, Xxxxxx shall be entitled
to participate in all employee benefits made available to management personnel
of Pioneer Financial and its subsidiaries. Furthermore, in the event of the
termination of Xxxxxx'x employment with Pioneer Financial or its subsidiaries
for any reason whatsoever (including without limitation the expiration of this
agreement), other than termination for cause (as hereinafter defined) or by
Xxxxxx without good reason (as hereinafter defined), then Pioneer Financial
shall provide (or cause to be provided) to Xxxxxx, or makes such payments to
Xxxxxx as shall enable Xxxxxx to obtain at no cost to himself, until he reaches
the age of 65 the health insurance which would have been available to Xxxxxx
during such period as an employee of Pioneer Financial or its subsidiaries
except for such termination; provided, however, that Pioneer Financial shall
have no such obligation in the event that Xxxxxx becomes entitled to receive
substantially similar health insurance coverage as an employee of another
company.
6. Death. Xxxxxx'x employment by Pioneer Financial will terminate
immediately upon his death; provided, however, that in the event of Xxxxxx'x
death during the Term, Xxxxxx'x estate shall be entitled to receive the payment
described in the last sentence of Section 8(b).
7. Disability. If during Xxxxxx'x employment hereunder, Xxxxxx becomes
totally or partially disabled, Pioneer Financial shall continue to pay to Xxxxxx
as long as such disability continues during the Term (or until Xxxxxx'x
employment is terminated by Pioneer Financial in accordance with Section 8 (if
earlier)) the level of annual salary payable to Xxxxxx at the date his
disability is determined, reduced dollar-for-dollar to the extent of any
disability insurance payments paid to Xxxxxx through insurance programs, the
premiums for which were paid by Pioneer Financial or its subsidiaries. For
purposes of this Agreement, the term "total disability" shall mean Xxxxxx'x
inability due to illness, accident or other physical or mental incapacity to
engage in the full time performance of his duties under this Agreement as
reasonably determined by the Board of Directors of Pioneer Financial based on
such evidence as such Board shall deem appropriate. For purposes of this
Agreement, "partial disability" shall mean Xxxxxx'x ability due to illness,
accident or other physical or mental incapacity to engage in only the partial
performance of his duties under this Agreement, as reasonably determined by the
Board of Directors of Pioneer Financial based on such evidence as such Board
shall deem appropriate.
8. Termination.
(a) For Cause. Pioneer Financial shall have the right to terminate
Xxxxxx'x employment hereunder at any time during the Term "for cause". For
purposes of this Agreement, "for cause" shall mean any of the following actions
(or inactions) by Xxxxxx: illegal conduct of a severity greater than a
misdemeanor, gross neglect of, and the continued failure to perform
substantially, Xxxxxx'x duties under this Agreement. Notwithstanding anything
herein to the contrary, Xxxxxx'x inability to perform the duties of his position
due to his total or partial disability (as defined herein) shall not be deemed
to constitute cause.
If, in the opinion of the Board of Directors of Pioneer Financial,
Xxxxxx'x employment shall become subject to termination for cause, such Board of
Directors shall give Xxxxxx notice to that effect, which notice shall describe
the matter or matters constituting such cause. If, at the end of such thirty
(30) day period, Xxxxxx has not substantially eliminated or cured each such
matter or matters, then Pioneer Financial shall have the right to give Xxxxxx
notice of the termination of his employment. Xxxxxx'x employment hereunder
shall be considered terminated for cause as of the date specified in such notice
of termination unless and until there is a final determination by a court of
competent jurisdiction that the cause of termination of Xxxxxx'x employment did
not exist at the time of giving said notice of termination. Upon termination of
Xxxxxx'x employment "for cause", this Agreement shall terminate without further
obligations to Xxxxxx other than Pioneer Financial's obligation (a) to pay to
Xxxxxx in a lump sum in cash within thirty (30) days after the date of
termination Xxxxxx'x base salary through the date of termination to the extent
not theretofore paid and (b) to the extent not theretofore paid or provided, to
pay or provide to pay, to Xxxxxx on a timely basis any other amounts or benefits
required to be paid or provided or which Xxxxxx is eligible to receive under any
plan, program, policy or practice or contract or agreement of Pioneer Financial.
(b) Without Cause. Pioneer Financial shall have the right to
terminate Xxxxxx'x employment hereunder without cause at any time during the
Term. If the Board of Directors determines to terminate Xxxxxx'x employment
without cause, Pioneer Financial shall give notice of such termination to Xxxxxx
and Xxxxxx'x employment hereunder shall be considered terminated without cause
as of the date specified in such notice of termination. Upon the date of the
termination of Xxxxxx'x employment without cause, Xxxxxx shall be paid an amount
equal to the present value, discounted to the present at an annual rate of 8%,
of an amount equal to the lesser of (x) the salary which would have been payable
during a period equal to the remainder of the Term, commencing on the date of
termination, at the rate of the annual base salary payable to Xxxxxx at the date
of termination, or (y) two times his then current annual base salary.
(c) By Xxxxxx. Xxxxxx may terminate his employment hereunder at any
time by retirement or resignation, upon notice to Pioneer Financial. Upon such
termination by Xxxxxx, no compensation for any period after the date of such
termination shall be payable to Xxxxxx; provided, however, that if such
termination by Xxxxxx is for "good reason" (as defined in Section 9(c)), then
Xxxxxx shall be entitled to the payment described in the last sentence of
Section 8(b).
(d) Change in Control Effect. No payments shall be made to Xxxxxx
pursuant to this Section 8 in the event that Xxxxxx is entitled to Change in
Control Compensation pursuant to Section 9.
9. Change in Control.
(a) Change in Control Severance Compensation. If, during the term of
this Agreement, within two years following a Change in Control (as defined in
Section 9(b)), Xxxxxx'x employment is terminated by Pioneer Financial other than
"for cause" (as defined in Section 8(a) or is terminated by Xxxxxx for "good
reason" (as defined in Section 9(c)), Xxxxxx shall be entitled to receive from
Pioneer Financial a lump sum cash payment in an amount ("Change in Control
Compensation") equal to (x) three times the average income reflected on the W-2
form or forms issued to Xxxxxx by Pioneer Financial or its subsidiaries for
services performed for them for the five (5) calendar years preceding the year
in which such Change of Control occurs, minus (y) one dollar ($1.00) and the
amount of any other items that are construed as a "parachute payment" under
Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"),
other than any payment due pursuant to Section 9(d) below. Pioneer Financial
shall pay such amount to Xxxxxx within ten (10) days of the date of termination.
If Xxxxxx'x employment is terminated by Pioneer Financial for cause, by reason
of Xxxxxx'x death or retirement, or by Xxxxxx without good reason, the Change in
Control Compensation will not be paid. If Xxxxxx was totally or partially
disabled as of the Change in Control, the Change in Control Compensation will
not be paid.
(b) Change In Control. For purposes of this Agreement, "Change in
Control" shall mean the occurrence of any of the following events:
(i) any person or persons acting as a group, other than a person
which as of the date of this Agreement is the beneficial owner of voting
securities of Pioneer Financial and other than Xxxxxx or a group including
Xxxxxx, shall become the beneficial owner of securities of Pioneer Financial
representing at least thirty-four percent (34%) of the combined voting power of
Pioneer Financial's then outstanding securities; or
(ii) any consolidation or merger to which Pioneer Financial is a
party, if following such consolidation or merger, stockholders of Pioneer
Financial immediately prior to such consolidation or merger shall not
beneficially own securities representing at least sixty-seven percent (67%) of
the combined voting power of the outstanding voting securities of the surviving
or continuing corporation; or
(iii) any sale, lease, exchange or other transfer (in one
transaction or in a series of related transactions) of all, or substantially
all, of the assets of Pioneer Financial, other than to an entity (or entities)
of which Pioneer Financial or the stockholders of Pioneer Financial immediately
prior to such transaction beneficially own securities representing at least
sixty-seven percent (67%) of the combined voting power of the outstanding voting
securities.
(c) Good Reason. For purposes of this Agreement, "good reason" shall
mean any of the following:
(i) a change in Xxxxxx'x status or position, the assignment to
Xxxxxx of any duties or responsibilities which are inconsistent with Xxxxxx'x
status and position or a reduction in the duties and responsibilities to be
exercised by Xxxxxx;
(ii) any action by Pioneer Financial which renders Xxxxxx unable
to effectively discharge his duties and responsibilities hereunder;
(iii) the failure to maintain Xxxxxx'x minimum annual base
salary in accordance with Section 3(a) or; in the event that such salary is
increased during the Term as provided herein, any reduction in Xxxxxx'x then
current annual base salary; or
(iv) any failure by Pioneer Financial to obtain the assumption of
this Agreement by any successor or assignee thereto.
10. Confidential Information and Trade Secrets.
(a) Nature. During Xxxxxx'x employment by Pioneer Financial, Xxxxxx
will enjoy access to Pioneer Financial's "confidential information" and "trade
secrets". For purposes of this Agreement, "confidential information" shall mean
information which is not publicly available, including without limitation,
information concerning customers, material sources, suppliers, financial
projections, marketing plans and operation methods, Xxxxxx'x access to which
derives solely from Xxxxxx'x employment with Pioneer Financial. For purposes of
this Agreement, "trade secrets" shall mean Pioneer Financial's processes,
methodologies and techniques known only to those employees of Pioneer Financial
who need to know such secrets in order to perform their duties on behalf of
Pioneer Financial. Pioneer Financial takes numerous steps, including these
provisions, to protect the confidentiality of its confidential information and
trade secrets, which it considers unique, valuable and special assets.
(b) Restricted Use and Non-Disclosure. Xxxxxx, recognizing Pioneer
Financial's significant investment of time, efforts and money in developing and
preserving its confidential information, shall not, during his employment
hereunder and for a two (2) year period after the end of Xxxxxx'x employment
hereunder, use for his direct or indirect personal benefit any of Pioneer
Financial's confidential information or trade secrets. For a two (2) year
period after the end of Xxxxxx'x employment hereunder, Xxxxxx shall not disclose
to any person any of Pioneer Financial's confidential information or
tradesecrets.
(c) Return of Pioneer Financial Property. Upon termination of
Xxxxxx'x employment with Pioneer Financial, for whatever reason and in whatever
manner, Xxxxxx shall return to Pioneer Financial all copies of all writings and
records relating to Pioneer Financial's business, confidential information or
trade secrets which are in Xxxxxx'x possession of such time.
11. Non-Competition and Non-Solicitation.
(a) Pioneer Financial's Investment. Pioneer Financial is spending
and will spend much time, money and effort in building relationships with agents
and insureds, and will pay Xxxxxx valuable consideration pursuant hereto in
exchange for Xxxxxx'x promises herein, including without limitation the
covenants in Section 10 and in this Section 11. Pioneer Financial has engaged
Xxxxxx as a senior executive officer of Pioneer Financial in order to, among
other reasons, take advantage of Xxxxxx'x unique knowledge of, and contacts
within, the life and accident and health insurance industry. Further, Pioneer
Financial will invest significant time and money in the further development of
Xxxxxx'x business ability, image and standing. As Xxxxxx is a senior executive
officer of Pioneer Financial, the reputation and success of Xxxxxx will be
closely tied to the reputation and success of Pioneer Financial and, during the
Term, Xxxxxx will be heavily identified with Pioneer Financial's business.
(b) Non-Competition. During Xxxxxx'x employment hereunder and for a
twenty-four (24) month period after termination of such employment, unless such
termination is made by Pioneer Financial without cause or unless there has been
a Change in Control prior to such termination, Xxxxxx shall not engage, directly
or indirectly, whether as an owner, partner, employee, officer, director, agent,
consultant or otherwise, in any location where Pioneer Financial or any of its
subsidiaries is engaged in business after the date hereof and prior to Xxxxxx'x
termination, conducted by Pioneer Financial 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.
(c) Non-Solicitation. During the twenty-four (24) month period
following termination of Xxxxxx'x employment with Pioneer Financial, Xxxxxx
shall not, directly or indirectly induce employees of Pioneer Financial or any
of its subsidiaries to leave such employment with the result that such employees
would engage in business activities which are substantially similar or are
closely related to the business activities such employee performed on behalf of
Pioneer Financial and which compete against Pioneer Financial. Notwithstanding
the above, in the event Xxxxxx is terminated by Pioneer Financial without cause,
then the twenty-four (24) month period referred to in this Section 11(c) shall
be reduced to twelve (12) months.
(d) Enforceability. The necessity of protection against the
competition of Xxxxxx and the nature and scope of such protection has been
carefully considered by the parties hereto. The parties hereto agree and
acknowledge that the duration, scope and geographic areas applicable to the non-
competition covenant in this Section 11 are fair, reasonable and necessary, that
adequate compensation has been received by Xxxxxx for such obligations, and that
these obligations do not prevent Xxxxxx from earning a livelihood. If, however
for any reason any court determines that the restrictions in this Agreement are
not reasonable, that consideration is inadequate or that Xxxxxx has been
prevented from earning a livelihood, such restrictions shall be interpreted,
modified or rewritten to include as much of the duration, scope and geographic
area identified in this Section 11 as will render such restrictions valid and
enforceable.
12. Breach or Threatened Breach of Non-Competition Covenant. In the event
of a breach or threatened breach by Xxxxxx of any provision of Section 10 or 11
hereof, Xxxxxx acknowledges that the remedy at law would be inadequate and that
Pioneer Financial shall be entitled to an injunction restraining Xxxxxx from
such act or threatened breach. Nothing herein contained shall be construed as
prohibiting Pioneer Financial from pursuing any other remedies available to it
for such breach or threatened breach, including the recovery of monetary
damages.
13. Business Days. Any date specified in this Agreement which is a
Saturday, Sunday or legal holiday shall be extended to the first regular
business day after such date which is not a Saturday, Sunday or legal holiday.
14. Choice of Law. This Agreement has been executed and made in
accordance with the laws of the State of Illinois and is to be construed,
enforced and governed in accordance therewith.
15. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
16. Entire Agreement Amendments. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof.
No change or modification of this Agreement, or any waiver of the provisions
hereof, shall be valid unless the same is in writing and signed by the parties
hereto. Waiver by any party hereto of a breach by the other party of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by such party.
17. Headings. The headings used herein are for ease of interpretation and
shall have no effect on the interpretation of any provision of this Agreement.
18. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall, until receipt of contrary written
instructions, be delivered personally to, or mailed by certified or registered
mail with proper postage prepaid, to the party at the address as follows:
TO PIONEER FINANCIAL: Pioneer Financial Services, Inc.
0000 X. Xxxx Xxxx
Xxxxxxxxxx, XX 00000
TO XXXXXX: Xx. Xxxxxx X. Xxxxxx
000 X. Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
19. Severability. If any provision of this Agreement is held for any
reason to be invalid, it will not invalidate any other provisions of this
Agreement which are in themselves valid, nor will it invalidate the provisions
of any other agreement between the parties hereto. Rather, such invalid
provision shall be construed so as to give it the maximum effect allowed by
applicable law. Any other written agreement between the parties hereto shall be
conclusively deemed to be an agreement independent of this Agreement.
20. Successors and Assigns. This Agreement and all the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns. This
Agreement and the rights and obligations hereunder may not be assigned by either
party without the prior written consent of the other.
21. Time of the Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed on December 12, 1995, but to be effective as of the
date first above written.Attest: "Pioneer Financial"
PIONEER FINANCIAL SERVICES, INC.
______________________________ By: ___________________________________
Title: __________________________________
Witness: "Xxxxxx"
______________________________ ________________________________________
XXXXXX X. XXXXXX
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