Exhibit 10.4
EMPLOYMENT AGREEMENT
BETWEEN FIRST AMERICAN CAPITAL CORP.
AND XXXX X. XXX XXXXXXX
This employment agreement is effective the first day of July, 2005,
between First American Capital Corporation, a corporation organized and existing
under the laws of Kansas, with its principal office located at 1303 SW First
American Place, in Topeka, Kansas ("EMPLOYER"), and Xxxx X. Xxx Xxxxxxx of 0000
XX Xxxxxxx Xxxxx, in Topeka, Kansas ("EXECUTIVE").
RECITALS
A. Employer is engaged in the insurance business and maintains business
premises at 1303 SW First American Place, in Topeka, Kansas (the "BUSINESS
PREMISES").
B. Executive is willing to be employed by Employer, and Employer is
willing to employ Executive, on the terms and conditions set forth below. In
consideration of the matters described above, and of the mutual benefits and
obligations set forth in this agreement, the parties agree as follows:
1. EMPLOYMENT. Employer employs Executive as President and Chief
Executive Officer at the Business Premises, and Executive accepts and agrees to
such employment.
2. DUTIES. Subject to the supervision and pursuant to the orders,
advice, and direction of Employer, Executive shall perform such duties as are
customarily performed by one holding such position in other businesses or
enterprises of the same or similar nature as that engaged in by Employer.
Executive shall additionally render such other and unrelated services and duties
as may be assigned to him from time to time by Employer.
(a) Chief Executive Officer's obligation to serve on
board of directors. During the term of this Agreement, Executive shall serve, if
and when elected, and re-elected, as a member of the board of directors of
Employer or of any of its subsidiaries, affiliates or divisions, and as an
officer of any subsidiary, affiliate or division, if elected. When this
agreement terminates, Executive will, if requested by the board of Employer,
tender his resignation from any and all such board positions.
3. MANNER OF PERFORMANCE. Executive shall at all times
faithfully, industriously, and to the best of his ability, experience and
talent, perform all duties that may be required of and from him pursuant to the
express and implicit terms of this agreement, to the reasonable satisfaction of
Employer. Such duties shall be rendered at the Business Premises and at such
other place or places as Employer shall in good faith require or as the
interests, needs, business, and opportunities of Employer shall require or make
advisable.
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4. TERM. The term of employment shall be one (1) year, commencing
on July 1, 2005 and terminating June 30, 2006 (the "TERM").
(a) Termination for cause. Employer may terminate
Executive's employment under this agreement for Cause (as defined below) as
provided in this section. If the Employer terminates the Executive's employment
for Cause, within 30 days of termination the Executive shall be entitled to:
(i) any annual bonus accrued but not yet paid as
of the date of termination;
(ii) any accrued vacation pay;
(iii) reimbursement for expenses incurred but not
yet paid prior to such termination of employment; and
(iv) any other compensation and benefits,
including deferred compensation, as may be provided in accordance with
the terms and provisions of any applicable plans and programs of the
Company.
(b) Notice. In any case described in this section, the
Executive shall be given written notice authorized by a vote of at least a
majority of the members of the Board of Directors that the Employer intends to
terminate the Executive's employment for Cause. Such written notice shall
specify the particular act or acts, or failure to act, which is or are the basis
for the decision to so terminate the Executive's employment for Cause. The
Executive shall be given the opportunity within 30 calendar days of the receipt
of such notice to meet with the Board of Directors to defend such act or acts,
or failure to act, and the Executive shall be given 15 business days after such
meeting to correct such act or failure to act. Upon failure of the Executive,
within such latter 15-day period, to correct such act or failure to act, the
Executive's employment by the Employer shall automatically be terminated under
this section for Cause. Anything in this section to the contrary
notwithstanding, if, following a termination of the Executive's employment by
the Employer for Cause based upon the conviction of the Executive for a felony
involving actual dishonesty as against the Employer, such conviction is
overturned on appeal, the Executive shall be entitled to the payments and the
economic equivalent of the benefits that the Executive would have received as a
result or a termination of the Executive's employment by the Employer without
Cause.
(c) Cause. For purposes of this section, "Cause" means
(a) the Executive is convicted of a felony involving actual dishonesty as
against the Employer, or (b) the Executive, in carrying out his duties and
responsibilities under this agreement, voluntarily engages in conduct which is
demonstrably and materially injurious to the Employer or otherwise, unless such
act, or failure to act, was believed by the Executive in good faith to be in the
best interests of the Employer.
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5. COMPENSATION. Employer shall pay Executive and Executive
agrees to accept from Employer, in full payment for Executive's services under
this agreement, compensation at the rate of one hundred forty four thousand
eight hundred dollars ($144,800) per annum ("ANNUAL COMPENSATION"), payable
every two weeks, or as the case may be. In addition to the foregoing, Employer
will reimburse Executive for any and all necessary, customary, and usual
expenses incurred by him while traveling for and on behalf of Employer pursuant
to Employer's directions.
(a) Performance bonus. Subject to satisfactory
performance as determined by Employer, Executive shall receive a performance
bonus valued at no less than 20 percent of Executive's Annual Compensation, such
bonus to be paid on or before January 31 of the immediately succeeding calendar
year for such bonus period.
(b) Severance in case of termination by Employer. After
the Term, and in the event the Employer shall terminate Executive, with or
without cause, Employer shall pay to Executive an amount equal to three (3)
months Annual Compensation within thirty (30) days of such termination.
(c) Severance in case of termination by Executive. In the
event Executive shall resign, Employer shall pay to Executive the amounts due
under 4a, above.
(d) Change of control. In the event of a change of
control involving the acquisition by an outside party of 20 percent or greater
of Employer's common equity, Employer shall pay to Executive one hundred forty
four thousand eight hundred dollars ($144,800). Such payment shall be made to
Executive within thirty (30) days of the last day on which Executive remained in
Employer's employ.
(e) Other compensation. During the term of this
agreement, Employer shall provide to Executive at Employer's expense, a $2,000
annual educational reimbursement fund, use of a laptop computer and a cellular
telephone.
6. LOYALTY. Executive shall devote all of his time, attention,
knowledge, and skill solely and exclusively to the business and interests of
Employer, and Employer shall be entitled to all benefits, emoluments, profits,
or other issues arising from or incident to any and all work, services, and
advice of Executive. Executive agrees that during the term of this agreement he
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, except that nothing contained in this agreement shall be deemed to
prevent or limit the right of Executive to invest any of his surplus funds in
the capital stock or other securities of any corporation whose stock or
securities are publicly owned or are regularly traded on any public exchange,
nor shall anything contained in this agreement be deemed to prevent Executive
from investing or limit Executive's right to invest his surplus funds in real
estate.
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7. NONDISCLOSURE OF INFORMATION. Executive will not at any time,
in any fashion, form, or manner, either directly or indirectly divulge,
disclose, or communicate to any person, firm, or corporation in any manner
whatsoever any non-public information provided it is deemed to be confidential,
material, and important.
(a) Nondisclosure. Executive shall not, during or after
the term of this agreement, directly or indirectly, use, disseminate, or
disclose to any person, firm, or other business entity for any purpose
whatsoever, any information not generally known in the industry in which
Employer is or may be engaged which was disclosed to Executive or known by
Executive as a consequence of or through his employment by Employer. This
includes information regarding Employer's non-public information concerning its
products, processes, customers, services, and includes information relating to
research, development, inventions, accounting, marketing, and selling.
(b) Return of documents. To protect the interests of
Employer, Executive agrees that, during or after the termination of Executive's
employment by Employer, all documents, records, notebooks and similar
repositories containing such information described in subsection (a) above,
including copies of such items, then in Executive's possession or work area,
whether prepared by Executive or others, are the property of Employer and shall
be returned to Employer upon Employer's request.
8. NONCOMPETITION. During the term of Executive's employment by
Employer and for two (2) years after termination of such employment, Executive
agrees that Executive will not, without the prior written consent of Employer,
directly or indirectly, whether as an Executive, officer, director, independent
contractor, consultant, stockholder, partner or otherwise, engage in or assist
others to engage in or have any interest in any business which directly competes
with Employer in any geographic area in which Employer markets its products
during the year preceding termination, subject to the following exceptions: This
provision shall not be binding upon Executive (i) in those geographic areas in
which Employer's annual direct premium income as measured in the calendar year
preceding termination constitutes less than 25 percent of employer's total
annual direct premium income during that year; and (ii) in respect to the
business of annuities, health and disability insurance, and pension products,
either individual or group.
(a) Solicitation of executives. Executive agrees that
during the term of Executive's employment and for two (2) years after the
termination of such employment, Executive will not induce or attempt to induce
any person who is an employee of Employer to leave the employ of Employer and
engage in any business which competes with Employer. This provision shall not
apply to those employees with whom Executive had a business relationship prior
to February of 2004.
(b) Maximum restrictions of time, scope, and geographic
area intended. The parties agree and acknowledge that the time, scope and
geographic area and other provisions of this agreement have been specifically
negotiated by the parties, and Executive specifically agrees that such time,
scope and geographic areas, and other provisions are reasonable under these
circumstances. Executive further agrees that if, despite the express agreement
of the parties to
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this agreement, a court should hold any portion of this agreement unenforceable
for any reason, the maximum restrictions of time, scope and geographic area
reasonable under the circumstances, as determined by the court, will be
substituted for the restrictions held unenforceable.
9. CONTRACT TERMS TO BE EXCLUSIVE. This written agreement
contains the sole and entire agreement between the parties, and supersedes any
and all other agreements between them. 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 the execution and delivery of
this agreement except such representations as are specifically set forth in this
agreement, and each party acknowledges that he or it has relied on his or its
own judgment in entering into the agreement. The parties further acknowledge
that any statements or representations that may have been made prior to this
agreement by either of them to the other are void and of no effect and that
neither of them has relied on the same in connection with his or its dealings
with the other.
10. WAIVER OR MODIFICATION. No waiver or modification of this
agreement or of any covenant, condition, or limitation contained in this
agreement shall be valid unless in writing and duly executed by the party to be
charged with the same. Furthermore, 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 this agreement, unless such waiver
or modification is in writing and duly executed. The provisions of this
paragraph may not be waived except as set forth in this paragraph.
11. GOVERNING LAW. This agreement and performance under it shall
be construed in accordance with the laws of the State of Kansas.
12. BINDING EFFECT. This agreement shall be binding on and inure
to the benefit of the respective parties and their respective heirs, legal
representatives, successors, and assigns. The parties have executed this
agreement at the Business Premises the day and year first above written.
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxx X. Xxx Xxxxxxx
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Xxxxxxx X. Xxxxxxx Xxxx X. Xxx Xxxxxxx
Chairman of the Board Executive
For Employer
Date Signed: August 16, 2005 Date Signed: August 16, 2005
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