EXHIBIT 10.49
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 1st
day of May, 1998, by and between First Investors Financial Services Group, Inc.,
a Texas corporation (the "Employer"), and Xxxxxx X. Duck, a resident of Xxxxxx
County, Texas (the "Employee"), who agree as follows:
1. EMPLOYMENT AND TERM. Employer hereby employs Employee and Employee
hereby accepts employment at the salary and upon the terms and conditions herein
set forth, to work for Employer in the capacities set forth herein for a term
beginning on the date hereof and ending on July 31, 2000.
2. DUTIES.
A. It is anticipated that Employee will serve as the Vice President
and Chief Financial Officer of Employer, but nothing herein shall limit the
authority of the Board of Directors of Employer to elect or remove corporate
officers. Employee agrees, as long as he is employed by Employer, to devote
substantially all of his business time and efforts to his duties in such
capacity for the profit, benefit and advantage of Employer. Employee shall also
serve in such additional offices or capacities with Employer or its affiliates
to which he may be elected or appointed and as are consistent with his primary
duties hereunder.
B. The principal office of Employee shall be in Houston, Texas where
the principal portion of his duties shall be performed.
3. COMPENSATION.
A. As compensation for his services hereunder, Employer shall pay
Employee a salary at the rate of $140,000 per annum during the term hereof,
payable in equal semi-monthly installments as it accrues. Such salary will be
reviewed annually by the President and the Compensation Committee of the Board
of Directors of the Employer, such review to take place within a reasonable time
after release of the Employer's audited consolidated financial statements for
the relevant Fiscal Year.
B. In addition to the salary provided by Section 3(A), Employee
shall be paid an incentive bonus (the "Bonus") with respect to the Employer's
fiscal years ending April 30, 1999 and April 30, 2000 (each referred to as a
"Fiscal Year") in the amounts and subject to the terms and conditions set forth
below:
(i) For purposes of this Section 3(B): (a) the term "Consolidated
Net Income" shall mean the Employer's consolidated net income (after federal
income tax and any applicable state income taxes) as reflected by its
consolidated statement of
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operations for the relevant Fiscal Year as reported upon by the Employer's
independent public accountants; (b) the term "Budget Benchmark" shall mean the
Employer's budgeted consolidated net income (after federal income tax and any
applicable state income taxes) as reflected by the annual fiscal budget adopted
by the Employer's Board of Directors for the relevant Fiscal Year; and (c) the
term "Benchmark Percentage" shall mean the quotient, expressed as a percentage,
obtained by dividing (I) the Consolidated Net Income for the relevant Fiscal
Year, by (II) the Budget Benchmark for such Fiscal Year.
(ii) No Bonus shall be paid for any Fiscal Year with respect to
which the Benchmark Percentage is less than 97%. If the Benchmark Percentage for
any Fiscal Year is 106% or greater, the Bonus shall be paid in the amount of
$40,000. If the Benchmark Percentage for any Fiscal Year is 97% or greater, but
less than 106%, the Bonus shall be paid as follows:
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===============================================================================
BENCHMARK
PERCENTAGE
(OR GREATER) BUT LESS THAN BONUS
-------------------------------------------------------------------------------
97% 98% $ 6,667
-------------------------------------------------------------------------------
98% 99% $13,333
-------------------------------------------------------------------------------
99% 100% $20,000
-------------------------------------------------------------------------------
100% 101% $22,857
-------------------------------------------------------------------------------
101% 102% $25,714
-------------------------------------------------------------------------------
102% 103% $28,571
-------------------------------------------------------------------------------
103% 104% $31,429
-------------------------------------------------------------------------------
104% 105% $34,286
-------------------------------------------------------------------------------
105% 106% $37,143
===============================================================================
(iii) The Bonus, if any, payable hereunder shall be paid within 30
days after the Employer's independent public accountants certify the Employer's
consolidated financial statements for the relevant Fiscal Year.
(iv) With respect to all computations required pursuant to this
Section 3(B), the determination of the Employer's independent public accountants
shall be final, binding and conclusive on the parties.
C. Employee shall be reimbursed by Employer for all reasonable and
necessary costs and expenses incurred by him in the performance of his services
hereunder, subject to compliance with such general policies as shall be adopted
by the Board of Directors on that subject.
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4. TERMINATION.
A. Employee's employment pursuant to this Agreement may be
terminated prior to expiration of the term hereof only: (a) by the mutual
agreement of Employer and Employee; (b) by Employee's death, automatically on
the date of death; or (c) by Employer, if Employee (i) is disabled, or (ii)
commits an act constituting a dishonest act or material misconduct, or a
fraudulent act or a felony under the laws of any state or of the United States
to which the Employer or Employee is subject, and such act results (or is
intended to result directly or indirectly) in the Employee's substantial gain or
personal enrichment to the detriment of the Employer. For purposes of this
Agreement, the term "disabled" means the mental or physical incapacity of the
Employee to perform his usual duties for the Employer for a period of 180
consecutive days or more during any 12-month period. If there is any
disagreement between the Employee and the Employer with respect to whether the
Employee is disabled, then the Employer and Employee shall obtain a
determination from an impartial reputable physician selected for the purpose of
making such determination, whose decision shall be binding upon both parties. If
the Employer and the Employee cannot agree upon the selection of such physician,
the then president of the Houston Medical Society may make the selection of such
physician, which selection shall be binding upon all parties and such
physician's decision shall be binding upon all parties.
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B. If Employee's employment is terminated in the manner and for any
reason specified in Section 4(A), Employer shall be obligated to pay Employee
only his annual salary for the year in which termination occurs, prorated to the
date of termination pursuant to Section 3(A), but no Bonus under Section 3(B)
shall be payable.
C. If Employee's employment is terminated in a manner and for any
reason other than those specified in Section 4(A), Employee shall receive as
liquidated damages and in complete satisfaction of all obligations of Employer
under this Agreement, a sum equal to (a) the aggregate salary which would have
been payable to Employee pursuant to Section 3(A) for the remaining term of this
Agreement had it not been terminated; plus (b) the Bonus, if any, payable under
Section 3(B) with respect to the Fiscal Year in which such termination occurs,
such Bonus being prorated through the end of the fiscal quarter in which such
termination occurs if it occurs prior to the last fiscal quarter of the relevant
Fiscal Year.
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5. NON-INTERFERENCE. If Employee's employment is terminated for any reason
whatsoever, then and in that event, for a period of one year thereafter,
Employee shall not in any way, directly or indirectly, (i) entice any persons to
leave the employ of Employer, or (ii) employ any persons who have been employed
by Employer within the six months immediately preceding.
6. CHOICE OF LAW. This Agreement shall be interpreted and construed in
accordance with and shall be governed by the laws of the State of Texas. In the
event of a dispute hereunder, it is agreed that venue lies in a court of
competent jurisdiction in Xxxxxx County, Texas. The rights created hereunder are
cumulative of any and all other rights of the Employer at law or in equity.
7. ASSIGNMENTS. Employer shall be permitted to assign this Agreement to
its successors or assigns, by reason of any merger, consolidation,
reorganization, sale of substantially all of Employer's assets or other business
combination, and all covenants and agreements hereunder shall inure to the
benefit of and be enforceable by or against its successors or assigns. The
rights and obligations of Employee under this Agreement are personal to him, and
no such rights, benefits or obligations shall be subject to voluntary or
involuntary alienation, assignment or transfer.
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8. ENTIRE AGREEMENT. This Agreement embodies the final and entire
agreement between the parties hereto and supersedes all prior commitments,
agreements, representations, inducements and understandings, whether written or
oral, relating to the subject matter hereof and may not be contradicted or
varied by evidence of prior, contemporaneous or subsequent oral agreements or
discussions. There are no oral agreements between the parties hereto. The
provisions of this Agreement may be amended or waived only by an instrument in
writing signed by the parties hereto.
9. COUNTERPARTS. This Agreement shall be executed in multiple
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement is executed in multiple counterparts in
Houston, Texas as of the date first set forth above.
First Investors Financial Services
Group, Inc.
By: ________________________________
Xxxxx X. Xxxxx, Xx., President
________________________________
Xxxxxx X. Duck
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