1
EXHIBIT 10.4
ALL SECTIONS MARKED WITH TWO ASTERISKS ("**") REFLECT PORTIONS WHICH HAVE BEEN
REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION BY
THE REGISTRANT AS PART OF A REQUEST FOR CONFIDENTIAL TREATMENT.
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated February 13, 1997, is made and entered into among
Financial Pacific Insurance Group, Inc. a Delaware corporation ("Financial
Pacific"), Financial Pacific Insurance Company (FPIC), and Financial Pacific
Insurance Agency (FPIA), a California corporation (Financial Pacific, FPIC and
FPIA are hereinafter referred to collectively as "Companies") and Xxxxxx X.
Xxxxxxxx ("Executive").
RECITALS
A. Executive currently serves as Executive Vice President and Chief
Operating Officer of FPIC and President of FPIA. Executive's salary is paid by
FPIA, but his duties are split between FPIA and FPIC.
NOW, THEREFORE, in consideration of the foregoing and of the respective
covenants and agreements set forth below, the parties hereby agree as follows:
(1) Termination: The Executive's employment hereunder may be terminated
by the Companies or Executive, as applicable, under the following circumstances.
(a) Death: The Executive's employment hereunder shall terminate
upon his death. In the case of Executive's death, the Companies shall pay
Executive's beneficiaries or estate, as appropriate, the unpaid Annual Base
Salary to which he is entitled, through the date of his termination. This
subsection shall not limit the entitlement of the Executive's estate or
beneficiaries to any death or other benefits then available to Executive under
any life insurance or other benefit plan or policy which is maintained by the
Companies for Executive's benefit.
(b) By the Companies: Companies may terminate Executive's
employment hereunder for any reason, (with or without cause) upon 30 days
written notice. In the event that Companies terminate Executive's employment,
the Companies shall pay to Executive the unpaid Annual Base Salary to which he
is entitled through the termination date. In addition, the Companies shall pay
Executive severance benefits as set forth in Section 2.
(c) Resignation: The Executive may resign his employment upon 30
days written notice to the Companies. Upon Executive's resignation, the
Companies shall promptly pay to Executive (or his designated representative) the
unpaid Annual Base Salary and any other unpaid benefits (vacation, sick, bonus,
pension, business expenses, etc.) to which the Executive is entitled through
Executive's termination date. Executive shall be entitled to no other
compensation.
(d) Mutual Agreement: The Executive's employment may be terminated
by mutual agreement of Executive and the Companies at any time. If Executive is
terminated by mutual agreement, the severance benefits in Section 2 will apply.
1
2
(2) Severance Benefits
(a) Termination: The Executive's employment is terminated pursuant
to Section 1(b) or (d), above the Company shall pay Executive severance
compensation which shall consist of a lump sum payment representing 1/2 of
Executive's then current Annual Base Salary and any other unpaid benefits
(vacation, sick, bonus, pension, business expenses, etc.)
(b) Mitigation of Damages: In the event of any termination of
Executive's employment by the Companies or the Executive, Executive shall not be
required to seek other employment to mitigate damages, and any income earned by
Executive from other employment or self-employment shall not be offset against
any obligations of the Companies to the Executive under this agreement.
(3) Disputes
(a) Any dispute or controversy arising under, out of, in
connection with, or in relation to this Agreement shall, at the election and
upon written demand of any party to this Agreement, be finally determined and
settled by arbitration in Sacramento, California, in accordance with the rules
and procedures of the American Arbitration Association. The judgment as
determined through arbitration may be entered in any court having jurisdiction
thereof.
(b) If any legal action, arbitration, or other proceeding is
brought for the enforcement of this Agreement, or because of an alleged dispute,
breach, default or misrepresentation in connection with any of the provisions of
this Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief that may be granted.
(4) Binding on Successors: This Agreement shall be binding upon and
inure to the benefit of the Companies, Executive, and their perspective
successors, assigns, personal and legal representatives, executors,
administrators, heirs, distributes, devisees, and legatees, as applicable.
(5) Governing Law: This Agreement is being made, executed, and is
intended to be performed in the State of California and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of California, without regard to the conflict of laws principles
thereof.
(6) Severability: The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
2
3
(7) Notices: Any notice, request, claim, demand, document and other
communication hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or sent by hard,
telex, telecopy, or certified or registered mail, postage prepaid and addressed
to the following address:
Xxxxxx X. Xxxxxxxx Financial Pacific Insurance Company
** Attn.: Xxxxxx X. Xxxxxxx
X.X. Xxx 000000
Xxxxxxxxxx, XX 00000-0000
IN WITNESS WHEREOF, the parties have executed put addresses inherence this
Agreement as of above written.
EXECUTIVE FINANCIAL PACIFIC INSURANCE CO.
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXX X. XXXXXXX
------------------------------------- -------------------------------------
Xxxxxx X. Xxxxxxxx Xxxxxx X. Xxxxxxx
President & Chief Executive Officer
3
