7
Exhibit 10.23
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into effective
as of the 31st day of May, 2002 with respect to the following:
Goran Capital Inc.("Goran"), and Xxxxxx International Group, Inc. ("SIG"),
jointly and severally, and their respective subsidiaries (collectively,
the "Company") consider it essential to its best interests and the best
interests of its stockholders to xxxxxx the continuous employment of
its key management personnel and, accordingly, the Company desires to
employ Xxxxxxx X. Xxxxxx ("Executive"), upon the terms and conditions
hereinafter set forth; and
The Executive desires to continue to be employed by the Company, upon
the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the covenants and agreements set forth
below, the parties agree as follows:
1. EMPLOYMENT
1.1 Term of Agreement. The Company agrees to continue to employ
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Executive as Chief Executive Officer and President of Goran Capital Inc. and
Xxxxxx International Group, Inc. for an initial term of two (2) years, unless
such employment is terminated pursuant to Section 3 below; provided, however,
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that the term of this Agreement shall automatically be extended without further
action of either party for additional one (1) year periods thereafter unless,
not later than six (6) months prior to the end of the then effective term,
either the Company or the Executive shall have given written notice that such
party does not intend to extend this Agreement ("Notice of Non-Renewal"). If
Company gives Executive such a Notice of Non-Renewal, Executive's employment
shall terminate as of the expiration date of this Agreement.
1.2 Terms of Employment. During the term of this Agreement as set
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forth in Section 1.1, Executive agrees to be a full-time employee of the Company
and further agrees to devote substantially all of Executive's working time and
attention to the business and affairs of the Company and, to the extent
necessary to discharge the responsibilities associated with Executive's
positions and to use Executive's best efforts to perform faithfully and
efficiently such responsibilities. Executive shall perform such duties and
responsibilities as may be determined from time to time by the Board of
Directors of the Company, which duties shall be consistent with the positions,
which shall grant Executive authority, responsibility, title and standing
comparable to Executive's positions in a stock insurance holding company of
similar standing. Executive's primary place of work will be at the Company's
U.S. headquarters in Indianapolis, Indiana, but it is understood and agreed that
Executive's duties may require travel. In the event Executive is relocated to
another Company location, the Company agrees to pay for the cost of Executive's
move (including temporary lodging expenses) and to facilitate the sale of
Executive's Indianapolis home so that Executive will be enabled to purchase a
new home in Executive's new location that is comparable in price to Executive's
existing home and have Executive's family join Executive at such new location
within two (2) months of Executive's transfer or such other period as is
reasonable considering market and location. Nothing herein shall prohibit
Executive from devoting time to civic and community activities or managing
personal investments, as long as the foregoing do not interfere with the
performance of Executive's duties hereunder.
2. COMPENSATION, BENEFITS AND PREREQUISITES
2.1 Salary. Company shall pay Executive an annual salary, in equal
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bi-weekly installments, in the amount of Five Hundred Thousand Dollars
($500,000). Executive's salary as payable pursuant to this Agreement may be
increased from time to time as mutually agreed upon by Executive and the
Company. Notwithstanding any other provision of this Agreement, Executive's
salary paid by Company for any year covered by this Agreement shall not be less
than such salary paid to Executive for the immediately preceding calendar year.
All salary and bonus amounts paid to Executive pursuant to this Agreement shall
be in U.S. dollars.
2.2 Bonus. The Company and Executive understand and agree that the
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Company expects to achieve financial improvement during the term of this
Agreement and that Executive will make a material contribution to that
improvement which will require certain personal and familial sacrifices on the
part of Executive. Accordingly, it is the desire and intention of the Company
to reward Executive for the attainment of that improvement through bonus and
other means (including, but not limited to, stock options, stock appreciation
rights and other forms of incentive compensation). Therefore, the Company will
pay Executive a lump-sum bonus (subject to normal withholdings) within thirty
(30) business days from receipt by Company of its consolidated, annual audited
financial statements in an amount which shall be determined in accordance with
the following Bonus Table. All amounts used for calculation purposes in this
section shall be based on the audited, consolidated financial statements of SIG
(or any successor thereto), with such financial statements having been prepared
in accordance with applicable generally accepted accounting principles, applied
on a consistent basis with that of prior years.
BONUS TABLE
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If Audited Net % of Annual Salary
Income (as a % of Payable to Executive
Budgeted Net Income) Is As Bonus
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Less Than 75% -0-
75% or more, but less than 85% 25%
85% or more, but less than 90% 30%
90% or more, but less than 95% 35%
95% or more, but less than 96% 50%
96% or more, but less than 97% 60%
97% or more, but less than 98% 70%
98% or more, but less than 99% 80%
99% or more, but less than 100% 90%
100% or more of budget 100%
2.3 Employee Benefits. Executive shall be entitled to receive all
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benefits and perquisites which are provided to other executives of Company under
the applicable Company plans and policies, and to future benefits and
perquisites made generally available to executive employees of the Company with
duties and compensation comparable to that of Executive upon the same terms and
conditions as other Company participants in such plans.
2.4 Additional Perquisites. During the term of this Agreement, Company
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shall provide Executive with:
(a) Not less than five (5) weeks paid vacation during each calendar
year.
(b) A vehicle commensurate with Executive's position.
(c) A golfing membership at various country clubs, or in the event of
Executive's relocation, other comparable country club, including payment by the
Company of all charges incurred by Executive at such club.
(6) A resident membership at the social club of Executive's choice, or in
the event of Executive's relocation, other comparable social club, including
payment by the Company of all charges incurred by Executive at such club.
2.5 Expenses. During the period of his employment hereunder, Executive
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shall be entitled to receive reimbursement from the Company (in accordance with
the policies and procedures in effect for the Company's employees) for all
reasonable travel, entertainment and other business expenses incurred by him in
connection with his services hereunder.
3. TERMINATION OF EXECUTIVE'S EMPLOYMENT
3.1 Termination of Employment and Severance Pay. Executive's
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employment under this Agreement may be terminated by either party at any time
for any reason; provided, however, that if Executive's employment is terminated
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by the Company for any reason other than for Cause (as such term is defined
herein), Executive shall receive, as severance pay an amount equal to salary
plus bonus as set forth herein. Executive shall receive one (1) years current
salary paid in regular bi-weekly payments (the "Salary Continuation") plus a
lump sum payment equal to one (1) years current salary (the "Lump Sum Payment")
plus, for a period of two (2) years following the date of termination, an annual
amount equal to the average of the bonus amounts earned by the Executive for the
two (2) year period preceding the date of termination. The Lump Sum Payment
shall be paid to Executive within five (5) business days of Executive's
termination for any reason other than for Cause. Executive and his family shall
continue to be covered by Company's health and dental plan for the period of two
years for the date of termination of employment upon the same terms and
conditions under which Executive and his family were covered at the time of his
termination. Further, if Executive shall be terminated without Cause, receipt
of Salary Continuation and the Lump Sum Payment described above is conditioned
upon execution by Executive and the Company of a mutual waiver and release
agreement substantially in the form of Exhibit A attached hereto. Further,
Executive shall receive Salary Continuation and the Lump Sum Payment in
accordance with this Section 3.1 if Executive shall terminate this Agreement due
to a breach thereof by the Company or if Executive is directed by the Company
(including, if applicable, any successor) to engage in any act or action
constituting fraud or any unlawful conduct relating to the Company or its
business as may be determined by application of applicable law. If Executive
shall become entitled to receive Salary Continuation pursuant to this Section
3.1; (a) all stock options of SIG and Goran (including any subsidiary of either
SIG or Goran) existing as of the date hereof previously granted Executive shall
vest in full and become exercisable as of the date of Executive's termination;
and (b) Executive shall have not less than one hundred eighty (180) days from
the date of termination of his employment with Company in which to exercise any
unexercised stock options previously granted to Executive.
3.2 Cause. For purposes of this Agreement including, but not limited
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to, this Section 3, "Cause" shall mean:
(a) the Executive being convicted in the United States of America, any State
therein, or the District of Columbia, or in Canada or any Province therein
(each, a "Relevant Jurisdiction"), of a crime for which the maximum penalty may
include imprisonment for one year or longer (a "felony") or the Executive having
entered against him or consenting to any judgment, decree or order (whether
criminal or otherwise) based upon fraudulent conduct or violation of securities
laws;
(1) the Executive's being indicted for, charged with or otherwise the
subject of any formal proceeding (criminal or otherwise) in connection with any
felony, fraudulent conduct or violation of securities laws, in a case brought by
a law enforcement or securities regulatory official, agency or authority in a
Relevant Jurisdiction;
(2) the Executive engaging in fraud, or engaging in any unlawful conduct
relating to the Company or its business, in either case as determined under the
laws of any Relevant Jurisdiction; or
(3) the Executive breaching any provision of this Agreement.
3.3 Change of Control. Notwithstanding any other provisions of this
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Agreement, if (i) a Change of Control shall occur; and (ii) within twelve (12)
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months of any such Change of Control, Executive (a) receives a Notice of
Non-Renewal, (b) is terminated for any reason other than for Cause, or (c)
Company (including its successors, if any) is in breach of this Agreement, then
Executive shall receive the Lump Sum Payment plus his current salary (in
bi-weekly payments) as severance pay until the expiration of fifty-two (52)
weeks from Executive's Date of Termination.
The receipt by Executive of payments pursuant to this Section 3.3 is
specifically conditioned, and no payments pursuant to this Section 3.3 shall be
made to Executive if he is, at the time of his Termination, in breach of any
provision (specifically including, but not limited to, the provisions of this
Agreement pertaining to non-competition and confidentiality) of this Agreement
and, further, if such payments have already begun, the continuation of payments
to Executive pursuant to this Section 3.3 shall cease at the time Executive
shall fail to comply with the non-competition and confidentiality provisions of
Article 4 herein.
"Change of Control" shall mean the inability of the Xxxxxx family to cause
the election of a majority of the members of the Board of Directors of either
Goran, SIG or their respective successors.
3.4 Disability. So long as otherwise permitted by law, if Executive
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has become permanently disabled from performing his duties under this Agreement,
the Company's Chairman of the Board, may, in his discretion, determine that
Executive will not return to work and terminate his employment as provided
below. Upon any such termination for disability, Executive shall be entitled to
such disability, medical, life insurance, and other benefits as may be provided
generally for disabled employees of Company during the period he remains
disabled. Permanent disability shall be determined pursuant to the terms of
Executive's long term disability insurance policy provided by the Company. If
Company elects to terminate this Agreement based on such permanent disability,
such termination shall be for Cause.
3.5 Indemnification. Executive shall be indemnified by Company to the
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maximum extent permitted by applicable law for actions undertaken for, or on
behalf of, the Company and its subsidiaries.
4. NON-COMPETITION, CONFIDENTIALITY AND TRADE SECRETS
4.1 Noncompetition. In consideration of the Company's entering into
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this Agreement and the compensation and benefits to be provided by the Company
to Executive hereunder, and further in consideration of Executive's exposure to
proprietary information of the Company, Executive agrees as follows:
(2) Until the date of termination or expiration of this Agreement for any
reason (the "Date of Termination") Executive agrees not to enter into
competitive endeavors and not to undertake any commercial activity which is
contrary to the best interests of the Company or its affiliates, including,
directly or indirectly, becoming an employee, consultant, owner (except for
passive investments of not more than five percent (5%) of the outstanding shares
of, or any other equity interest in, any company or entity listed or traded on a
national securities exchange or in an over-the-counter securities market),
officer, agent or director of, or otherwise participating in the management,
operation, control or profits of (a) any firm or person engaged in the operation
of a business engaged in the acquisition of insurance businesses or (b) any firm
or person which either directly competes with a line or lines of business of the
Company accounting for five percent (5%) or more of the Company's gross sales,
revenues or earnings before taxes or derives five percent (5%) or more of such
firm's or person's gross sales, revenues or earnings before taxes from a line or
lines of business which directly compete with the Company.
(b) If Executive's employment is terminated by Executive, or by reason of
Executive's disability, by the Company for Cause, or pursuant to a Notice of
Non-Renewal as outlined in Section 1.1, then for two (2) years after the Date of
Termination, Executive agrees not to become, directly or indirectly, an
employee, consultant, owner (except for passive investments of not more than
five percent (5%) of the outstanding shares of, or any other equity interest in,
any company or entity listed or traded on a national securities exchange or in
an over-the-counter securities market), officer, agent or director of, or
otherwise to participate in the management, operation, control or profits of,
any firm or person which directly competes with a business of the Company which
at the Date of Termination produced any class of products or business accounting
for five percent (5%) or more of the Company's gross sales, revenues or earnings
before taxes at the Date of Termination.
(c) Executive acknowledges and agrees that damages for breach of the
covenant not to compete in this Section 4.1 will be difficult to determine and
will not afford a full and adequate remedy, and therefore agrees that the
Company shall be entitled to an immediate injunction and restraining order
(without the necessity of a bond) to prevent such breach or threatened or
continued breach by Executive and any persons or entities acting for or with
Executive, without having to prove damages, and to all costs and expenses (if a
court or arbitrator determines that the Executive has breached the covenant not
to compete in this Section 4.1, including reasonable attorneys' fees and costs,
in addition to any other remedies to which the Company may be entitled at law or
in equity. It is agreed that the provisions of this covenant not to compete are
reasonable and necessary for the operation of the Company and its subsidiaries.
However, should any court or arbitrator determine that any provision of this
covenant not to compete is unreasonable, either in period of time, geographical
area, or otherwise, the parties agree that this covenant not to compete should
be interpreted and enforced to the maximum extent which such court or arbitrator
deems reasonable.
4.2 CONFIDENTIALITY. EXECUTIVE SHALL NOT KNOWINGLY DISCLOSE OR
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REVEAL TO ANY UNAUTHORIZED PERSON, DURING OR AFTER THE TERM, ANY TRADE SECRET OR
OTHER CONFIDENTIAL INFORMATION (AS OUTLINED IN THE INDIANA UNIFORM TRADE SECRETS
ACT) RELATING TO THE COMPANY OR ANY OF ITS AFFILIATES, OR ANY OF THEIR
RESPECTIVE BUSINESSES OR PRINCIPALS, AND EXECUTIVE CONFIRMS THAT SUCH
INFORMATION IS THE EXCLUSIVE PROPERTY OF THE COMPANY AND ITS AFFILIATES.
EXECUTIVE AGREES TO HOLD AS THE COMPANY'S PROPERTY ALL MEMORANDA, BOOKS, PAPERS,
LETTERS AND OTHER DATA, AND ALL COPIES THEREOF OR THEREFROM, IN ANY WAY RELATING
TO THE BUSINESS OF THE COMPANY AND ITS AFFILIATES, WHETHER MADE BY EXECUTIVE OR
OTHERWISE COMING INTO EXECUTIVE'S POSSESSION AND, ON TERMINATION OF EXECUTIVE'S
EMPLOYMENT, OR ON DEMAND OF THE COMPANY AT ANY TIME, TO DELIVER THE SAME TO THE
COMPANY.
ANY IDEAS, PROCESSES, CHARACTERS, PRODUCTIONS, SCHEMES, TITLES, NAMES,
FORMATS, POLICIES, ADAPTATIONS, PLOTS, SLOGANS, CATCHWORDS, INCIDENTS,
TREATMENT, AND DIALOGUE WHICH EXECUTIVE MAY CONCEIVE, CREATE, ORGANIZE, PREPARE
OR PRODUCE DURING THE PERIOD OF EXECUTIVE'S EMPLOYMENT AND WHICH IDEAS,
PROCESSES, ETC. RELATE TO ANY OF THE BUSINESSES OF THE COMPANY, SHALL BE OWNED
BY THE COMPANY AND ITS AFFILIATES WHETHER OR NOT EXECUTIVE SHOULD IN FACT
EXECUTE AN ASSIGNMENT THEREOF TO THE COMPANY, BUT EXECUTIVE AGREES TO EXECUTE
ANY ASSIGNMENT THEREOF OR OTHER INSTRUMENT OR DOCUMENT WHICH MAY BE REASONABLY
NECESSARY TO PROTECT AND SECURE SUCH RIGHTS TO THE COMPANY.
5. MISCELLANEOUS
5.1 Amendment. This Agreement may be amended only in writing, signed
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by both parties.
5.2 Entire Agreement. This Agreement contains the entire understanding
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of the parties with regard to all matters contained herein. There are no other
agreements, conditions or representations, oral or written, expressed or
implied, with regard to the employment of Executive or the obligations of the
Company or the Executive. This Agreement supersedes all prior employment
contracts and non-competition agreements between the parties.
5.3 Notices. Any notice required to be given under this Agreement
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shall be in writing and shall be delivered either in person or by certified or
registered mail, return receipt requested. Any notice by mail shall be
addressed as follows:
If to the Company, to:
Xxxxxx International Group, Inc.
Attention: Secretary
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
AND
Goran Capital Inc.
Attention: Secretary
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
If to Executive, to:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
or to such other addresses as one party may designate in writing to the other
party from time to time.
5.4 Waiver of Breach. Any waiver by either party of compliance with
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any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of a provision of this Agreement.
5.5 Due Authority. The Company represents and warrants that the
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execution of this Agreement and the performance by the Company of the terms and
conditions of this Agreement have been duly and validly authorized by Company
and, further, that no other authorization or consent is required to be obtained
by Company for its performance hereunder.
5.6 VALIDITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION OF
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THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER
PROVISION OF THIS AGREEMENT, WHICH SHALL REMAIN IN FULL FORCE AND EFFECT.
5.7 Governing Law. This Agreement shall be interpreted and enforced in
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accordance with the laws of the State of Indiana, without giving effect to
conflict of law principles.
5.8 Headings. The headings of articles and sections herein are
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included solely for convenience and reference and shall not control the meaning
or interpretation of any of the provisions of this Agreement.
5.9 Counterparts. This Agreement may be executed by either of the
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parties in counterparts, each of which shall be deemed to be an original, but
all such counterparts shall constitute a single instrument.
5.10 SURVIVAL. COMPANY'S OBLIGATIONS UNDER SECTIONS 3.1, 3.3 AND 3.5
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AND EXECUTIVE'S OBLIGATIONS UNDER SECTION 4 SHALL SURVIVE THE TERMINATION AND
EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH THE SPECIFIC PROVISIONS OF THOSE
PARAGRAPHS AND SECTIONS AND THIS AGREEMENT IN ITS ENTIRETY SHALL BE BINDING
UPON, AND INURE TO THE BENEFIT OF, THE SUCCESSORS AND ASSIGNS OF THE PARTIES
HERETO.
5.11 Miscellaneous. No provision of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by Executive and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior subsequent time.
IN WITNESS WHEREOF, the parties have executed this Agreement this 25th day
of April, 2003.
XXXXXX INTERNATIONAL GROUP, INC.
By:_________________________________
Title:________________________________
GORAN CAPITAL INC.
By:_________________________________
Title:_______________________________
XXXXXXX X. XXXXXX
("EXECUTIVE")
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