EXHIBIT 10(j)
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
XXXXXXX XXXXXXX, an individual residing at 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
00000-0000.
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, Xxxxxxx is currently President of the Life Division of Pioneer
Financial and Xxxxxxx 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 Xxxxxxx
as a key managerial employee; and
WHEREAS, Xxxxxxx 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 Xxxxxxx and Xxxxxxx accepts such employment
with Pioneer Financial upon the terms and conditions hereinafter set forth.
1. Employment. Pioneer Financial hereby employs Xxxxxxx and Xxxxxxx
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, Xxxxxxx shall serve during the Term as President of the Life 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. Xxxxxxx 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 Xxxxxxx
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 Xxxxxxx'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 Xxxxxxx 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 Xxxxxxx 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, Xxxxxxx 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 Xxxxxxx'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
Xxxxxxx without good reason (as hereinafter defined), then Pioneer Financial
shall provide (or cause to be provided) to Xxxxxxx, or makes such payments to
Xxxxxxx as shall enable Xxxxxxx to obtain at no cost to himself, until he
reaches the age of 65, the health insurance which would have been available to
Xxxxxxx 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 Xxxxxxx becomes
entitled to receive substantially similar health insurance coverage as an
employee of another company.
6. Death. Xxxxxxx'x employment by Pioneer Financial will terminate
immediately upon his death; provided, however, that in the event of Xxxxxxx'x
death during the Term, Xxxxxxx'x estate shall be entitled to receive the payment
described in the last sentence of Section 8(b).
7. Disability. If during Xxxxxxx'x employment hereunder, Xxxxxxx becomes
totally or partially disabled, Pioneer Financial shall continue to pay to
Xxxxxxx as long as such disability continues during the Term (or until Xxxxxxx'x
employment is terminated by Pioneer Financial in accordance with Section 8 (if
earlier)) the level of annual salary payable to Xxxxxxx at the date his
disability is determined, reduced dollar-for-dollar to the extent of any
disability insurance payments paid to Xxxxxxx 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 Xxxxxxx'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 Xxxxxxx'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
Xxxxxxx'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 Xxxxxxx: illegal conduct of a severity greater than a
misdemeanor, gross neglect of, and the continued failure to perform
substantially, Xxxxxxx'x duties under this Agreement. Notwithstanding anything
herein to the contrary, Xxxxxxx'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,
Xxxxxxx'x employment shall become subject to termination for cause, such Board
of Directors shall give Xxxxxxx 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, Xxxxxxx has not substantially eliminated or cured each
such matter or matters, then Pioneer Financial shall have the right to give
Xxxxxxx notice of the termination of his employment. Xxxxxxx'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 Xxxxxxx'x
employment did not exist at the time of giving said notice of termination. Upon
termination of Xxxxxxx'x employment "for cause", this Agreement shall terminate
without further obligations to Xxxxxxx other than Pioneer Financial's obligation
(a) to pay to Xxxxxxx in a lump sum in cash within thirty (30) days after the
date of termination Xxxxxxx'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 Xxxxxxx on a timely basis any other
amounts or benefits required to be paid or provided or which Xxxxxxx 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 Xxxxxxx'x employment hereunder without cause at any time during the
Term. If the Board of Directors determines to terminate Xxxxxxx'x employment
without cause, Pioneer Financial shall give notice of such termination to
Xxxxxxx and Xxxxxxx'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 Xxxxxxx'x employment without cause, Xxxxxxx 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 Xxxxxxx at the date of termination, or (y) two times his then current
annual base salary.
(c) By Xxxxxxx. Xxxxxxx may terminate his employment hereunder at
any time by retirement or resignation, upon notice to Pioneer Financial. Upon
such termination by Xxxxxxx, no compensation for any period after the date of
such termination shall be payable to Xxxxxxx; provided, however, that if such
termination by Xxxxxxx is for "good reason" (as defined in Section 9(c)), then
Xxxxxxx 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 Xxxxxxx
pursuant to this Section 8 in the event that Xxxxxxx 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)), Xxxxxxx'x employment is terminated by Pioneer Financial other
than "for cause" (as defined in Section 8(a) or is terminated by Xxxxxxx for
"good reason" (as defined in Section 9(c)), Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx within ten (10) days of the date of termination. If
Xxxxxxx'x employment is terminated by Pioneer Financial for cause, by reason of
Xxxxxxx'x death or retirement, or by Xxxxxxx without good reason, the Change in
Control Compensation will not be paid. If Xxxxxxx 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 Xxxxxxx or a group including
Xxxxxxx, 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 Xxxxxxx'x status or position, the assignment
to Xxxxxxx of any duties or responsibilities which are inconsistent with
Xxxxxxx'x status and position or a reduction in the duties and responsibilities
to be exercised by Xxxxxxx;
(ii) any action by Pioneer Financial which renders Xxxxxxx
unable to effectively discharge his duties and responsibilities hereunder;
(iii) the failure to maintain Xxxxxxx'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 Xxxxxxx'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 Xxxxxxx'x employment by Pioneer Financial,
Xxxxxxx 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, Xxxxxxx'x access
to which derives solely from Xxxxxxx'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. Xxxxxxx, 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 Xxxxxxx'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 Xxxxxxx'x employment hereunder, Xxxxxxx shall not
disclose to any person any of Pioneer Financial's confidential information or
trade secrets.
(c) Return of Pioneer Financial Property. Upon termination of
Xxxxxxx'x employment with Pioneer Financial, for whatever reason and in whatever
manner, Xxxxxxx 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 Xxxxxxx'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 Xxxxxxx valuable consideration pursuant hereto in
exchange for Xxxxxxx'x promises herein, including without limitation the
covenants in Section 10 and in this Section 11. Pioneer Financial has engaged
Xxxxxxx as a senior executive officer of Pioneer Financial in order to, among
other reasons, take advantage of Xxxxxxx'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
Xxxxxxx'x business ability, image and standing. As Xxxxxxx is a senior
executive officer of Pioneer Financial, the reputation and success of Xxxxxxx
will be closely tied to the reputation and success of Pioneer Financial and,
during the Term, Xxxxxxx will be heavily identified with Pioneer Financial's
business.
(b) Non-Competition. During Xxxxxxx'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, Xxxxxxx 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 Xxxxxxx'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 Xxxxxxx'x employment with Pioneer Financial, Xxxxxxx
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 Xxxxxxx 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 Xxxxxxx 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 Xxxxxxx for such obligations, and
that these obligations do not prevent Xxxxxxx 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 Xxxxxxx
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 Xxxxxxx of any provision of Section 10 or 11
hereof, Xxxxxxx acknowledges that the remedy at law would be inadequate and that
Pioneer Financial shall be entitled to an injunction restraining Xxxxxxx 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 XXXXXXX: Xx. Xxxxxxx Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
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: "Xxxxxxx"
______________________________ ________________________________________
Xxxxxxx Xxxxxxx
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