DESIGNATED EMPLOYEE AGREEMENT
THIS DESIGNATED EMPLOYEE AGREEMENT is made this _____ day of February,
1999, by and between SEQUOIA COMPANY, a Kansas corporation, hereinafter referred
to as "Company," and XXX X. XXXXX, hereinafter referred to as "Employee."
WHEREAS, Company has entered into a Consulting Agreement with XXXXXX
FINANCIAL COMPANY, a Kansas corporation ("Xxxxxx") under which Consultant has
agreed to assist Xxxxxx in the generation of collection business for Xxxxxx; and
WHEREAS, in said Consulting Agreement, Company has agreed to designate a
single employee to be the only employee of Company providing said consulting
services for Xxxxxx, to be designated as the "designated employee" of Company;
and
WHEREAS, as part of and in consideration for Xxxxxx'x agreement to engage
Company for said consulting services, Company has agreed to insure that the
employee designated as the designated employee thereunder would agree to be
bound by the confidentiality and non-competition provisions of the Consulting
Agreement; and
WHEREAS, Employee, after fully reviewing the Consulting Agreement and with
full knowledge of the restrictions that will be placed upon Employee as a result
of being enumerated the designated employee under the Consulting Agreement is
willing to enter into this Agreement to become the designated employee of
Company for the provision of services to Xxxxxx under the Consulting Agreement.
NOW, THEREFORE, in consideration of Company's entrance into the Consulting
Agreement with Xxxxxx, the sums to be paid to Company by Xxxxxx under the
Consulting Agreement, and the sums to be paid to Employee by Company as a result
of Employee's employment by Company, the parties hereto agree as follows:
1. Employee hereby agrees to accept the responsibilities and obligations of
the "designated employee" under the Consulting Agreement between Company and
Xxxxxx. In accepting the designation, Employee understands that Employee will be
the only individual performing services for Company in its role as a consultant
for Xxxxxx. Employee acknowledges that Employee's death or adjudication of
incompetency or Employee's inability to perform the responsibilities of Company
pursuant to the Consulting Agreement will result in the termination of the
Consulting Agreement by Xxxxxx, subject to certain payment obligations of
Xxxxxx.
2. Disclosure of Information.
a. Employee acknowledges that, in and as a result of his engagement
hereunder, he will be making use of, acquiring and/or adding to
confidential information of a special and unique nature and value relating
to such matters as Xxxxxx'x secrets, systems, procedures, manuals,
confidential reports and lists of customers of Xxxxxx and
its business. As a material inducement to Company to enter into this
Agreement, to enter into the Consulting Agreement, and to pay to Employee
his employment compensation, Employee covenants and agrees that neither he,
nor any of his agents shall, at any time during or following the term of
Company's engagement as Xxxxxx'x consultant, directly or indirectly, use,
disseminate, divulge, disclose, lecture upon or publish articles with
respect to, for any purpose whatsoever, any of such confidential
information which has been obtained by or disclosed to them as a result of
Company's engagement by Xxxxxx and/or Employee's engagement hereunder. Such
confidential information includes information not generally known in the
industry in which Xxxxxx is or may be engaged and information in any form
concerning Xxxxxx'x customers, products, processes, methods, technology,
computer programs, development, inventions, manufacturers, purchasing,
distribution, accounting, marketing, merchandising and selling, but
excluding any information generally known to the public from sources other
than Company or Xxxxxx. In the event of a breach or threatened breach by
Employee or Employee's agent, of any of the provisions of this Paragraph 2,
Xxxxxx, in addition to and not in limitation of any other rights, remedies
or damages available to Xxxxxx at law or in equity, shall be entitled to a
permanent injunction in order to prevent or to restrain any such breach by
Employee or by Employee's agents and/or any and all persons directly or
indirectly acting for or with him.
b. Upon termination of his employment with Company, whether such
termination was at the request of Employee or of Company, all documents,
records, notebooks and similar repositories of or documents containing any
confidential information as defined in Paragraph 2(a) above, including
copies thereof, then in Employee's possession or obtained by others from
Employee, whether prepared by them or others, will be the sole property of
Company and shall be returned to Company, to be returned by Company to
Xxxxxx.
c. In the event that Employee becomes legally compelled to disclose
any of the information defined as confidential in Paragraph 2(a), Employee
will provide Company prompt notice so that Company may seek a protective
order or other appropriate remedy and/or waive compliance with these
provisions of this Agreement. In the event that such protective order or
other remedy is not obtained, or that Company waives compliance with the
provisions of this Agreement, Employee will furnish only that portion of
the information which he is legally required to disclose or with respect to
which Company has waived compliance and will exercise his best efforts
(which shall not require the payment of money) to cooperate with Company's
efforts to obtain a required protective order or other reliable assurance
that confidential treatment will be accorded the information.
3. Restrictive Covenants.
a. By his designation as Company's designated employee and Company's
consulting engagement with Xxxxxx, Employee will acquire additional and
intimate knowledge about the customers, financial data, price and business
negotiations and business techniques of Xxxxxx, as they may now exist or as
they may be developed in the future.
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Employee acknowledges and agrees that Company, in its designation of
Employee as its designated employee, will allow Employee to perform
services for firms, corporations and other associations and business
enterprises which Employee may solicit as clients and customers of Xxxxxx
("customers"), and in so doing, has and will utilize Xxxxxx'x ideas,
techniques and expertise in establishing an even greater rapport with such
customers. In order to avoid the inadvertent disclosure of Xxxxxx'x
confidential matters, and as consideration for Company's engagement by
Xxxxxx and Company's designation of Employee as its designated employee
hereunder, Employee hereby covenants and agrees that during Employee's
employment hereunder, during Company's engagement by Xxxxxx, and for two
(2) years from and after the effective date of the termination of Company's
engagement with Xxxxxx, Employee and his agents shall not, directly or
indirectly, either by themselves or through others, or as a partner,
employee, agent, officer, director, member, stockholder or otherwise (1)
solicit, divert, take away or attempt to take away the business of Xxxxxx'x
present or past customers, or the customers of any affiliated or related
companies of Xxxxxx, in any business or enterprise competing with Xxxxxx or
any subsidiary companies of Xxxxxx, (2) solicit, hire, employ or endeavor
to employ any of Xxxxxx'x employees or employees of any subsidiary
companies of Xxxxxx, or (3) within a radius of fifty (50) miles from the
city limits of any city in which Xxxxxx is presently working for or
soliciting customers or has worked for or solicited customers within the
two (2) year period prior to termination of Company's engagement with
Xxxxxx, transact any business with, own any interest directly or indirectly
in, or be associated with or employed in any capacity by or on behalf of
any person, partnership, firm, corporation or other business association
engaged or seeking to engage in any business or enterprise competing
directly or indirectly with Xxxxxx.
b. Employee will not, for a period of three (3) years after Closing,
acquire any further shares of stock of Advanced Financial, Inc. ("AFI") if
the acquisition of those shares will, (i) in the reasonable opinion of
competent tax counsel for AFI, cause a "change of control" of AFI as
determined under Section 382 of the Internal Revenue Code of 1986, as
amended, including the regulations as promulgated thereunder, or under the
comparable provision of any future internal revenue law; or (ii) have the
effect of reducing the number of shares which First Mortgage Investment
Company ("FMIC") could acquire under its option without such FMIC
acquisition causing a "change of control."
4. Accounting for Profits. Employee covenants and agrees that if he, or any
other restricted parties shall violate any of the covenants or restrictions
under the foregoing Paragraphs 2 and 3, Company and/or Xxxxxx shall be entitled
to an accounting and repayment of all profits, compensation, commissions,
remuneration, or other benefits that Employee or any other restricted parties,
directly or indirectly, has realized as a result of any such violation. These
remedies shall be in addition to, and not in limitation of, any injunctive
relief or other rights and remedies to which Company and/or Xxxxxx is or may be
entitled at law, in equity, or under this Agreement.
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5. Reasonableness of Restrictions.
a. Employee has carefully read and considered the provisions of
Paragraphs 2, 3 and 4 and, having done so, agree that the restrictions set
forth in these paragraphs, are fair and reasonable, are reasonably required
for the protection of the interests of Company, Xxxxxx, and their
respective officers, directors, shareholders, and other employees, are not
injurious to the public in general, is no greater than reasonably necessary
to protect the legitimate business interests of Company and Xxxxxx, and is
not unduly harsh and oppressive on Employee.
b. Employee represents that his experience, capabilities and assets
are such that this Agreement does not deprive him from earning a livelihood
in the unrestricted business activities that remain open to him or from
otherwise adequately and appropriately supporting himself.
c. In the event that, notwithstanding the foregoing, any of the
provisions of Xxxxxxxxxx 0, 0 xxx 0 xxxxx xx held to be invalid or
unenforceable, the remaining provisions thereof shall nevertheless continue
to be valid and enforceable as though the invalid and unenforceable parts
had not been included therein. In the event that any provision of
Xxxxxxxxxx 0, 0 xxx 0 xxxxx xx declared by a Court of competent
jurisdiction to exceed the maximum restriction such Court deems reasonable
and enforceable, the restriction deemed reasonable and enforceable by the
Court shall become and thereafter be the maximum restriction.
d. Employee may not delegate the performance of any of his obligations
and duties hereunder or assign any rights hereunder except upon prior
written consent of both Company and Xxxxxx.
e. Employee acknowledges and agrees that the stock to be received by
Company from AFI under the Agreement of Reorganization and the payments to
be made by Xxxxxx to Company under the Consulting Agreement are of material
benefit to Employee and are sufficient consideration to Employee to be
bound by: (i) provisions 5 and 6 of the Consulting Agreement, and (ii) the
provisions in Paragraphs 2, 3 and 4 hereof.
6. Remedies. Employee agrees that damages alone will be inadequate
protection for Company and/or Xxxxxx in the event of a breach or threatened
breach or violation of any of the provisions of this Agreement and that Company
and/or Xxxxxx shall, in addition thereto, be entitled to an injunction
restraining such breach or violation by Employee and any other restricted
parties of any provision of this Agreement, and, such injunctive remedy shall
not be in limitation of but in addition to, any other remedies authorized by law
for the breach or threatened breach of this Agreement, including the recovery of
monetary damages and a reasonable attorney's fee. Employee, Xxxxxx and Company
expressly waive the posting of any bond or surety required pursuant to the
issuance of an injunction hereunder. However, in the event that the Court
refuses to honor the waiver of bond hereunder, Employee, Xxxxxx and Company
hereby expressly agree to a bond to be posted in this matter of One Hundred
Dollars ($100).
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Nothing in this Agreement shall be construed to prohibit Company and/or Xxxxxx
from also pursuing any other remedy, the parties having agreed that all remedies
are cumulative. The obligations of Employee and the rights of Company and
Xxxxxx, their successors and assigns under Sections 2, 3, 4, 5 and 6 of this
Agreement, shall survive the termination of this Agreement.
7. Applicable Law. This Agreement shall be construed and performed
according to the laws of the State of Missouri, and shall be binding upon the
parties thereto, their successors and assigns. The parties hereto agree that
appropriate jurisdiction and venue for any and all claims under this Agreement
or related in any way to the Agreement or the subject matter thereof shall be in
the Circuit Courts of Xxxxxxx County, Missouri. The parties hereto waive any
right they may have to remove said litigation to any federal court. Employee
hereby agrees, as part of any relief Company and/or Xxxxxx may obtain against
Employee as a result of his breach of this Agreement, that Company and/or
Xxxxxx, in addition to such other relief they shall be granted by the court,
shall be entitled to be reimbursed by Employee for any costs they incur in
connection with the enforcement of this Agreement, including, but not limited
to, a reasonable attorneys' fee. The parties hereto agree that appropriate
service of process for any of said actions may be obtained on said parties by
personal service or by delivery of said process to the parties or a
representative of the parties by first class mail, postage prepaid.
8. Termination of Prior Agreement. Employee hereby agrees, as a result of
the execution of the Consulting Agreement by Company with Xxxxxx and as a result
of the execution of this Agreement between Company and Employee, that the
Consulting Agreement between Xxxxxx and Employee dated as of July 22, 1998 is,
as of this date, deemed terminated by and between the parties and that Xxxxxx
has no further obligations whatsoever to Employee as a result of the operation
of that agreement.
9. Compensation. Employee acknowledges and agrees that the compensation
payable to Employee by Company (as well as certain other terms of Employee's
employment by Company) shall be determined by separate agreement of the parties
hereto.
10. Entire Agreement. Except for the Consulting Agreement, this Agreement,
and the documents and agreements referred to herein, contains the entire
agreement and understanding by and between Company and Employee with respect to
the engagement herein referred to, and no representations, promises, agreements
or understandings, written or oral, not herein contained shall be of any force
of effect. No change or modification hereof shall be valid or binding unless the
same is in writing and signed by the party intended to be bound. No waiver or
any provision of this Agreement shall be valid unless the same is in writing and
signed by the party against whom such waiver is sought to be enforced; moreover,
no valid waiver of any provision of this Agreement at any time shall be deemed a
waiver of any other provision of this Agreement at such time or will be deemed a
valid waiver of such provision at any other time.
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IN WITNESS WHEREOF, the parties hereto executed this Agreement as of the
day and year first above written.
SEQUOIA COMPANY
By:________________________________________
Name:______________________________________
Title:_____________________________________
___________________________________________
XXX X. XXXXX
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