Exhibit 10.7
EMPLOYMENT AGREEMENT
Xxxxx X. Xxxxxxxx
April 1, 1993
As Reinstated and Amended
January 1, 2001
This employment agreement (the "Agreement") is between JMC Group, Inc.
("Employer") and Xxxxx X. Xxxxxxxx ("Executive").
RECITALS
1. On July 18, 1988, Executive sold his ownership in Xxxxx Xxxxxxxx &
Co. ("JMC") to Employer. Employer purchased JMC for, among other reasons, its
clients, its unique sales and business systems, its unique method of selling
insurance through bank trust departments, and the outstanding and special skills
and abilities of Executive and other key employees;
2. Executive is and has been employed as President of JMC and as
President and CEO of Employer since January 1, 1993. Through such experience,
he has acquired outstanding and special skills and abilities and an extensive
background in and knowledge of Employer's business and the industry in which it
is engaged;
3. Employer desires assurance of the continued association and
services of Executive in order to retain his experience, skills, abilities,
background and knowledge and is therefore willing to engage his services on the
terms and conditions set forth below;
4. Executive desires to continue in the employ of Employer and is
willing to do so on these terms and conditions;
5. In his capacity as an executive of Employer, Executive has
access to highly valuable and confidential trade secret information of Employer,
including but not limited to information regarding the identity of key contact
personnel and the contract terms with major clients and suppliers to Employer;
the identity and personnel information with regard to Employer's personnel; and
the terms, documents, methods and systems through which Employer engages in
business; and
6. The execution of this Agreement has been authorized by Employer's
Board of Directors (the "Board").
NOW THEREFORE, in consideration of the above recitals and of the
mutual promises and conditions in this Agreement, it is agreed as follows:
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1. Position.
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Employer shall employ Executive as President and Chief Executive Officer of
Employer with such executive capacity or capacities as the Board may from time
to time prescribe.
2. Sole Employment
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During his employment, Executive shall devote his full energies, interest,
abilities and productive time to the performance of this Agreement and shall
not, without express written Board approval, render to others services of any
kind for compensation, or engage in other business activity that would
materially interfere with the performance of his duties under this Agreement.
3. Term of Employment
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a. This Agreement takes effect on January 1, 2001 and shall have an initial
term of three years.
b. Notwithstanding the foregoing, if the Board of Directors of the Company
should determine to liquidate the Company, other than as part of a business
combination, the term of the Agreement shall end six months after such
action by the Board.
4. Salary
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Employer shall pay a base salary to Executive at the rate of two hundred and
twenty five thousand dollars ($285,000) per annum ("Base Salary"), payable in
equal semi-monthly installments.
This Base Salary shall be automatically increased on the anniversary dates
of this Agreement based upon the most recent Consumer Price Index of the Bureau
of Labor Statistics of the Department of Labor for All Urban Consumers (1982-
84=100), "All Items," for Los Angeles-Long Beach-Anaheim, California
(hereinafter the "CPI"). The "Base CPI" shall be the CPI for August 1998. CPI
Adjustments shall be calculated as follows: the Base Salary shall be multiplied
by a fraction the numerator of which shall be the CPI of the December
immediately prior to the calculation date (i.e., December 1998 for the January
1, 1999 calculation) and the denominator of which shall be the Base CPI. The sum
so calculated shall constitute the Executive's salary until the next adjustment;
provided, however that in no event shall the Executive's salary be reduced as a
result of any such adjustment. If the compilation and/or publication of the CPI
shall be in some manner changed or discontinued, then Executive agrees that
Employer may use an alternate index which it reasonably believes reflects
changes in the cost of living.
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5. Incentive Compensation
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In addition to the base salary provided for above, Employer shall, as an
incentive compensation payment plan, pay Executive an annual award bonus
calculated in accordance with the method and policies FEDM uses for its other
executives. The Board may, in its discretion also increase or remove the above
described cap on Executive's incentive compensation.
Should Executive for any reason cease his employment prior to the end of
any fiscal year, his incentive compensation for that year shall be determined
pursuant to the Section titled "Termination" below. Should such section require
that incentive compensation be "pro-rated" this means:
a. The incentive compensation shall still be based on pre-tax profits as
above calculated for the entire year;
b. The percentage to be applied to the pre-tax profits shall be pro-rated
according to the length of Executive's employment during the year;
c. The date of payment will be the same date as if Executive remained
employed by Employer.
6. Benefits
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Executive shall be entitled to receive all other benefits of employment
generally available to Employer's employees, including reimbursement for
reasonable out-of-pocket expenses incurred in connection with Employer's
business, subject to such policies as Employer may from time to time reasonably
establish for its employees.
7. Termination
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In the absence of any other written agreement, should Employer continue to
employ Executive after the initial term of this Agreement, such employment will
continue at will and may be terminated for any reason, with or without cause, on
the effective date of any written termination notice delivered by either party
to the other. Executive's salary, incentive compensation and benefits will
continue as stated herein, with salary compensation continuing to be increased
annually as herein described.
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Notwithstanding the stated term hereof, this Agreement may be terminated at
any time on written notice by Executive or by Employer with or without cause. In
such event, Employer's obligations to pay salary, benefits and incentive
compensation hereunder will vary depending upon the reason for termination, as
described below:
a. RESIGNATION BY EXECUTIVE.
Except as provided in Section 7d hereof, if Executive voluntarily
terminates employment, then Employer shall pay salary, benefits and
incentive compensation pro-rated to the effective date of resignation.
b. TERMINATION BY EMPLOYER WITHOUT CAUSE.
If Employer terminates Executive without cause, or because of
incapacity from illness, accident or death, then Executive shall
receive salary and incentive compensation in the manner, timeframe and
amount to which he would have been entitled should employment have
continued through the stated term of this Agreement. Benefits shall
also be continued through the same term, to the extent the Company
reasonably believes continuation is permitted by law and the Company's
insurance carriers, so long as Executive is not eligible to receive
comparable benefits from another employer.
c. TERMINATION BY EMPLOYER FOR CAUSE.
If Employer terminates Executive for cause then Executive shall
receive salary and incentive compensation pro-rated to the date three
months following termination. Benefits shall also be continued
through the same three month period, to the extent permitted by law
and the Company's insurance carriers. "Termination for cause" shall be
termination by reason of malfeasance or misconduct which the Board of
Directors reasonably believes violates legal or ethical
responsibilities of the Executive, or by reason of gross negligence in
the conduct of the Employer's business.
d. TERMINATION BY EMPLOYEE FOR GOOD CAUSE.
The Employee shall be entitled to terminate the Agreement "for good
cause" with the same effect as a termination by the Employer without
cause, as set forth in Section 7(b) hereof. "Good cause" shall
include the following events:
1) Employer's breach of any material term of this Agreement,
including, but not limited to, the Company's failure, within fifteen
(15) days after written demand, to provide or pay Executive any Salary
or Benefits under this Agreement.
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2) The relocation of Executive's full-time office to a location more
than fifty (50) miles from Employer's present office at 0000 Xxxxxxxx
Xx. Xxx. 000, Xxx Xxxxx, Xxxxxxxxxx 00000;
3) A material reduction in Executive's duties, responsibilities or
title except for such a reduction arising from a change in the status
of the Employer or the nature of the Employer's business; or
4) A "Change in Control," defined as:
a) The acquisition by any individual, entity, or group (within
the meaning of Section 13 (d) (3) or 14 (d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) of thirty percent (30%) or
more of either (A) the then outstanding shares of common stock of
Employer (the "Outstanding Company Common Stock") or (B) the
combined voting power of the then outstanding voting securities of
Employer entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); or
b) Individuals who, as of the date hereof, constitute the Board
of Directors (the "Incumbent Board") cease for any reason to
constitute at least two thirds of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by Employer's
stockholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened
election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board of
Directors; or
c) Consummation of a reorganization, merger or consolidation, or
sale or other disposition of all or substantially all of the
assets of Employer (a "Business Combination") unless, following
such Business Combination, (A) all or substantially all of the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly,
more than sixty percent (60%) of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation which as a
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result of such transaction owns Employer or all substantially all
of Employer's assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be (with respect to this subsection
(A), such calculation shall be made with respect to all
considerations received in exchange for, or as a consequence of, a
Business Combination); or (B) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit
plan (or related trust) of Employer or such corporation resulting
from such Business Combination) beneficially owns, directly or
indirectly, thirty percent (30%) or more of, respectively, the
then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior
to the Business Combination; and (C) at least two-thirds of the
members of the board of directors of the corporation resulting
from such Business Combination were members of the Incumbent Board
at the time of the execution of the initial agreement, or of the
action of the Board, providing for such Business Combination;
d) Approval by the stockholders of Employer of a complete
liquidation or dissolution of Employer; or
e) Occurrence of any of the events listed in 7d(4)(a) through
7d(4)(d) above in respect of any subsidiary (meaning any entity
over which Employer has voting control) of Employer that,
immediately prior to the relevant event, constituted at least
twenty percent (20%) of Employer's consolidated assets or, for the
fiscal year prior to the event, contributed at least twenty
percent (20%) or more of Employer's consolidated revenues.
f) Notwithstanding the foregoing, for purposes of the foregoing
provisions, a Change of Control shall not include any transaction
described above which has been previously approved by the
Incumbent Board.
8. Payment Limitations
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All payments to Executive hereunder shall be reduced by applicable local,
state and federal withholding requirements. Should any payments hereunder be
determined by Employer's independent public accounting firm to be in excess of
federal or state Golden Parachute limitations (currently Internal Revenue Code
Section 280G), then Executive and Employer hereby agree that such payments shall
be modified so as to be one dollar less than such Golden Parachute limitations.
If the determination is made after the payment(s) have been made by Employer,
then Executive shall promptly refund the overpayment to Employer.
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Employer shall not be obligated to reimburse Executive for his expenses
(such as COBRA payments) in maintaining benefits that Employer has discontinued
hereunder.
Employer shall have the right to offset any debts or damages owed by
Executive to Employer against salary or other payment owed to Executive.
9. Survival of this Agreement
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Employer shall not engage in any voluntary or involuntary dissolution or
any merger in which Employer is not the surviving or resulting corporation, or
any transfer of all or substantially all of Employer's assets, or any similar
change in ownership or control, unless the provisions of this Agreement shall be
binding on and inure to the benefit of the surviving business entity to which
ownership or control has passed, or to which such assets were transferred.
10. Protection of Trade Secrets; Confidential Information & Employee
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Relationships.
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Because of his employment by Employer, Executive has access to trade
secrets and confidential information of Employer, including but not limited to
knowledge of and contact with key employees; financial records; contract terms;
business plans, policies and procedures; cost information; customer lists and
client or acquisition opportunities; business and computer systems; management
information and methods which are unique to Employer's methods of business; and
customer servicing techniques (all of the above trade secrets and confidential
information hereinafter referred to as "Confidential Information"). In
consideration hereof and in recognition of the fact that the Confidential
Information constitutes a valuable trade secret or otherwise valuable asset of
Employer, Executive will not appropriate to his own use or benefit in anyway
whatsoever, or disclose to any third parties, any Confidential Information
during or after this Agreement.
Executive agrees that solicitation of Employer's customers and personnel
would constitute a misappropriation of Employer's Confidential Information. In
recognition thereof, Executive will not during his employment, and for one year
thereafter, solicit, hire, contract with or otherwise take away any customer or
employee of Employer or participate in any such solicitation, hiring,
contracting or otherwise taking away. In addition, all information about such
customers and employees which becomes known to Executive during the course of
this Agreement and which is not otherwise known to the public is a trade secret
of the Employer and shall not be used in soliciting or taking away customers or
employees of the Employer at any time.
Executive acknowledges that any breach of this Section will result in
irreparable damage to the Employer, for which Executive further acknowledges
that Employer shall be entitled to injunctive relief hereunder. The parties
hereby consent to an injunction in favor of Employer, without bond, enjoining
any breach of this Agreement by any court of competent jurisdiction, without
prejudice to any other right or remedy to which Employer may be entitled.
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Executive's obligations hereunder shall survive the termination of this
Agreement.
11. Entire Agreement
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Except for an indemnification agreement between Employer and Executive,
this Agreement contains the entire agreement between the parties and supersedes
all prior oral and written agreements, understandings, commitments, and
practices between the parties. No waiver or modification to this Agreement may
be made except by a writing signed by the party against whom it is enforced.
12. Choice of Law; Interpretation of Agreement
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The formation, construction, and performance of this Agreement shall be
construed in accordance with the laws of the State of California. This Agreement
shall not be interpreted for or against either party on the ground that such
party or its representative drafted the agreement or any portion thereof.
13. Arbitration
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Any claim for monetary damages hereunder shall be subject to binding
arbitration by the National Association of Securities Dealers or other mutually
agreeable arbitration or alternative dispute resolution forum.
14. Notices
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Any notice required or permitted under this Agreement shall be given in
writing, either by personal delivery or by registered, overnight or certified
mail, postage prepaid, to the following addresses: Executive - then current home
address as shown on Employer's files; Employer - the CEO at the company's then
current place of business.
15. Severability
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If any portion of this Agreement is held invalid or unenforceable, the
remainder of this Agreement shall nevertheless remain in full force and effect.
If any provision is held invalid or unenforceable with respect to particular
circumstances, it shall nevertheless remain in full force and effect in all
other circumstances.
16. Acknowledgment
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Executive acknowledges that he has had the opportunity to consult with
independent counsel of his own choice concerning this Agreement and has been
advised to do so by Employer, and Executive has read and understands this
Agreement, and is fully aware of its legal effect, and has entered into it
freely based on Executive's own judgment.
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17. Headings
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Section headings in this Agreement have been inserted for convenience and
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
Executed by the parties as of the day and year first above written.
AGREED AND ACCEPTED:
JMC Group, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Chairman of the
Compensation Committee of the Board
of Directors of Fechtor, Xxxxxxxx, Xxxxxxxx & Co.
AGREED AND ACCEPTED:
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
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