EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into by and between
Xxxxxx International Group, Inc. (the "Company") and Xxxx X. Xxxx ("You",
"Your"or "Executive") with reference to the following:
WHEREAS, the Company considers it essential to its best interests and the
best interests of its stockholders to employ Xxxx X. Xxxx, upon the terms and
conditions hereinafter set forth; and
WHEREAS, the Executive desires 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 employ Executive as Vice
President, Chief Financial Officer and Treasurer, effective as of July 30, 2001
and continuing until such employment is terminated pursuant to Section 3 below
PROVIDED, HOWEVER, 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 one hundred twenty (120) days 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 be deemed to be a termination without
cause and Executive's employment shall terminate as of the expiration date of
this Agreement. It is expressly understood and agreed that a Notice of
Non-Renewal issued by the Company shall not extinguish the Executive's
obligations pursuant to Section 4 herein, nor shall such Notice of Non-Renewal
extinguish Executive's right to severance pay pursuant to Section 3 herein.
1.2 TERMS OF EMPLOYMENT. During the term of this Agreement, You agree to be
a full-time employee of the Company serving in the position of Vice President,
Chief Financial Officer and Treasurer of the Company and further agree to devote
substantially all of Your working time and attention to the business and affairs
of the Company and, to the extent necessary to discharge the responsibilities
associated with Your position as Vice President, Chief Financial Officer and
Treasurer of the Company, to use Your 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 Vice Chairman,
Chief Executive Officer or Executive Vice President of the Company and the Board
of Directors of the Company, which duties shall be consistent with the position
of Vice President, Chief Financial Officer and Treasurer of the Company, which
shall grant Executive authority, responsibility, title and standing comparable
to that of the Vice President, Chief Financial Officer and Treasurer of a stock
insurance holding company of similar standing. Nothing herein shall prohibit You
from devoting Your time to civic and community activities or managing personal
investments, as long as the foregoing do not interfere with the performance of
Your duties hereunder.
1.3 APPOINTMENT AND RESPONSIBILITY. The Board of Directors of the Company
shall, following the effective date of this Agreement, elect and appoint
Executive as Vice President, Chief Financial Officer and Treasurer.
2. COMPENSATION, BENEFITS AND PERQUISITES
2.1 SALARY. Company shall pay Executive a salary, in equal bi-weekly
installments, equal to an annualized salary rate of One Hundred Twenty Thousand
Dollars ($120,000). Executive's salary payable pursuant to this Agreement may be
increased from time to time as mutually agreed upon by Executive and the
Company. The Company shall pay Executive the salary applicable in twenty-six
(26) bi-weekly installments. 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 Company
expects to achieve significant growth during the term of this Agreement and that
Executive will make a material contribution to that growth 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 growth through bonus and other means (including, but not
limited to, stock options, stock appreciation rights and other forms of
incentive compensation). Therefore, the Company may, in its discretion, pay
Executive an annual bonus of up to an additional thirty percent (30%) of
Executive's salary based upon goals established by Executive and the Vice
Chairman, Chief Executive Officer or Executive Vice President of SIG.
2.3 EMPLOYEE BENEFITS. Executive shall be entitled to receive health plan
benefits which are provided to other executive employees of Company under the
applicable Company plans and policies, and to future benefits and health plan
benefits 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
shall provide Executive with not less than three (3) weeks paid vacation during
each calendar year. In addition, Executive shall receive THE USE OF A VOLVO S80
AND THE COMPANY WILL REIMBURSE EXECUTIVE FOR ALL OPERATIONAL EXPENSES. AT THE
EXPIRATION OF THE LEASE OF THE VOLVO S80 IN MAY, 2002, EXECUTIVE WILL BE
PROVIDED A MOTOR VEHICLE ALLOWANCE OF $600 PER MONTH.
2.5 EXPENSES. During the period of his employment hereunder, Executive
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
3.1.1 TERMINATION OF EMPLOYMENT AND SEVERANCE PAY. Executive's 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 by the
Company for any reason other than for cause, he shall receive, as severance pay,
up to six (6) month's then current salary paid in regular bi-weekly payments
(the "Salary Continuation"), subject to reduction as provided in Section 3.1.2.
Further, if Executive shall be terminated without cause, receipt of severance
payments described in the preceding sentence is conditioned upon execution by
Executive and the Company of that mutual Waiver and Release attached hereto as
Exhibit A. Further, Executive shall receive severance pay 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. For purposes of this Section 3.1,
termination of employment shall include a change of employment such that
Executive shall no longer be employed by the Company as a Vice President or as
its senior executive responsible for the accounting and finance function of the
Company or at a salary less than Executive's current salary.
3.1.2 REDUCTION OF SALARY CONTINUATION. It is expressly understood and
agreed that the amount of any payment to Executive required pursuant to Section
3.1.1 shall be reduced (but not below zero) by the amount of any compensation
received by Executive or attributable to services performed by Executive during
the Salary Continuation period. During the Salary Continuation, Executive shall
provide the Company with a bi-weekly report which shall specify all services
performed by Executive for third parties, the identity of the person or entity
for which services were performed and any compensation paid or expected to be
paid to or for the benefit of Executive. Executive shall use his reasonable best
efforts during the Salary Continuation period to obtain employment comparable to
that with the Company.
3.2 CAUSE. For purposes of 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;
(b) 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;
(c) the Executive engaging in fraud, or engaging in any unlawful conduct
relating to the
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Company or its business, in either case as determined under the laws
of any Relevant Jurisdiction;
(d) the Executive breaching any provision of this Agreement; or
(e) the Executive "Grossly Neglects" his duty to the Company. For
purposes of this Agreement, "Gross Neglect" means the failure to
perform the functions of the Executive's job or the failure by
Executive to carry out reasonable directions with respect to
material duties after the Executive has been notified in writing
that the Executive is failing to perform these functions or
failing to carry out reasonable directions. Such notice shall
specify the functions or directions that the Executive is failing
to perform and what steps need to be taken to cure and shall set
forth the reasonable time frame, which shall be at a minimum
forty-five (45) days, within which to cure. If Executive fails to
cure within the time frame, the Company may terminate Executive's
employment for cause by giving him thirty (30) days notice or pay
in lieu thereof.
3.3.1 CHANGE OF CONTROL. Notwithstanding any other provision of this
Agreement, if (i) a Change of Control (as defined below) shall occur; and (ii)
within six (6) months of any such Change of Control, Executive (a) terminates
his employment with the Company; (b) is terminated by the Company for any reason
other than for cause; or (c) the Company (including its successors, if any) is
in breach of this Agreement, then Executive shall continue to receive his
current salary (in bi-weekly payments) until the expiration of six (6) months
from the date of Executive's termination of employment. For purposes of this
Section 3.3, termination of employment shall include a change of employment such
that Executive shall no longer be employed by the Company as a Vice President or
as its senior executive responsible for the accounting and finance function of
the Company or at a salary less than Executive's current salary.
3.3.2 CONDITION OR REDUCTION OF SALARY CONTINUATION. The receipt by
Executive of payments pursuant to Section 3.3.1 is specifically conditioned
upon, and no payments pursuant to Section 3.3.1 shall be made to Executive if he
is, at the time of his termination of employment, in breach of any provision
(specifically including, but not limited to the provisions of this Agreement
pertaining to non-competition, nonsolicitation and confidentiality) of this
Agreement and, further, if such payments have already begun the continuation of
payments to Executive pursuant to Section 3.3.1 shall cease at the time
Executive shall fail to comply with the non-competition, nonsolicitation and
confidentiality provisions of Article 4. It is expressly understood and agreed
that the amount of any payment to Executive required pursuant to Section 3.3.1
shall be reduced (but not below zero) by any employment compensation received by
Executive during the period called for in Section 3.3.1. Executive shall use his
reasonable best efforts during the salary continuation period set forth in
Section 3.3.1 to obtain employment comparable to that with the Company.
3.3.3 CHANGE OF CONTROL. A "Change of Control" shall mean (i) a change of
ownership of Goran Capital Inc. ("Goran") such that the Xxxxxx family
collectively owns, including indirect and beneficial ownership, less than
thirty-five percent (35%) of the stock of Goran; (ii) the inability of
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the Xxxxxx family to cause the election of a majority of the members of the
Board of Directors of either Goran, the Company, or their respective successors;
or (iii) a change in the ability of the Xxxxxx family to direct the management
of the day to day operations of Goran, the Company or their respective
successors.
3.4 DISABILITY. So long as otherwise permitted by law, if Executive 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 (and, where
applicable, its subsidiaries) to the maximum extent permitted by applicable law
for actions undertaken for, or on behalf of, the Company and its subsidiaries.
4. NON-COMPETITION, NON-SOLICITATION, CONFIDENTIALITY AND TRADE SECRETS
4.1 NONCOMPETITION. In consideration of the Company's entering into this
Agreement and the compensation and benefits to be provided by the Company to You
hereunder, and further in consideration of Your exposure to proprietary
information of the Company, You agree that until the date of termination or
expiration of this Agreement for any reason (the "Date of Termination") 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 one percent (1%) 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.
Notwithstanding any provision of this Agreement to the contrary, You agree
that Your breach of the provisions of this Section 4.1 shall permit
the Company to terminate Your employment for cause.
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4.2 CONFIDENTIALITY. YOU SHALL NOT KNOWINGLY DISCLOSE OR 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 YOU CONFIRM THAT SUCH INFORMATION IS THE EXCLUSIVE
PROPERTY OF THE COMPANY AND ITS AFFILIATES. YOU AGREE 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 YOU OR OTHERWISE COMING INTO YOUR POSSESSION AND, ON
TERMINATION OF YOUR 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 YOU MAY CONCEIVE, CREATE, ORGANIZE, PREPARE OR
PRODUCE DURING THE PERIOD OF YOUR 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 YOU SHOULD IN FACT EXECUTE AN ASSIGNMENT
THEREOF TO THE COMPANY, BUT YOU AGREE TO EXECUTE ANY ASSIGNMENT THEREOF OR OTHER
INSTRUMENT OR DOCUMENT WHICH MAY BE REASONABLY NECESSARY TO PROTECT AND SECURE
SUCH RIGHTS TO THE COMPANY.
4.3 NONSOLICITATION. During Executive's employment with the Company and for
one (1) year following termination of Executive's employment, Executive will not
directly or indirectly solicit, divert or interfere with the relationship
between Company or its affiliates and any employee of Company or its affiliates.
5. MISCELLANEOUS
5.1 AMENDMENT. This Agreement may be amended only in writing, signed by
both parties.
5.2 ENTIRE AGREEMENT. This Agreement contains the entire understanding 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 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.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
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If to Executive, to:
Xxxx X. Xxxx
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, XX 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 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 VALIDITY. THE INVALIDITY OR UNENFORCEABILITY OF ANY PROVISION 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.
5.6 GOVERNING LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Indiana, without giving effect to
conflict of law principles.
5.7 HEADINGS. The headings of articles and sections herein are included
solely for convenience and reference and shall not control the meaning or
interpretation of any of the provisions of this Agreement.
5.8 COUNTERPARTS. This Agreement may be executed by either of the parties
in counterparts, each of which shall be deemed to be an original, but all such
counterparts shall constitute a single instrument.
5.9 SURVIVAL. Company's obligations under Section 3.1 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.
5.10 MISCELLANEOUS. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by You 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 effective as
of the date set forth above.
XXXXXX INTERNATIONAL GROUP, INC.
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx, Chief Executive Officer
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By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
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