1
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT is made and entered into as
of August 11, 1995 by and between General American Life Insurance
Company, a Missouri mutual life insurance company (the
"Company"), and Xxxxxxx X. Xxxxxxxxxx ("Employee").
WHEREAS, the Company indirectly controls Conning Asset
Management Company, a Missouri corporation ("CAM"), which in turn
controls General American Investment Management Company, a
Missouri corporation ("GAIMCO"), Conning Corp., a Delaware
corporation ("Conning Corp."), and Conning & Company, a
Connecticut corporation ("Conning").
WHEREAS, Employee possesses skills and experience which
Company believes are of value to the success of Company's and its
Affiliates' (as hereinafter defined) business operations;
WHEREAS, Company wishes to employ Employee subject to
the terms and conditions of this Agreement, and Employee wishes
to accept such employment subject to the terms and conditions of
this Agreement;
WHEREAS, the Company and its Affiliates are in the
business of rendering investment advice, with a special expertise
in advising insurance companies in the United States, and have
accumulated valuable, confidential information including trade
secrets and know-how relating to portfolio construction and
management, technology, formulas, marketing plans, business
strategies, and other business records; and
WHEREAS, the giving of the covenants contained herein
is a condition precedent to the employment of Employee, and
Employee acknowledges that the execution of this Agreement and
the entering into of these covenants is an express condition of
his or her employment and that said covenants are given in
consideration for such employment and the other benefits
conferred upon him by this Agreement.
NOW, THEREFORE, in consideration of the mutual
promises, covenants, and agreements herein set forth, the parties
hereto agree as follows:
1. Employment and Duties. Company hereby agrees to
---------------------
employ Employee to provide services to GAIMCO, CAM and Conning
and Employee agrees to enter the employ of the Company for the
Term herein specified. During the Term, Employee shall serve as
and shall be employed as the Chairman and CEO of CAM and as the
President of GAIMCO and shall perform such duties as the Board of
Directors or officers of Company may reasonably assign to
Employee, and shall devote his or her full time, attention, and
effort to the business and affairs of GAIMCO, CAM and Conning.
2
2. Term. The term of this Agreement shall be for the
----
period commencing on date hereof and ending three years after the
date hereof (the "Term"), unless terminated prior thereto as
provided in Section 4.
3. Compensation and Benefits.
-------------------------
a. In consideration of his or her services,
Employee shall receive during the Term hereof a base salary
at the rate of not less than $257,500 per year ("Annual
Base Salary"), payable in substantially equal installments in
accordance with Company's usual paying practices, but not less
frequently than monthly. Employee shall be eligible to receive
increases in Employee's Annual Base Salary pursuant to periodic
salary reviews consistent with the Company's corporate policies,
it being understood such increases are not guaranteed, but are
subject to evaluation of Employee's job performance. In addition
to the foregoing compensation, Employee will be eligible, in the
sole discretion of the Board of Directors of the Company, to
participate in the Company's Bonus Plan as in effect from time to
time.
b. As further consideration for the covenants
contained herein, the Company will provide Employee with such
insurance, welfare, sick leave, and other benefits as may be
established by the Company from time to time with respect to its
employees and will reimburse Employee for authorized business
expenses in accordance with policies established by the Company
from time to time. Employee shall be entitled to vacation in
accordance with the Company's vacation policies, as in effect
from time to time.
4. Termination.
-----------
a. Termination Without Cause. Employee's
-------------------------
employment may be terminated without cause:
(1) At any time upon the mutual written
agreement of the parties hereto;
(2) Immediately upon Employee's Total
Disability (as defined in Section 4(f));
(3) Upon not less than 30 days' advance
written notice from Employee of Employee's desire to
terminate this Agreement, provided, however, that, following
such notice, the Company shall have the right to terminate
Employee's employment immediately, provided that the Company
pays Employee the compensation due him or her as if the
Termination Date occurred 30 days from the date of such
notice; or
2
3
(4) Upon not less than 30 days' advance
written notice from the Company of the Company's desire to
terminate this Agreement.
b. Termination For Cause. Employee's employment
---------------------
may be terminated by the Company upon written notice to Employee
at any time for any of the following reasons, each of which shall
constitute "termination for cause":
(1) Any material breach of this
Agreement by Employee which is not cured within 20 days
after written notice by the Company;
(2) Employee's fraud, embezzlement,
dishonesty, or unlawful acts in connection with the business
of the Company or its Affiliates;
(3) Employee's conviction for any
felony; or
(4) Employee's substantial and
continuing willful failure to perform, or grossly negligent
performance of, the duties of Employee's position.
c. Termination Date. Employee's last day of
----------------
employment with the Company (if such date occurs prior to the
third anniversary of this Agreement) shall be referred to in this
Agreement as the "Termination Date" and shall constitute the end
of the Term of this Agreement.
d. Effect of Termination.
---------------------
(1) Upon any termination of the employment
pursuant to this Section 4, this Agreement shall terminate and
the Company shall have no obligation of any kind whatsoever to
Employee except to pay Employee the compensation due him or her
through the Termination Date, the amount of such compensation due
Employee under Section 3(a) hereof being apportioned for the
portion of the fiscal period Employee was actually employed, and
any deferred compensation then due to Employee hereunder. The
obligations under Section 6 and 7 shall survive the end of the
Term of this Agreement according to their terms.
(2) In addition, upon termination pursuant
to Section 4(a)(4), the Company shall (i) pay Employee an amount
equal to 150% of the Annual Base Salary for each year (or portion
thereof, pro rated) through the balance of the Term and (ii)
provide all benefits described in Section 3(b) through the
balance of the Term. Payment pursuant to this Section 4(d)(2)
shall not apply to any termination other than one pursuant to
Section 4(a)(4).
3
4
e. Release. In the event Employee becomes
-------
entitled to payments pursuant to Section 4(d)(2) hereof, Employee
shall, as a condition to such payments being made, execute and
deliver to the Company, and any Affiliates of the Company
designated by the Company, a release of all Employee's claims for
employment, employment-related compensation or employee benefits
or any form of damages as a result of termination of employment
in such form as is reasonably satisfactory to the Company, which
document shall include a covenant not to bring any claim, action
or suit with respect to the matters which are the subject of such
release.
f. Definition of Total Disability. "Total
------------------------------
Disability" means having a physical or mental condition which
renders Employee permanently incapable of performing his duties
and responsibilities with the Company. Determination of Total
Disability will be made by a physician selected by the Company.
If the determination of such physician differs from the opinion
as to disability of the Employee's physician, the two physicians
shall select a third physician, whose determination shall be
binding on both parties.
5. Company Policies. Employee agrees to abide by the
----------------
policies, rules, regulations, and usages applicable to Employee
as they are established by the Company from time to time, and to
perform the duties assigned to him faithfully and loyally.
6. Non-Disclosure. Employee agrees that he will
--------------
never disclose, directly or indirectly, to any other firm or
person any of Company's or Company's Affiliates' confidential or
proprietary information including customer lists, trade secrets,
and know-how relating to its or their business. Confidential or
proprietary information shall not include any information which
is or hereafter comes in the public domain or is or becomes
generally known or available in the industry through no act of
Employee prohibited by this Agreement.
7. Non-Compete Agreement.
---------------------
a. Covenant. Employee recognizes that (i) the
--------
Company and CAM, GAIMCO, Conning Corp. and Conning (the
"Controlled Subsidiaries") have spent substantial money, time and
effort over the years in developing and solidifying their
relationships with their customers and in developing their
confidential information; (ii) long-term customer relationships
often can be difficult to develop and require a significant
investment of time, effort, and expense; (iii) the Company pays
its employees to, among other things, develop and preserve
business information, customer goodwill and customer loyalty for
and on behalf of the Company and the Controlled Subsidiaries; and
(iv) the Company is hereby agreeing to employ and pay Employee
based upon Employee's assurances and promises contained herein
not to divert the Company's and the Controlled Subsidiaries'
4
5
customers' goodwill and not to put himself or herself in a
position during or following Employee's employment with the
Company in which the confidentiality of the Company's and the
Controlled Subsidiaries' proprietary information might be
compromised. Accordingly, Employee covenants and agrees that for
a period of three years following the date hereof, regardless of
whether Employee remains employed by the Company and regardless
of whether Employee's termination, if any, is with or without
cause, neither Employee nor any entity controlling, controlled by
or under common control with Employee shall (i) engage in, or
have any direct or indirect interest in any other person, firm,
corporation, or other entity engaged in any business activities
competitive with the business activities of the Controlled
Subsidiaries, or (ii) become an employee, director, advisor,
consultant, independent contractor, or agent of any such person,
firm, corporation, or other entity, except with the Company's
prior written consent.
b. Acknowledgement Regarding Restrictions.
--------------------------------------
Employee recognizes and agrees that the restraints contained in
Section 7(a) are reasonable and enforceable in view of the
legitimate interests of the Controlled Subsidiaries in protecting
their confidential information and customer goodwill, and that
the limitations contained therein on the duration and geographic
scope of, and activities prohibited by, such restraints are
reasonable and binding upon Employee.
c. Enforceability.
--------------
(1) The covenants contained in this
Section 7 shall be deemed to be a series of separate covenants,
one for each aspect of the Controlled Subsidiaries' businesses
and locations. Each separate covenant shall hereinafter be
referred to as a "Separate Covenant."
(2) If any court or tribunal of competent
jurisdiction shall refuse to enforce one or more of the Separate
Covenants because the time limit applicable thereto is deemed
unreasonable, it is expressly understood and agreed that such
Separate Covenant or Separate Covenants shall not be void but
that for the purpose of such proceedings such time limitation
shall be deemed to be reduced to the extent necessary to permit
the enforcement of such Separate Covenant or Separate Covenants.
(3) If any court or tribunal of competent
jurisdiction shall refuse to enforce any or all of the Separate
Covenants because, taken together, they are more extensive
(whether as to geographic area, scope of business, or otherwise)
than is deemed to be reasonable, it is expressly understood and
agreed between the parties that such Separate Covenant or
Separate Covenants shall not be void but that for the purpose of
such proceedings the restrictions contained therein (whether as
to geographic area, scope of business, or otherwise) shall be
5
6
deemed to be reduced to the extent necessary to permit the
enforcement of such Separate Covenant or Separate Covenants.
d. Ownership of Securities. Nothing contained
-----------------------
herein shall restrict Employee from owning 2% or less of the
corporate securities of any entity in competition with the
Controlled Subsidiaries' businesses, which securities are listed
on any national securities exchange or authorized for listing on
the Nasdaq National Market, if Employee has no other connection
or relationship, direct or indirect, with the issuer of such
securities.
8. Non-Waiver of Rights. The Company's failure to
--------------------
enforce at any time any of the provisions of this Agreement or to
require at any time performance by Employee of any of the
provisions hereof shall in no way be construed to be a waiver of
such provisions or to affect either the validity of this
Agreement, or any part hereof, or the right of Company thereafter
to enforce each and every provision in accordance with the terms
of this Agreement.
9. The Company's Right to Injunctive Relief. In the
----------------------------------------
event of a breach or threatened breach of any of Employee's
duties and obligations under the terms and provisions of Sections
6 or 7 hereof, the Company shall be entitled, in addition to any
other legal or equitable remedies it may have (including any
right to damages that it may suffer), to temporary, preliminary,
and permanent injunctive relief restraining such breach or
threatened breach. Employee hereby expressly acknowledges that
the harm which might result to the Company's business as a result
of any noncompliance by Employee with any of the provisions of
Sections 6 or 7 would be largely irreparable. Employee
specifically agrees that if there is a question as to the
enforceability of any of the provisions of Sections 6 or 7
hereof, Employee will not engage in any conduct inconsistent with
or contrary to such Sections until after the question has been
resolved by a final judgment of a court of competent
jurisdiction.
10. Employee Representations. Employee represents
------------------------
that the execution and delivery of this Agreement and Employee's
employment with the Company do not violate any previous
employment agreement or other contractual obligation of Employee.
Employee also represents and agrees that Employee has not
disclosed, and will not disclose, to the Company any information,
whether confidential, proprietary, or otherwise, which Employee
has in Employee's possession and which Employee is not legally
free to disclose.
11. The Company's Right to Recover Costs and Fees.
---------------------------------------------
Employee and the Company each undertakes and agrees that if such
party breaches this Agreement, such party shall be liable for any
6
7
attorneys' fees and costs incurred by the other party in
enforcing its rights hereunder.
12. Definition of Affiliate. "Affiliate" shall for
-----------------------
purposes of this Agreement mean any person or entity (the
"Specified Person") (a) who directly or indirectly controls, is
controlled by, or is under common control with the Company, (b)
who owns or controls thirty percent (30%) or more of the
Company's outstanding voting securities or percentage interests;
(c) in whom the Company owns or controls thirty percent (30%) or
more of the outstanding voting securities or percentage
interests; (d) who is a director, partner, manager, executive
officer or trustee of the Company; (e) in whom the Company is a
partner; or (f) who has any relationship with the Specified
Person by blood, marriage or adoption, not more remote than first
cousin, and shall include, without limitation, the Controlled
Subsidiaries.
13. Miscellaneous. Neither this Agreement nor any
-------------
rights hereunder shall be assignable by either party hereto.
This agreement contains the entire agreement between
the parties with respect to the terms of Employee's employment by
Company, free of any other representation, promise, or
understanding. This Agreement may be modified or amended only by
a written agreement executed by both parties to this Agreement.
This Agreement may be assigned by the Company at any
time, without Employee's consent, to CAM or GAIMCO. Employee may
not assign this Agreement.
Nothing in this Agreement shall be construed as
creating a joint venture or partnership between Employee and the
Company or any of its Affiliates.
Section headings are provided in this Agreement for
convenience only and shall not be deemed to alter the content of
such sections.
7
8
PLEASE NOTE: BY SIGNING THIS EMPLOYMENT AGREEMENT, EMPLOYEE IS
-----------
HEREBY CERTIFYING THAT EMPLOYEE (A) HAS RECEIVED A COPY OF THIS
AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ
THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD
SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY
QUESTIONS EMPLOYEE HAS ABOUT THE AGREEMENT AND HAS RECEIVED
SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS
EMPLOYEE'S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT.
This Agreement shall be construed and interpreted under
the laws of Missouri.
IN WITNESS WHEREOF, the parties have executed this
agreement on the date first set out above.
GENERAL AMERICAN LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
EMPLOYEE
/s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Address: 000 Xxx Xxxxxxx
Xx. Xxxxx, XX 00000
8
