EXHIBIT 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (this "Agreement") by and between
AssuranceAmerica Managing General Agency, LLC and it successors and assigns
("Company"), and Xxxxxx X. Xxxxxx ("You" or "Your") (collectively referred to as
the "Parties" and each, as a "Party"), is entered into and effective as of the
3rd day of March, 2005 (the "Effective Date").
WHEREAS You are currently employed as President of the Company;
WHEREAS, the Company desires that You continue to serve as President of the
Company performing such duties as may be delegated by the Chief Executive
Officer ("CEO") of the Company from time to time, and You desire to continue
said employment;
WHEREAS, Your position is a position of trust and responsibility and the
Trade Secrets, Confidential Information and the relationship between the Company
and each of its Employees are valuable assets of the Company and may not be used
for any purpose other than the Business;
WHEREAS, the Company has agreed to continue to employ You in exchange for Your
compliance with the terms of this Agreement;
WHEREAS, the Company and You desire to express the terms and conditions of Your
continued employment in this Agreement;
NOW, THEREFOR, the Parties agree:
1. Employment and Duties.
A. The Company shall continue to employ You as President in accordance
with the terms and conditions set forth in this Agreement. You accept employment
on the terms set forth herein. You shall report to the CEO of the Company.
B. You shall have duties as are consistent with Your position, as
designated by the CEO from time to time, and as may otherwise be assigned to
You by the CEO from time to time.
C. You agree that You shall at all times faithfully and to the best of
Your ability and experience perform all of the duties that may be required of
You pursuant to the terms of this Agreement. You shall devote Your full business
efforts and time to the performance of Your obligations hereunder. You shall not
render to others any service of any kind for compensation or engage in any
activity that conflicts or interferes with the performance of Your obligations
under this Agreement without the express written consent of the CEO. You may
engage in appropriate civic, charitable or not for profit activities provided
they do not interfere with or conflict with your responsibilities to the Company
and passive investments.
D. Fiduciary Duties. As an officer of the Company, You owe a duty of
care and loyalty to the Company, as well as duty to perform Your duties in a
manner that is in the best interests of the Company. You will comply with all of
the Company's rules and procedures applicable to employees generally.
2. Compensation.
A. Base Salary. During the term of this agreement, the Company will
pay You a base salary at the rate set forth in Exhibit B hereto ("Base Salary"),
minus applicable withholdings, in accordance with Company's normal payroll
practices. Your Base Salary may be increased annually at the discretion of the
CEO.
B. Bonus. During the term of this Agreement, you will be eligible to
receive a bonus if Your performance and the Company's performance meet certain
criteria established from year to year by the CEO or his designee, in
consultation with you (the "Bonus"). Any bonus earned shall be paid within 90
days after the end of the fiscal year for which the bonus is to be paid. You
will not receive the Bonus if, for any reason, You are not employed on the last
day of the fiscal year for which the Bonus is to be paid. The Bonus will be
subject to all applicable withholdings.
C. Stock Options. You will be eligible to participate in the Company's
stock option plan, if any, as adopted from time to time. Any award of options is
at the discretion of the Compensation Committee of the Board of Directors and
subject to the terms of the plan.
D. Fringe Benefits. You shall be entitled to participate in all
benefit plans generally available to employees of the Company from time to time,
subject to the terms and conditions of such plans and programs and to
participate in any executive employee benefit plans at the discretion of the
CEO.
3. Term.
Your employment hereunder shall be terminable at will by either You or the
Company at any time. The term of this Agreement, from the date hereof until
terminated, shall be referred to as the "Term."
4. Termination of Employment.
Notwithstanding the provisions of Section 3 hereof, Your employment shall
terminate under the following circumstances:
A. Death. In the event of Your death during the Term, Your employment
hereunder shall immediately and automatically terminate and the Company shall
pay your estate any earned but unpaid Base Salary.
B. Disability. The Company may terminate Your employment hereunder,
upon notice to You, in the event that You become disabled during Your employment
hereunder through any illness, injury, accident or condition of either a
physical or psychological nature and, as a result, are unable to perform
substantially all of Your duties and responsibilities hereunder for ninety (90)
days during any period of three hundred and sixty-five (365) consecutive
calendar days. The CEO may designate another employee to act in Your place
during any period of Your disability. Notwithstanding any such designation, You
shall continue to receive the Base Salary in accordance with Section 2A hereof
and benefits in accordance with Section 2D to the extent permitted by the then
current terms of the applicable benefit plans, until You become eligible for
disability income benefits under any disability income insurance plan provided
You by the Company or until the termination of Your employment, whichever shall
first occur. While receiving disability income payments under any disability
income plan, You shall be entitled to receive a portion of Your Base Salary
under Section 2A hereof, sufficient to provide total compensation (disability
payments plus portion of Base Salary) equal to your Base Salary immediately
prior to the disability and, in addition, You shall continue to participate in
Company benefit plans in accordance with Section 2D and the terms of such plans,
until the termination of Your employment. If any question shall arise as to
whether during any period Your are disabled through illness, injury, accident or
condition of either a physical or psychological nature so as to be unable to
perform substantially all of Your duties and responsibilities hereunder, You
may, and at the request of the Company shall, submit to a medical examination by
a physician selected by the Company to which You or Your duly appointed guardian
has no reasonable objection to determine whether You are so disabled and such
determination shall for the purposes of this Agreement be conclusive of the
issue. If such question shall arise and You shall fail to submit to such medical
examination, the Company's determination of the issue shall be binding on you.
C. By the Company for Cause. The Company may terminate Your employment
hereunder for Cause, as reasonably determined by the CEO, at any time upon
notice to You setting forth in reasonable detail the nature of such Cause;
provided that, prior to such termination, the CEO shall provide You notice and
an opportunity, within fifteen (15) days of such notice (in addition to any
notice and cure period provided in the definition of "Cause," or such longer
period as the parties may agree), for you to be heard by the CEO prior to his
final determination as to whether or not Cause exists. The CEO may elect to
place You on unpaid administrative leave at the time of such notice and pending
the final determination by the CEO. If Cause is not found to exist, you will be
reinstated and paid Your Base Salary for the period of administrative leave.
D. By the Company other than for Cause. The Company may terminate Your
employment hereunder other than for Cause at any time upon notice to You.
E. By You. You may terminate Your employment hereunder for any reason
upon thirty (30) days notice to the Company.
5. Post Termination Payment Obligation.
A. Upon termination of this agreement by You or the Company for any reason
including Cause, the Company will pay You all accrued but unpaid wages, based on
Your then current Base Salary, through the termination date. Except as otherwise
expressly provided in Sections 4B, 5B, and 5C hereof, the Company shall have no
other obligation to You. In any event, You shall continue to be bound by
Sections 6, 7, 8, 9 and 10 hereof and all other of Your post-termination
obligations to the Company and its Affiliates, whether pursuant to this
Agreement or otherwise.
B. If the Company terminates Your employment other than for Cause, Death,
or Disability: (i) The Company will pay You a separation payment equal to twelve
(12) months of Your then current Base Salary, to be paid monthly over a period
of twelve (12) months in accordance with the Company's regular payroll
practices; and commencing on the Company's next regular payday following the
effective date of termination; and (ii) the Company will reimburse Your COBRA
premium under the Company's major medical group health plan on a monthly basis
for a period of twelve (12) months following the date Your employment terminates
or, less than twelve (12) months if You become eligible to participate in the
group health plan of another employer before twelve (12) months have passed from
the effective date of Your termination.
C. In addition to the payments and benefits set forth in Section 5B; should
Your employment be terminated by the Company within twelve (12) months of a
Change of Control, then any outstanding stock options granted to you in writing,
but not yet vested are fully vested as of the date of the termination of
employment, and may be exercised by You, if exercised within thirty (30) days of
Your termination date. If the stock options are not exercised by You during the
thirty (30) days, then Your right to exercise such options expires and the
unexercised options lapse.
D. Reserved.
E. Reserved.
F. The separation payments and benefits set forth in Section 4B, 5A, 5B,
and 5C shall constitute full satisfaction of the Company's obligations under
this Agreement for termination of Your employment. Further, the Company's
obligations to provide the payments or any of the other benefits set forth in
Section 4B, 5B, and 5C shall be conditioned upon Your:
(a) Execution of a Separation and Release Agreement in a form prepared
by the Company by which You release the Company and its Affiliates from any and
all liability and claims of any kind;
(b) Compliance with the restrictive covenants contained in Section 8A
and 8B and all other post-termination obligations which you woe to the Company
and its affiliates, including but not limited to the obligations contained in
this Agreement; and
(c) Prompt notification of the Company if You become eligible for
coverage under the group health plan of another employer at any time within
twelve (12) months following the date Your employment with the Company ends and
Your prompt reimbursement of the Company for any excess premium contributions
made by the Company hereunder.
If You do not execute a Separation & Release Agreement, the Company will not be
obliged to provide any payments or benefits to You as set forth in Section 4B,
5B, and 5C. All Your post-termination obligations, including without limitation
under Section 7, 8, 9, and 10 of this Agreement, however, will nonetheless
remain in full force and effect. The Company's obligation to the separation
payments and/or benefits set forth in Section 4B, 5B, and 5C shall terminate
immediately upon any breach by You of any post-termination obligations to which
You are subject.
6. Set-Off.
If You have any outstanding obligations to the Company at the time this
Agreement terminates for any reason, You acknowledge and agree that the Company
is authorized to deduct any amounts
owed to the Company from Your final paycheck and/or from any amounts that would
otherwise be due to You under this Agreement, including Section 4B, 5A, 5B, and
5C above.
7. Books and Records and Other Company Property.
You agree that all files, documents, records, customer lists, books, and other
materials, in any media, which come into Your use or possession during Your
employment or any other associations with the Company or any of its Affiliates
or any predecessors of the foregoing and which are in any way related to the
business, present or otherwise, of the Company or any of its Affiliates shall at
all times remain the property of the Company, and that upon request by the
Company or upon termination of this Agreement for any reason, You shall
immediately surrender to the Company all such property and copies thereof as
well as all other property of the Company and its Affiliates.
8. Restrictive Covenants.
A. Trade Secrets and Confidential Information.
(i) You represent that: (a) You are not subject to any legal or
contractual duty or agreement that would prevent or prohibit You from performing
Your duties for the Company or otherwise complying with this Agreement, and (b)
You are not in breach of any legal or contractual duty or agreement, including
any agreement concerning trade secrets or confidential information owned by any
other party. You agree not to disclose to or use on behalf of the Company or its
Affiliates, or induce the Company or any of its Affiliates to use, any
confidential or proprietary information of any previous employer of Yours or
other third party without that party's consent.
(ii) You agree that all Trade Secrets and other Confidential
Information, which You create or to which You have access as a result of Your
employment and other associations with, the Company and its Affiliates is and
shall remain the sole and exclusive property of the Company and its Affiliates.
You agree that, except as required for the proper performance of Your duties for
the Company or as expressly authorized in writing in advance by the CEO or his
designee, or as required by applicable law, You will not, during the Term and
for a period of three (3) years after termination of the Term, directly or
indirectly, use or disclose or reverse engineer any Trade Secrets or other
Confidential Information. You agree that You will not, directly or indirectly,
destroy, delete, or alter any Trade Secrets or other Confidential Information,
unless expressly authorized in writing in advance by the CEO or his designee.
You understand and agree that these restrictions shall continue to apply for a
period of three (3) years after the termination of Your employment or this
Agreement. Further, You agree to provide prompt notice to the Company of any
required disclosure of any Trade Secrets or other Confidential Information
sought pursuant to subpoena, court order or any other legal requirement and to
provide the Company a reasonable opportunity to seek protection of the Trade
Secrets and other Confidential Information prior to any such disclosure.
(iii) The confidentiality, property, and proprietary rights
protections provided to the Company and its Affiliates in this Agreement are in
addition to, and not exclusive of, any and all other rights to which the Company
and its Affiliates are entitled under copyright laws, trade secret and
confidential information laws and laws concerning fiduciary duties and duties of
loyalty.
B. Non-Recruit of Employees. During the Restricted Period, You will not
directly or indirectly hire, employ or attempt to hire or employ any Employee,
or assist in such hiring by any Person or solicit, recruit, encourage or induce
any Employee to terminate his or her relationship with the Company or any of its
Affiliates.
You acknowledge that the restrictions contained in this Section 8 are reasonable
and necessary to protect the legitimate business interests of the Company, and
will not unreasonably impair or infringe upon Your right to work or earn a
living after Your employment with the Company ends.+
9. Work Product.
A. You hereby assign and agree in the future to assign to the Company
(or as otherwise directed by the Company) Your full right, title and interest in
and to all Work Product. You agree to provide, at the Company's request, all
further cooperation which the Company determines is necessary or desirable to
accomplish the complete transfer of the Work Product and all associated rights
to the Company, its successors, assigns and nominees, and to ensure the Company
the full enjoyment of the Work Product including without limitation executing
further applications both domestic and foreign, specifications, oaths,
assignments, consents, releases, government communications and other
commercially reasonable documentation, responding to corporate diligence
inquiries, and providing good faith testimony by affidavit, declaration,
deposition, in-person or other proper means, in support of any effort by the
Company to establish, perfect, defend, protect or otherwise enjoy, in this or
any foreign country, its rights acquired pursuant to this Agreement through
prosecution of government filings, regulatory proceedings, litigation or other
means.
B. You shall maintain accurate and complete contemporaneous records
of, and shall immediately and fully disclose and deliver to the Company, all
Work Product.
10. Release.
During Your employment and after Your employment with the Company ends,
Your consent to the Company's use of Your image, likeness, voice, or other
characteristics in the Company's products or services.
11. Injunctive Relief.
You agree that if You breach any provision of Sections 7, 8, 9, and/or 10
of this Agreement: (i) the Company and its Affiliates would suffer irreparable
harm; (ii) it would be difficult to determine damages, and money damages alone
would be an inadequate remedy for the injuries suffered by the company and its
Affiliates, and (iii) if the Company or any of its Affiliates seeks injunctive
relief to enforce this Agreement, You will waive and will not (a) assert any
defense that the Company or any of its Affiliates has an adequate remedy at law
with respect to the breach, (b) require the Company or any of its Affiliates to
submit proof of the economic value of any Trade Secret or Confidential
Information, or (c) require the Company or any of its Affiliates to post a bond
or any other security. Nothing contained in this Agreement shall limit the
Company's right to any other remedies at law or in equity.
12. Enforcement of Covenants.
The Parties expressly agree that, in the event that any provision of
Section 8 and/or 9 of this Agreement shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its being extended over
too great a time, too large a geographic area or too great a range of
activities, such provision shall be deemed to be modified to permit its
enforcement to the maximum extent permitted by law.
13. Severability.
If any portion of this Agreement shall to any extent be declared illegal or
unenforceable by a court of competent jurisdiction, then the remainder of this
Agreement, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted by law.
14. Waiver.
Either Party's failure to enforce any provision of this Agreement shall not
act as a waiver of that or any other provision. Either Party's waiver of any
breach of this Agreement shall not act
as a waiver of any other breach. A waiver shall only be effective if signed by
the waiving party which, in the case of the Company, shall be a Company
representative expressly authorized by the CEO.
15. Entire Agreement.
This Agreement, including Exhibit A and B hereto, which is incorporated by
reference, constitutes the entire agreement between the Parties concerning the
subject matter of this Agreement. This Agreement supersedes any prior
communications, agreements or understandings, whether oral or written, between
the Parties relating to the subject matter of this Agreement. You acknowledge
that, in accepting this Agreement, You have not relied on any representation,
promise or other agreement other than those set forth expressly herein.
16. Amendments.
This Agreement may not be amended or modified except in writing signed by
You and a Company representative expressly authorized by the CEO.
17. Successors and Assigns.
This Agreement shall be assignable to and shall inure to the benefit of,
the Company's successor and assigns, including, without limitation, successors
through merger, name change, consolidation, or sale of a majority of the
Company's stock or assets, and shall be binding upon You. You shall not have the
right to assign Your rights or obligations under this Agreement. Certain
provisions of this Agreement shall survive any termination if so provided herein
or if necessary or desirable to accomplish the purposes of other surviving
provisions, including without limitation Your obligations under Sections 6, 7,
8, 9, 10 and 11 hereof.
18. Governing Law.
The laws of the State of Georgia shall govern this Agreement. If Georgia's
conflict of law rules would apply another state's laws, the Parties agree that
Georgia law shall still govern.
19. No Strict Construction.
If there is a dispute about the language of this Agreement, the fact that
one of the Parties drafted the Agreement, or some portion thereof, shall not be
used in its interpretation.
20. Headings and Counterparts.
The headings and captions in this Agreement are for convenience only and in
no way define or describe the scope or content of any provision of this
Agreement. This Agreement may be executed in two or more counterparts, each of
which shall be an original and all of which together shall constitute one and
the same instrument.
21. Notice.
Any and all notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall be effective when delivered
in person, consigned to a national overnight courier service for delivery or
deposited in the United States mail, postage prepaid, registered or certified,
and addressed to the Parties as set forth below or to such other address as
either Party may specify by notice to the other actually received.
To Company: AssuranceAmerica Managing General Agency
RiverEdge One
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: CEO
To Executive: Xxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
22. Consent to Jurisdiction and Venue.
You agree that any claim arising out of or relating to this Agreement may
be brought in the Superior Court of Xxxxxx County, Georgia, or the United States
District Court for the Northern District of Georgia, Atlanta Division, or any
state or federal court in any jurisdiction in which You work or reside or in
which the Company has its headquarters. You consent to the personal jurisdiction
of the courts identified above. You waive (i) any objection to jurisdiction or
venue, in any action brought in such courts. You agree to accept service of
process by registered or certified mail or the equivalent directed to Your last
known address on the books of the Company or by whatever other means are
permitted by such court.
23. Affirmation.
You acknowledge that YOU HAVE carefully read this Agreement, You know and
understand its terms and conditions, and YOU HAVE had the opportunity to ask the
Company any questions YOU may have had prior to signing this Agreement and to
have this Agreement reviewed by counsel of your choosing.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement under
seal as of the day and year first above written.
COMPANY:
AssuranceAmerica Managing General Agency, LLC
By: /s/ Xxx Xxxxxxxxx
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Xxx Xxxxxxxxx, CEO
Date: MARCH 3, 2006
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EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Date: 3-8-06
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EXHIBIT A
DEFINITIONS
A. "Affiliates" means all persons and entities directly or indirectly
controlling, controlled by or under common control with the Company, where
control may be by management authority or equity interest.
B. "Business" means the business of the Company and its Affiliates which
includes without limitation the business of retail and wholesale of non-standard
automobile insurance products and related activities, and other business
activities now or hereafter engaged in by the Company.
C. "Cause" means (i) Your material breach of this Agreement, which, if
susceptible to cure, has not been cured by You within thirty (30) business days
after receipt by You of written notice from the Company of such breach; (ii)
fraud, embezzlement or other material dishonesty with respect to the Company or
any of its Affiliates; or (iii) commission of a felony or other crime involving
moral turpitude.
D. Reserved
E. Reserved
F. "Change of Control" means any point in time when Xxx Xxxxxxxxx and Xxx X.
Xxxxxxx together or individually are not able to choose a majority of the
members of the Board of Directors of AssuranceAmerica Corporation, or when Xxx
Xxxxxxxxx and Xxx Xxxxxxx together or individually do not own a majority of the
stock or assets of AssuranceAmerica Corporation.
G. "Confidential Information" means any and all confidential information of the
Company and its Affiliates that is not generally known by those with whom they
compete or do business, or with whom they plan to compete or do business, and
any and all confidential information, publicly known in whole or in part or not,
which, if disclosed by the Company or its Affiliates, would assist in
competition against them. Confidential Information includes without limitation
such information relating to (i) the development, research, testing,
manufacturing, marketing and financial activities of the Company and its
Affiliates, (ii) the costs, sources of supply, financial performance and
strategic plans of the Company and its Affiliates, (iii) the identity and
special needs of the customers of the Company and its Affiliates and (iv) the
people and organizations with whom the Company and its Affiliates have business
relationships and those relationships. Confidential Information also includes
any information that the Company or any of its Affiliates have received, or may
receive hereafter, belonging to customers or others with any understanding,
express or implied, that the information would not be disclosed. Confidential
Information shall not include any information that (i) is or becomes generally
available to the public other than as a result of an unauthorized disclosure or
(ii) has been independently developed and disclosed by others without violating
this Agreement or the legal rights of any party, or (iii) otherwise enters the
public domain through lawful means.
H. "Employee" means any person who (i) is employed by the Company or any of its
Affiliates at the time Your employment with the Company ends, or (ii) was
employed by the Company or any of its Affiliates during the last year of Your
employment with the Company (or during Your employment if employed less than a
year).
I. "Person" means an individual, a corporation, a limited liability company, an
association, a partnership, an estate, a trust and any other entity or
organization, other that the Company or any of its Affiliates.
J. "Restricted Period" means the time period during Your employment with the
Company and for the twenty-four (24) month period immediately following the
termination of Your employment with the Company.
K. "Trade Secrets" shall have the meaning ascribed to that term under The
Georgia Trade Secrets Act of 1990, as amended from time to time, or any
successor law.
L. "Work Product" means inventions, discoveries, developments, methods,
processes, compositions, works, concepts and ideas (whether or not patentable or
copyrightable or constituting trade secrets) conceived, made, created, developed
or reduced to practice by You (whether alone or with others, whether or not
during normal business hours or on or off Company premises) during Your
employment that relate to either the Business of the Company or any of its
Affiliates or that make use of Confidential Information or any of the resources,
assets or facilities of the Company or any of its Affiliates.
