EXHIBIT 10(k)
EMPLOYMENT AGREEMENT
The Agreement is made as of January 1, 1996 between PIONEER FINANCIAL
SERVICES, INC., a Illinois corporation with its principal place of business at
0000 X. Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter "Pioneer Financial"); and
XXXXXXX X. XXXX, an individual residing at 0000 Xxxxxxxx Xxx, Xxxxxxxxxx,
Xxxxxxxx 00000 (hereinafter "Xxxx").
W I T N E S S E T H:
WHEREAS, Pioneer Financial is an insurance holding company and, through its
subsidiaries, owns 80% of the capital stock of Preferred Health Choice, Inc., an
Illinois corporation ("PHC");
WHEREAS, PHC is a holding company which, through its subsidiaries, provides
managed care services; and
WHEREAS, Xxxx is currently an executive officer of Pioneer Financial and
President and Chief Executive Officer of PHC; and Xxxx possesses valuable
skills, expertise and abilities in the life and accident and health insurance
and managed cares businesses; and
WHEREAS, Pioneer Financial is desirous of retaining the services of Xxxx as
a key managerial employee; and
WHEREAS, Xxxx desires to be employed by Pioneer Financial on the terms set
forth herein;
NOW, THEREFORE, for and in consideration of the covenants contained herein,
Pioneer Financial hereby employs Xxxx and Xxxx accepts such employment with
Pioneer Financial upon the terms and conditions hereinafter set forth.
1. Employment. Pioneer Financial hereby employs Xxxx and Xxxx hereby
agrees to be employed by Pioneer Financial for a term (the "Term") of three (3)
years commencing on January 1, 1996 to perform the duties set forth herein.
2. Duties. Subject to the control of the Board of Directors of Pioneer
Financial, Xxxx shall serve during the Term as President and Chief Executive
Officer of PHC or in such other senior executive offices or capacities as the
Board of Directors of Pioneer Financial may from time to time determine; and in
such capacity shall render such services as the Board of Directors of Pioneer
Financial shall direct. Xxxx shall have such executive powers and authority as
may reasonably be required by him in order to discharge such duties in an
efficient and proper manner.
3. Compensation. PHC shall in the aggregate pay to Xxxx for all services
to be rendered hereunder:
(a) Base Salary. An annual base salary in an amount of not less than
Two Hundred Seventy-Five Thousand Dollars ($275,000); provided that the Board of
Directors of Pioneer Financial shall annually make a review of Xxxx'x salary and
increase such annual base salary as it deems appropriate; and
(b) Bonus. Such annual bonus, as may be determined by the
Compensation Committee of the Board of Directors of Pioneer Financial, based
upon the achievement of such PHC company-wide performance standards as may be
established by such Committee.
4. Benefits. During his employment hereunder, Xxxx shall be entitled to
participate in all employee benefits made available to management personnel of
Pioneer Financial and its subsidiaries. Furthermore, in the event of the
termination of Xxxx'x employment with Pioneer Financial or its subsidiaries for
any reason whatsoever (including without limitation the expiration of this
agreement) prior to the occurrence of one of the events referred to in Section
9(b) below, other than termination for cause (as hereinafter defined) or by Xxxx
without good reason (as hereinafter defined), then Pioneer Financial shall
provide (or cause to be provided) to Xxxx, or make such payments to Xxxx as
shall enable Xxxx to obtain at no cost to himself, until he reaches the age of
65 the health insurance which would have been available to Xxxx during such
period as an employee of Pioneer Financial or its subsidiaries except for such
termination; provided, however, that Pioneer Financial shall have no such
obligation in the event that Xxxx becomes entitled to receive substantially
similar health insurance coverage as an employee of another company.
5. Death. Xxxx'x employment by Pioneer Financial will terminate
immediately upon his death; provided, however, that in the event of Xxxx'x death
during the Term, Xxxx'x estate shall be entitled to receive the payment
described in the last sentence of Section 7(b).
6. Disability. If during Xxxx'x employment hereunder, Xxxx becomes
totally or partially disabled, Pioneer financial shall continue to pay to Xxxx
as long as such disability continues during the Term (or until Xxxx'x employment
is terminated by Pioneer Financial in accordance with Section 7 (if earlier))
the level of annual salary payable to Xxxx at the date his disability is
determined, reduced dollar-for-dollar to the extent of any disability insurance
payments paid to Xxxx through insurance programs, the premiums for which were
paid by Pioneer Financial or its subsidiaries. For purposes of this Agreement,
the term "total disability" shall mean Xxxx'x inability due to illness, accident
or other physical or mental incapacity to engage in the full time performance of
his duties under this Agreement as reasonably determined by the Board of
Directors of Pioneer Financial based on such evidence as such Board shall deem
appropriate. For purposes of this Agreement, "partial disability" shall mean
Xxxx'x ability due to illness, accident or other physical or mental incapacity
to engage in only the partial performance of his duties under this Agreement, as
reasonably determined by the Board of Directors of Pioneer Financial based on
such evidence as such Board shall deem appropriate.
7. Termination.
(a) For Cause. Pioneer Financial shall have the right to terminate
Xxxx'x employment hereunder at any time during the Term "for cause". For
purposes of this Agreement, "for cause" shall mean any of the following actions
(or inactions) by Xxxx: illegal conduct of a severity greater than a
misdemeanor, gross neglect of, and the continued failure to perform
substantially, Xxxx'x duties under this Agreement. Notwithstanding anything
herein to the contrary, Xxxx'x inability to perform the duties of his position
due to his total or partial disability (as defined herein) shall not be deemed
to constitute cause.
If, in the opinion of the Board of Directors of Pioneer Financial,
Xxxx'x employment shall become subject to termination for cause, such Board of
Directors shall give Xxxx notice to that effect, which notice shall describe the
matter or matters constituting such cause. If, at the end of such thirty (30)
day period, Xxxx has not substantially eliminated or cured each such matter or
matters, then Pioneer Financial shall have the right to give Xxxx notice of the
termination of his employment. Xxxx'x employment hereunder shall be considered
terminated for cause as of the date specified in such notice of termination
unless and until there is a final determination by a court of competent
jurisdiction that the cause of termination of Xxxx'x employment did not exist at
the time of giving said notice of termination. Upon termination of Xxxx'x
employment "for cause", this Agreement shall terminate without further
obligations to Xxxx other than Pioneer Financial's obligation (a) to pay to Xxxx
in a lump sum in cash within thirty (30) days after the date of termination
Xxxx'x base salary through the date of termination to the extent not theretofore
paid and (b) to the extent not theretofore paid or provided, to pay or provide
to pay, to Xxxx on a timely basis any other amounts or benefits required to be
paid or provided or which Xxxx is eligible to receive under any plan, program,
policy or practice or contract or agreement of Pioneer Financial.
(b) Without Cause. Pioneer Financial shall have the right to
terminate Xxxx'x employment hereunder without cause at any time during the Term.
If the Board of Directors determines to terminate Xxxx'x employment without
cause, Pioneer Financial shall give notice of such termination to Xxxx and
Xxxx'x employment hereunder shall be considered terminated without cause as of
the date specified in such notice of termination. Upon the date of the
termination of Xxxx'x employment without cause, Xxxx shall be paid an amount
equal to the present value, discounted to the present at an annual rate of 8%,
of an amount equal to the lesser of (x) the salary which would have been payable
during a period equal to the remainder of the Term, commencing on the date of
termination, at the rate of the annual base salary payable to Xxxx at the date
of termination, or (y) two times his then current annual base salary.
(c) By Xxxx. Xxxx may terminate his employment hereunder at any time
by retirement or resignation, upon notice to Pioneer Financial. Upon such
termination by Xxxx, no compensation for any period after the date of such
termination shall be payable to Xxxx; provided, however, that if such
termination by Xxxx is for "good reason" (as defined in Section 8(c)), then Xxxx
shall be entitled to the payment described in the last sentence of Section 7(b).
(d) Change in Control Effect. No payments shall be made to Xxxx
pursuant to this Section 7 in the event that Xxxx is entitled to Change in
Control Compensation pursuant to Section 8.
8. Change in Control.
(a) Change in Control Severance Compensation. Subject to the
provisions of Section 12 below, if, during the term of this Agreement, within
two years following a Change in Control (as defined in Section 8(b)), Xxxx'x
employment is terminated by Pioneer Financial other than "for cause" (as defined
in Section 7(a) or is terminated by Xxxx for "good reason" (as defined in
Section 8(c)), Xxxx shall be entitled to receive from Pioneer Financial a lump
sum cash payment in an amount ("Change in Control Compensation") equal to (x)
three times the average income reflected on the W-2 form or forms issued to Xxxx
by Pioneer Financial or its subsidiaries for services performed for them for the
five (5) calendar years preceding the year in which such Change of Control
occurs, minus (y) one dollar ($1.00) and the amount of any other items that are
construed as a "parachute payment" under Section 280G of the Internal Revenue
Code of 1986, as amended (the "Code") other than any payment due pursuant to
Section 8(d) below. Pioneer Financial shall pay such amount to Xxxx within ten
(10) days of the date of termination. If Xxxx'x employment is terminated by
Pioneer Financial for cause, by reason of Xxxx'x death or retirement, or by Xxxx
without good reason, the Change in Control Compensation will not be paid. If
Xxxx was totally or partially disabled as of the Change in Control, the Change
in Control Compensation will not be paid.
(b) Change In Control. For purposes of this Agreement, "Change in Control"
shall mean the occurrence of any of the following events (provided, however,
that the events referred to in Section 9 below shall not be deemed to result in
a Change of Control):
(i) any person or persons acting as a group, other than a person
which as of the date of this Agreement is the beneficial owner of voting
securities of Pioneer Financial and other than Xxxx or a group including Xxxx,
shall become the beneficial owner of securities of Pioneer Financial
representing at least thirty-four percent (34%) of the combined voting power of
Pioneer Financial's then outstanding securities; or
(ii) any consolidation or merger to which Pioneer Financial is a
party, if following such consolidation or merger, stockholders of Pioneer
Financial immediately prior to such consolidation or merger shall not
beneficially own securities representing at least sixty-seven percent (67%) of
the combined voting power of the outstanding voting securities of the surviving
or continuing corporation; or
(iii) any sale, lease, exchange or other transfer (in one
transaction or in a series of related transactions) of all, or substantially
all, of the assets of Pioneer Financial, other than to an entity (or entities)
of which PHC or the stockholders of Pioneer Financial immediately prior to such
transaction beneficially own securities representing at least sixty-seven
percent (67%) of the combined voting power of the outstanding voting securities.
(c) Good Reason. For purposes of this Agreement, "good reason" shall
mean any of the following:
(i) a change in Xxxx'x status or position, the assignment to
Xxxx of any duties or responsibilities which are inconsistent with Xxxx'x status
and position or a reduction in the duties and responsibilities to be exercised
by Xxxx;
(ii) any action by Pioneer Financial which renders Xxxx unable to
effectively discharge his duties and responsibilities hereunder;
(iii) the failure to maintain Xxxx'x minimum annual base
salary in accordance with Section 3(a) or; in the event that such salary is
increased during the Term as provided herein, any reduction in Xxxx'x then
current annual base salary; or
(iv) any failure by Pioneer Financial to obtain the assumption of
this Agreement by any successor or assignee thereto.
9. Assignment of Agreement to PHC.
(a) In the event of the consummation of a transaction referred to in
Section 9(b) below, Pioneer Financial shall cause this Agreement, and its
rights and obligations hereunder to be assigned to, and assumed by, PHC; and to
cause PHC to agree to assume, and to perform fully and in a timely manner, all
of Pioneer Financial's obligations hereunder. Xxxx agrees that, upon such
assignment and assumption, Pioneer Financial shall have no further obligation
hereunder
(b) Events.
(i) a public offering of shares of common stock of PHC pursuant to
which, immediately after the issuance thereof, the purchasers thereof become
the beneficial owners of securities of PHC representing more than 50% of the
combined voting power of PHC's then outstanding securities; or
(ii) the sale of PHC securities (in one transaction or in a series
of related transactions) in which any person or persons acting as a group, other
than Pioneer Financial, its subsidiaries or affiliates or a group including Xxxx
or his affiliates, become the beneficial owners of securities of PHC
representing more than 50% of the combined voting power of PHC's then
outstanding securities; or
(iii) any merger to which PHC is a party, if following such merger,
stockholders or PHC immediately prior to such merger shall not beneficially own
securities representing more than 50% of the combined voting power of the
outstanding voting securities of the surviving or continuing corporation.
10. Confidential Information and Trade Secrets.
(a) Nature. During Xxxx'x employment by Pioneer Financial, Xxxx will
enjoy access to Pioneer Financial's and PHC's "confidential information" and
"trade secrets". For purposes of this Agreement, "confidential information"
shall mean information which is not publicly available, including without
limitation, information concerning customers, material sources, suppliers,
financial projections, marketing plans and operation methods, Xxxx'x access to
which derives solely from Xxxx'x employment with Pioneer Financial. For
purposes of this Agreement, "trade secrets" shall mean Pioneer Financial's and
PHC's processes, methodologies and techniques known only to those employees of
Pioneer Financial or PHC who need to know such secrets in order to perform their
duties on behalf of Pioneer Financial or PHC. Pioneer Financial and PHC take
numerous steps, including these provisions, to protect the confidentiality of
their confidential information and trade secrets, which they consider unique,
valuable and special assets.
(b) Restricted Use and Non-Disclosure. Xxxx, recognizing Pioneer
Financial's and PHC's significant investment of time, efforts and money in
developing and preserving their confidential information, shall not, during his
employment hereunder and for a two (2) year period after the end of Xxxx'x
employment hereunder, use for his direct or indirect personal benefit any of
Pioneer Financial's or PHC's confidential information or trade secrets. For a
two (2) year period after the end of Xxxx'x employment hereunder, Xxxx shall not
disclose to any person any of Pioneer Financial's or PHC's confidential
information or trade secrets.
(c) Return of Pioneer Financial and PHC Property. Upon termination
of Xxxx'x employment with Pioneer Financial, for whatever reason and in whatever
manner, Xxxx shall return to Pioneer Financial and PHC all copies of all
writings and records relating to Pioneer Financial's and PHC's businesses,
respectively, confidential information or trade secrets which are in Xxxx'x
possession of such time.
11. Non-Competition and Non-Solicitation.
(a) PHC's Investment. Pioneer Financial and PHC are spending and will
spend much time, money and effort in building relationships with agents,
insureds and customers and will pay Xxxx valuable consideration pursuant hereto
in exchange for Xxxx'x promises herein, including without limitation the
covenants in Section 10 and in this Section 11. Pioneer Financial has engaged
Xxxx as a senior executive officer of Pioneer Financial and PHC in order to,
among other reasons, take advantage of Xxxx'x unique knowledge of, and contacts
within, the life and accident and health insurance and the managed care
industries. Further, Pioneer Financial and PHC will invest significant time and
money in the further development of Xxxx'x business ability, image and standing.
As Xxxx is a senior executive officer of Pioneer Financial and PHC, the
reputation and success of Xxxx will be closely tied to the reputation and
success of Pioneer Financial and PHC and, during the Term, Xxxx will be heavily
identified with Pioneer Financial's and PHC's businesses.
(b) Non-Competition. During Xxxx'x employment hereunder and for a
twenty-four (24) month period after termination of such employment, unless such
termination is made by Pioneer Financial without cause or unless there has been
a Change in Control prior to such termination, Xxxx shall not engage, directly
or indirectly, whether as an owner, partner, employee, officer, director, agent,
consultant or otherwise, in any location where Pioneer Financial or any of its
subsidiaries is engaged in business after the date hereof and prior to Xxxx'x
termination, conducted by Pioneer Financial or any of its subsidiaries,
provided, however, that the mere ownership of 5% or less of the stock of a
company whose shares are traded on a national securities exchange or are quoted
on the National Association of Securities Dealers Automated Quotation System
shall not be deemed ownership which is prohibited hereunder.
(c) Non-Solicitation. During the twenty-four (24) month period
following termination of Xxxx'x employment with Pioneer Financial, Xxxx shall
not, directly or indirectly induce employees of Pioneer Financial or any of its
subsidiaries to leave such employment with the result that such employees would
engage in business activities which are substantially similar or are closely
related to the business activities such employee performed on behalf of Pioneer
Financial and which compete against Pioneer Financial. Notwithstanding the
above, in the event Xxxx is terminated by Pioneer Financial without cause, then
the twenty-four (24) month period referred to in this Section 11(c) shall be
reduced to twelve (12) months.
(d) Enforceability. The necessity of protection against the
competition of Xxxx and the nature and scope of such protection has been
carefully considered by the parties hereto. The parties hereto agree and
acknowledge that the duration, scope and geographic areas applicable to the non-
competition covenant in this Section 11 are fair, reasonable and necessary, that
adequate compensation has been received by Xxxx for such obligations, and that
these obligations do not prevent Xxxx from earning a livelihood. If, however
for any reason any court determines that the restrictions in this Agreement are
not reasonable, that consideration is inadequate or that Xxxx has been prevented
from earning a livelihood, such restrictions shall be interpreted, modified or
rewritten to include as much of the duration, scope and geographic area
identified in this Section 11 as will render such restrictions valid and
enforceable.
12. Breach or Threatened Breach of Non-Competition Covenant. In the event
of a breach or threatened breach by Xxxx of any provision of Section 10 or 11
hereof, Xxxx acknowledges that the remedy at law would be inadequate and that
Pioneer Financial shall be entitled to an injunction restraining Xxxx from such
act or threatened breach. Nothing herein contained shall be construed as
prohibiting Pioneer Financial from pursuing any other remedies available to it
for such breach or threatened breach, including the recovery of monetary
damages.
13. Business Days. Any date specified in this Agreement which is a
Saturday, Sunday or legal holiday shall be extended to the first regular
business day after such date which is not a Saturday, Sunday or legal holiday.
14. Choice of Law. This Agreement has been executed and made in
accordance with the laws of the State of Illinois and is to be construed,
enforced and governed in accordance therewith.
15. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
16. Entire Agreement Amendments. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof.
No change or modification of this Agreement, or any waiver of the provisions
hereof, shall be valid unless the same is in writing and signed by the parties
hereto. Waiver by any party hereto of a breach by the other party of any
provisions of this Agreement shall not operate or be construed as a waiver of
any subsequent breach by such party.
17. Headings. The headings used herein are for ease of interpretation and
shall have no effect on the interpretation of any provision of this Agreement.
18. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall, until receipt of contrary written
instructions, be delivered personally to, or mailed by certified or registered
mail with proper postage prepaid, to the party at the address as follows:
TO PIONEER FINANCIAL: PIONEER FINANCIAL SERVICES, INC.
0000 X. Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
TO XXXX: Xx. Xxxxxxx X. Xxxx
0000 Xxxxxxxx Xxx
Xxxxxxxxxx, Xxxxxxxx 00000
19. Severability. If any provision of this Agreement is held for any
reason to be invalid, it will not invalidate any other provisions of this
Agreement which are in themselves valid, nor will it invalidate the provisions
of any other agreement between the parties hereto. Rather, such invalid
provision shall be construed so as to give it the maximum effect allowed by
applicable law. Any other written agreement between the parties hereto shall be
conclusively deemed to be an agreement independent of this Agreement.
20. Successors and Assigns. This Agreement and all the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns. This
Agreement and the rights and obligations hereunder may not be assigned by either
party without the prior written consent of the other.
21. Time of the Essence. Time is of the essence of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed on December 7, 1995, but to be effective as of the date
first above written.
Attest: "Pioneer Financial"
PIONEER FINANCIAL SERVICES, INC.
______________________________ By: ___________________________________
Title: __________________________________
Witness: "Xxxx"
______________________________ ________________________________________
Xxxxxxx X. Xxxx
acw\agreemen\Xxxx.d11
