XXXXXX EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made and entered into by
and between TEXAS IMPERIAL LIFE INSURANCE COMPANY ("Employer"), a Texas
life insurance company, and XXXXXXX X. XXXXXX ("Employee"), an individual
resident of Beaumont, Jefferson County, Texas. Employer's "parent" is
American Capitol Insurance Company, Houston, Texas ("American Capitol" or
"Parent"), and there are other companies, and may be other companies in
the future, that are related to Employer by virtue of common ownership
("affiliates").
1. Employment. Employer hereby employs Employee to perform the
duties and render the services hereinafter set forth and Employee hereby
accepts said employment and agrees to perform and render said duties and
services faithfully and diligently, all upon the terms and conditions and
for the term hereinafter set forth.
2. Duties. During the term of this Agreement, Employee will,
during customary working hours, devote his full time and attention and
give his best efforts and skill exclusively to the business, progress,
success, profit, advantage, benefit and interests of Employer and its
parent, subsidiary and/or affiliated corporations in the capacity of Vice-
President, Director of Marketing of Employer, and shall diligently perform
such tasks and services that are in keeping with the job description
attached hereto as Exhibit A, or other reasonable duties as may be
assigned to Employee from time to time, all of which duties, tasks, and/or
services shall be such as are within the scope of the position for which
he is employed as indicated by Exhibit A.
3. Term. The term of Employee's employment under this Agreement is
one (1) year, commencing October 1, 1996.
4. Compensation. As compensation for all services to be rendered
by Employee in any capacity hereunder, including services as a director or
officer of Parent or any subsidiary or affiliate of Employer as may be
properly designated or requested by Employer, Employer shall pay to
Employee a gross salary in equal semimonthly installments at an annual
rate of seventy-five thousand dollars ($75,000) per year. "Gross salary"
as used herein shall mean the amount of salary before any deductions for
social security withholding, federal income tax or cost of Employee's
share of Company benefits exclusive of retirement plan payments by
Employee, if any, bonuses, if any, and commissions. In addition to the
salary compensation as herein provided, Employee shall be entitled to
commission payments as set forth in Exhibit B attached hereto ("Employee
Commissions").
5. Expenses. In addition to his base salary as provided in
paragraph 4, Employee shall be reimbursed for any and all reasonable costs
and expenses incurred by Employee in performance of his services and
duties as specified in this Agreement, including, but not limited to,
reasonable business expenses incurred in connection with travel and
entertainment. However, unless approved in advance by Employer, such
expenses must be of the type and amount that are within the established
practice relating to travel and entertainment expenses usually approved
from time to time by Employer or Employer's parent for its executive
officers and employees. These expenses shall be reimbursed to Employee,
based on written requests submitted in a mutually acceptable format. Such
written requests shall include receipts or other verifiable evidence of
the amount and nature of the expenditure for which reimbursement is
sought. The expense reimbursements shall be paid to Employee in a regular
pay period no longer than 30 days following submission for reimbursement.
6. Employee Benefit Plans. During the term of this Agreement,
Employee shall have the right to participate in each of Employer's benefit
plans available to employees of Employer. Parent has provided a specific
written description of the current benefits for Employee and all other
employees of Employer. Such specific description shall be incorporated
into and made a part of this Agreement and shall be acceptable to
Employee.
7. Other Benefits. The compensation and other benefits agreed to
be paid to Employee by Employer in this Agreement shall not operate in any
manner as a limitation of any type upon or as a direction, express or
implied, against the exercise by the Board of Directors of Employer, of
its power, authority and discretion to grant bonuses or other additional
direct or indirect benefits or compensation to or on behalf of Employee
if, in the business judgment of such Board, such action is in the best
interest of Employer.
8. Employee's Disability or Death.
(a) (1) In the event Employee, during the term of this Agreement,
becomes physically or mentally disabled (as hereinafter defined), Employee
will be deemed to have resigned as of the commencement of such disability
unless otherwise agreed to in writing by Employer and Employee, and in
such event Employer shall continue to pay to Employee all amounts, except
salary, that may be due from Employer to Employee.
(2) For federal income tax purposes, all payments provided for
in this section, to the extent that they do not represent disability
benefits provided under an insurance policy premiums for which are paid by
Employee, are intended to be taxable to Employee and deductible by the
Employer.
(3) "Disability" shall mean the inability, either mental or
physical, to perform the necessary functions of the Employee's position of
employment with the Employer, by reason of the illness or incapacity of
Employee. Employee shall be deemed to be disabled for the purpose of this
Agreement if Employer's Parent's Medical Director, after consultation with
a licensed physician or physicians of Employee's choice, shall determine
that Employee, whether by reason of accident, illness or mental or
physical infirmity, is not able to carry on with adequate vigor and
competence the duties assigned him under this Agreement. Such
determination shall be binding on Employer and Employee.
(b) Employer and Employee understand and agree that Employer may
from time to time carry group disability insurance on behalf of Employee,
premiums for which may be shared by Employer and Employee. Any payments
made to Employee under such a disability policy shall be in addition to
Employer's duty to pay any amounts that may be due to Employee as
hereinabove stated.
(c) In the event that Employee shall die during the term of this
Agreement, the Agreement shall terminate as of the last day of the
calendar month during which his death shall occur, and Employer shall pay
to the estate of Employee all amounts due from Employer to Employee,
including salary to the end of the month in which his death occurred, if
such date is not the final day of such month.
9. Termination. This Agreement may be terminated by Employer or
Employee as follows:
9.1 By Employer. Without cause, Employer may terminate this
Agreement at any time upon not less than sixty (60) days advance written
notice to Employee. In such event, Employee shall continue to render his
services at the option of Employer up to the effective date of
termination, in which case Employer shall continue to pay to Employee
following the expiration of such sixty (60) day period, all amounts,
except salary, that may be due from Employer to Employee. In the event
Employer does not elect to terminate Employee's services during such sixty
(60) day period, or a portion thereof, and Employee fails or refuses
without significant cause (such as disability) to render such services,
Employer shall not be obligated to pay to Employee any further
compensation, salary or otherwise.
9.2 By Employee. Without cause, Employee may terminate this
Agreement upon not less than sixty (60) days advance written notice to
Employer. In such event, Employee shall continue to render his services
at the option of Employer up to the effective date of termination, in
which case Employer shall continue to pay to Employee following the
expiration of such sixty (60) day period all amounts, except salary, that
may be due from Employer to Employee. In the event Employer does not
elect to terminate Employee's services during such sixty (60) day period,
or a portion thereof, and Employee fails or refuses without significant
cause (such as disability) to render such services, Employer shall not be
obligated to pay to Employee any further compensation, salary or
otherwise.
9.3 By Employer. "For cause," Employer may terminate this Agreement
by providing Employee written notice to that effect and this Agreement and
Employee's employment hereunder shall terminate immediately upon receipt
of such notice by Employee as herein provided. If termination is "for
cause," Employee will not be entitled to any further salary or
compensation or benefits of any kind following the date of such
termination. "For cause" shall mean conviction of a crime involving moral
turpitude or willful misconduct or a substantial neglect of duties which
in the judgement of the Employer's Board of Directors adversely affects
the Employer and/or its affiliates. "For cause" shall also mean any
occurrence or event which constitutes a breach of this Agreement by
Employee or Employee's failure to continue to render his services to
Employer as required under this Agreement.
9.4 Resignation from Board. Employee understands and agrees that
upon submitting or receiving notice of termination of his employment with
Employer as provided herein, and if Employee is a member of the Board of
Directors of Employer or any of its affiliates at such time, he shall
immediately submit in writing to Employer his resignation as a member of
such Board of Directors.
10. Disclosure of Information. Employee recognizes and acknowledges
that he will have possession of and/or access to certain confidential
information and data of the Employer and/or its affiliates, and that such
information and data constitutes valuable, special and unique property of
the Employer whether accumulated or obtained by Employee or otherwise.
Employee will not, during or after the term of this Agreement, without the
prior approval of Employer, voluntarily disclose any such confidential
information or data to any person or firm, corporation, association or
other person or entity, or use such confidential information or data for
any reason or purpose, otherwise than for the benefit of Employer or its
affiliates. As used herein, "confidential information and data" means
information disclosed to, or accumulated or obtained by, Employee or known
by Employee as a consequence of or through his employment by the Employer
or its affiliates, not generally known in the life and health insurance
industry in which the Employer is engaged, about the products, processes,
systems and services of Employer and its affiliates, including, but not
limited to, computer programs and software, identities of and information
concerning companies or blocks of business that may be available for
acquisition, lists of policyholders and reinsurers, lists of agents and
information pertaining to their sales activities, sales volume and/or
commission levels, sales or marketing information pertaining to funeral
homes, copies of insurance policies and reinsurance agreements,
information contained in accounting or actuarial studies or reports
performed by or at the request of Employer and its affiliates, and
internal documents relating to policies, procedures, methods or positions.
Upon termination of his employment with the Employer, all documents,
records, lists, notebooks, and similar collections or compilations of such
confidential information or data, including all copies thereof, then in
Employee's possession or in the possession of third parties under the
control of Employee, whether prepared by him or others, will be delivered
to the Employer by Employee. The obligations of this Section shall not
apply to confidential information and data that: (i) at the time of
Employee's employment by Employer was in the public domain; (ii) is or
becomes generally available in the public domain other than pursuant to a
breach by Employee of his obligations under this Section; or (iii)
Employee can show was acquired, or is acquired after the date of this
Agreement, from a third party (other than from a third party at the
Employer's request) and such third party did not obtain such confidential
information and data from any Employee of Employer subject to or in
violation of obligations similar to those set forth in this Section.
11. No Compete. In the event of termination of this Agreement by
either the Employer or Employee, Employee agrees that he will not,
directly or indirectly, participate in, assist in any way, or solicit, the
rewriting of any insurance policies or annuities issued by Employer to
insureds as of the date of termination. Employee agrees that, for a
period of eighteen months following the date of termination of this
Agreement, he shall not, directly or indirectly, for his own benefit or
for the benefit of any other person or entity, negotiate with, recruit or
hire, or attempt to negotiate with, recruit or hire, any of the Agents (as
herein defined) of Employer or its affiliates who are Agents of Employer
or its affiliates within the four months immediately preceding the date of
termination of this Agreement, and shall not interfere with Employer's
business relationship with said Agents. An "Agent" is any insurance agent
appointed by Employer to act as such on Employer's behalf but shall not
include any employee of a funeral home or funeral home affiliate, and such
employees shall be included herein in the definition of "Protected Funeral
Home." A "Protected Funeral Home" shall be any one of the funeral homes
designated by Employer on a list of funeral homes provided to Employee
which in the aggregate account for sixty-five percent (65%) of all
insurance policies sold by employees of such funeral homes for Employer
during the six months (or twelve months, as elected by Employer at the
time of creating the list) immediately preceding the date of termination
of this Agreement. Employee agrees that, for a period of eighteen months
following the date of termination of this Agreement, he shall not,
directly or indirectly, for his own benefit or the benefit of any other
person or entity, negotiate with, recruit or hire, or attempt to negotiate
with, recruit or hire any employees of a Protected Funeral Home, and shall
not interfere with Employer's business relationship with any such
Protected Funeral Home.
12. Other Employment. During the term of this Agreement, Employee
shall not, without the prior written approval of Employer, seek out,
engage in, negotiate for or accept any employment, commercial activity or
enterprise or gainful occupation with any other employer, person or
entity. Employee shall report to Employer in writing any offer of
employment or proposal that Employee enter into negotiations leading to an
offer of employment received by Employee from any other party, such
written report to be delivered within five (5) days from the receipt of
any such offer or proposal. Notwithstanding anything to the contrary
herein contained, at any time following ten (10) months from the effective
date of this Agreement, or at any time after Employee gives notice to
Employer of termination of this Agreement pursuant to Section 9.2,
Employee may seek out, negotiate for and accept employment or gainful
occupation with any other employer, person or entity.
13. Other Permissible Activities. Notwithstanding any provision
herein contained, Employee shall not be prohibited from engaging in non-
profit, charitable or community activities, investing or trading in stocks
or bonds or other forms of passive investment for Employee's account or
family account, or engage in other business activities unrelated to the
sale of preneed funeral contracts funded by life insurance, so long as
such activities do not involve the management and/or ownership of a
business enterprise, are of a passive nature only (such as the management
of an investment portfolio), do not require a significant amount of time,
and do not materially interfere with Employee's performance hereunder.
14. Miscellaneous.
14.1 Notices. Any notices made pursuant to this Agreement
shall be in writing and shall be deemed to have been duly given on the
date of delivery if delivered personally (including overnight delivery
service) or by facsimile transmission to the party to whom notice is give,
or on the third day after mailing if mailed to the party to whom notice is
to be given by certified mail, return receipt requested, and properly
addressed as follows:
If to Employer:
American Capitol Insurance Company
P. O. Xxx 00000
Xxxxxxx, Xxxxx 00000
Attention: President
-or-
American Capitol Insurance Company
00000 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: President
FAX: 000-000-0000
If to Employee:
Xxxxxxx X. Xxxxxx
Texas Imperial Life Insurance Company
P. O. Xxx 0000
Xxxxxxxx, Xxxxx 00000-0000
-or-
Xxxxxxx X. Xxxxxx
Texas Imperial Life Insurance Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
FAX: 000-000-0000
Any party to this Agreement may change the address to which notice is
to be delivered under this Section by delivering written notice to that
effect to the other party in accordance with this Section. Any document
delivered via facsimile transmission shall be treated as though it is an
original for all purposes.
14.2 Amendments. This Agreement and any attachments
incorporated by reference constitute the entire agreement between the
parties and may not be amended, supplemented, waived, or terminated except
by written instrument executed by the parties. This Agreement supersedes
all other agreements on this subject, written or oral, contemporaneous or
prior.
14.3 Waiver. No waiver of any provision of this Agreement
shall be effective unless in writing signed by the party making such
waiver and no such waiver shall constitute a waiver of any other provision
of this Agreement, nor shall such waiver constitute a waiver of any
subsequent breach of such provision.
14.4 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors
and assigns. Notwithstanding anything herein to the contrary, this
Agreement is not assignable by Employee.
14.5 Governing Law. The validity, construction, and
enforcement of this Agreement shall be governed by the laws of the State
of Texas. In the event of a dispute concerning this Agreement, the
parties agree that venue lies in a court of competent jurisdiction in
Xxxxxx County, Texas.
14.6 Severability. If any provision of this Agreement is
declared unenforceable by a court of last resort, such declaration shall
not effect the validity of any other provisions of this Agreement.
14.7 Construction. The headings contained in this Agreement
are for reference purposes only and shall not affect this Agreement in any
manner whatsoever. Whenever required by the context, any gender shall
include any other gender, the singular shall include the plural, and the
plural shall include the singular.
14.8 Time for Performance. If the time for performance of any
obligation set forth in this Agreement falls on a Saturday, Sunday, or
legal holiday, compliance with such obligation on the next business day
following such Saturday, Sunday or legal holiday shall be deemed
acceptable.
14.9 Counterparts. This Agreement may be executed in multiple
and/or separate counterparts, each of which shall be deemed an original
but all of which shall be deemed one instrument.
14.10 Authorization. The making and performance by Employer of
this Agreement have been duly authorized by all necessary corporate
actions of Employer, and the undersigned representative of Employer is
fully empowered and authorized to execute this Agreement on its behalf.
This Agreement is executed to be effective as of October 1, 1996.
EMPLOYER:
TEXAS IMPERIAL LIFE INSURANCE COMPANY
By: /s/Xxxx X.Xxxxxxx, President
EMPLOYEE:
/s/Xxxxxxx X. Xxxxxx
