EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into by and between
Goran Capital Inc. ("Goran") and Xxxxxx International Group, Inc. (together with
its subsidiaries, "SIG") and Xxxxx X. Xxxxxxx ("You", "Your" or "Executive") as
of October 15, 2001 with reference to the following:
WHEREAS, Goran and SIG consider it essential in their respective best
interests and the best interests of their respective stockholders for SIG to
retain the employment of Xxxxx X. Xxxxxxx, upon the terms and conditions
hereinafter set forth; and
WHEREAS, the Executive desires to continue employment by SIG 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. SIG agrees to continue the employment of
Executive as Vice President, Chief Actuary of SIG, until December 31, 2004 or
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 sixty (60) days prior to the end of the then effective
term, either SIG or the Executive shall have given written notice that such
party does not intend to extend this Agreement.
1.2 TERMS OF EMPLOYMENT. During the term of this Agreement, You agree to
be a full-time employee of SIG serving in the position of Vice President, Chief
Actuary of SIG and further agree to devote substantially all of Your working
time and attention to the business and affairs of SIG and, to the extent
necessary to discharge the responsibilities associated with Your position as
Vice President, Chief Actuary of SIG, 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 SIG and the
Board of Directors of SIG, which duties shall be consistent with the position of
Vice President, Chief Actuary of SIG which shall grant Executive authority,
responsibility, title and standing comparable to that of the Vice President,
Chief Actuary 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.
2. COMPENSATION, BENEFITS AND PERQUISITES
2.1 SALARY. SIG shall pay Executive a salary, in equal bi-weekly
installments, equal to an annualized salary rate of One Hundred Fifty Thousand
Dollars ($150,000). Executive's salary payable pursuant to this Agreement may be
increased from time to time as mutually agreed upon by Executive and SIG. SIG
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 SIG 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. SIG and Executive understand and agree that SIG desires 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 SIG to reward Executive for the attainment of that
growth through bonus and other discretionary means (such as stock options, and
stock appreciation rights). Executive may earn an annual bonus of up to $30,000
dependent upon certain financial criteria as set forth in Exhibit 2.2 hereof.
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2.3 EMPLOYEE BENEFITS. Executive shall be entitled to receive health
plan benefits which are provided to other executive employees of SIG under the
applicable company plans and policies, and to future benefits and health plan
benefits made generally available to executive employees of SIG 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, SIG shall
provide Executive with not less than four (4) weeks paid vacation during each
calendar year.
2.5 EXPENSES. During the period of his employment with SIG, Executive
shall be entitled to receive reimbursement from SIG (in accordance with the
policies and procedures in effect for the company 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 SIG
for any reason other than for cause, SIG and Goran, jointly and severally, agree
to pay severance to Executive of up to six (6) month's then current salary 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, severance payments described in the preceding sentence are conditioned
upon execution by Executive and SIG of a waiver and release agreement
substantially in the form of Exhibit A attached hereto. 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 SIG or if Executive is
directed by SIG to engage in any act or action constituting fraud or any
unlawful conduct relating to SIG 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 SIG as a Vice President or as its senior executive
responsible for the actuarial function of SIG 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 SIG 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 SIG.
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 SIG 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
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(e) the Executive "Grossly Neglects" his duty to SIG. 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, SIG
may terminate Executive's employment for cause by giving him thirty
(30) days notice or pay in lieu thereof.
3.3 DISABILITY. So long as otherwise permitted by law, if Executive has
become permanently disabled from performing his duties under this Agreement,
SIG'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 SIG 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 SIG. If SIG elects to terminate this
Agreement based on such permanent disability, such termination shall be for
cause.
3.4 INDEMNIFICATION. Executive shall be indemnified by SIG to the
maximum extent permitted by applicable law for actions undertaken for, or on
behalf of SIG.
4. NON-COMPETITION, NON-SOLICITATION, CONFIDENTIALITY AND TRADE SECRETS
4.1 NONCOMPETITION. In consideration of SIG's entering into this
Agreement and the compensation and benefits to be provided by SIG to You
hereunder, and further in consideration of Your exposure to proprietary
information of SIG, 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 SIG 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 SIG
accounting for five percent (5%) or more of SIG'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 SIG.
Notwithstanding any provision of this Agreement to the contrary, You agree
that Your breach of the provisions of this Section 4.1 shall permit SIG to
terminate Your employment for cause.
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 SIG or any of its affiliates, or any of their respective businesses
or principals, and You confirm that such information is the exclusive property
of SIG and its affiliates. You agree to hold as SIG's property all memoranda,
books, papers, letters and other data, and all copies thereof or therefrom, in
any way relating to the business of SIG and its affiliates, whether made by You
or otherwise coming into Your possession and, on termination of Your employment,
or on demand of SIG at any time, to deliver the same to SIG.
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 SIG, shall be owned by SIG and its affiliates
whether or not You should in fact execute an assignment thereof to SIG, 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 SIG.
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4.3 NONSOLICITATION. During Executive's employment with SIG 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 SIG or its affiliates and any employee of SIG 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 SIG 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 SIG, to:
Xxxxxx International Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
If to Executive, to:
Xxxxx X. Xxxxxxx
0000 Xxxxxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxx 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. SIG'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.
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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.
GORAN CAPITAL INC.
By:
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Xxxx X. Xxxxxx, Chief Executive Officer
XXXXXX INTERNATIONAL GROUP, INC.
By:
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Xxxxxxx X. Xxxxxx, Chief Executive Officer
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Xxxxx X. Xxxxxxx
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