Exhibit 10.5
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT, dated as of February 16, 2004, is made by
and between First American Capital Corporation, a Kansas Corporation
(the "Company"), and Xxxx Xxx Xxxxxxx ("Executive").
RECITALS
WHEREAS, the Company desires to employ Executive pursuant to the
terms and conditions of this Agreement; and
WHEREAS, Executive desires to be employed by the Company pursuant
to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises herein contained, the receipt and sufficiency of which are
hereby acknowledged, the Company and Executive agree as follows:
1. Term of Employment.
(a) Initial Term; Effective Date. Subject to the terms and
conditions set forth herein, the Company hereby employs Executive,
and Executive hereby accepts such employment, which shall
commence on the Effective Date (as defined below) and shall
terminate as of the earliest of:
(i) One (1) year from the Effective Date ("Initial Term");
(ii) the death of Executive; or
(iii) the earliest occurrence of an event described in Section
11(a) of this Agreement.
For purposes of this Agreement, the term "Effective Date" shall
mean January 1, 2004.
(b) At-Will Employment. Following the expiration of the Initial
Term, unless this Agreement has previously terminated in accordance
with Section 1(a) hereof, this Agreement shall, on January 1, 2005,
become an at-will employment Agreement, subject to termination by
either party, with or without cause, and with or without advance
notice. Such termination must be in writing.
(i) In the event of termination during at-will employment, the
Company shall have no further liability to Executive under the
Agreement for the payment of compensation and benefits under the
Agreement, except that any accrued unused vacation and comp days
will be paid, and except for any benefits that by law must continue
after termination.
(ii) Notwithstanding Section 1(b)(i), if Executive is terminated
by the Company without "cause" (as defined in Section 11(b))
during at-will employment, the Company will pay to Executive
severance, which is comprised of three months of Base Salary
and payment by the Company for three months of continuation coverage
for health insurance, if Executive elects such continuation coverage
(collectively, "Severance"). Such Severance is contingent on
Executive executing a comprehensive release of all claims against
the Company, any affiliates or related companies of Company, and
any individuals associated with the Company or its affiliates or
related companies, in a form to be prepared by the Company. The
three months of Base Salary will be paid over a three month period
of time, in regular payroll intervals, with payment to begin within
thirty (30) days of the signing of the comprehensive release, but
in no event will such payment begin before the eighth day following
execution of the release.
2. Duties of Executive.
(a) Title. Executive shall be employed in the position of
President/CEO of the Company and of the Company's affiliate, First
Life America Corporation, to perform the duties normally attendant
with such position and as assigned to Executive by the Board of
Directors of the Company. See Exhibit A for a list of Executive's
duties, which Exhibit is attached hereto and incorporated herein.
Executive understands and agrees that Executive must abide by all
Company policies applicable to employees, unless specifically
excluded herein.
(b) Modification of Duties. The Company shall have the right, from
time to time, to modify or change Executive's duties and/or
responsibility hereunder. Any such modification or change, including,
without limitation, the expansion of Executive's duties hereunder,
shall not, unless specifically agreed by the Company in a duly
executed amendment of this Agreement, result in any modification
or increase of Executive's compensation as provided in this Agreement.
(c) Extent of Services. Executive shall devote his/her full time
during normal business hours, and additional hours as necessary,
to the business of the Company. Any employment for any reason by
a third party must be approved in advance by the Board of Directors
of the Company.
3. Compensation. During the term of this Agreement and for all
services rendered by Executive to or for the Company:
(d) Base Salary. The Company shall pay Executive a gross annual
base salary of One Hundred Forty Thousand Dollars ($140,000)
("Base Salary"), which shall be paid in bi-weekly installments
in arrears. The payment of compensation authorized under this
Agreement shall be subject to applicable withholdings for federal,
state and local taxes and for other reductions authorized by
Executive under authorized employee benefit plans. The Board of
Directors of the Company shall review the Base Salary of Executive
at least annually and shall adjust the Base Salary as the Board
deems appropriate.
(e) Bonus/Incentive Program. See Exhibit B, which Exhibit is
attached hereto and incorporated herein.
3. Executive Benefits. During Executive's employment under this
Agreement, Executive shall be eligible to participate in employee .
benefit plans or programs of the Company, if any, generally made
available to all other employees of the Company, subject to the
eligibility criteria, rules, plan provisions and regulations applicable
to such plans. At this time, the plans and programs to be made
available to Executive are as set forth on Exhibit C, which is attached
hereto and incorporated herein. Nothing contained herein shall be
construed as negating or limiting the ability of the Company to
amend, modify or terminate such employee benefit plans or programs,
in its sole discretion and in accordance with plan documents.
4. Expenses. Subject to the automobile allowance set forth on
Exhibit C, the Company shall reimburse Executive for Executive's
reasonable travel, meals, entertainment and other similar expenses
reasonably incurred in the performance of Executive's duties. All
requests for reimbursement for expenses must be accompanied by valid
receipts and any other documentation required pursuant to any
applicable Company policy. Any expenses not accompanied by
appropriate receipts shall not be reimbursed.
5. Disclosure of Information.
(a) Executive acknowledges that, in and as a result of employment
hereunder, Executive will be making use of, acquiring knowledge of
and/or adding to confidential or proprietary information relating
to the Company and its affiliates, which is not publicly known,
including, without limitation, the Company's lists of customers and
accounts, systems, procedures, policies, manuals, advertising,
marketing plans, marketing strategies, trade secrets, business plans,
financial data, strategies, methods of conducting business, price
lists, formulas, processes, procedures, standards, know-how,
manuals, techniques, technology, confidential reports, software
code (both object and source), and all other information,
knowledge, or data of any kind or nature relating to the products,
services, or business of the Company or any affiliate of the
Company (collectively, "Confidential Information"). As a
material inducement to the Company to enter into this Agreement,
Executive covenants and agrees that Executive shall not, at
any time during or following the term of Executive's employment
with the Company, directly or indirectly, except in furtherance of
the Company business and in accordance with the Company policies,
use, disseminate, divulge or disclose, for any purpose whatsoever,
any Confidential Information, and will maintain the confidentiality
of all Confidential Information. Executive acknowledges that, if at
any time following the term of employment, Executive enters new
employment or any venture that threatens to require knowledge or
skills that are inextricably tied up with the Company's
confidential information, including trade secrets and
intellectual property, the Company is entitled to prevent
Executive from continuing in such employment.
(b) All documents, records, notebooks, software, discs, electronic
information, and similar repositories of or documents containing
any Confidential Information, including all existing copies or
extractions thereof, whether or not in Executive's possession or
in Executive's control, and whether prepared by Executive or
others, shall be the sole property of the Company. Upon
termination of employment with the Company, whether such
termination was by Executive or by the Company, all documents,
records, notebooks and similar repositories of or documents
containing any Confidential Information, including all existing
copies or extractions thereof, shall be promptly returned to the
Company.
(c) Executive expressly agrees that he/she will not assert any
rights to any ideas, inventions, discoveries, concepts, and
methods, or improvements thereof, or know-how related thereto,
related to the Company and its business, made or acquired by
him/her during and related to his/her employment with the Company.
All such ideas, inventions, discoveries, concepts, and methods, or
improvements thereof, shall be automatically the sole and absolute
property of the Company.
7. Restrictive Covenant; Non-compete. By his/her employment with
the Company, Executive will acquire additional and intimate
knowledge about the customers, financial data, price and business
negotiations and business techniques of the Company and its
affiliates, as they may now exist or as they may be developed in
the future. Executive acknowledges and agrees that the Company
in its offer of employment to Executive will allow Executive to
perform services for firms, corporations and other associations
and business enterprises which Executive may solicit as clients
and customers of the Company and its affiliates ("customers"),
and in so doing, has and will utilize the Company's ideas,
techniques and expertise in establishing an even greater rapport
with such customers.
In order to avoid the inadvertent disclosure of the Company's and
its affiliates' confidential matters, and as consideration for all
of the benefits provided to Executive hereunder, Executive hereby
covenants and agrees that during his/her employment with the Company
and for two (2) years from and after the effective date of the
termination of his/her employment with the Company, whether
terminated by Executive or by the Company, Executive shall not,
directly or indirectly, either by himself/herself or through
others, or as an individual, partner, employee, agent, officer,
stockholder or otherwise:
(a) solicit, divert, take away or attempt to take away the
business of the Company's present or past customers, or the
present or past customers of any affiliated or related
companies of the Company, in any business or enterprise
competing with the Company or any affiliated or related
companies of the Company;
(b) solicit, hire, employ or endeavor to employ, or otherwise
interfere with or disrupt the relationship between the Company,
or any affiliated or related companies of the Company, and any
employees of or persons providing services under contract,
including independent contractor agents, to the Company or to
any affiliated or related companies of the Company; or
(c) within the State of Kansas, and any state in which First
Life America Corporation is licensed and doing business at any
time during Executive's employment hereunder or during the
two-year period after Executive's employment has terminated,
transact any business with, own any interest directly or
indirectly in, or be associated with or employed in any capacity
by or on behalf of any person, partnership, firm, corporation
or other business association engaged or seeking to engage in,
any business or enterprise competing directly or indirectly
with the Company or any affiliated or related companies of the
Company.
Scope of Non-competition. The scope of non-competition referred
to in this agreement is limited to the business of life insurance.
Any change to the scope of non-competition of this agreement shall
only be made in a written agreement duly executed by the parties.
Such terms of non-competition as are set forth in this Article 7
shall apply only to such states wherein Company's sales represent,
on an individual statewide basis, fifteen (15) percent or more
of the Company's total aggregate gross premiums written, as
reflected in the Company's official statutory filing for the
prior statutory reporting year.
For purposes of this Section 7, the references to "employee"
or "person providing services under contract" shall be any
individual employed by or providing services under contract to
the Company or any affiliated or related companies of the
Company at the time of such hiring, solicitation or other act,
or any individual so employed or providing services at any
time during the six (6) month period preceding such hiring,
solicitation or other act.
8. Accounting for Profits. Executive covenants and agrees that
if he/she shall violate any of his/her covenants or agreements
under Sections 6 or 7 hereof, the Company shall be entitled to an
accounting and repayment of all profits, compensation, commissions,
remunerations or benefits which Executive directly or indirectly
has realized and/or may realize as a result of, growing out of or
in connection with any such violation. Such remedy shall be in
addition to and not in limitation of any injunctive relief or
other rights or remedies to which the Company is or may be
entitled at law or in equity or under this Agreement.
9. Reasonableness of Restrictions.
(a) Executive has carefully read and considered the provisions
of Sections 6, 7, 8, and 9 hereof and, having done so, agrees
that the restrictions set forth therein (including, but not
limited to, the time period of restriction and the geographical
areas of restriction set forth in Section 7 hereof) are fair
and reasonable and are reasonably required for the protection
of the interests of the Company.
(b) Executive represents that his/her experience, capabilities
and personal assets are such that this Agreement does not deprive
him/her from either earning a livelihood in the unrestricted
business activities which remain open to him/her or from
otherwise adequately and appropriately supporting Executive
and Executive's family.
(c) In the event that any of the provisions of Sections 6, 7,
8, or 9 shall be held to be invalid or unenforceable, the
remaining provisions shall nevertheless continue to be valid
and enforceable as though the invalid or unenforceable parts
had not been included therein. In the event that any provision
of Sections 6 or 7 relating to time period and/or areas and/or
scope of restriction shall be declared by a court of competent
jurisdiction to exceed the maximum time period or areas or
scope such court deems reasonable and enforceable, said time
period and/or areas and/or scope of restriction shall be deemed
to become and thereafter be the maximum time period and/or areas
and/or scope which such court deems reasonable and enforceable.
10. Conflict of Interest. Executive agrees and acknowledges
that he/she is to devote his/her entire business time and effort
to the Company's business and shall not be engaged in any personal
financial interest which may be in conflict with the interest of
the Company. Executive acknowledges and agrees that he/she will
not accept the receipt of payments, gifts, entertainment, or
other fees which go beyond common courtesies usually associated
with accepted business practices and which might be regarded as
placing him/her under some obligation to a third party dealing
with or desiring to deal with the Company. This does not preclude
the acceptance of items of minor or nominal value of which are
of such nature as would indicate they are merely tokens of
respect or friendship and not related to any particular
transactions. Executive agrees that during the course of
his/her employment hereunder he/she shall not accept any additional
fees, compensations, commissions, wages, salaries or remuneration
from a third party, without the consent of the Board of
Directors of the Company.
11. Termination of Employment During the Initial Term. During
the Initial Term of this Agreement,
(a) The employment of Executive will terminate as of the earliest of:
(i) In the event of Executive's disability resulting in an
inability to perform his/her essential job functions with or
without a reasonable accommodation for a period of, in general,
ninety (90) consecutive days, as determined in the sole
discretion of the Company and in compliance with applicable law;
(ii) By the mutual written agreement of Executive and the Company;
(iii) Immediately upon a determination by the Company that
"cause" exists for such termination;
(iv) Thirty (30) days after notice is given by the Company
in the event termination of Executive is without "cause"; and
(v) Thirty (30) days after notice is given by Executive in the
event he/she resigns from his/her employment.
(b) For purposes of this Agreement, the term "cause" shall
include, without limitation, Executive's material breach of this
Agreement, fraud against the Company, misappropriation of the
Company's assets, embezzlement, theft, malfeasance, willful
misconduct, material failure to follow the Company's rules
and regulations, neglect of material duties Executive is
required to perform under this Agreement, and the arrest or
charge for or with a crime involving drug abuse, violence,
dishonesty or theft.
(c) The Company shall have no further liability to Executive
under this Agreement for the payment of unaccrued compensation
or benefits under this Agreement following the termination of
Executive's employment under this Section 11, or for any reason
specified in Section 1(a), except that any accrued unused
vacation and comp days will be paid, and except for any benefits
that by law must continue after Executive's termination.
(d) At any time during the term of this Agreement and,
specifically, after notice of termination of this Agreement
by either party, the Company may, in its discretion, exclude
Executive from the Company's workplace.
(e) In the event that Executive's employment with the Company
is terminated by the Company pursuant to the exercise of Section
11(a)(iv) above, the Company agrees to provide to Executive a
severance payment equal to the remaining salary that would have
been paid to Executive for the then-existing remaining term of
this Agreement had Executive's employment not been terminated.
Payment will be made by the Company to Executive by lump sum cash
payment made within thirty (30) days after the date of termination
hereunder.
12. Executive Termination Due to Change in Control. If there
is a "change in control" of the Company, whether during the Initial
Term or during at-will employment, Executive may terminate his
employment with the Company within a period of sixty (60) days after
the change in control becomes effective by providing thirty (30)
days written notice (the notice must be given within the requisite
sixty (60) days). In such event, Executive will receive a lump
sum cash payment in the amount of $280,000 within thirty (30) days
of his last date of employment. If Executive (or any covered
dependent) elects, pursuant to applicable federal or state law,
continuation coverage under the Company's health, major medical
or dental plans, the Company will pay for the same portion or
percentage of such coverage as it was paying prior to Executive's
termination of employment, for the first twelve (12) months of
such period of continuation coverage or such lesser period of time
as Executive (or any covered dependent) remains eligible for and
continues to purchase such continuation coverage. If Executive
(or any covered dependent) remains eligible for and continues to
purchase federal or state continuation coverage under Company's
health, major medical or dental plans beyond the twelve (12) month
period described in the previous sentence, Executive (or such covered
dependent) will thereafter be responsible for the full cost of such
continuation coverage. In addition, Executive will be immediately
vested in any nonqualified deferred compensation arrangement of the
Company within which Executive is a participant, and will receive
additional severance pay (at the same time as the lump-sum payment
described above) equal to the non-vested portion of Executive's
account(s) under any qualified pension, profit-sharing or retirement
plan of the Company as of the date of termination of employment.
For purposes of this Agreement, the term "change in control" is
defined to include:
(a) the consummation of any sale (by the Company or a shareholder)
of the Company's stock pursuant to which any person or group (as
that term is defined under the rules and regulations of the
Securities Exchange Act of 1934, as amended) would own twenty
percent (20%) or more of the combined voting power of the
Company's outstanding securities;
(b) the sale or transfer of substantially all of the Company's
assets to another corporation which is not a wholly-owned
subsidiary of the Company;
(c) any merger or consolidation of the Company with another
corporation, where less than twenty percent (20%) of the
outstanding voting shares of the surviving or resulting
corporation are owned in the aggregate by the Company's
former shareholders; and
(d) any tender offer, exchange offer, merger, sale of assets
and/or contested election which results in a change in a
majority of the Company's Board of Directors.
The amount paid to Executive pursuant to this Section 12
will be deemed severance pay in consideration of Executive's
past services to the Company and his continued services from
the date of this Agreement, and shall be paid, in addition to
any and all other payments to be made and benefits available
to Executive pursuant to this Agreement. Executive will have
no duty to mitigate his damages by seeking other employment,
nor will Executive's severance pay pursuant to any provision
of this Section 12 be reduced or offset by any such future
earnings.
13. Delegation of Duties and Assignment of Rights. Executive
may not delegate the performance of any of his/her obligations
or duties hereunder, or assign any rights hereunder, without
the prior written consent of the Company. Any such purported
delegation or assignment in the absence of any such written
consent shall be void. The Company may assign all of its rights
and obligations under this Agreement in writing, with notice to
Executive, to a person or entity acquiring the principal assets
used or useful in the operation of the Company's business or
portion thereof for which Executive is involved. In the event
of an assignment by the Company, each reference in this
Agreement to the Company shall include the assignee from and
after the date of such assignment.
14. Burden and Benefit. This Agreement shall be binding
upon, and shall inure to the benefit of, the Company and
Executive, and their respective heirs, personal and legal
representatives, successors and permitted assigns. Executive
shall have no right or power to assign this Agreement.
15. Governing Law. The construction and interpretation of
this Agreement shall at all times and in all respects be
governed by the laws of the State of Kansas.
15. Severability. The provisions of this Agreement
(including particularly, but not limited to, the provisions
of Sections 6, 7, 8, and 9 hereof) shall be deemed severable,
and the invalidity or unenforceability of any one or more of
the provisions hereof shall not affect the validity and
enforceability of the other provisions hereof.
16. Notices. Any notice required to be given hereunder
shall be sufficient and deemed given when in writing, and
sent by certified or registered mail, return receipt
requested, first-class postage prepaid, or by courier service,
to his last known residence in the case of Executive, and to
its principal office in the case of the Company, Attn:
Chairman, First American Capital Corporation.
17. Remedies. Executive acknowledges and agrees that a breach
by him/her of the provisions of this Agreement will cause the
Company irreparable injury and damage. Executive, therefore,
expressly agrees that the Company shall be entitled to
injunctive and other equitable relief to prevent a breach
of this Agreement, or any part thereof by Executive, or by
Executive's partners, agents, representatives, servants,
employers, employees and/or any and all persons directly
or indirectly acting for or with him/her, and to secure its
enforcement, in addition to any other remedy to which the
Company might be entitled. Executive and the Company expressly
waive the posting of any bond or surety required prior to
the issuance of an injunction hereunder. However, in the
event that the court refuses to honor the waiver of bond
hereunder, Executive and the Company hereby expressly agree
to a bond in the amount of $100.00. Any and all of the
Company's remedies for the breach of this Agreement shall
be cumulative and the pursuit of one remedy shall not be
deemed to exclude any and all other remedies with respect to
the subject matter hereof.
18. Jury Trial. The company and employee hereby waive trial
by jury in any action, proceeding or counterclaim brought
by either party against the other on any matter arising out
of or in any way connected or related to this agreement.
19. Termination of Prior Agreements. All prior agreements
and/or arrangements, oral or written, relating to the
employment of the Executive by the Company and/or its
subsidiaries, including the termination of such employment,
are hereby terminated and superseded by this Agreement.
20. Entire Agreement. This Agreement contains the entire
agreement and understanding by and between the Company and
Executive with respect to the employment herein referred to,
and no representations, promises, agreements or understandings,
written or oral, not herein contained shall be of any force
or effect. No change or modification hereof shall be valid
or binding unless the same is in writing and signed by the
party intended to be bound. No waiver of any provision of
this Agreement shall be valid unless the same is in writing
and signed by the party against whom such waiver is sought to
be enforced. No valid waiver of any provision of or breach of
this Agreement at any time shall be deemed a waiver of any
other provision or subsequent breach of this Agreement at such
time or will be deemed a valid waiver of such provision or
subsequent breach at any other time.
21. Option to Purchase Company Stock. See Exhibit B.
IN WITNESS WHEREOF, the Company and Executive have duly
executed this Agreement as of the day and year first above
written.
THE COMPANY:
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
EMPLOYEE: /s/ Xxxx Xxx Xxxxxxx
EXHIBIT A
PRESIDENT/CHIEF EXECUTIVE OFFICER
FIRST AMERICAN CAPITAL CORPORATION
FIRST LIFE AMERICA CORPORATION
Serve as the senior management officer for day-to-day
operations
Supervise all department directors in the organization
Develop management systems that provides information for
company growth, profitability and identification of areas
of concern
Be responsible for the development of policies and procedures
Communicate with stockholders on an established schedule
Keep the Board of Directors fully informed of the operations
and status of the company
Develop, implement and manage the strategic and business
plans to insure the long-term growth of the company and to
insure that the company achieves its goals and objectives
and is profitable for the stockholders
Represent the company and project an immediate favorable
impression
Exhibit strong leadership and management capabilities
Display a strong but flexible personality with solid
business acumen and a make-things-happen, results-oriented
mentality
Be customer-focused for both internal and external
constituencies
Be tactful and diplomatic with good listening skills and
be strong team oriented leader
Initiate action based on the organization's priorities-a
problem solver with high work ethic
Learn and not be afraid to tackle new situations
Any other duties normally attendant with the position of
President/CEO or as assigned from time to time by the Board
of Directors of the Company
EXHIBIT B
PERFORMANCE BONUS AND
OPTION TO PURCHASE COMPANY STOCK
Performance Bonus:
If, at the end of any calendar year of employment under this
Agreement, Executive's annual performance is determined by
the Company's Board of Directors to be satisfactory, the
Company shall pay Executive a bonus of not less than twenty
percent (20%) of Executive's annual gross salary for such
calendar year. For purposes of this paragraph, Executive's
performance will be measured against the responsibilities
outlined in Exhibit A.
This performance bonus shall be payable within 30 days after
the end of the applicable year, and shall be paid, at Executive's
election, either in cash or in shares of Company stock (with
the number of shares determined on the basis of the book value
of the stock on the last day of the calendar year), or partly
in cash and partly in shares of stock. However, Executive
must be employed on the last day of the applicable calendar
year to be entitled to such performance bonus.
Option to Purchase Company Stock:
At the time of signing and for a ninety day period thereafter,
the Executive will be offered the opportunity to purchase
10,000 shares of Company stock at current book value,
currently $2.11 per share .
EXHIBIT C
Benefit Plans
1. Health insurance for Executive and his dependents. Executive
will use COBRA benefits, if necessary, until the Company's plan
is in effect and the Company will reimburse Executive for the
premiums paid.
2. Automobile allowance of $400 per month with the understanding
that automobile mileage for in state travel business will be
paid at the rate of $.14. If automobile is used for out of
state travel, the rate of reimbursement will be the approved
level, currently at $.36.
3. Participation in XXX, with employer contribution of 3% of
Base Salary per year (but not to exceed the amount in effect
for such taxable year under section 219(b)(1)(A) of the Internal
Revenue Code).
4. Executive shall be entitled to fifteen working days
vacation per year, to be taken at times during the year at
the discretion of Executive. However, in scheduling said
vacation, Executive agrees to do so in such a manner that will
not materially adversely impact upon the operations of the Company.
5. Cell phone and laptop computer, which shall remain the
property of the Company. Cell phone and laptop computer are
intended for business use.
6. Relocation allowance to cover cost of moving from current
location to Topeka, Kansas. Company will also pay cost of
maintaining separate residence for a period of ninety days in
the event selling of current residence and purchasing a home
does not allow for concurrent travel of Executive and family.
7. Executive will be provided a $2,000 funding level to pursue
professional education opportunities, attendance at industry
seminars related to executive management and assigned
responsibilities and other activities/events that furthers
the professional development of the executive.
