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Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of January 30, 2007, is made by and
between Pioneer Financial Industries, Inc., a Nevada corporation
(the "Company"), and Thomas H. Holcom, Jr., an individual resident
of the State of Missouri (the "Executive").
WHEREAS, as of the Effective Date (as defined in Section 1
below), the Company wishes to employ the Executive as its President
and Chief Executive Officer; and
WHEREAS, the Executive wishes to be so employed by the
Company;
NOW, THEREFORE, in consideration of the premises and the
respective undertakings of the parties set forth below, the Company
and Executive hereby agree as follows:
1.
Term . Unless terminated sooner as
provided in this Agreement, the term of this Agreement shall
commence on the Effective Date and shall extend for a period of
three (3) years thereafter (the "Term"). This Agreement shall
become effective if and only if MidCountry Financial Corp., a
Georgia corporation ("MidCountry"), closes on the acquisition of
all outstanding stock of the Company (the "Acquisition Closing")
and shall become effective automatically on the date on which the
Acquisition Closing occurs (the "Effective Date"). If the
Acquisition Closing does not occur on or before May 31, 2007, the
Company may terminate this Agreement upon giving written notice
thereof to the Executive and, upon any such termination, neither
the Executive nor the Company shall have any obligations hereunder.
Prior to each anniversary of the Effective Date following the three
(3)-year term, the Board of Directors of the Company shall consider
whether to extend this Agreement, and shall notify the Executive of
its determination, at least 60 days prior to such anniversary. If
the Board determines to extend, and provided the Executive does not
object to such extension by written notice prior to such 60-day
period, the term of this Agreement shall be automatically extended
for an additional year upon notification by the Board to the
Executive.
2.01 Service
with Company . During the term of this Agreement, the Executive
agrees to perform such reasonable employment duties consistent with
the position of President and Chief Executive Officer as the Board
of Directors of the Company shall assign to him from time to
time.
2.02 Performance of Duties
. The Executive agrees to serve the Company faithfully and to the
best of his ability and to devote his full time, attention and
efforts to the business and affairs of the Company during the term
of this Agreement. The Executive hereby confirms that he is under
no contractual commitments inconsistent with his obligations set
forth in this Agreement, and that during the term of this
Agreement, he will not render or perform services for any other
corporation, firm, entity or person which are inconsistent with the
provisions of this Agreement.
3.01 Base
Salary . As base compensation for all services to be rendered
under this Agreement during the first year of this Agreement, the
Company shall pay to the Executive an annual salary as set forth in
Exhibit A , attached hereto and made a part hereof. Such
salary shall be paid on a regular basis in accordance with the
Company's normal payroll procedures and policies. The compensation
payable to the Executive during each year after the first year of
the Executive's employment shall be determined following an annual
performance review, but in no event shall the salary for any
subsequent year be less than the salary in effect for the prior
year.
3.02 Other Compensation .
In addition to the base salary described in Section 3.01, the
Executive shall be entitled to receive bonus or incentive
compensation payments and stock awards on the basis set forth in
Exhibit A .
3.03 Participation in Benefit
Plans . During the term of this Agreement, the Executive shall
be entitled to receive such medical and health plans, life
insurance and pension plans and such other employment benefits or
programs as are maintained for the officers of the Company or its
subsidiaries. For purposes of participation in such plans or
programs, the Executive's term of employment with the Company or
one of its subsidiaries shall be treated as service with the
Company. Notwithstanding the foregoing, the Company reserves the
right to modify any such benefit plans in accordance with the
policies of the Company or the Bank, or the Bank's parent,
MidCountry Financial Corp. (collectively, "MidCountry"), or to
discontinue such plans and replace them with the benefit plans of
MidCountry, provided such modified or replacement plans do not
materially change the benefits thereunder that the Executive would
be entitled to receive thereunder.
3.04 Expenses . The Company
agrees to pay or reimburse the Executive for any and all reasonable
and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the
presentment of appropriate vouchers in accordance with the
Company's normal policies for expense verification.
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4.
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Confidential Information .
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4.01
Non-Disclosure . The Company may disclose to the Executive,
or the Executive may obtain access to, develop, or create,
confidential information or material concerning or related to the
Company's products and/or services, or to the Company's marketing
processes, servicing, existing products, or general business
operations. Such information or material may include, but is not
limited to, the discovery, invention, research, improvement, sale
of the products or services (including, without limitation,
information created, discovered or developed by the Executive, or
made known to the Executive during the Term), or the Company's
trade secrets, processes, formulas, data, know-how, software,
documentation, program files, flow/charts, drawings, software
diagnostic techniques and other techniques, source and object code,
standards, specifications, improvements, inventions, customer
information, accounting data, statistical data, research projects,
development and marketing plans, strategies, forecasts, computer
programs, customer lists, sales, costs, profits, and pricing
methods and organizations, employee lists, and compensation plans,
(collectively, the "Confidential Information"). The Executive
acknowledges the confidential and secret character of the
Confidential Information
2
and agrees that the Confidential Information is
the sole, exclusive, and valuable property of the Company.
Accordingly, the Executive agrees not to reproduce any of the
Confidential Information without the Company's prior written
consent, not to use the Confidential Information, except in the
ordinary course of the performance of this Agreement, and not to
divulge all or any part of the Confidential Information to any
third party, either during or after the Term. The foregoing
obligations of confidentiality shall not apply to any knowledge or
information which is now published or which subsequently becomes
generally publicly known in the form in which it was obtained from
the Company, other than as a direct or indirect result of the
breach of this Agreement by the Executive or to any provision of
Confidential Information to a federal or state regulatory agency in
connection with any investigation or examination of the Company or
of any affiliate of the Company.
4.02 Permitted Disclosure .
Section 4 of this Agreement shall not be applicable if and to the
extent that the Executive is required to testify about or to
disclose Confidential Information in a legislative, judicial or
regulatory proceeding, or before any state or local legislative
body, judge, or an administrative law judge; provided
that , the Executive gives the Company prompt written
advanced notice of any such required testimony or disclosure (it
being understood and acknowledged by the parties that the
Executive's failure to give such notice shall not constitute a
breach of this Agreement if the Company is not materially
prejudiced thereby). Notwithstanding any provision contained in any
stock option or similar agreement between the Executive and
MidCountry and/or the Company, (a) if the Executive is in
compliance with the provisions of Section 4.01 and Section 4.02
hereof, the Executive shall be deemed to be in compliance with the
provisions relating to non-disclosure or confidentiality contained
in such stock option or similar agreement, and (b) if Section 4.01
and Section 4.02 become inapplicable pursuant to the terms of this
Agreement, the provisions of any such stock option or similar
agreement relating to non-disclosure or confidentiality shall
likewise become inapplicable.
5.
Prior Retention Agreement; Nonsolicitation Restrictive
Covenants . Reference is hereby made to the Retention Agreement
dated as of April 19, 2006, between Pioneer, as "Pioneer," and the
Executive, as the "Employee" (the 'Retention Agreement"), Section 6
of which contains certain restrictive covenants to which the
Executive is subject for a period of two (2) years from the
Effective Date (the "Retention Agreement Restricted Period").
During the period of his employment by the Company after the
Retention Agreement Restricted Period ends and for a period of one
(1) year after such employment is terminated for any reason (except
as provided in Section 6.05), the Executive shall not, either
directly or indirectly, (a) solicit any customers or former
customers of the Company or its affiliates, or (b) induce,
influence or advise any person who is or shall then be in the
service of the Company or its subsidiaries or affiliates to leave
the service of the Company or its subsidiaries and affiliates;
provided, however, that for purposes of this Section 5,
solicitation shall not include solicitation of employees or
customers by advertising in periodicals of general circulation, or
direct mail, e-mail or other communication directed generally to
persons in the market area of the Company without use of the
Company's customer list or employee list. For purposes of Section
5(a) of any agreement granting Restricted Stock Unit Awards
pursuant to Exhibit A of this Agreement, the term "Non-Solicitation
Activity" shall mean (i) during the Retention Agreement Restricted
Period, any activity restricted by Section 6 of the Retention
Agreement, and (ii) after the Retention
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