|
EXHIBIT
10.1
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS AGREEMENT MADE AND ENTERED INTO
THIS 13th day of September, 2007, by and between BROOKE
CORPORATION, a Kansas corporation (“Employer”), and
Keith Bouchey (“Executive”), is as follows:
SUBJECT MATTER OF
EMPLOYMENT
Employer employs Executive under this
Executive Employment Agreement effective October 1, 2007 (the
“Effective Date”) until September 30, 2010 (the
“Expiration Date”) (such three-year period called the
“Initial Term”) to carry out the duties of the office
of Vice Chairman of the Board and Chief Executive Officer and
President of the Employer. Unless sooner terminated pursuant to the
terms hereof, this Agreement will automatically renew for an
additional one-year term beginning on the third anniversary of the
Effective Date and ending on the first anniversary of the
Expiration Date and for each one-year period thereafter beginning
on the anniversary of the Effective Date and ending on the
anniversary of the Expiration Date (each such one-year renewal
period referred to as the “Renewal Term”). Executive
accepts employment by Employer, subject to the terms of this
Executive Employment Agreement.
The Executive agrees that his
responsibilities and job description as of the Effective Date have
been communicated to him. The Executive acknowledges that his
title, responsibilities and job description may be periodically
revised by Employer without requiring a written amendment to this
Agreement. Executive agrees to perform the responsibilities and
duties inherent in his position, as have been communicated to him
and as assigned to him by the Board of Directors from time to time.
In addition, Executive shall have and perform the responsibilities
and duties set forth on Schedule A attached hereto.
Executive shall report to the board of
directors of Employer (“Board”). All senior officers of
the Employer, including the chief financial officer and general
counsel, will report directly to the Executive.
Employer will cause the Executive to be
appointed as a director to fill a vacancy on the board of directors
of Employer. Executive will also become chairman of the board of
directors of Brooke Savings Bank and CJD & Associates. The
presidents of Brooke Savings Bank and CJD & Associates
will report directly to the Executive.
COMPENSATION, BENEFITS AND
EXPENSE REIMBURSEMENT
Employer agrees to pay to Executive a
base salary at the annual rate of Three Hundred Thousand Dollars
($300,000) (the “Base Salary”). The reference to Base
Salary at an annual rate in this Agreement shall not entitle
Executive to payment of salary beyond any salary earned through
Executive’s performance of services under this Agreement
through the date of any termination of Executive’s employment
or this Agreement. During a Renewal Term, if any, but not during
the Initial Term, the Base Salary will be reviewed periodically for
upward adjustment by the Board
or its compensation committee, and, if
adjusted within the sole discretion of the Board or the
compensation committee, such adjusted amount will become the Base
Salary for purposes of this Agreement. The Employer will pay the
Executive his Base Salary at the time and in the installments
consistent with the Employer’s current payroll
practices.
Executive will participate in any
short-term or long-term bonus or incentive compensation plans,
programs or arrangements with the level of such participation
determined by the Board or its compensation committee at its sole
discretion for participation by Executive. Executive will be
advised of any terms and performance criteria relating to any such
plans, programs or arrangements and any participation by Executive
in any such plans, programs or arrangements shall not require a
written amendment to this Agreement.
Employer agrees to reimburse Executive
for automobile usage and expenses not to exceed $700 per month.
Employer agrees to reimburse Executive for monthly country club
membership dues at the country club where Executive is a member on
the Effective Date. Employer agrees to grant Executive certain
other benefits as specified in the personnel policies established
from time to time by Employer and as provided to other executive
officers, subject to the discretionary authority given to any
applicable benefit plan administrators and such terms and
conditions of such benefit policies plans as may be amended from
time to time. Such benefits shall be paid for by Executive or both
the Employer and Executive as specified in such plans or policies
and as is the case generally for other members of the
Employer’s senior management. Effective January 1, 2008,
Employer agrees that Executive shall be granted the greater of
three weeks of paid vacation leave each calendar year or the
vacation benefit as provided in the Employer’s personnel
policy. Employer’s personnel policies may be changed from
time to time by Employer and such changes will apply to Executive
without requiring a written amendment to this Agreement.
Employer agrees to reimburse Executive
for such other ordinary and necessary expenses incurred by
Executive while carrying out the duties assigned by Employer to
Executive provided Executive obtains prior approval for expenses
that are not ordinary and necessary. Executive agrees to comply
with Employer’s expense reimbursement policies. At
Employer’s option, Executive may be provided with a corporate
credit card for use in connection with the payment of travel and
other employment-related expenses incurred in the performance of
Executive’s duties under this Agreement. Executive agrees to
comply with any policies of Employer applicable to corporate credit
card use. Employer, at its sole discretion, shall have the right to
terminate the credit card program or revoke Executive’s
corporate credit card privileges at any time for any reason. Upon
any such termination of the program, revocation of privileges, or
termination of Executive’s employment, Executive agrees to
promptly return the corporate credit card to Employer.
Employer agrees to pay Executive a
$40,000 signing bonus on the next regularly scheduled payroll
processing date immediately following the Effective
Date.
2
ADDITIONAL OBLIGATIONS OF
EXECUTIVE
Executive shall comply with the policies
(including Employer’s interpretations and clarifications
thereof) established from time to time by Employer.
Executive agrees to be bound by the
rules and policies set forth in the Brooke Corporation Employee
Handbook as amended from time to time. Executive further
acknowledges that he has received, read, and signed all relevant
forms attached to the Employee Handbook.
CONFIDENTIAL AND
PROPRIETARY INFORMATION
Executive acknowledges and agrees that,
as a consequence of his association with Employer, he has or will
have access to or knowledge of confidential and proprietary data
concerning the Employer and its affiliates which is not readily
available to the public.
Executive agrees at all times during the
term of Executive’s employment with Employer and thereafter
to maintain in strictest confidence all proprietary information,
technical data, trade secrets or know-how that is not otherwise
accessible to the public including, without limitation, any listing
of, or information relating to: products, services, loans,
processes, designs, customers, customer leads or contacts,
borrowers, lenders, purchasers of loans, insurance companies,
policy expiration, business plans, marketing plans, strategies,
budgets, financial results, pricing information, projections,
acquisition or divestiture plans, franchise agents,
brokers/producers, Employees, personnel changes, databases,
software or designs, financial statements and data, contracts,
marketing plans and strategies, and business acquisition plans,
which Executive produces, obtains or otherwise acquires during the
course of Executive’s employment (collectively, the
“Confidential Information”).
Executive further agrees to maintain
such Confidential Information in the strictest of confidence
whether or not such Confidential Information is owned or controlled
by Employer, Employer’s affiliates, Employer’s sister
companies, Employer’s parent company, the franchise agents of
Employer or any such affiliates, sister companies or parent
company, or the brokers/producers of Employer or any such
affiliates, sister companies or parent company (collectively such
affiliates, sister companies, parent company, franchise agents and
brokers/producers shall be referred to as “Employer
Companies”).
All Confidential Information, regardless
of how it is compiled, listed, stored or kept, shall be the
exclusive property of the Employer or its affiliates, as the case
may be, and Executive agrees not to sell, trade or remove from the
premises or electronic databases owned or rented by Employer or any
of the Employer Companies, Confidential Information without the
express prior written consent of Employer. In the event of
Executive’s termination of employment with Employer for any
reason whatsoever, Executive agrees to promptly surrender and
deliver to Employer all Confidential Information stored or
possessed in any form or manner, of Employer, any of the Employer
Companies, or any of their clients, which Executive produces or
obtains during the course of his employment or
otherwise.
3
TERMINATION OF
EMPLOYMENT
The relationship between Employer and
Executive is an employment at will and nothing in this Agreement
shall eliminate, reduce or deter the right of either party to
terminate the employment relationship at any time for any
reason. Termination of employment shall constitute termination
of this Agreement unless the parties mutually agree in writing
otherwise and except to the extent provisions survive its
termination.
Executive agrees to immediately resign
his membership on the board of directors of Employer and Employer
Companies upon termination of this Agreement unless the parties
mutually agree otherwise.
If Employer terminates Executive’s
employment under this Agreement for any reason other than Just
Cause (defined below), Executive will be entitled to severance
payments as more fully described herein, subject to applicable
withholdings (provided Executive contemporaneously executes a
general and full release in favor of Employer and the Employer
Companies and their respective officers, directors, employees and
assigns in the form and substance satisfactory to the Employer)
within 15 days of his termination date. If Employer terminates
Executive’s employment under this Agreement during the
Initial Term for any reason other than Just Cause, Executive will
continue to receive, as severance pay, payments of his Base Salary,
as in effect on the date of his termination, until the gross
aggregate amount of such payments equals $600,000, in such amounts
and at such times as he would have received his Base Salary had the
Employer not terminated his employment. If Employer terminates
Executive’s employment under this Agreement during a Renewal
Term for any reason other than Just Cause, Executive will continue
to receive, as severance pay, payments of his Base Salary, as in
effect on the date of his termination, until the gross aggregate
amount of such payments equals $400,000, in such amounts and at
such times as he would have received his Base Salary had the
Employer not terminated his employment. If Employer terminates
Executive’s employment under this Agreement during the
Initial Term or a Renewal Term for any reason other than Just
Cause, Executive may receive, as severance pay, any amounts other
than Base Salary, including, but not limited to, any earned
prorated performance awards, solely within the discretion of
Employer.
Notwithstanding the foregoing paragraph,
any severance payments to Executive until the earlier of:
(a) the last day of the second calendar year following the
calendar year of the Executive’s termination, or (b) the
date severance payments total two times the dollar limit of
Section 401(a)(17) of the Internal Revenue Code (the
“Code”) as in effect for the year of Executive’s
termination shall be construed as severance pay exempt from Code
Section 409A in accordance with the Treasury Regulations under
Code Section 409A including Section 1.409A-1(b)(9). Any
payments to Executive beyond the time period or amount specified in
the immediately preceding sentence shall be treated as nonqualified
deferred compensation subject to Code Section 409A, unless
otherwise exempt therefrom. Executive, if a “specified
employee” at the time of his termination, within the meaning
of Code Section 409A(a)(2)(B)(i) and the Treasury Regulations
and other guidance thereunder, may not receive any compensation
subject to Code Section 409A during the six-month period
immediately following his termination. Employer reserves the right
to administer and interpret this Agreement in a manner consistent
with Code Section 409A and the guidance thereunder.
4
For purposes of this Agreement,
“Just Cause” means that the Employer has determined
that: (a) Executive has engaged in gross misconduct or gross
negligence or an act or omission of moral turpitude that is
injurious to the Employer or Employer Companies, monetarily or
otherwise; (b) Executive has committed fraud, embezzlement or
any other act of dishonesty; (c) Executive, solely in his
capacity as an employee or officer of the Employer, has breached a
fiduciary duty under federal or Kansas state law owed to the
Employer or Employer Companies or their respective shareholders;
(d) Executive has materially failed to follow the instructions
assigned to him by the Employer, which failure is not corrected
within 14 days after receiving notice from the Employer;
(e) Executive is
|
