CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is made and entered into as of the 31st
day of December , 2003, between FINANCIAL INDUSTRIES CORPORATION, a Texas
business corporation ("FIC") and ACTUARIAL RISK CONSULTANTS, INC., a Nevada
business corporation ("ARC").
W I T N E S S E T H:
WHEREAS, ARC provides actuarial services to life insurance companies; and
WHEREAS, ownership of ARC was acquired by George Wise from a subsidiary of
FIC, effective as of December 31, 2003; and
WHEREAS, ARC desires to provide certain actuarial consulting services to
the life insurance subsidiaries of FIC, subject to the terms and conditions of
this Agreement;
NOW, THEREFORE, ARC and FIC, in consideration of the agreements and
conditions contained herein, hereby agree as follows:
1. DESCRIPTION OF SERVICES. During the period from January 1, 2004 to December
31, 2005, ARC agrees to provide up to 2,000 hours of actuarial consulting
services by George Wise and Cory Zass to the life insurance subsidiaries of
FIC, as requested by FIC (the "Services"); provided, however, that neither
FIC, nor the life insurance subsidiaries of FIC, will be obligated to
request any given number of hours of Services from ARC. On and after
February 1, 2004, each such request will be made in writing, signed by an
authorized officer of FIC and will describe the services to be provided.
Upon receipt of each such request, ARC will inform FIC in writing of the
number of hours which it expects will be required in order to complete the
particular request.
2. PERFORMANCE OF SERVICES. The Services to be provided by ARC under this
Agreement shall be performed by, or under the supervision of, either George
Wise or Cory Zass, who are employees of ARC.
3. PAYMENT. ARC will bill the applicable life insurance subsidiary of FIC at
the rate of $125.00 per hour for Services provided to such subsidiary by
George Wise or Cory Zass. For Services provided by employees of ARC other
than Messrs. Wise or Zass, ARC will bill the applicable life insurance
subsidiary of FIC in accordance with the established rate schedule of ARC
with respect to such employee. This fee will be payable on a monthly basis
for Services provided during the preceding month.
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4. EXPENSES. ARC will bill the applicable life insurance subsidiary of FIC for
reasonable "out of pocket" expenses incurred by ARC in connection with its
performance of the Services for travel, long distance telephone, filing
fees paid to state insurance regulatory agencies on behalf of the life
insurance company subsidiaries of FIC and other reasonable expenses
approved in writing by an authorized officer of FIC.
5. TERM/TERMINATION. This Agreement shall terminate automatically on December
31, 2005, unless terminated at an earlier date upon mutual agreement of the
parties.
6. RELATIONSHIP OF PARTIES. It is understood by the parties that ARC, and the
employees of ARC performing the Services, are independent contractors with
respect to FIC and its subsidiaries, and not employee of FIC or its
subsidiaries. Neither FIC nor any of its subsidiaries will provide fringe
benefits, including health insurance benefits, paid vacation, or any other
employee benefit, for the benefit of employees of ARC performing the
Services.
7. DISCLOSURE. ARC is required to disclose to FIC the existence of any
consulting activities or interests that conflict, or may conflict, with the
best interests of FIC or its subsidiaries. Prompt disclosure is required
under this paragraph.
8. EMPLOYEES. ARC's employees who perform Services under this Agreement will
also be bound by the provisions of this Agreement. At the request of FIC,
ARC will provide adequate written evidence that such persons are ARC's
employees.
9. INJURIES. ARC acknowledges that it is the obligation of ARC to obtain
appropriate insurance coverage for the benefit of ARC and ARC's employees.
ARC waives any rights to recovery from FIC or any subsidiary of FIC for any
injuries that employees of ARC may sustain while performing the Services
under this Agreement.
10. INDEMNIFICATION.
(a) ARC agrees to indemnify and hold FIC and its officers and directors,
its affiliates and subsidiaries and officers and directors of its
affiliates and subsidiaries (the "Indemnified Parties") harmless from
all claims, losses, expenses, fees including attorney fees, costs, and
judgments that may be asserted against the Indemnified Parties that
result from the negligence or misconduct of ARC, ARC's employees and
ARC's agents in connection with the performance of the Services.
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(b) FIC agrees to indemnify and hold ARC and its officers and directors
harmless against any and all losses, claims, damages, or liabilities
to which ARC may become subject to arising in any manner out of or in
connection with the provision of the Services hereunder, unless such
losses, claims, damages, or liabilities are attributable to the
negligence or misconduct of ARC or its officers, employees and
directors.
12. ASSIGNMENT. The obligations of ARC under this Agreement may not be assigned
or transferred to any other person, firm, or corporation without the prior
written consent of an authorized officer of FIC. This Agreement may not be
assigned or transferred by FIC to any other person, firm, or corporation
without the prior written consent of an authorized officer of ARC.
13. CONFIDENTIALITY. ARC recognizes that, in connection with the performance of
the Services, ARC has and will obtain confidential and proprietary
information pertaining to FIC and the life insurance subsidiaries of FIC
(collectively, "Information") which are valuable, special and unique assets
of FIC and its subsidiaries, and need to be protected from improper
disclosure. In consideration of the disclosure of the Information, ARC
agrees that it will not at any time or in any manner, either directly or
indirectly, use any Information for ARC's own benefit, or divulge,
disclose, or communicate in any manner any Information to any third party
without the prior written consent of the Chief Executive Officer of FIC.
ARC agrees that it will protect the Information and treat it as strictly
confidential. A violation of this paragraph shall be a material violation
of this Agreement.
14. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that ARC has
disclosed (or has threatened to disclose) Information in violation of this
Agreement, FIC shall be entitled to an injunction to restrain ARC and ARC's
employees from disclosing, in whole or in part, such Information, or from
providing any services to any party to whom such Information has been
disclosed or may be disclosed. FIC shall not be prohibited by this
provision from pursuing other remedies, including a claim for losses and
damages.
15. CONFIDENTIALITY AFTER TERMINATION. The confidentiality provisions of this
Agreement shall remain in full force and effect after the termination of
this Agreement.
16. RETURN OF RECORDS. Upon termination of this Agreement, ARC will deliver all
records, notes, data, memoranda and other materials (the "Materials") of
any nature that are in ARC's possession or under ARC's control and that are
the property of FIC or a subsidiary of FIC or relate to the business of FIC
or a subsidiary of FIC; provided, however, that, to the extent that
applicable laws or regulations require that ARC maintain a copy of the
Materials, ARC may so notify FIC in writing of such requirements and retain
either the original, or a copy, as applicable, of such Materials.
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17. NOTICES. All notices required or permitted under this Agreement shall be in
writing and delivered as follows:
(a) If to ARC:
George Wise,
3001 Huron Club court
Austin, Texas 7873
(b) If to FIC:
Theodore A. Fleron, General Counsel
Financial Industries Corporation
6500 River Place Blvd.,
Austin, Texas 78730
All notices and other communications required or permitted under this Agreement
that are addressed as provided in this Section 17 will (i) if delivered
personally, be deemed given upon delivery, (ii) if delivered by facsimile
transmissions, be deemed given when sent and confirmation or receipt is
received, and (iii) if delivered by mail in the manner described above, be
deemed given on the third business day after the deposit in a regular depositary
of the United States mail. Any party from time to time may change its address
for the purpose of notices to that party by giving notice to the other parties
hereto specifying a new address, but no such notice will be deemed to have been
given until it is actually received by the party sought to be charged with the
contents thereof.
18. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other
agreement whether oral or written. This Agreement supersedes any prior
written or oral agreements between the parties.
19. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
20. SEVERABILITY. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision
of this Agreement is invalid or unenforceable, but that by limiting such
provision it would become valid and enforceable, then such provision shall
be deemed to be written, construed, and enforced as so limited.
21. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel strict
compliance with every provision of this Agreement.
22. APPLICABLE LAW. This Agreement shall be governed by the laws of the State
of Texas.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and
year first above written.
Actuarial Risk Consultants, Inc.
By: ____________________________
Name: __________________________
Title: _________________________
Financial Industries Corporation
By: ____________________________
Name: __________________________
Title: _________________________
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