EXHIBIT 10.5
AGREEMENT AND RELEASE
This Agreement and Release (this "Release") is made and entered into as of
the 31st day of December, 2003, by and between Wayne C. Desselle ("Desselle"),
FIC Financial Services, Inc., a Nevada corporation ("FICFS"), and Financial
Industries Corporation, a Texas corporation ("FIC").
W I T N E S S E T H:
WHEREAS, on May 30, 2003, FICFS acquired all of the shares of capital stock
of Paragon Benefits, Inc., a Texas corporation ("Paragon Benefits"), The Paragon
Group, Inc., a Texas corporation ("Paragon Group"), and Paragon National, Inc.,
a Texas corporation ("Paragon National" and, together with Paragon Benefits and
Paragon Group, "Paragon") pursuant to that certain Stock Purchase Agreement,
dated as of May 30, 3003 (the "Paragon Stock Purchase Agreement"), by and among
Desselle, Scott Bell, Chris Murphy, FIC and FICFS;
WHEREAS, pursuant to the Paragon Stock Purchase Agreement, 105,593 shares
of common stock, par value $.20 per share, of FIC (the "FIC Shares") were issued
to Desselle, Scott Bell and Chris Murphy and deposited in escrow to be
distributed to Desselle, Scott Bell and Chris Murphy upon the achievement of
certain financial performance
goals as set forth in the Paragon Stock Purchase Agreement;
WHEREAS, on May 30, 2003, Desselle became an employee of FICFS pursuant to
that certain Employment Agreement, dated as of May 30, 2003 (the "Employment
Agreement"), by and between Desselle and FICFS;
WHEREAS, on May 30, 2003, FICFS acquired (i) from John Pesce, Mike Cochran,
Arthur Howard, Geoffrey Calaway, W.M. Hartman, Edward F. Harman, III, M.B.
Donaldson, Alycia Andrews, Charles Francis, Tom Cook, David Allen and Marcus
Smith all of the shares of capital stock of Total Compensation Group Consulting,
Inc., a Texas corporation ("TCG"), and (ii) from Earl Johnson and TCG all of the
shares of capital stock of JNT Group, Inc., a Texas corporation ("JNT" and,
together with Paragon and TCG, the "New Era Companies"), with Desselle
participating in the negotiations and sale of the New Era Companies to FICFS;
WHEREAS, Desselle has resigned his employment with FICFS, effective as of
December 31, 2003;
WHEREAS, Desselle has asserted certain claims against FICFS and FIC under
the Paragon Stock Purchase Agreement and the Employment Agreement, asserting
rights to recover certain amounts allegedly owed to Desselle under the
Employment Agreement in connection with his resignation, including accelerated
salary and bonus, and demanding the release of the FIC Shares from escrow
pursuant to the Paragon Stock Purchase Agreement and the Employment Agreement;
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WHEREAS, FICFS and FIC have at all times denied, and continue to deny, any
liability to Desselle and have denied, and continue to deny, any and all claims
asserted by Desselle arising out of the Paragon Stock Purchase Agreement and
Employment Agreement;
WHEREAS, Desselle, FICFS and FIC have agreed to resolve fully and finally
any and all differences between them;
WHEREAS, the parties recognize that arbitration, litigation and other
disputes between them are expensive, uncertain, and time-consuming, and that
settlement on agreeable terms is preferable to ongoing disputes and litigation;
WHEREAS, the parties desire to provide the below-described mutual releases
of claims, and Desselle, FICFS and FIC desire to enter into this Release and
agree to the terms and provisions hereof; and
WHEREAS, the settlement provided for herein is not and shall not in any way
be construed or deemed to be evidence or an admission or a concession of any
fault, liability, fact or amount of damages, or any other matter whatsoever on
the part of the parties, and the parties are entering into this Release solely
to avoid the substantial expense, inconvenience and burden of litigation and to
completely and finally put to rest all claims;
NOW, THEREFORE, in consideration of the mutual promises contained in this
Release, the parties agree as follows:
1. Any and all Desselle Claims (as hereinafter defined) shall be and hereby
are fully and finally settled, satisfied, released and discharged in
consideration of (i) the sum of TEN THOUSAND DOLLARS ($10,000.00), which shall
be paid by FICFS or FIC by check delivered to Desselle upon the execution by
Desselle of this Release, and (ii) the release by FIC and FICFS of all FIC
Claims (as hereinafter defined) pursuant to this Release. Desselle agrees that
FIC's and FICFS's release of any and all FIC Claims pursuant to this Release and
the above-described payment are contrary to FIC's and FICFS's normal policies
and interests, and are good and valuable consideration for Desselle's release of
all Desselle Claims pursuant hereto. Except for the payment to be made pursuant
to this paragraph, Desselle agrees that FICFS and FIC have paid him all sums
owed Desselle by virtue of the Paragon Stock Purchase Agreement and Employment
Agreement, whether with respect to past, present and/or future periods of time,
including, without limitation, any and all vacation pay, severance pay, salary,
bonus, stock, variable and other wages, and any and all other compensation
amounts and expense reimbursements, and that he has no rights, with respect to
past, present and/or future periods of time, to the FIC Shares. The parties
agree that the described payment is to be treated as wages and subject to
standard payroll deductions and withholdings.
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2. Any and all FIC Claims shall be and hereby are fully and finally
settled, satisfied, released and discharged in consideration of the release by
Desselle of all Desselle Claims pursuant to this Release. FIC and FICFS agree
that Desselle's release of any and all Desselle Claims pursuant to this Release
is contrary to Desselle's normal policies and interests, and is good and
valuable consideration for FIC's and FICFS's release of all FIC Claims pursuant
hereto and for the above described payment to Desselle.
3. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Desselle, for and on behalf of his present and
former assignors, creditors, assigns, heirs, executors, spouses, personal
representatives, administrators, transferees and attorneys (collectively, the
"Desselle Releasors"), hereby knowingly and voluntarily and forever release,
acquit and discharge FICFS and FIC and their respective past, present and future
parent companies, stockholders, owners, subsidiaries, divisions, related or
affiliated entities, predecessors and successors, their respective present and
former officers, directors, partners, limited partners, principals, members,
stockholders, owners, employees, agents, servants, subrogees, insurers and
attorneys, and their respective successors, predecessors, assigns,
representatives, heirs, executors, spouses, personal representatives,
administrators, transferees and attorneys from any and all claims or causes of
action, including debts, suits, rights of action, dues, sums of money, accounts,
bonds, bills, covenants, contracts, controversies, agreements, promises,
damages, judgments, variances, executions, demands, rights, liabilities, losses
or obligations of any kind or nature whatsoever, matured or unmatured,
liquidated or unliquidated, absolute or contingent, accrued or unaccrued, known
or unknown, suspected or unsuspected, whether heretofore or hereafter accruing,
whether or not asserted, threatened, alleged or litigated in any forum, at law,
admiralty, equity or otherwise, including without limitation, claims for
indemnity or contribution, or for costs, expenses (including without limitation
amounts paid in settlement) and attorneys' fees which any person or entity has,
owns or holds, or might have had, owned or held, formerly had or hereafter might
have, own or hold, directly, indirectly, individually, representatively,
derivatively or in any capacity for or because of anything done or omitted prior
to and including the date hereof including, but not limited to, those which
arise out of or are directly or indirectly related in any way to (i) Desselle's
employment with and/or resignation from FICFS, including, without limitation,
any and all claims for sums allegedly owed Desselle under the Employment
Agreement, including, without limitation, any and all vacation pay, severance
pay, salary, bonus, stock, variable and other wages, and any and all other
compensation amounts and expense reimbursements, or (ii) the acquisition of the
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New Era Companies by FICFS, including, without limitation, any and all claims
for the release of the FIC Stock to Desselle under the Paragon Stock Purchase
Agreement and/or the Employment Agreement (collectively, "Desselle Claims");
provided, however, that this Release shall not include a release of any rights
the Desselle Releasors may have to enforce the terms and conditions of this
Release or the Stock Purchase Agreement, dated as of the date hereof (the "New
Era Stock Purchase Agreement"), by and among BCDP Holdings, LLP, a Delaware
limited liability partnership ("BCDP"), FICFS and FIC.
4. For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, FICFS and FIC and their respective past, present
and future parent companies, stockholders, owners, subsidiaries, divisions,
related or affiliated entities, predecessors and successors, their respective
present and former officers, directors, partners, limited partners, principals,
members, stockholders, owners, employees, agents, servants, subrogees, insurers
and attorneys, and their respective successors, predecessors, assigns,
representatives, heirs, executors, spouses, personal representatives,
administrators, transferees and attorneys (collectively, the "FIC Releasors"),
hereby knowingly and voluntarily and forever release, acquit and discharge
Desselle, the New Era Companies and their respective assigns, heirs, executors,
spouses, representatives, administrators, transferees, past, present and future
parent companies, subsidiaries, divisions, related or affiliated entities,
predecessors and successors, subrogees, insurers and attorneys from any and all
claims or causes of action, including debts, suits, rights of action, dues, sums
of money, accounts, bonds, bills, covenants, contracts, controversies,
agreements, promises, damages, judgments, variances, executions, demands,
rights, liabilities, losses or obligations of any kind or nature whatsoever,
matured or unmatured, liquidated or unliquidated, absolute or contingent,
accrued or unaccrued, known or unknown, suspected or unsuspected, whether
heretofore or hereafter accruing, whether or not asserted, threatened, alleged
or litigated in any forum, at law, admiralty, equity or otherwise, including
without limitation, claims for indemnity or contribution, or for costs, expenses
(including without limitation amounts paid in settlement) and attorneys' fees
which any person or entity has, owns or holds, or might have had, owned or held,
formerly had or hereafter might have, own or hold, directly, indirectly,
individually, representatively, derivatively or in any capacity for or because
of anything done or omitted prior to and including the date hereof including,
but not limited to, those which arise out of or are directly or indirectly
related in any way to (i) the Employment Agreement or Desselle's employment with
and/or resignation from FICFS, or (ii) the acquisition of the New Era Companies
by FICFS, including the Paragon Stock Purchase Agreement (collectively, "FIC
Claims"); provided, however, that this Release shall not include a release of
any rights the FIC Releasors may have to enforce the terms and conditions of
this Release or the New Era Stock Purchase Agreement.
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5. Neither this Release nor any payments or performance by the Desselle
Releasors or the FIC Releasors shall in any way be construed as an admission by
the Desselle Releasors or the FIC Releasors, or any of their parents,
subsidiaries, affiliates, or related companies, of any acts of wrongdoing,
negligence, or violation of any statute, law, or legal right. The parties hereto
are settling any and all FIC Claims and Desselle Claims solely in the interest
of reasonable compromise. Neither this Release nor any of its terms and
provisions nor any of the negotiations or proceedings in connection with it (a)
is, or is intended to be, an admission by any party or any evidence of the truth
of any fact alleged, or the validity of any claim that has been or could have
been asserted, or of any liability, fault or wrongdoing of such party, or (b)
shall be offered or received in evidence in any action or proceeding of any kind
other than such proceedings as may be necessary to consummate, defend or enforce
this Release.
6. Desselle represents that he has not transferred or assigned, to any
person or entity, any Desselle Claim, or any portion thereof, or interest
therein. FICFS and FIC represent that neither has transferred or assigned, to
any person or entity, any FIC Claim, or any portion thereof, or interest
therein.
7. The parties represent and acknowledge that in executing this Release, no
party has relied upon any representation(s) by any other party, or agents or
attorneys of any other party, except as expressly contained in this Release.
8. The parties hereby expressly waive any and all claims based upon
representations that are not set forth in this Release, including, without
limitation, claims for fraudulent inducement of this Release.
9. The parties agree, each to the others, that the statements,
representations, agreements and covenants contained herein are contractual in
nature and not mere recitations of fact, and that the agreements and covenants
herein shall be binding upon the parties, their respective heirs,
administrators, representatives, executors, successors and assigns, and shall
inure to the benefit of their respective heirs, administrators, representatives,
executors, successors and assigns.
10. The language of this Release shall, in all cases, be construed as a
whole, according to its fair meaning, and not strictly for, or against, any of
the parties.
11. Should any provision of this Release be declared, or be determined, by
any court to be illegal or invalid, the validity of the remaining parts, terms
or provisions of this Release shall not be affected and any illegal or invalid
part, term, or provision, should not be deemed to be a part of this Release.
12. Each party agrees to enter into or execute such additional documents as
are or may be necessary to carry out the intent and express terms of this
Release
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13. This Release may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall be deemed one
and the same instrument.
14. Each party shall bear their own costs and attorney's fees in connection
with this Release.
15. The parties agree that any disputes arising under or related to this
Release shall be submitted to binding arbitration. Such arbitration shall be
conducted pursuant to the then-current rules of the American Arbitration
Association ("AAA"). However, AAA need not conduct said arbitration as the
parties may agree to utilize any other commercially suitable service or
qualified individual.
16. This Release shall be construed and enforced in accordance with the
laws of the State of Texas. The parties agree that this Release affects
interstate commerce and that the arbitration, referenced in paragraph 15, shall
be subject to the Federal Arbitration Act.
17. The failure of a party to insist upon strict performance of any
provision of this Release shall not constitute a waiver of, or estoppel against
asserting, the right to require performance in the future. A waiver or estoppel
in any one instance shall not constitute a waiver or estoppel with respect to a
later breach.
18. This Release sets forth the entire agreement between the parties, and
fully supersedes any and all prior and contemporaneous agreements or
understandings, oral or written, between the Parties pertaining to the subject
matter in this Release. This Release may only be amended or modified in a
writing duly executed by both Parties.
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MY SIGNATURE BELOW SUBSTANTIATES THAT I HAVE READ THE ABOVE AGREEMENT AND
RELEASE AND AGREE AND CONSENT TO THE TERMS AND CONDITIONS THEREIN.
Witness my hand this 31st day of December, 2003.
/s/ Wayne S. Desselle
______________________________________
Wayne C. Desselle
Subscribed and sworn to by Wayne C. Desselle before the undersigned Notary
Public, on this 31st day of December, 2003.
______________________________________
Notary Public for the State of Texas
My Commission Expires: ______________
* * * * * * * * * * *
Witness my hand this 31st day of December, 2003.
FIC Financial Services, Inc.
By: /s/ Theodore A. Fleron
___________________________________
Theodore A. Fleron
Secretary
Subscribed and sworn to by Theodore A. Fleron before the undersigned Notary
Public on this 31st day of December, 2003.
______________________________________
Notary Public for the State of Texas
My Commission Expires: ______________
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* * * * * * * * * * *
Witness my hand this 31st day of December, 2003.
Financial Industries Corporation
By: /s/ Theodore A. Fleron
___________________________________
Theodore A. Fleron
Vice President and Secretary
Subscribed and sworn to by Theodore A. Fleron before the undersigned Notary
Public on this 31st day of December, 2003.
______________________________________
Notary Public for the State of Texas
My Commission Expires: ______________
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