EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made and entered into this 7th day
of January, 2004, to be effective as of the 7th day of January, 2004 (the
"Effective Date"), by and between Financial Industries Corporation, a Texas
corporation (the "Company") and J. Bruce Boisture ("Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to secure the services of the Executive subject
to the contractual terms and conditions set forth herein; and
WHEREAS, the Executive is willing to enter into this Agreement upon the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to employ the Executive, and the
Executive hereby agrees to accept such employment with the Company, all upon the
terms and conditions set forth herein.
2. Term of Employment. Subject to the terms and conditions of this
Agreement, the Executive shall be employed for a term commencing on the
Effective Date and ending on the third (3rd) anniversary of the Effective Date
(the "Term") unless sooner terminated as provided for herein.
3. Duties and Responsibilities.
A. Capacity. During the Term, the Executive shall serve in the capacity of
President and Chief Executive Officer subject to the supervision of the Board of
Directors of the Company (the "Board"), and shall continue to serve as a member
of the Board. The Executive shall also continue to serve as a member of the
Executive Committee of the Board.
B. Full-Time Duties. During the Term, and excluding any periods of
disability, vacation or sick leave to which the Executive is entitled, the
Executive shall devote his full business time, attention and energies to the
business of the Company. During the Term, it shall not be a violation of this
Agreement for the Executive to (i) serve on corporate, civic or charitable
boards or committees, (ii) deliver lectures or fulfill speaking engagements and
(iii) manage personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
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C. Standard of Performance. The Executive will perform his duties under
this Agreement with fidelity and loyalty, to the best of his ability, experience
and talent and in a manner consistent with his duties and responsibilities.
4. Compensation.
A. Base Salary. During the Term, the Company shall pay the Executive a
salary (the "Base Salary") of $33,333.33 per month, prorated for partial months
of employment. The Base Salary shall be payable in accordance with the general
payroll practices of the Company in effect from time to time. During the Term,
the Base Salary shall be reviewed at least annually by the Compensation
Committee of the Board (the "Compensation Committee") and may from time to time
be increased (but not decreased) as solely determined by the Compensation
Committee. Effective as of the date of any such increase, the Base Salary as so
increased shall be considered the new Base Salary for all purposes of this
Agreement and may not thereafter be reduced.
B. Annual Performance Bonus. The Executive shall be eligible for annual
discretionary bonus awards of up to $100,000 payable in cash or registered
common stock of the Company, as determined solely by the Compensation Committee,
based on performance objectives determined annually by the Compensation
Committee. For calendar year 2004, the Executive's annual bonus shall be based
on the Compensation Committee's determination of the Company's and the
Executive's performance in the following areas: (a) progress towards an
acceptable return on equity; (b) cost rationalization efforts; (c) potential
best ratings improvements; (d) progress toward growing sales internally and by
acquisition; (e) assembly of an effective staff; and (f) earnings per share
increase.
C. Long-Term Incentives.
(1) Subject to shareholder approval of a new long-term incentive plan for
the Company (the "Incentive Plan"), the Company shall grant the
Executive a non-qualified stock option (the "Initial Option") to
purchase 150,000 shares of the Company's common stock ("Shares")
pursuant to the Incentive Plan. The purchase price for each Share
subject to the Initial Option shall be equal to the Fair Market Value
(as such term is defined in the Incentive Plan) of a Share as of the
Effective Date. Subject to the terms of the Incentive Plan, the
Initial Option shall (i) have a ten-year term measured from the
Effective Date, (ii) become exercisable as to one-third of the Shares
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subject thereto on the date of shareholder approval of the Incentive
Plan, an additional one-third of the Shares subject thereto on the
first anniversary of the Effective Date, and as to the remaining
Shares subject thereto on the second anniversary of the Effective
Date, provided in each case that the Executive remains employed by the
Company on such anniversary, and subject to accelerated exercisability
as provided in Section 4.C.(4) of this Agreement, and (iii) have other
terms and conditions consistent with the normal terms and conditions
on which the Company grants stock options under the Incentive Plan to
its senior executives.
(2) Subject to shareholder approval of the Incentive Plan, the Company
shall grant the Executive a restricted stock award under the Incentive
Plan covering 50,000 Shares (the "Initial Restricted Stock" and,
together with the Initial Option, the "Initial Equity Awards") under
the Incentive Plan. Subject to the terms of the Incentive Plan, the
Initial Restricted Stock shall vest with respect to 15,000 Shares as
of the date of shareholder approval of the Incentive Plan, with
respect to an additional 17,500 Shares on the first anniversary of the
Effective Date, and as to the remaining Shares as of the second
anniversary of the Effective Date, provided in each case that the
Executive remains employed by the Company on such anniversary, and
subject to accelerated vesting as provided in Section 4.C.(4) of this
Agreement.
(3) In the event that the requisite shareholder approval of the Incentive
Plan is not obtained at the Company's 2004 annual meeting of
shareholders, then the Initial Equity Awards shall be void and of no
effect, and the Company shall (i) pay to the Executive within 10 days
following certification of the final shareholder vote a lump sum
payment equal to the product of (A) $51,041.67 and (B) the number of
months (including partial months) between the Effective Date and the
effective date of the salary adjustment referred to in (ii) below, and
(ii) increase Executive's Base Salary by 51,041.67 per month,
effective as of the beginning of the next calendar month.
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(4) In the event that following shareholder approval of the Initial Equity
Awards and while the Executive remains employed by the Company (i) any
SEC Person becomes the beneficial owner of 50% or more of the shares
outstanding or of voting securities representing 50% or more of the
combined voting power of all outstanding voting securities of the
Company or (ii) the sale or other disposition of all or substantially
all of the consolidated assets of the Company is completed or a plan
of liquidation of the Company is implemented, then the Initial Option
shall become immediately exercisable and all of the Initial Restricted
Stock shall become immediately vested. For purposes of this paragraph,
"SEC Person" means any person (as such term is defined in
Section 3(a)(9) of the Securities Exchange Act of 1934 (the "Exchange
Act")) or group (as such term is used in Rule 13d-5 under the Exchange
Act), other than an affiliate or any employee benefit plan (or any
related trust) of the Company or any of its affiliates.
(5) In addition, the Executive shall be eligible for grants of stock
options, restricted stock and/or other long-term incentives in the
discretion of the Compensation Committee on the same basis as other
similarly situated senior executives of the Company.
(6) All Shares delivered upon exercise of the Initial Option or the
Initial Restricted Stock shall be registered as soon as practicable
following delivery pursuant to Form S-8 or its successor under the
Exchange Act.
D. Benefits.
(1) If and to the extent that the Company maintains employee benefit plans
(including, but not limited to, pension, profit-sharing, disability,
accident, medical, life insurance, and hospitalization plans) (it
being understood that the Company may but shall not be obligated to do
so), the Executive shall be entitled to participate therein in
accordance with the Company's regular practices with respect to
similarly situated senior executives. The Company will have the right
to amend or terminate any such benefit plans it may choose to
establish. Notwithstanding the foregoing, while the Executive is
employed (i) in lieu of the Company's group term life insurance plan,
the Company agrees to provide the Executive a term life insurance
policy providing a $1 million death benefit payable as designated by
the Executive and (ii) so long as the Executive's primary residence is
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in Hartford, Connecticut, in lieu of coverage under the Company's
group health plan, the Company agrees to reimburse the Executive for
the cost of his health insurance coverage through Connecticare up to a
maximum of $12,000 per year; provided, however, that the parties agree
that this reimbursement arrangement will be subject to review by the
Board as of October 31, 2005, and that, in any event, upon relocation
of the Executive's primary residence to Austin, Texas, the Executive
will no longer be eligible for such reimbursement but will participate
in the Company's group health plan on the same basis as other
executives of the Company.
(2) The Executive shall be entitled to prompt reimbursement from the
Company for reasonable out-of-pocket expenses incurred by him in the
course of the performance of his duties hereunder, upon the submission
of appropriate documentation in accordance with the practices,
policies and procedures applicable to other senior executives of the
Company. From February 1, 2004 through October 31, 2005, the Company
shall provide the Executive with the use of a furnished apartment and
a leased automobile in Austin, Texas, and shall reimburse the
Executive for the expenses (including income tax costs incurred by the
Executive) associated with air transportation between Hartford,
Connecticut and Austin, Texas, airport parking, and a private club
membership in Austin, Texas, provided, however, that the cost to the
Company of the foregoing (including any gross-up for income taxes)
shall not exceed $62,400 during the 12-month period beginning on
February 1, 2004, and shall not exceed $46,800 during the ensuing nine
months of the Term. If the Executive relocates his principal residence
to Austin, Texas prior to December 31, 2005, the Company will
reimburse the Executive for moving expenses associated with such
relocation to the extent such reimbursement can be provided on a
tax-free basis to the Executive.
(3) The Executive shall be entitled to four weeks paid vacation and such
holidays and other paid or unpaid leaves of absence as are consistent
with the Company's normal policies available to other senior
executives of the Company or as are otherwise approved by the
Compensation Committee.
(4) The Company shall continue to provide director and officer liability
insurance coverage at least equal to the levels and terms in effect as
of the Effective Date.
(5) The Company shall reimburse the Executive for attorneys' fees incurred
in connection with the review of this Agreement, up to a maximum of
$5,000.
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5. Termination of Employment.
Notwithstanding the provisions of Section 2 hereof, the Executive's
employment hereunder shall terminate under any of the following conditions:
A. Death. The Executive's employment under this Agreement shall terminate
automatically upon his death.
B. Total Disability. The Company shall have the right to terminate this
Agreement if the Executive becomes Totally Disabled. For purposes of this
Agreement, "Totally Disabled" means that the Executive is not working and is
currently unable to perform the substantial and material duties of his position
hereunder as a result of sickness, accident or bodily injury for a period of
three months. Prior to a determination that Executive is Totally Disabled, but
after Executive has exhausted all sick leave and vacation benefits provided by
the Company, Executive shall continue to receive his Base Salary, offset by any
disability benefits he may be eligible to receive.
C. Termination by Company for Cause. The Executive's employment hereunder
may be terminated for Cause upon written notice by the Company. For purposes of
this Agreement, "Cause" shall mean:
(i) conviction of the Executive by a court of competent jurisdiction of
any felony or a crime involving moral turpitude;
(ii) the Executive's willful and intentional failure or willful and
intentional refusal to follow reasonable instructions of the Board or
material policies, standards and regulations of the Company;
(iii)the Executive's material breach or default in the performance of his
obligations under this Agreement that results in a significant
financial detriment to the Company;
(iv) the Executive's act of misappropriation, embezzlement, intentional
fraud or similar conduct involving the Company, or any act of
dishonesty by Executive which significantly affects his performance;
(v) the Executive's continued failure or refusal to faithfully and
diligently perform the usual and customary duties of his employment
under this Agreement; or
(vi) the Executive's gross negligence or willful misconduct with respect to
his duties under this Agreement.
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For purposes of this Section, an act or failure to act on the part of the
Executive will be deemed "willful misconduct" only if done or omitted to be done
by Executive not in good faith and without reasonable belief that his action or
omission was in the best interests of the Company, and no act or failure to act
on the part of Executive will be deemed "willful misconduct" that was done
primarily due to an error in judgment or mere negligence. Prior to such
termination, however, the Company shall provide written notice to the Executive
of the reasons for such proposed action and the Executive shall have ten (10)
business days from the receipt of such notice to cure such alleged deficiency,
if such deficiency is capable of correction.
D. Termination for Good Reason. The Executive's employment hereunder may be
terminated by the Executive for Good Reason on written notice by Executive to
the Company. For purposes of this Agreement, "Good Reason" means the occurrence
any of the following circumstances without the Executive's consent:
(i) a material reduction in the Executive's salary or benefits excluding
the substitution of substantially equivalent compensation and benefits
which material reduction is not promptly remedied upon written notice
by the Executive to the Company;
(ii) a material diminution of the Executive's duties, authority or
responsibilities as in effect immediately prior to such diminution and
which material diminution is not promptly remedied upon receipt of
written notice by the Executive to the Company;
(iii)the occurrence of an event described in Section 4.C.(4) of this
Agreement; provided that the Executive offers to remain employed by
the Company for at least three (3) months following the date of such
event;
(iv) the failure of a successor to assume and perform under this Agreement;
or
(v) The Executive is totally and permanently disabled, as such concept is
defined in the Company's long-term disability plan covering the
Executive.
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In the event of resignation for Good Reason, the Executive shall provide written
notice to the Company of the Good Reason(s) for the termination and the Company
shall have ten (10) business days from the date of receipt of such notice to
cure such alleged deficiency.
E. Notice of Termination. If the Company or the Executive desires to
terminate the Executive's employment hereunder at any time prior to expiration
of the Term, it or he shall do so by giving written notice to the other party
that it or he has elected to terminate the Executive's employment hereunder and
stating the effective date and reason for such termination, provided that no
such action shall alter or amend any other provisions hereof or rights arising
hereunder.
F. Resignations. Notwithstanding any other provision of this Agreement,
upon the termination of the Executive's employment for any reason, unless
otherwise requested by the Board of Directors, he shall immediately resign from
the Board of Directors and from all boards of directors of subsidiaries and
affiliates of the Company of which he may be a member. The Executive hereby
agrees to execute any and all documentation of such resignations upon request by
the Company, but he shall be treated for all purposes as having so resigned upon
termination of his employment, regardless of when or whether he executes any
such documentation.
6. Payments Upon Termination.
A. Upon termination of Executive's employment hereunder for any reason as so
provided for in Section 5 hereof, the Company shall be obligated to pay and
the Executive shall be entitled to receive, within ten (10) days of
termination, Base Salary which has accrued for services performed to the
date of termination and which has not yet been paid, as well as payment for
any accrued but unused vacation time. In addition, the Executive shall be
entitled to any benefits to which he is entitled under the terms of any
applicable Executive benefit plan or program, restricted stock plan and
stock option plan of the Company, and, to the extent applicable, short-term
or long-term disability plan or program with respect to any disability, or
any life insurance policies and the benefits provided by such plan, program
or policies, or applicable law.
B. Upon termination of Executive's employment by the Company without Cause or
by the Executive for Good Reason, the Company shall be obligated to pay and
the Executive shall be entitled to receive:
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(1) all of the amounts and benefits described in Section 6.A. hereof;
(2) a lump sum severance payment equal to $400,000, payable within ten
(10) days following execution of the release described in the last
paragraph of this Section 6.B.; and
(3) six (6) months of either (i) continued reimbursement of the
Executive's health insurance costs as provided in the last clause of
Section 4.D.(1) or (ii) continued coverage under the Company's group
health plan on the same basis as active employees, whichever is
applicable.
Payments under Section 6.B., with the exception of amounts due pursuant to
Section 6.B(1), are (i) conditioned on the execution by the Executive of a
release of all employment-related claims against the Company and its affiliates
and (ii) in the case of a termination pursuant to Section 5.D.(v), to be offset
by the value of any disability benefits to be received during the first twelve
(12) months following the Executive's termination of employment from any plan or
arrangement sponsored by the Company.
C. Upon voluntary termination of employment by the Executive for any reason
whatsoever (other than for Good Reason as described in Section 5.D.),
termination by the Company for Cause, termination due to death, or
expiration of the Term, the Company shall have no further liability under
or in connection with this Agreement, except to provide the amounts set
forth in Section 6.A.
D. Upon voluntary or involuntary termination of employment of the Executive
for any reason whatsoever or expiration of the Term, the Executive shall
continue to be subject to the provisions of Section 7 hereof (it being
understood and agreed that such provisions shall survive any termination or
expiration of the Executive's employment hereunder for any reason
whatsoever).
7. Confidentiality, Return of Property, and Covenant Not to Compete.
A. Confidential Information.
(1) Company Information. The Company agrees that it will provide the
Executive with Confidential Information, as defined below, that will
enable the Executive to optimize the performance of the Executive's
duties to the Company. In exchange, the Executive agrees to use such
Confidential Information solely for the Company's benefit. The Company
and the Executive agree and acknowledge that its provision of such
Confidential Information is not contingent on the Executive's
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continued employment with the Company. Notwithstanding the preceding
sentence, upon the termination of the Executive's employment for any
reason, the Company shall have no obligation to provide the Executive
with its Confidential Information. "Confidential Information" means
any Company proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, product plans,
products services, customer lists and customers (including, but not
limited to, customers of the Company on whom the Executive called or
with whom the Executive became acquainted during the term of the
Executive's employment), markets, software, developments, inventions,
processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing finances or other
business information disclosed to the Executive by the Company either
directly or indirectly in writing, orally or by drawings or
observation of parts or equipment. Confidential Information does not
include any of the foregoing items which has become publicly known and
made generally available through no wrongful act of the Executive or
of others who were under confidentiality obligations as to the item or
items involved or improvements or new versions.
The Executive agrees at all times during the Term and thereafter, to
hold in strictest confidence, and not to use, except for the exclusive
benefit of the Company, or to disclose to any person or entity without
written authorization of the Board of Directors of the Company, any
Confidential Information of the Company.
(2) Former Employer Information. The Executive agrees that he will not,
during his employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any former or concurrent
employer or other person or entity and that the Executive will not
bring onto the premises of the Company any unpublished document or
proprietary information belonging to any such employer, person or
entity unless consented to in writing by such employer, person or
entity.
(3) Third Party Information. The Executive recognizes that the Company has
received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the
Company's part to maintain the confidentiality of such information and
to use it only for certain limited purposes. The Executive shall hold
all such confidential or proprietary information in the strictest
confidence and not disclose it to any person or entity or use it
except as necessary in carrying out the Executive's work for the
Company consistent with the Company's agreement with such third party.
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B. Returning Company Documents. At the time of leaving the employ of the
Company, the Executive will deliver to the Company (and will not keep in the
Executive's possession) specifications, drawings blueprints, sketches,
materials, equipment, other documents or property, or reproductions of any
aforementioned items developed by the Executive pursuant to the Executive's
employment with the Company or otherwise belonging to the Company, its
successors or assigns; provided, however, that the Executive shall be entitled
to retain copies of "Rolodex-type" personal contact information.
C. Solicitation of Employees. The Executive agrees that for a period of
twelve (12) months immediately following the termination of the Executive's
relationship with the Company for any reason, the Executive shall not either
directly or indirectly solicit, induce or recruit any of the Company's employees
to leave their employment, or take away such employees, or attempt to solicit,
induce, recruit, encourage or take away employees of the Company, either for
himself or for any other person or entity.
D. Covenant Not to Compete.
(1) The Executive agrees that during the course of his employment and for
six (6) months following the termination of the Executive's
relationship with the Company for any reason (other than the
expiration of the Term), the Executive will not compete, without the
prior written consent of the Company, as a partner, employee,
consultant, officer, director, manager, agent, associate, investor, or
otherwise, directly or indirectly, own, purchase, organize or take
preparatory steps for the organization of, build, design, finance,
acquire, lease, operate, manage, invest in, work or consult for or
otherwise affiliate with any Competitive Business; provided, however,
that the beneficial ownership by Executive of up to 5% of the voting
stock of any corporation subject to the periodic reporting
requirements of the Securities and Securities Exchange Act of 1934
shall not violate this Section 7. For this purpose, "Competitive
Business" shall mean any person or entity (and any branch, office or
operation thereof) that engages in, or proposes to engage in: (a) the
underwriting, reinsurance, marketing or sale of (i) any form of
insurance, annuity or financial product of any kind that the Company
or any of its affiliates as of such date does, or has under active
consideration a proposal to, underwrite, reinsure, market or sell (any
such form of insurance, annuity or financial product, a "Company
Insurance Product") or (ii) any other form of insurance, annuity or
financial product that is marketed or sold in competition with any
Company Insurance Product, or (b) any other business that as of such
date is a direct and material competitor of a Company and its
affiliates to the extent that prior to the date of termination any of
the Companies or its affiliates engaged at any time within 12 months
in or had under active consideration a proposal to engage in such
competitive business; and that is located anywhere in the United
States where such Company or its affiliates is then engaged in, or has
under active consideration a proposal to engage in, any of such
activities (the "Territory").
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(2) The Executive acknowledges that he will derive significant value from
the Company's agreement in Section 7.A(1) to provide the Executive
with that Confidential Information to enable the Executive to optimize
the performance of the Executive's duties to the Company. The
Executive further acknowledges that his fulfillment of the obligations
contained in this Agreement, including, but not limited to, the
Executive's obligation neither to disclose nor to use the Company's
Confidential Information other than for the Company's exclusive
benefit and the Executive's obligation not to compete contained in
subsection (1) above, is necessary to protect the Company's
Confidential Information and, consequently, to preserve the value and
goodwill of the Company. The Executive further acknowledge the time,
geographic and scope limitations of the Executive's obligations under
subsection (1) above are reasonable, especially in light of the
Company's desire to protect its Confidential Information, and that the
Executive will not be precluded from gainful employment if the
Executive is obligated not to compete with the Company during the
period and within the Territory as described above.
(3) The covenants contained in subsection (1) above shall be construed as
a series of separate covenants, one for each city, county and state of
any geographic area in the Territory. Except for geographic coverage,
each such separate covenant shall be deemed identical in terms to the
covenant contained in subsection (1) above. If, in any judicial
proceeding, a court refuses to enforce any of such separate covenants
(or any part thereof), then such unenforceable covenant (or such part)
shall be eliminated from this Agreement to the extent necessary to
permit the remaining separate covenants (or portions thereof) to be
enforced. In the event the provisions of subsection (1) above are
deemed to exceed the time, geographic or scope limitations permitted
by Texas law, then such provisions shall be reformed to the maximum
time, geographic or scope limitations, as the case may be, then
permitted by such law.
E. Representations. The Executive represents that his performance of all
the terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by the Executive in confidence or in trust
prior to the Executive's employment by the Company. The Executive has not
entered into, and the Executive agrees that he will not enter into, any oral or
written agreement in conflict herewith.
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F. Remedies. In addition to all other remedies at law or in equity which
the Company may have for breach of a provision of this Section 7 by the
Executive, it is agreed that in the event of any breach or attempted or
threatened breach of any such provision, the Company shall be entitled, upon
application to any court of proper jurisdiction, to a temporary restraining
order or preliminary injunction (without the necessity of (i) proving
irreparable harm, (ii) establishing that monetary damages are inadequate or
(iii) posting any bond with respect thereto) against the Executive prohibiting
such breach or attempted or threatened breach by proving only the existence of
such breach or attempted or threatened breach.
8. Arbitration. Any dispute or controversy arising under or in connection
with this Agreement (other than any dispute or controversy arising from a
violation or alleged violation by the Executive of the provisions of Section 7)
shall be settled exclusively by final and binding arbitration in Austin, Texas,
in accordance with the Commercial Arbitration Rules of the American Arbitration
Association ("AAA"). The arbitrator shall be selected by mutual agreement of the
parties, if possible. If the parties fail to reach agreement upon appointment of
an arbitrator within thirty days following receipt by one party of the other
party's notice of desire to arbitrate, the arbitrator shall be selected from a
panel or panels of persons submitted by the AAA. The selection process shall be
that which is set forth in the AAA Commercial Arbitration Rules then prevailing,
except that, if the parties fail to select an arbitrator from one or more
panels, AAA shall not have the power to make an appointment but shall continue
to submit additional panels until an arbitrator has been selected. This
agreement to arbitrate shall not preclude the parties from engaging in
voluntary, non-binding settlement efforts including mediation.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by registered or certified mail (return receipt
requested and with postage prepaid thereon) or by facsimile transmission to the
respective parties at the following addresses (or at such other address as
either party shall have previously furnished to the other in accordance with the
terms of this Section):
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if to the Company:
Financial Industries Corporation
6500 River Place Blvd., Building One
Austin, Texas 78730
Attention: Theodore A. Fleron,
Vice President and General Counsel
if to the Executive:
J. Bruce Boisture
49 High Street
Farmington, CT 06032
With a copy to:
Jeffrey W. Hurt, Esq.
10670 North Central Expressway
Suite 505
Dallas, Texas 75231
Fax: 214-382-5657
10. Amendment; Waiver. The terms and provisions of this Agreement may be
modified or amended only by a written instrument executed by each of the parties
hereto, and compliance with the terms and provisions hereof may be waived only
by a written instrument executed by each party entitled to the benefits thereof.
No failure or delay on the part of any party in exercising any right, power or
privilege granted hereunder shall constitute a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege granted hereunder.
11. Entire Agreement. This Agreement and all Exhibits attached hereto
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior written or oral agreements or
understandings between the parties relating thereto.
12. Severability. In the event that any term or provision of this Agreement
is found to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining terms and provisions hereof shall not be in any
way affected or impaired thereby, and this Agreement shall be construed as if
such invalid, illegal or unenforceable provision had never been contained
therein.
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13. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and assigns
(it being understood and agreed that, except as expressly provided herein,
nothing contained in this Agreement is intended to confer upon any other person
or entity any rights, benefits or remedies of any kind or character whatsoever).
The Executive may not assign this Agreement without the prior written consent of
the Company. Except as otherwise provided in this Agreement, the Company may
assign this Agreement to any of its affiliates or to any successor (whether by
operation of law or otherwise) to all or substantially all of its business and
assets without the consent of the Executive. For purposes of this Agreement,
"affiliate" means any entity in which the Company owns shares or other measure
of ownership representing at least 40% of the voting power or equivalent measure
of control of such entity.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas (except that no effect shall be
given to any conflicts of law principles thereof that would require the
application of the laws of another jurisdiction).
15. Headings. The headings of the sections contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. An exchange of signed fax
counterparts between the parties is considered delivery of the executed
Agreement.
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IN WITNESS THEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Executive has signed this Agreement as of
the Effective Date.
FINANCIAL INDUSTRIES CORPORATION
_______________________________________
By:
EXECUTIVE
_______________________________________
J. BRUCE BOISTURE
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