EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into
this 31st day of July, 1997 by and between First Commonwealth
Corporation, a Virginia Corporation (the "Company") and George E.
Francis ("Executive").
WITNESSETH:
WHEREAS, the Company is engaged in the business of selling and
administering insurance; and
WHEREAS, the Executive is experienced in the management and
operations of insurance business; and
WHEREAS, the Company desires to employ the Executive in the
capacity, and on the terms as set forth herein, and the Executive
desires to be employed by the Company in such position and on the
terms and subject to the conditions herein contained; and
WHEREAS, the parties hereby acknowledge that notwithstanding
any other communication whether written or oral, this Employment
Agreement is intended to set forth the complete understanding of
the parties with respect to the employment of the Executive by the
Company as of and from the date hereof.
NOW, THEREFORE, in consideration of these premises and the
respective covenants and agreements hereinafter set forth, the
parties hereby agree as follows:
1. EMPLOYMENT AND DUTIES OF THE EXECUTIVE. The Company
hereby employs the Executive and the Executive accepts
employment as Senior Vice President of the Company. During the
terms of this Employment Agreement, the Executive will devote all
of his business time and energy to performing his duties on behalf
of the Company. In addition to his duties as Senior Vice President,
the Executive agrees to perform such duties as from time to time
may be assigned by the Board of Directors of the Company (the
"Board"). In the performance of such duties, the executive will
at all times serve the Company faithfully and to the best of his
ability under the direction and control of the Board. If the
Executive is elected or appointed to additional or substitute
offices or positions with the Company or any of its subsidiaries
or affiliates, he agrees to accept and serve in that position.
2. TERM. The term of employment under this Employment
Agreement will be for a period of thirty six (36) consecutive months
from the date hereof, unless sooner terminated as hereinafter
provided.
3. COMPENSATION. So long as the Executive is employed by
the Company pursuant to this Employment Agreement, the Executive
will be entitled to the following compensation and fringe benefits:
3.1. SALARY. For all services rendered by the Executive
pursuant to this Employment Agreement, the Company will pay to
the Executive, an annual salary of $126,200, less any
compensation received by reason of Executive's participation
as a director of the Company or any of its subsidiaries or
affiliates. Such salary will be payable in equal bi-monthly
installments or at such other frequency as will be consistent
with the Company's normal payroll practices with other
employees in effect from time to time. Payments of salary
will be subject to normal employee withholding and other tax
deductions. The parties acknowledge that the annual salary is
a base salary and annual consideration shall be given to
granting Executive salary increases based on factors such as:
inflation, increase in the scope of duties and extraordinary
achievements.
3.2. FRINGE BENEFITS. The Executive will be entitled to
participate in the fringe benefit programs of the Company, in
existence from time to time (including any pension plan, bonus
program, group life and medical insurance programs and medical
expense reimbursement plans), as determined by the Board, and
as are made available to employees of like status to the
Executive on a comparable basis, and according to the rules
and regulations of such programs adopted by the Company from
time to time.
3.3. EXPENSES. Upon presentation of supporting
documentation as may reasonably be satisfactory to the
Company, the Company will pay or reimburse the Executive for
all reasonable travel, entertainment, and other business
expenses actually incurred by the Executive during the term of
this Employment Agreement in the performance of his services
and duties; provided, however, that the type and amount of
expenses will be consistent with expense reimbursement
policies adopted from time to time, formally or informally by
the Company. Any expense beyond such authorization must be
specifically authorized in advance by the president. In the
event of a dispute between the Company and the Executive as to
the nature of such expenses, the decision of the president
will be binding. If an income tax deduction (Federal, state
or local) is disallowed to the Company for any part of such
expense payments, the Executive agrees to repay the Company
the amount of the expense reimbursement to the Executive paid
by the Company upon demand by the Company.
4. TERMINATION. The Executive's employment with the Company
may be terminated and this Employment Agreement canceled upon
the following terms and conditions.
4.1. TERMINATION FOR CAUSE. During the terms of this
Employment Agreement, the Executive's employment may be
terminated immediately, with or without written or oral
notice, by the Company for "Cause" (as hereinafter defined).
If the Executive's employment with the Company is terminated
for "Cause" all compensation described in paragraphs 3.1
through 3.3 of this Employment Agreement will terminate as of
the date of such termination of employment. Termination for
"Cause" is limited to the following grounds: (i)
misappropriation of funds, embezzlement, or willful and
material damage of or to any material property of the Company,
or defrauding or attempting to defraud the Company; (ii)
conviction of any crime (whether or not involving the Company)
which constitutes a felony in the jurisdiction involved; (iii)
malfeasance or non-feasance in the performance by the
Executive of his duties hereunder; (iv) failure or refusal by
the Executive to perform his duties in the best interests of
the Company and in accordance with the directions given by the
Board, the chairman of the board or the president of the
Company; or (v) a material breach by the Executive, in the
sole opinion of the Company, or any of the provisions of this
Employment Agreement; which breach continues after notice of
the breach, either oral or written, from the Company to the
Executive. Upon termination of the Executive for "Cause", the
Company will pay the Executive's salary and other benefits,
including reimburse the Executive for authorized expenses
incurred, through the date of termination of the Executive's
employment. The Executive acknowledges and agrees that the
foregoing will be the Company's only obligations and total
liability to the Executive for termination of the Executive's
employment for "Cause".
4.2. TERMINATION WITHOUT CAUSE. The Company
may terminate the Executive without cause at any time by
providing the Executive thirty (30) days prior written
notice of termination. Upon termination without cause, the
Company will continue to pay the Executive compensation in the
amount equal to the Executive's then salary for the remainder
of the term of this Employment Agreement as if Executive
had not been terminated, plus any bonuses which the
Executive would have been entitled to had the Executive not
been terminated, and reimburse the Executive for
authorized expenses incurred through the date of termination
of the Executive's employment. The Company will also, if
required by law, allow the Executive to continue any medical
and hospitalization plan and/or insurance at the
Executive's sole cost and responsibility. The Executive
acknowledges and agrees that the foregoing will be the
Company's only obligations and total liability to the
Executive for termination of the Executive's employment
without cause.
4.3. VOLUNTARY RESIGNATION. The Executive may
voluntarily resign prior to the expiration of this Employment
Agreement, upon providing the Company with at least fifteen
(15) days' prior written notice. Upon the effective date of
the Executive's resignation, the Company will pay the
Executive's salary and other benefits, including reimbursement
for authorized expenses incurred, through the effective date
of the Executive's resignation. The Company will also, if
required by law, allow the Executive to continue any medical
and hospitalization plans and/or insurance at the Executive's
sole cost and responsibility. The Executive acknowledges and
agrees that the foregoing will be the Company's only
obligations and total liability to the Executive for
termination of the Executive's employment due to the
Executive's voluntary resignation.
4.4. TERMINATION UPON DEATH. The Executive's
employment will be terminated automatically upon the
Executive's death. As the result of the Executive's death, the
Company will pay to the Executive's estate a death benefit
equal to the Executive's salary through the end of the month
in which the Executive's death occurs, plus reimbursement
for authorized expenses incurred by the Executive prior to his
death. The Executive acknowledges and agrees that the foregoing
will be the Company's only obligations and total liability
to the Executive for termination of the Executive's employment
due to the Executive's death.
4.5. TERMINATION UPON DISABILITY. The Company may,
upon 30 days prior written notice to the Executive, terminate
the Executive's employment effective as of the date specified
in the notice, if, due to any medical or psychological
disability the Executive is not able to perform his customary
services and duties for 30 continuous business days or
45 noncontinuous business days within a 90-day period
(the "Disability Period"). The Company may retain a physician
of its choice to examine the Executive and to render a
medical opinion to the Company as to the Executive's
medical or psychological disability. The Executive
consents to examination by such physician, and further agrees
that the opinion of such physician will be binding upon
both the Executive and the Company. Upon termination
of the Executive's employment due to disability, the Company
will pay to the Executive an amount equivalent to three months
salary as termination compensation, and if required by law,
allow the Executive to continue any medical or
hospitalization plan and/or insurance at the Executive's
sole cost andresponsibility. The Executive will receive full
compensation for any period of temporary illness or
disability. The Executive acknowledges and agrees that the
foregoing will be the Company's only obligations and total
liability to the Executive for termination of the Executive's
employment due to disability.
4.6. RETURN OF MATERIALS. Upon the termination of the
Executive's employment, irrespective of the time, manner or
reason of termination, the Executive will immediately
surrender and deliver to the Company all originals and all
copies of reproductions of books, records, summaries, lists,
computer software, and other tangible data and information,
and every form and every kind, relating to the Confidential
Information (as defined in Section 5 of this Employment
Agreement) and all other property belonging to the Company.
The prior and full performance by the Executive of the
provisions of this Section 4.6 is a condition to the payment
by the Company to the Executive of any compensation set forth
in this Employment Agreement.
5. NON-DISCLOSURE OF CONFIDENTIAL AND PROPRIETARY
INFORMATION. The Executive may not during the term of his
employment with the Company or any time thereafter, directly or
indirectly, copy, use, or disclose to any person or business any
"Confidential Information" (as defined below) except for the
benefit of the Company in connection with the performance of his
duties and in accordance with any guidelines or policies which
might be adopted from time to time by the Company. In addition,
the Executive will use his best efforts to cause all persons over
whom he has supervisory control to use, maintain and protect all
"Confidential Information" in a confidential manner and as a
valuable asset of the Company. As used in this Employment
Agreement, "Confidential Information" means trade secrets and other
proprietary information and data concerning the business of the
Company, its subsidiaries and affiliates (the "FCC Companies"),
regardless of whether protectable by law, including, but not
limited to, information concerning the names and addresses of any
of the FCC Companies' policyholders and prospective policyholders,
any of the FCC Companies' operation manuals, accounts, the names of
employees and agents and their respective duties, the names of
reinsurance providers, financial data, pricing lists and policies,
profits or losses, product or service development and all such
similar information, all of which would not readily be available to
the Executive except for the Executive's employment relationship
with the Company. The Executive acknowledges that such information
and similar data is not generally known to the trade, is of a
confidential nature, is an asset of the Company, and to preserve
the Company's good will, must be kept strictly confidential and
used only in the conduct of its business. The provisions of this
Section will survive the termination of this Employment Agreement
for any reason.
6. INTERFERENCE WITH EXTERNAL BUSINESS RELATIONSHIPS. The
Executive agrees that, as a result of the Confidential Information,
he will receive, come in contact with, create, or have access to
during the term of his employment with the Company, and the
Company's customer relationships he will be exposed to, the
Executive will not, directly or indirectly (through any corporation
which he is a director, officer, consultant, agent or other
relationship) during the term of his employment service, perform or
otherwise manage insurance companies or insurance related
businesses.
7. INTERFERENCE WITH INTERNAL BUSINESS RELATIONSHIPS. The
Executive agrees that, as a result of the Confidential Information
he will receive, come into contact with, create or have access to
during the term of his employment with the Company, and the
Company's employee and independent contractor relationships he will
be exposed to, the Executive will not, directly or indirectly
(through any corporation in which he is a director, officer,
consultant, agent, or other relationship), during the term of his
employment interfere with the Company's relationship with, or
endeavor to entice away from the Company or any of the FCC
Companies or, directly or indirectly, contact any person, firm or
entity employed by, retained by or associated with the Company or
any of the FCC Companies, to induce any such person, firm or
entity, to leave the service of the Company or any of the FCC
Companies and provide the same or substantially the same work as
performed for the Company or any of the FCC Companies to the
Executive or to any other person, firm, or entity.
8. INJUNCTIVE RELIEF. The Executive consents and agrees
that if he violates any of the provisions of Section 5 through 7
hereof, the Company would sustain irreparable harm and, therefore
in addition to any other remedy at law or in equity the Company may
have under this Employment Agreement, the Company will be entitled
to apply to any court of competent jurisdiction for an injunction
restraining the Executive from committing or continuing any such
violation of any provisions of Section 5 through 7 of this
Employment Agreement.
9. MISCELLANEOUS.
9.1 NOTICES. All notices and other communications
required or desire to be given to or in connection with this
Employment Agreement will be in writing and will be deemed
effectively given upon personal delivery three days after
deposit in the United States mail sent by certified mail,
return receipt requested, postage prepaid, or one day after
delivery to an overnight delivery service which retains
records of deliveries, to the parties at the addresses set
forth below or such other address as either party may
designate in like manner.
A. If to the Company:
First Commonwealth Corporation
5250 South Sixth Street
Springfield, Illinois 62703
B. If to the Executive:
Mr. George E. Francis
3201 Eagle Watch Drive
Springfield, Illinois 62707
9.2 GOVERNING LAW. This Employment Agreement will be
governed and construed in accordance with the laws of the
State of Illinois.
9.3 SEVERABILITY. If any provision contained in this
Employment Agreement is held to be invalid or unenforceable by
a court of competent jurisdiction, such provision will be
severed herefrom in such invalidity or unenforceability will
not effect any other provision of this Employment Agreement,
the balance of which will remain in and have its intended full
force and effect; provided, however, if such invalid or
unenforceable provisions may be modified so is to be valid and
enforceable as a matter of law, such provision will be deemed
to have been modified so as to be valid and enforceable to the
maximum extent committed by law.
9.4 MODIFICATION. This Employment Agreement may not be
changed, modified, discharged, or terminated except by a
writing signed by all the parties hereto.
9.5 FULLING BINDING. This Employment Agreement will be
binding on and inure to the benefit of the parties hereto and
their respective successors, assigns and personal
representative; provided, however, that this Employment
Agreement is assignable by the Company with the prior consent,
either oral or written, of the Executive.
9.6 HEADINGS. The numbers, headings, titles, or
designations to the various sections are not a part of this
Employment Agreement, but are for convenience of reference
only, and do not and will not be used to define, limit or
construe the contents of this Employment Agreement or any part
thereof.
9.7 WAIVER. By execution of this Employment Agreement,
the Executive hereby waives and relinquishes any and all
rights, benefits and entitlements to which he may hereafter
have under any other contract with the Company or any of its
corporate parents, subsidiaries or affiliates prior to the
date hereof; excepting that certain agreement dated April 15,
1993 pertaining to a deferred compensation payment and options
to Purchase stock of UTI.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Employment Agreement on the date first above written.
EXECUTIVE: COMPANY:
First Commonwealth Corporation, a
Virginia corporation.
By: By:
George E. Francis Title:
ATTEST:
By:
Title: