Exhibit 10.1


 


AMENDED RETIREMENT BENEFIT AGREEMENT


 


This
Amended Retirement Benefit Agreement (this “Agreement”)
is made and entered into as of March 29, 2010 (the “Effective
Date”), by and between American Equity Investment Life Holding
Company, an Iowa corporation (the “Company”),
and David J. Noble (“Executive”).


 


W I T N E S S E T H:


 


WHEREAS,
Executive and the Company deem it to be in their respective best interests to
enter into this Agreement to provide Executive with certain benefits in the
event of his termination of employment from the Company.


 


NOW,
THEREFORE, in consideration of the premises and the mutual promises and
agreements contained herein, it is hereby agreed as follows:


 


1.             Definitions.


 


(a)           Termination for Cause.  The Company shall have the right to terminate
Executive’s employment at any time for Cause by giving Executive written notice
of the effective date of termination (which effective date may be the date of such
notice).


 


(i)            For purposes of this Agreement only, the term “Cause” shall mean Executive’s:


 


(1)           willful failure to materially perform his duties with the
Company or to follow the specific instructions of the Board of Directors of the
Company (the “Board”), other than any such
failure resulting from his incapacity due to physical or mental illness,


 


(2)           willful engagement in conduct that is materially injurious to
the Company, monetarily or otherwise,


 


(3)           conviction of (or plea of nolo  contendere to)
any felony, fraud or embezzlement, or


 


(4)           willful and material breach of the terms of this Agreement.


 

















 


(ii)           If the Company terminates Executive’s employment for Cause,
the Company shall have no further obligations and Executive shall have no
further rights hereunder.


 


(iii)          Notwithstanding the foregoing, the Company may not terminate
Executive’s employment for Cause unless (x) a determination that Cause
exists is made and approved by a majority of the Board (excluding Executive), (y) Executive
is given at least 15 days written notice of the Board meeting called to make
such determination and an opportunity to cure during such notice period, and (z) Executive
and his legal counsel are given the opportunity to address such meeting.


 


(b)           Termination by Reason of Retirement.  In light of Executive’s
age and years of service with the Company, any termination of Executive’s
employment with the Company, other than a termination for Cause for purposes of
this Agreement, will be by reason of “Retirement.”


 


2.             Retirement
and Other Benefits.


 


(a)           Retirement Benefit.  If Executive’s employment is terminated by
reason of Retirement, then Executive shall receive a benefit payable in monthly
installments of $41,650 or such higher amount which reflects one-twelfth of the
Executive’s annual base salary as in effect at the time of Retirement for the
period described below (the “Retirement Benefit”).  Executive’s Retirement Benefit shall commence
as soon as practicable, but in no event later than 60 days, following Executive’s
Retirement, and shall continue to be paid on the first day of each successive
month until such time as 60 monthly installments have been paid; provided,
however, that if Executive dies before all 60 monthly installments have been
paid, then (i) if at the time of his death, Executive has a surviving
spouse, his spouse shall continue to receive such monthly payments until the
earliest to occur of (a) the 24-month anniversary of the Executive’s
death, (b) the spouse’s death and (c) such time as all 60 monthly
installments of the Retirement Benefit have been paid, and (ii) if Executive
dies without a surviving spouse, then payments of the Retirement Benefit will
cease upon his death.


 


(b)           Death Benefit.  If Executive’s employment is terminated by
reason of his death, then, if Executive had a surviving spouse as of the date
of his death, such spouse shall be entitled to receive a monthly annuity equal
to $41,650 or such higher amount which reflects one-twelfth of the Executive’s
annual base salary as in effect at the time of Retirement until the earlier to
occur of (i) the 24-month anniversary of Executive’s death 


 


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and (ii) the date of death of
such surviving spouse (the “Death Benefit”).  If at the time of Executive’s termination of
employment by reason of his death he does not have a surviving spouse, then no
payments will be made under this Section 2 of this Agreement.


 


(c)           Section 409A.  Notwithstanding the foregoing, if, as of
Executive’s Retirement he is deemed to be a “specified employee” within the
meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), his Retirement Benefit will be delayed
until the six-month anniversary of the date of Executive’s Retirement or, if
earlier, until his death (“Specified Employee Delayed
Payment Date”).  In that
event, as soon as practicable, but in no event later than 60 days, following
the Specified Employee Delayed Payment Date, Executive (his surviving spouse or
his estate, as the case may be) shall receive a lump sum cash payment in an
amount equal to the payments Executive would otherwise have received prior to
the Specified Employee Delayed Payment Date, and the remaining payments shall
continue to be paid pursuant to the schedule described above.


 


(d)           Health Benefits.  If Executive’s employment is terminated for
any reason other than (i) for Cause or (ii) by reason of his death,
then Executive shall be eligible to participate for Executive’s lifetime in the
Company’s health benefit programs, if any, on terms no less favorable than
those available to senior executive officers of the Company; provided, however,
that nothing in this Section 2(d) shall limit the Company’s right to
amend or terminate at any time such benefits applicable to such senior executive
officers of the Company.


 


(e)           Office Space. During
Executive’s lifetime (including at any time after Executive’s Retirement but not
following a termination for Cause), Executive shall be provided the use of his
current office space (or, at Executive’s request, comparable office space
located elsewhere) and secretarial services.


 


3.             Confidentiality;
Nonsolicitation; Noncompete.  For purposes of this Section 3
only, the term “Company” shall also include American Equity Life Insurance
Company, American Equity Life Insurance Company of New York and Eagle Life
Insurance Company.  The
Company is engaged throughout the United States in the business of underwriting
a broad range of life insurance and annuity products, including fixed rate,
index and variable annuities (the “Business”).  Executive acknowledges and agrees that he has
experience and expertise associated with the Business throughout the United
States, that he possesses valuable skills related to the Business, and that he
has obtained, and in the future will obtain, Confidential Information (as
defined below) related to the Business. 
In addition, Executive has valuable business contacts with national
marketing organizations, agents and potential agents, and professionals in the
Business. Executive’s 


 


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reputation and goodwill are an integral part of the
success of the Business throughout the areas where it is and will be
conducted.  If Executive in any manner
uses his reputation and goodwill in competition with the Company or discloses
Confidential Information with respect to the Business or uses such Confidential
Information in competition with the Company, the Company stands to suffer
significant harm.  The Company therefore
desires that Executive agree, upon the terms as set forth below, not to solicit
policyholders, agents or employees of the Company, not to compete, and not to
otherwise disclose any Confidential Information.  But for Executive’s entry into the agreements
set forth in this Section 3, the Company would not have entered into this
Agreement.


 


(a)           Covenant Not to Compete.  Executive agrees that commencing on the
Effective Date and continuing until the second anniversary of Executive’s termination
of employment with the Company (such period being referred to herein as the “Restricted Period”), Executive shall not, directly or
indirectly, engage in the Business for his own account, or own or invest in
(except through ownership of securities of the Company or less than 5% of the
securities of another publicly traded company), manage, join, operate or
control, or participate in the ownership, management, operation or control of,
or serve as a director, member, officer, employee, partner, consultant or
otherwise with, or permit his name to be used by or in connection with, any
profit or non-profit business or organization other than the Company engaged in
the Business (“Competitor”) anywhere in Iowa,
Illinois, Minnesota, Missouri and Wisconsin.


 


(b)           No Solicitation of Policyholders, Employees or Agents.  During the
Restricted Period, Executive shall not, directly or indirectly,


 


(i)            solicit, divert or attempt to influence any person, firm,
corporation or other entity who is or was a policyholder of the Company to
terminate or decrease the amount of Business such policyholder has placed or
may place with the Company;


 


(ii)           solicit or recruit any employee of the Company, unless the
employment of such employee with the Company has been terminated other than by
an inducement of employment otherwise prohibited hereunder; and


 


(iii)          solicit, divert or attempt to influence any person, firm,
corporation or other entity who is or was an agent of the Company to terminate
or decrease the amount of Business such person or entity conducts with the
Company.


 


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(c)           Confidential Information.  Executive acknowledges that he occupies a
position of trust and confidence with the Company.  During the Restricted Period, Executive shall
not, except as may be required to perform his duties hereunder or as required
by applicable law or as authorized by the Board, and except for information
which is or becomes publicly available other than as a result of a breach by
Executive of the provisions hereof, disclose to others or use for his own
account, whether directly or indirectly, any Confidential Information.  Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to the Company,
and that such information gives the Company a competitive advantage.  As used herein, the term “Confidential Information” shall mean
information about the Company and its products, policyholders, and agents and
national marketing organizations that is not publicly disclosed by the Company
and that was learned by Executive in the course of his employment, including
(without limitation) proprietary knowledge, trade secrets, inventions, ideas,
processes, source and object codes, computer programs, data, know-how,
improvements, discoveries, designs, techniques, market and investment research,
marketing or business plans and strategies, budgets and unpublished financial
information, licenses, prices and costs, quoting policies and procedures,
formulae, information and suppliers, policyholder and agent lists, information
regarding the skills and compensation of Company employees and agents, and all
papers, resumes, and records (including computer records) or documents
containing Confidential Information.


 


(d)           Severability of Provisions.  In the event that the provisions of this Section 3
should ever be adjudicated by a court of competent jurisdiction to exceed the
time or geographic or other limitations permitted by applicable law, then such
provisions shall be deemed reformed to the maximum time or geographic or other
limitations permitted by applicable law, as determined by such court in such
action.  Without limiting the foregoing,
the covenants contained herein shall be construed as separate covenants,
covering their respective subject matters, with respect to (i) each place
in which the Company now transacts any Business and (ii) each Business
conducted by the Company.  Each breach of
the covenants set forth herein shall give rise to a separate and independent
cause of action.


 


(e)           Injunctive Relief.  Executive acknowledges that (i) the
provisions of Sections 3(a), (b) and (c) are reasonable and necessary
to protect the legitimate interests of the Company, and (ii) any violation
of Sections 3 (a), (b) or (c) will result in irreparable injury to
the Company, the exact amount of which will be difficult to ascertain, and that
the remedies at law for any such violation would not be reasonable or adequate
compensation to the Company for such a violation.  Accordingly, Executive agrees that if he
violates the provisions of Sections 3(a), (b) or (c), in addition to any 


 


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other remedy which may be available
at law or in equity, the Company shall be entitled to specific performance and
injunctive relief without the necessity of proving actual damages or posting a
bond.


 


(f)            Enforceability in All Jurisdictions.  The parties intend
to and hereby confer jurisdiction to enforce each and every one of the
covenants in this Agreement upon the courts of any jurisdiction within the
geographic scope of such restrictive covenants. 
If the courts of any one or more of such jurisdictions hold the
restrictive covenants unenforceable by reason of the breadth of such scope or
otherwise, it is the intention of the parties that such determination shall not
bar or in any way affect any party’s right to the relief provided above in the
courts of any other jurisdiction within the geographic scope of such
restrictive covenants.


 


4.             Offset.  Executive shall not be required to offset the
amount of any payment provided for in this Agreement.


 


5.             Dispute
Resolution; Attorney’s Fees.  Any dispute or controversy arising under or
in connection with this Agreement other than those relating to enforcement of
non-solicitation provisions in connection with the provisions of Section 3
shall generally be resolved before a private judge or arbitration in accordance
with the rules of the American Arbitration Association.  The Company and Executive hereby agree that
the arbitrator will not have the authority to award punitive damages, damages
for emotional distress or any other damages that are not contractual in
nature.  Judgment may be entered on the
arbitrator’s award in any court having jurisdiction; provided, however, that
the Company shall be entitled to seek a restraining order or an injunction in
any court of competent jurisdiction to prevent any continuation of any
violation of the provisions of Section 3 hereof and Executive consents
that such restraining order or injunction may be granted without the necessity
of the Company’s posting any bond.  The
expense of such arbitration shall be borne by the prevailing party.


 


6.             Guarantors.  If at the time of termination of Executive’s
employment, Executive has guaranteed any liabilities of the Company, then the
Company shall use its best efforts to, as promptly as practicable, secure the
release of Executive from any and all such obligations at no cost to Executive.


 


7.             Miscellaneous.  This Agreement shall also be subject to the
following miscellaneous considerations:


 


(a)           Executive and the Company each represent and warrant to the
other that he or it has the authorization, power and right to deliver, execute,
and fully perform his or its obligations under this Agreement in accordance
with its terms.


 


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(b)           This Agreement supersedes all prior and existing negotiations
and agreements between the parties concerning the subject matter of this
Agreement, and this Agreement can only be changed or modified pursuant to a
written instrument duly executed by each of the parties hereto.  This Agreement does not supersede or affect
any other written agreements between the Executive and the Company or any
plans, policies or practices covering the Executive.


 


(c)           If any provision of this Agreement or any portion thereof is
declared invalid, illegal, or incapable of being enforced by any court of
competent jurisdiction, the remainder of such provisions and all of the
remaining provisions of this Agreement shall continue in full force and effect.


 


(d)           This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Iowa, except to the extent
governed by federal law.


 


(e)           All amounts payable hereunder shall be subject to such
withholding taxes and deductions as may be required by law.


 


(f)            No funds or assets of the Company will be segregated or
physically set aside with respect to this Agreement.  Executive will not have any interest in any
specific asset of the Company as a result of this Agreement. Any right to receive
benefits under this Agreement will be the right only of an unsecured general
creditor of the Company.


 


(g)           The Company shall assign this Agreement to any successor
(whether by merger, consolidation, purchase or otherwise) to all or
substantially all of the stock, assets or business of the Company and this
Agreement shall be binding upon and inure to the benefit of such successors and
assigns.  Except as expressly provided
herein, Executive may not sell, transfer, assign, or pledge any of his rights or
interests pursuant to this Agreement.


 


(h)           Any rights of Executive hereunder shall be in addition to any
rights Executive may otherwise have under benefit plans, agreements, or
arrangements of the Company to which he is a party or in which he is a
participant, including, but not limited to, any Company-sponsored employee
benefit plans.  Provisions of this
Agreement shall not in any way abrogate Executive’s rights under such other
plans, agreements, or arrangements.


 


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(i)            For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed to American Equity Investment Life Holding Company, 6000 Westown
Parkway, West Des Moines, Iowa 50266 Attn: Board of Directors, and to
Executive, American Equity Investment Life Holding Company, 6000 Westown
Parkway, West Des Moines, Iowa 50266, provided that all notices to the Company
shall be directed to the attention of the Board with a copy to the Secretary of
the Company, or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of change of
address shall be effective only upon receipt.


 


(j)            All references to the masculine gender shall be deemed to
include the feminine gender.


 


(k)           This Agreement is intended to comply with and be administered
in compliance with Section 409A.  Notwithstanding
anything contained herein to the contrary, to the extent required to avoid
accelerated taxation and/or tax penalties under Section 409A, Executive
shall not be considered to have terminated employment for purposes of Section 2
of this Agreement unless Executive would be considered to have incurred a
separation from service within the meaning of Section 409A.  Each amount to be paid under this Agreement
shall be construed as a separate identified payment for purposes of Section 409A.


 


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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.


 


 


	
  Executive

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  David J. Noble

  	
   

  	
   

  
	
   

  	
  David
  J. Noble

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  American Equity Investment
  Life Holding Company

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/
  John Matovina

  	
   

  	
   

  
	
   

  	
  John
  Matovina

  	
   

  	
   

  
	
   

  	
  Vice
  Chairman and Chief Financial Officer

  	
   

  	
   

  



 


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