Exhibit 10.1


 


RETIREMENT BENEFIT AGREEMENT


 


This Retirement Benefit Agreement (this “Agreement”) is made and entered into as of June 4, 2009
(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 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 12-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 until the earlier to occur of (i) the 12-month
anniversary of Executive’s death and (ii) the date of death of such
surviving spouse (the “Death Benefit”).  If at the time of Executive’s termination of 


 


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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 and American Equity Life
Insurance Company of New York. 
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 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 


 


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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.


 


(c)                                 Confidential
Information.  Executive
acknowledges that he occupies a position of trust and confidence with the
Company.  During the Restricted 


 


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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 other remedy which may be available at law or in equity, the
Company 


 


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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, 5000 Westown Parkway, Suite 440, West Des Moines,
Iowa 50266 Attn: Board of Directors, and to Executive, American Equity
Investment Life Holding Company, 5000 Westown Parkway, Suite 440, 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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