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EXHIBIT 10(k)
EMPLOYMENT AGREEMENT
Employment Agreement ("Agreement") effective as of October 1, 1996
between Physicians Protective Trust Fund (the "Company") and Xxxxxx X. Xxxxxx
(the "Executive").
RECITALS
A. The Company desires to employ the Executive for the period set forth
in this Agreement to obtain services from the Executive, and the Executive is
willing to be employed by the Company for that period on the terms and
conditions set forth below.
B. The Executive acknowledges that his expertise will contribute
significantly to the financial success of the business of the Company and
acknowledges that the covenants not to compete and confidentiality provisions in
this Agreement are reasonable.
AGREEMENT
1. Term of Employment. The Company will employ the Executive for a term
commencing on October 1, 1996 and ending on September 30, 2001 (the "Term"),
subject to the renewal provisions of Section 2 and the earlier termination
provisions of Section 6.
2. Automatic Annual Renewal. If this Agreement is still in full force
and effect at the end of the Term, it will be automatically renewed at that time
for an additional two-year period (the "Renewal Term") and at the end of each
Renewal Term thereafter, unless (a) terminated by the Executive or by the
Company upon written notice given at least 120 days prior to the end of the Term
or the Renewal Term, or (b) otherwise terminated pursuant to Section 6. Except
as otherwise specifically provided, the Renewal Term shall be on the same terms
and conditions as the Term.
3. Duties. The Executive's job title will be President and Chief
Executive Officer. The Executive will report directly to, and work to the
direction of, the Company's Board of Trustees. The Executive's duties generally
will include management of and strategic planning for the Company, and other
duties assigned to the Executive by the Board of Trustees. The Executive's
duties may change from time to time on reasonable notice based on the needs of
the Company and the Executive's skills, consistent with the Executive's
background and experience, as determined by the Company's Board of Trustees.
As an exempt employee, the Executive will be required to exercise his
specialized expertise, independent judgment and discretion to provide
high-quality services. The Executive will follow office policies and procedures
adopted from time to time by the Company and take such general direction as the
Executive may be given from time to time by the Board of Trustees. The Company
reserves the right to change these policies and procedures at any time. The
Executive will devote its full energies, efforts and abilities to his employment
with the Company, unless the Company expressly agrees otherwise.
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The Executive, at his discretion, may participate in not for profit
activities outside his employment with the Company so long as such outside
activities do not interfere with the Executive's ability to carry out his duties
under this Agreement.
4. Hours of Work. As an exempt employee, the Executive will be expected
to work the number of hours required to get the job done. The Executive
generally is expected to be present during normal business hours of the Company.
Normal business hours will be established by the Company and may be changed as
needed to meet the needs of the business.
5. Compensation.
(a) Base Salary. The Company will pay the Executive compensation
every two weeks at a rate of $325,000 per year ("Salary").
(b) Bonus Compensation. In addition to the Salary, the
Executive will be eligible for an annual cash bonus ("Bonus"), up to a maximum
of 50% of the Salary, to be paid within the discretion and subject to the
approval of the Company's Board of Trustees and computed in the manner set forth
in Exhibit A to this Agreement. The first bonus will be based on the financial
results of the Company for the calendar year ending December 31, 1997. The
Executive will be paid 125% of the amount of the Bonus determined for this first
Bonus period to reflect the fact that the Executive will have been employed for
the fifteen months from October 1, 1996 through December 31, 1997. All
subsequent Bonuses will be based on the financial results of the Company for the
applicable calendar year and the Executive will be paid 100% of the amount of
the bonus determined for the applicable period. A minimum of 25% of the maximum
available Bonus will be payable with the Executive's Salary every two weeks
beginning on October 1, 1996 and the remaining amount of the Bonus will be
payable in a lump sum on March 31, 1998 for the first year and on March 31 of
each year thereafter during the Term and each Renewal Term of this Agreement.
(c) Insurance Benefits. The Company will provide health
insurance and other benefits to the Executive on a basis consistent with that
provided by the Company to its other senior executive officers.
(d) Vacation. The Executive will be entitled to 25 paid
vacation days in each calendar year in accordance with the Company's policies,
as modified on a periodic basis. The Executive will also be entitled to all paid
holidays given by the Company to its employees generally. The Executive agrees
(i) to limit his vacation during his first six months of employment with the
Company, (ii) to give one month prior notice of his intent to take vacation to
the Chairman of the Company's Board of Trustees and (iii) not to take a vacation
exceeding two consecutive weeks without prior approval by the Company's Board of
Trustees, which approval shall not be unreasonably withheld.
(e) Personal Days. The Executive may take one personal
day during 1996 and two personal days in each year thereafter during the Term
and each Renewal Term.
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(f) Sick Days. The Executive may take up to ten sick days per
year. Additional sick days may be provided to the Executive at the discretion
of the Company's Board of Trustees.
(g) Business Expenses. The Company will reimburse the
Executive, within 30 days after the Executive submits expense receipts to the
Company, for all reasonable out-of-pocket expenses that are paid by the
Executive in performing the services set forth in Section 3. The Company also
agrees to pay reasonable expenses related to travel by the Executive's spouse to
major Physician Insurers Association of America events, if attendance by spouses
is customary at such events, and expenses related to subscriptions to trade
publications, dues for membership in trade associations and membership dues
required for the Executive to remain a member of the Kentucky, Ohio and Colorado
Bars.
(h) Moving Expenses. The Company will pay all reasonable
relocation expenses for the Executive and his family including, but no limited
to, broker's fees (not to exceed the standard prevailing broker fee in Kentucky)
incurred in the sale of the Executive's primary residence in Kentucky; expenses
incurred in connection with the purchase of a home in the Miami, Florida area;
fees incurred in connecting utility services; expenses related to packing,
shipping and unpacking household goods, furniture and two automobiles; expenses
relating to temporary housing for the Executive and his family for up to 6
months after the date of this Agreement; and prior to the Executive's permanent
relocation to the Miami, Florida area, travel expenses of the Executive and his
family for a reasonable number of round trips between Miami, Florida and
Louisville, Kentucky. The Company agrees to gross up all non-deductible moving
expenses.
(i) Housing Allowance. The Company agrees to pay the
Executive a housing allowance (the "Housing Allowance") of $45,000 per year
during the Term of this Agreement. The Housing Allowance shall be payable every
two weeks in addition to and with the Executive's Salary. The Company agrees to
pay the Executive's mortgage payments on his home in Louisville, Kentucky up to
six months after the Executive purchases a home in the Miami, Florida area if
his Louisville, Kentucky home remains unsold during those six months. The
Company agrees to lend to the Executive up to 20% of the purchase price of the
home the Executive purchases in the Miami, Florida area (the "Loan") for up to
six months interest free. If the Loan is not repaid within six months after it
is made, the Executive agrees to repay the Loan to the Company with interest on
the principal at the prime rate published form time to time by The Wall Street
Journal from the date that is six months after the date of the Loan until the
date the Loan is repaid in full. The Executive agrees to execute a promissory
note evidencing the Loan.
(j) Automobile. The Company agrees to pay for leasing of
an automobile by the Executive beginning August 24, 1996 up to (1) a monthly
lease payment of $675 per month and (2) costs at inception of the lease of
$3,750. The Company agrees to pay the premiums for insurance on the Executive's
automobile.
(k) Club Dues. The Company agrees to pay the membership
dues for the Executive's membership in the Bankers Club in Miami, Florida. The
Company also agrees to
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pay up to $20,000 for initiation fees and up to $5,000 for annual membership
dues at a country club located in South Florida.
(l) Severance Pay. If the Company terminates the
Executive not for cause (as defined in Section 6(d)) during the term or any
Renewal Term, the Executive will receive severance pay in accordance with
Section 7(a) of this Agreement. If the Company elects not to renew this
Agreement (i) at the end of the Term, the Executive will receive severance pay
equal to 15 months' Salary, (ii) at the end of the first Renewal Term, the
Executive will receive severance pay equal to 21 months' Salary or (iii) at the
end of the second or any subsequent Renewal Terms, the Executive will receive
severance pay equal to 24 months' Salary.
(m) Miscellaneous. The Executive will receive free
covered parking at the Company's principal office, free checking account
privileges at SunTrust Bank, South Florida, N.A., and electronic payroll
transfers.
(n) Pension Plan. The Executive will be entitled to
participate in the Company's Pension Plan in accordance with the terms of that
plan. The Company will make an additional contribution to the Pension Plan for
the Executive on December 31, 1998 in respect of 1998 and will make a
contribution each year thereafter. The annual contributions of the Company to
the Pension Plan will equal 9% of the first $40,000 of Total Compensation plus
14% of Total Compensation between $40,001 and $150,000. For purposes of this
Agreement, "Total Compensation" means the compensation to be paid to the
Executive pursuant to Sections 5(a)-(m) of this Agreement for the year in
question.
6. Termination. This Agreement may be terminated prior to the
expiration of the Term as follows:
(a) This Agreement shall terminate upon the Executive's death.
(b) The Company has the right to terminate this Agreement
if, by reason of Disability, the Executive has been unable to perform his duties
under this Agreement for a period of 180 consecutive days. For purposes of this
Agreement, "Disability" means physical or mental disability, which disability is
expected to be of long or indefinite duration and prevents the Executive from
performing his duties under this Agreement. All determinations of Disability
made by the Company pursuant to the Company's Long Term Disability Insurance
Policy, if any, shall be determinative of Disability under this Agreement. If
the Company does not have a Long Term Disability Insurance Policy, Disability
shall be determined by the Board of Trustees upon the basis of the evidence the
Board deems appropriate.
(c) The Executive may terminate his employment under this
Agreement if his health (either physical or mental) becomes impaired to an
extent that makes the continued performance of the duties under this Agreement
hazardous to the Executive's physical or mental health or his life.
(d) The Company may terminate the Executive's employment
under this Agreement for Cause at any time. For purposes of this Section 6(d),
the Company shall have
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"Cause" to terminate the Executive's employment if (i) the executive engages in
one or more acts constituting a felony; (ii) the Executive willfully engages in
one or more acts involving fraud; (iii) the Executive willfully misappropriates
Company assets with more than nominal value or willfully engages in misconduct
materially injurious to the Company or its affiliates; or (iv) the Board
determines that the Executive has materially and willfully failed to perform his
duties under this Agreement. For purposes of this Section 6(d) "willful" means
an act done, or omitted to be done, by the Executive in bad faith, provided that
the Executive knew or reasonably should have known that the acts or omission was
not in the best interest of the Company. The Company agrees not to invoke the
provisions of Section 6(d)(iv) unless the Board has previously given the
Executive written notice that his performance has been unsatisfactory and has
afforded the Executive at least 60 days to improve his performance.
(e) The Executive may terminate his employment under this
Agreement if, after a Change in Control of the Company (as defined below), the
Company (i) assigns to the Executive any duties that are inconsistent with the
duties described in Section 3 of this Agreement, (ii) diminishes significantly
the Executive's then existing duties without the Executive's written consent,
(iii) removes the Executive from or fails to re-elect the Executive to the
position described in Section 3 of this Agreement, (iv) reduces the Executive's
Salary, (v) materially fails to comply with Section 5 of this Agreement, (vi)
fails to obtain the assumption of this Agreement by a successor as provided in
Section 20 of this Agreement, (vii) relocates the Executive's office more than
50 miles from the location of the Executive's office upon execution of this
Agreement, (viii) fails to continue in effect any incentive compensation plan
(or any substitute comparable arrangement) or to continue the Executive's
participation in such plan or (ix) breaches this Agreement. For purposes of this
Agreement, "Change in Control" means (1) a merger, consolidation, stock swap or
other acquisition of beneficial ownership, direct or indirect, of securities of
the Company by any person (as that term is defined in Section 13(d) and 14(d) of
the Securities Exchange Ac of 1934, as amended) which (a) would have to be
reported under the Securities Exchange Act of 1934, as amended, or the Florida
Insurance Code or any regulations promulgated thereunder and (b) when combined
with all other securities of the Company beneficially owned, directly or
indirectly, by that person, equals or exceeds 33% of the combined voting power
of the Company's then outstanding securities or (2) during any period of two
consecutive years (the "Period"), individuals who at the beginning of the first
year of the Period constitute the Board of Trustees cease for any reason (other
than resignation) to constitute at least a majority of the Board of Trustees
unless the election of each trustee who was not a trustee at the beginning of
the Period was approved by a vote of the trustees then still in office who were
trustees at the beginning of the Period.
(f) Termination of the Executive's employment under this
Agreement shall be communicated by the terminating party by written notice of
termination ("Notice of Termination") that shall include (i) the specific
termination provision in Section 6 upon which the terminating party has relied
and (ii) except for a termination under Section 6(a), the facts and
circumstances claimed by the terminating party that provide a basis for the
termination of the Executive's employment.
7. Compensation Upon Termination.
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(a) For purposes of this Agreement, the "Termination
Date" means (i) if the Executive's employment is terminated pursuant to Section
6(a) of this Agreement, the date of his death, or (ii) if the Executive's
employment is terminated for any other reason, the date on which the Notice of
Termination is delivered to the non-terminating party. Upon termination of the
Executive's employment not for cause or under Sections 6(a), 6(b), or 6(c), the
Executive (or his estate) shall be paid the Salary in accordance with Section
5(a) for two years after the Termination Date, and all other payments and
benefits accrued and due and payable to the Executive prior to the Termination
Date. Upon termination of the Executive" employment under section 6(d), the
Company shall have no further obligation under this Agreement to make any
payments to the Executive or to bestow any benefits on the Executive after the
Termination Date, other than payments and benefits accrued and due and payable
to the Executive prior to the Termination Date.
(b) Upon termination by the Executive of his employment
after a Change in Control of the Company pursuant to Section 6(e) of this
Agreement or upon termination by the Company of the Executive's employment
within two years after a Change in Control not for Cause or under Section 6(b),
in addition to payments and benefits accrued and due and payable to the
Executive prior to the Termination Date, the Company shall pay to the Executive,
within five days after the Termination Date, a lump sum payment equal to: 3 x
(AAC - $1). In this formula, AAC means the Average Annualized Compensation (and
includes Salary, Bonus, and all amounts paid by the Company on the Executive's
behalf or with respect to the Executive for all group insurance plans and
retirement plans) from the Company includable in the Executive's gross income
over the most recent fiscal years of the Executive's employment (not to exceed
five fiscal years) preceding the fiscal year in which the Change in Control of
the Company occurs. This lump sum payment shall be reduced by the present value
of all other payments made to the Executive or on the Executive's behalf that
would constitute a "parachute payment" as defined in Section 280G of the
Internal Revenue Code of 1986, as amended. The Executive shall not be required
to mitigate the amount of any payment provided for in this Section 7(b) by
seeking other employment or otherwise, nor shall the amount of any payment
provided for in this Section 7(b) be reduced by any compensation earned by the
Executive as the result of employment by another employer after the Termination
Date, or otherwise.
(c) The Company shall maintain in full force and effect
until the Termination Date all group insurance plans (the "Plans") in which the
Executive was a participant immediately prior to the date of the Notice of
Termination, provided that the Executive's continued participation is permitted
under the terms of the Plans. If the Executive's continued participation is not
permitted after the Notice of Termination under the terms of a Plan, the Company
shall arrange to provide the Executive with alternative benefits substantially
similar to those provided under that Plan until the later of (i) the Termination
Date and (ii) the date the payments made pursuant to Section 7(a) cease.
(d) For the purposes of all retirement plans of the
Company applicable to the Executive and in effect on the date of the Notice of
Termination, the Company shall provide for payment of retirement or death
benefits to the executive or the Executive's surviving spouse that are
calculated to reflect service credits for the period ending on the Termination
Date as though the Executive were an employee of the Company through this
period. The Company shall offer
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without cost or charge to the Executive the right to assume ownership of all
policies of life insurance purchased on the Executive's life.
8. Confidentiality.
(a) The Executive acknowledges that as a result of his
employment by the Company, the Executive has and will become informed of, and
have access to, valuable and confidential information of the Company, including
inventions, trade secrets, technical information know-how, plans,
specifications, and the identity of customers and suppliers (collectively,
"Confidential Information"), and that this Confidential Information, even though
it may be contributed, developed or acquired by the Executive, is the exclusive
property of the Company to be held by the Executive in trust and solely for the
Company's benefit. Accordingly, the Executive shall not at any time during or
subsequent to the Term use, reveal, report, publish, transfer or otherwise
disclose to any person, corporation or other entity, any of the Confidential
Information without the prior written consent of the Company, except to officers
and employees of the Company, vendors or consultants to the Company that have
executed nondisclosure agreements in favor of the Company, and other persons
whom the Company agrees are in a contractual or fiduciary relationship with the
Company or who have a need for this information for purposes that are in the
best interests of the Company. This provision does to prohibit the Executive
from disclosing information which legally is or becomes of general public
knowledge from authorized sources other than the Executive.
(b) If the Confidential Information known to the
Executive or in his possession is subpoenaed, subject to a demand for
production, or any other form of legal process issued with respect to the
Confidential Information by any judicial, regulatory, administrative,
legislative or governmental authority, or any other person or entity, the
Executive agrees to notify the Company promptly that such subpoena, demand or
other legal process has been received. The Executive agrees to use his best
efforts, consistent with the requirements of applicable law, to protect the
Confidential Information from disclosure and to cooperate with the Company in
seeking protection from disclosure of the Confidential Information. If the
Executive is required to disclose the Confidential Information, the Executive
agrees, at the Company's request and expense, to use his best efforts to obtain
assurances that the Confidential Information will be maintained on a
confidential basis and not be disclosed to a greater degree that legally
required.
(c) Upon the termination of this Agreement, the Executive shall
promptly deliver to the Company all originals and all copies that are in the
Executive's possession or control of the following: all customer lists,
drawings, manuals, letters, notes, notebooks, reports and all other materials,
including those of a secret or confidential nature, relating to the Company's
business. The Executive agrees to represent to the Company that he has complied
with the provisions of this Section at the time the Executive ceases to be an
employee of the Company.
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9. Noncompetition and Nonsolicitation.
(a) Noncompetition. The Executive agrees that during the Term and
for two years after the Termination Date, the Executive shall not, directly or
indirectly, engage, participate, or assist in any business organization whose
activities or products are directly competitive with the activities or products
of the Company, or any subsidiary or parent of the Company, in areas where the
Company does business, whether as owner, part-owner, stockholder, partner,
director, officer, trustee, employee, agent, consultant or in any other
capacity, on his own behalf or on behalf of any corporation, partnership or
other business organization. The Executive may make passive investments in a
competitive enterprise the shares of which are publicly traded, provided that
the Executive's holdings in such enterprise, together with the holdings of any
of the Executive's affiliates (as that term is defined in Rule 405 of the Rules
under the Securities Exchange Act of 1934, as amended), do not exceed 5% of the
outstanding shares of the stock of such enterprise comparable to the stock owned
by the Executive.
(b) Nonsolicitation. The Executive agrees that during the Term and
for two years after the Termination Date, he shall not (a) directly or
indirectly solicit any person (natural or otherwise) to purchase or sell
products directly or indirectly competitive with the Company's products if the
person is or had been a vendor or purchaser or the Company's products during the
12 months prior to the termination of this Agreement or (b) recruit or otherwise
solicit or induce any person who is at the time an employee or consultant of the
Company to terminate his employment with, or otherwise cease his relationship
with the Company, or hire any such employee or consultant who has left the
employ of the Company within one year after termination of that employee's or
consultant's employment with the Company.
(c) Restrictions Reasonable. The restrictions against competition
and solicitation set forth above are considered by the parties to be reasonable
for the purposes of protecting the business of the Company. If any restriction
is found by a court of competent jurisdiction to be unenforceable because it
extends for too long a period of time, over too broad a range of activities or
in too large a geographic area, that restriction shall be interpreted to extend
only over the maximum period of time, rang of activities or geographic area as
to which it may be enforceable.
10. Remedies. The Executive and the Company acknowledge that the
Company would not have an adequate remedy at law for money damages if the
covenants contained in Sections 8 or 9 were not complied with in accordance with
their terms. The Executive and the Company therefore agree that in the event of
an anticipated breach or actual breach by the Executive of the provisions of
Sections 8 or 9, the Company shall be entitled to inform in writing all of the
Executive's potential or new employers, partners, shareholders, officers,
directors or borrowers of the terms of this Agreement. Because the breach or
threatened breach of any of the covenants in Sections 8 or 9 will result in
immediate and irreparable injury to the Company, the Executive agrees that (in
the event of a violation or threatened violation of Sections 8 or 9 to the
fullest extent allowed by law. The Executive covenants and agrees that if the
Executive violates any of the covenants and agreements in Sections 8 and 9, the
Company shall be entitled to an accounting and repayment of all profits,
compensation, commissions, remuneration or benefits
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which the Executive directly or indirectly realizes or may realize as a result
of or in connection with a violation. Nothing in this Agreement shall prohibit
the Company from pursuing all other legal or equitable remedies that may be
available to it or a breach or threatened breach, including the recovery of
damages.
11. Dispute Resolution Procedure. The parties agree that any dispute
arising out of the employment relationship between them, including the
termination of that relationship, shall be resolved under the following
procedures:
(a) The party claiming to be aggrieved shall furnish to
the other party a written statement of the grievance identifying any witnesses
or documents that support the grievance and the relief requested or proposed.
(b) If the other party does not agree within five business
days after receipt of the statement to furnish promptly the relief requested
or proposed, or otherwise does not satisfy the demand of the party claiming to
be aggrieved within five business days after receipt of the statement, the
parties shall promptly submit the dispute to nonbinding mediation before a
mediator to be jointly selected by the parties.
The Company will pay the cost of the mediation.
(c) If the mediation does not produce a resolution of the
dispute within five business days after mediation commences, the parties agree
that the dispute shall be promptly resolved by final and binding arbitration by
an arbitrator mutually selected by the parties or, if no agreement as to the
selection of an arbitrator is reached, selection shall be made pursuant to the
Expedited Labor Arbitration Rules of the American Arbitration Association,
except that the arbitrator shall be selected by alternately striking names from
a panel of five neutral labor or employment arbitrators designated by the
American Arbitration Association.
The arbitrator shall have the authority to grant any relief
authorized by law, provided, however, that nothing herein shall limit the right
of the Company to obtain injunctive relief from a court for violation of the
provisions of this Agreement relating to confidentiality and noncompetition. The
arbitrator shall not have the authority to modify, change or refuse to enforce
the terms of this Agreement. In addition, the arbitrator shall not have the
authority to require the Company to change any lawful policy or benefit plan.
The final arbitration hearing shall be transcribed. The
non-prevailing party shall bear the costs of the arbitration, including the
prevailing party's attorneys' fees.
(d) Except as otherwise provided in this Agreement, arbitration
shall be the exclusive final remedy for all disputes between the parties, and
the parties agree that no dispute shall be submitted to arbitration if the party
claiming to be aggrieved has not complied with the preliminary steps in
paragraphs (a) and (b) above.
12. Survival. The provisions of Sections 8, 9, 10 and 11 shall survive
the termination of this Agreement and shall inure to the benefit of the Company,
its successors and assigns.
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13 Third-Party Agreements and Rights. The Executive confirms that he is
not bound by any agreement with a previous employer or other party that would
restrict employment of the Executive in any business or the Executive's use or
disclosure of information, except the agreements disclosed on Schedule 1 to this
Agreement and delivered to the Company prior to its acceptance by the Company.
The Executive represents that his execution of this Agreement, employment with
the Company and performance of the duties in this Agreement will not violate any
obligations the Executive may have to a former employer or other person or
entity. The Executive shall not disclose or make use of information in violation
of any agreements with or rights of his former employers or other person or
entity, and shall not bring to the Company's premises copies or other tangible
embodiments of non-public information belonging to or obtained from any previous
employer or other person or entity.
14. Federal Income Tax Withholding. The Company may withhold from
benefits payable under this Agreement, or arrange for the payment of, federal,
state, local or other taxes as required pursuant to governmental regulation or
ruling.
15. Assurances. The Executive and the Company agree to execute,
acknowledge, deliver and file, or cause to be executed, acknowledged, delivered
and filed, all further instruments, agreements or documents as may be necessary
to consummate the transactions provided for in this Agreement and to do all
further acts necessary to carry out the purpose and intent of this Agreement.
16. Waiver. No term or condition of this Agreement shall be deemed to
have been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with the waiver or estoppel. No written waiver shall be deemed a continuing
waiver unless specifically stated therein, and each waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
the term or condition for the future or as to any act other than that
specifically waived.
17. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without reference to its
conflicts of law principles.
18. Attorneys' Fees. If litigation is brought concerning this
Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall immediately pay upon
demand, all reasonable attorneys' fees and expenses of the prevailing party.
19. Notices. Notices required or permitted to be given under this
Agreement shall be in writing and effective upon delivery in person or by
certified mail, return receipt requested, to the parties at the addresses below
or to another address as either party shall direct by notice to the other party
in accordance with this Section.
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(a) If to the Company:
Physicians Protective Trust Plan
0000 Xxxxx xx Xxxx Xxxxxxxxx
X.X. Xxx 000000
Xxxxx Xxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
Attn: Chairman
With a copy to:
Xxxxxx X. X'Xxxxx III
Steel Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Facsimile: 000-000-0000
(b) If to the Executive:
Xxxxxx X. Xxxxxx
0000 Xxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
20. Assignment.
(a) This Agreement and all of the Executive's rights, duties and
obligations under this Agreement are personal in nature and shall not be
assignable by the Executive. A purported assignment shall not be valid or
binding on the Company.
(b) This Agreement shall inure to the benefit of and be legally
binding upon all successors and assigns of the Company. The Company will require
a successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, by agreement in form and substance satisfactory to the executive, to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. For purposes of this Section 20, "Company" shall
mean the Company as defined above and all successors to its business or assets
that execute and deliver the agreement provided for in this Section 20 or that
otherwise become bound by the terms and provisions of this Agreement by
operation of law.
21. Entire Agreement. This Agreement constitutes the entire
understanding of the parties and supersedes all prior discussions, negotiations,
agreements and understandings, whether oral or written, with respect to its
subject matter. This Agreement may be modified only by a written instrument
properly executed by the Executive and the Company.
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22. Severability. If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision which comes closest to the intent of the parties.
PHYSICIANS PROTECTIVE
TRUST FUND
By /s/ Xxxxx X. Xxxx /s/ Xxxxxx X. Xxxxxx
------------------------------------ -------------------------------------
Xxxxx X. Xxxx, M.D., Chairman of Xxxxxx X. Xxxxxx, Individually
the Board
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13
PPTF CEO BONUS ALLOCATION CHART
YEAR 1 (1997)
REDUCE COMBINED
PERFORMANCE GOAL FOR INCREASE MED-MAL RATIO BY 10 TIMELY IMPLEMENTATION
YEAR REVENUES BY MORE PERCENTAGE POINTS OR OF COMPLETED BUSINESS
1 THAN 10 PERCENT MORE PLAN
PERCENTAGE
WEIGHTING FOR 25% 25% 10%
EACH GOAL
1.5% for each 1.5% for each point
percent increase up decrease up to and
PARTIALLY to and equal to equal to 4.00% and
ATTAINED GOALS 4.00% and 2.5%for 2.5% for each
WILL BE each percent percentage point N/A
ALLOCATED AS increase above decrease above 4.00%
FOLLOWS 4.00% and up to or and up to or equal
equal to 10.00% and to 10.00% and all
all 25% if revenues 25% if the combined
increase by 10.01% ratio decreases by
or more. 10.01 points or more.
CONVERT TRUST TO STOCK COMPANY
PERFORMANCE GOAL FOR & CREATE STOCK OPTION PLAN FOR
YEAR EXEC. STAFF IMPLEMENT NEW ESOP MANAGEMENT
1 AND RETIREMENT PLAN EFFECTIVENESS TOTAL
PERCENTAGE
WEIGHTING FOR 15% 25% 100%
EACH GOAL
PARTIALLY
ATTAINED GOALS
WILL BE N/A PER BOARD
ALLOCATED AS
FOLLOWS
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PPTF CEO BONUS ALLOCATION CHART
YEAR 2 (1998) GOALS WILL BE REVIEWED AT THE BEGINNING OF EACH YEAR AND ANY
CHANGES WILL BE AGREED BY AND SIGNED BY PPTF AND THE CEO.
PERFORMANCE MORE THAN 10% OF WRITTEN INCREASE MED-MAL REDUCE COMBINED RATIO BY 10
GOAL FOR YEAR A.M. BEST PREMIUM FROM OTHER LINES REVENUES BY MORE THAN POINTS OR ACHIEVE AN
2 RATING OF A- OF COVERAGE* 10 PERCENT UNDERWRITING GAIN
PERCENTAGE
WEIGHTING FOR
EACH GOAL 15% 15% 20% 20%
PARTIALLY ATTAINED 10% for B++ 1.0% for each percent 1.0% for each percent 1.0% for each point decrease up
GOALS WILL BE increase up to or equal increase up to or to or equal to 4.00% and 2% for
ALLOCATED AS FOLLOWS 5% for B+ to 3.00% and 1.5% for equal to 4.00% and 2% each point decrease above 4.00%
each percent increase for each percent up to or equal to 10.00% and all
above 3.00% and up to or increase above 4.00% 20% if the combined ratio
equal to 10.00% and all and up to or equal to decreases by 10.01 points or an
15% if written premiums 10.00% and all 20% if underwriting gain is achieved.
from other lines revenues increase by
increases by 10.01% or 10.01% or more.
more.
MORE THAN $100,000
PERFORMANCE IN PROFIT FROM
GOAL FOR YEAR NON-RISK BEARING MANAGEMENT TOTAL
2 VENTURES EFFECTIVENESS
PERCENTAGE
WEIGHTING FOR
EACH GOAL 10% 20% 100%
PARTIALLY ATTAINED .7% for each
GOALS WILL BE $10,000 in profit
ALLOCATED AS FOLLOWS up to $30,000 and
1.0% for each PER BOARD
$10,000 in profit
above $30,000 but
below $100,001 and
all 10% if profit
from non risk
bearing ventures
exceeds $100,000.
*Other Lines of coverage include general liability, dentists, lawyers,
engineers, provider stop loss, etc. (anything other than medical malpractice for
physicians and surgeons).
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15
PPTF CEO BONUS ALLOCATION CHART
YEAR 3 (1999) GOALS WILL BE REVIEWED AT THE BEGINNING OF EACH YEAR AND ANY
CHANGES WILL BE AGREED BY AND SINGED BY PPTF AND THE CEO.
INCREASE WRITTEN
PREMIUMS FROM
OTHER LINES OF REDUCING COMBINED
PERFORMANCE SUCCESSFUL IPO, COVERAGE BY MORE INCREASE MED-MAL RATIO BY 10 POINTS
GOAL FOR YEAR ACQUISITION OR THAN $5,000,000 REVENUES 10 OR ACHIEVE AN
2 MERGER OVER PRIOR YEAR.* PERCENT UNDERWRITING GAIN
PERCENTAGE
WEIGHTING FOR
EACH GOAL 20% 15% 15% 15%
PARTIALLY ATTAINED A IPO or merger 15% for achieving 1.0% for each 1.0% for each
GOALS WILL BE is considered goal 2.5% for percent increase percentage point
ALLOCATED AS FOLLOWS successful if each additional up to or equal to decrease up to or
the stock price $1,000,000 5.00% and 2% for equal to 5.00% and
or purchase written over each percent 2% for each point
price of the prior year. increase above decrease above
company is 20% 5.00% and up to 5.00% up to or
above book or equal to equal to 10.00% and
value. Each 10.00% and all all 15% if the
percent above 15% if revenues combined ratio
book value will increase by decreases by 10.01
be worth 1% up 10.01% or more. points or an
to 20%. underwriting gain
is achieved.
INCREASE PROFIT
FROM NON-RISK
PERFORMANCE BEARING VENTURES
GOAL FOR YEAR BY MORE THAN MANAGEMENT
2 $100,000. EFFECTIVENESS TOTAL
PERCENTAGE
WEIGHTING FOR
EACH GOAL 10% 25% 100%
PARTIALLY ATTAINED 10% for achieving
GOALS WILL BE goal 1% for each
ALLOCATED AS FOLLOWS $10,000 above PER BOARD
$29,999 nothing
for less than
$29,999.
*Other Lines of coverage include general liability, dentists, lawyers,
engineers, provider stop loss, etc. (anything other than medical malpractice for
physicians and surgeons).
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