FPIC INSURANCE GROUP, INC. AMENDED AND RESTATED EMPLOYMENT AGREEMENT Dated December 14, 2005
FPIC
INSURANCE GROUP, INC.
AMENDED
AND RESTATED
Dated
December 14, 2005
This
Amended and Restated Employment Agreement is made and entered into on December
14, 2005, by and between FPIC Insurance Group, Inc., a Florida corporation,
with
its principal place of business at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as “Employer”), and Xxxxxxx Xxxxxx, III,
an individual presently residing at 000 X. Xxxxxx Xxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as “Employee”).
WITNESSETH:
WHEREAS,
Employer desires to retain the services of Employee as the Senior Vice President
Operations and Strategy until December 31, 2005, and the Chief Financial
Officer
beginning January 1, 2006, and Employee desires to perform such services
for
Employer on the terms and conditions set forth herein;
WHEREAS,
Employee represents and Employer acknowledges that Employee is fully qualified,
without the benefit of any further training or experience, to perform the
responsibilities and duties, with commensurate authorities, of the position
of
the Senior Vice President Operations and Strategy and the Chief Financial
Officer; and
WHEREAS,
Employee agrees to devote Employee’s full time and business effort, attention
and energies to the diligent performance of Employee’s duties
hereunder;
NOW,
THEREFORE, Employer and Employee, intending to be legally bound, covenant
and
agree as follows:
| 1) |
Terms
of Employment.
|
| a) |
Employee's
employment hereunder shall be for an initial term beginning July
26, 2004
and ending December 31, 2006, which term shall be extended for
an
additional calendar year at the end of each calendar year, commencing
with
the calendar year ending December 31, 2005, upon Employer's Board
of
Directors (from time to time herein referred to as the "Board”), or a
committee thereof, giving notice to Employee prior to the end of
such
calendar year that it wishes to extend this Amended and Restated
Employment Agreement for an additional calendar
year.
|
1
| b) |
In
the event Employer does not give notice to Employee prior to the
end of
any calendar year, commencing with the calendar year ending December
31,
2004, that it wishes to extend this Amended and Restated Employment
Agreement as specified in subparagraph 1(a) above, Employee may
voluntarily terminate Employee’s employment under this Amended and
Restated Employment Agreement by thereafter giving at least ninety
(90)
days written notice to Employer. Following the effective date of
such
voluntary termination, Employee shall continue to receive Employee’s
annual salary, payable as immediately prior to termination, plus
all
benefits to which Employee is then entitled under subparagraph
2(e) below,
for the balance of the term of this Amended and Restated Employment
Agreement; provided, that if Employer is unable to continue to
provide any
such benefits to Employee at substantially the same cost it would
incur
were Employee still employed by Employer (the “Benefit Cost”), Employer
shall have the right to pay Employee the Benefit Cost of such benefits
in
lieu of continuing to provide such benefits to Employee. It is
provided,
however, if Employee directly or indirectly engages in or acts
as an
employee of or consultant for any trade or occupation that is in
competition with Employer, such salary and benefits shall thereupon
terminate.
|
| c) |
The
duties of Employee shall be as determined by the Board in accordance
with
this Amended and Restated Employment Agreement and the By-Laws
of Employer
in effect from time to time. Employee agrees to devote Employee’s full
time business efforts, attention and energies to the diligent performance
of Employee’s duties hereunder and will not, during the term hereof,
accept employment, full or part-time, from any other person, firm,
corporation, governmental agency or other entity that, in the reasonable
opinion of the Board, would conflict with or detract from Employee’s
capable performance of such duties, provided, however, Employee
may devote
reasonable amounts of time to activities of a public service, civic,
or
not-for-profit nature.
|
| 2) |
Compensation
and Expenses.
Employer shall pay, or provide, and Employee shall accept as full
consideration for the services to be rendered hereunder, and as
a
reimbursement or provision for expenses incurred by Employee, the
following:
|
| a) |
An
annual salary of $185,500 payable in twenty-six (26) equal payments
during
each annual period of this Amended and Restated Employment Agreement;
provided, however, that effective January 1 of each year beginning
in
2005, Employee’s annual compensation shall be increased in accordance with
the provision for salary increases set forth in paragraph (b) below.
Employee's minimum total compensation, which in no event may be
reduced in
whole or in part, shall be the annual salary at the rate of compensation
received by Employee for any given period of time or at the time
of
Employee's termination.
|
| b) |
Annual
performance reviews will determine annual salary increases to which
Employee becomes entitled, effective January 1, 2005, based upon
Employer's then current Compensation
Program.
|
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| c) |
Incentive
compensation payable with respect to each year beginning with the
year
2005 based on Employee's individual performance and the performance
of
Employer for such year pursuant to Employer's then current Executive
Incentive Compensation Program.
|
| d) |
Any
additional compensation payable by resolution of the Board for
outstanding
performance.
|
| e) |
Such
benefits as may be made available from time to time to senior management
employees of Employer, but at no time less than: (i) an automobile
allowance of $450 per month and (ii) initiation fees, dues and
assessments
of membership in a club of Employee’s choice, as reasonably approved by
Employer's Board or an appropriate committee
thereof.
|
| 3) |
Expenses.
Employer agrees to reimburse Employee for ordinary and necessary
expenses
incurred by Employee in performing services for Employer pursuant
to the
terms of this Amended and Restated Employment Agreement, in accordance
with established corporate policies and legal
requirements.
|
| 4) |
Termination.
Unless the employment of Employee previously has been terminated
pursuant
to subparagraph 1(b), this Amended and Restated Employment Agreement
may
be terminated in the manner set forth in subparagraphs (a) through
(f)
below.
|
| a) |
Voluntary
Termination by Employee.
|
Employee
may terminate this Amended and Restated Employment Agreement at any time
by
giving at least ninety (90) days written notice to Employer, with no further
obligation on Employer's part under this Agreement after the effective date
of
such termination.
| b) |
Voluntary
Termination by Employer.
|
Employer
may terminate this Amended and Restated Employment Agreement at any time
for any
reason sufficient to it, by act of its Board. Such termination shall be
immediately effective. Following such voluntary termination, Employee shall
continue to receive Employee’s annual salary, payable as immediately prior to
termination, together with any benefits accrued to the date of termination,
plus
all benefits to which Employee is then entitled under subparagraph 2(e) above,
for the balance of the then current Amended and Restated Employment Agreement;
provided, that if the Employer is unable to continue to provide any such
benefits to Employee at substantially the Benefit Cost, Employer shall have
the
right to pay Employee the Benefit Cost of such benefits in lieu of continuing
to
provide such benefits to Employee. It is provided, however, if Employee directly
or indirectly engages in or acts as an employee of or consultant for any
trade
or occupation that is in competition with Employer, such salary and benefits
shall thereupon terminate.
3
| c) |
Permanent
Disability of Employee.
|
If
Employee has been, for substantially all the normal working days during three
(3) consecutive months, unable to perform Employee’s responsibilities and duties
and to exercise Employee’s authorities in a satisfactory manner due to mental or
physical disability, then Employee may be deemed “permanently disabled," and
Employee's employment may be terminated at the election of the Board. Any
determination of permanent disability made by Employer shall be final and
conclusive. In the event that Employer deems Employee “permanently disabled,"
Employee shall be entitled to receive the unpaid balance of Employee’s annual
salary, together with other accrued benefits pursuant to subparagraph 2(e)
above
to the date of the determination of being permanently disabled, payable as
immediately prior to termination for the remaining term of this Amended and
Restated Employment Agreement, less any amount received by Employee under
any
Employer-provided long term disability coverage and/or program; provided,
that
if Employer is unable to continue to provide any such benefits to Employee
at
substantially the Benefit Cost, Employer shall have the right to pay Employee
the Benefit Cost of such benefits in lieu of continuing to provide such benefits
to Employee. It is provided, however, if Employee directly or indirectly
engages
in or acts as an employee of or consultant for any trade or occupation that
is
in competition with Employer, such salary and benefits shall thereupon
terminate.
| d) |
Death
of Employee.
|
This
Amended and Restated Employment Agreement shall terminate on the date of
Employee's death, and Employer shall pay, in a lump sum, to the estate or
personal representative of Employee the unpaid balance of Employee’s annual
salary, together with other accrued benefits under subparagraph 2(e) above,
to
the date of death.
| e) |
Termination
for Cause.
|
Employer's
Board may terminate this Agreement for Cause (as defined below), but only
after
a written notice specifying the Cause has been submitted to Employee. Employee
shall be granted a reasonable opportunity to respond to the notice, in writing,
and in an appearance before the Board. A determination by the Board to terminate
this Agreement for Cause may be made at a meeting of the Board at which a
quorum
is present and by a vote of at least a majority of the entire then current
membership of the Board. If Employer terminates this Amended and Restated
Employment Agreement for Cause under this subparagraph, Employer shall not
be
obligated to make any further payments or provide any further benefits under
this Amended and Restated Employment Agreement other than amounts accrued
at the
time of such termination. “Cause” for the purposes of this Agreement consists of
the following:
| i) |
Employee's
commission of dishonest acts, fraud, misappropriation, or embezzlement
affecting Employer;
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| ii) |
Employee's
commission of any felony under state or federal law;
or
|
| iii) |
the
failure or refusal of Employee to comply with any reasonable lawful
policy, directive or instruction of the Board, consistent with
subparagraph l(c) hereof.
|
| f) |
Constructive
Discharge.
Employee may terminate this Amended and Restated Employment Agreement
in
the event of Constructive Discharge (as defined below) by providing
written notice to Employer within three months after the occurrence
of
such event, specifying the event relied upon for a Constructive
Discharge.
"Constructive Discharge" shall mean any (i) material change by
Employer of
Employee's position to an inferior position from that in effect
on the
date of this Agreement, (ii) assignment, reassignment, or relocation
by
Employer of Employee without Employee's consent to another place
of
employment more than 50 miles from Employee's current place of
employment,
(iii) liquidation, dissolution, consolidation or merger of Employer,
or
transfer of all or substantially all of its assets, other than
a
transaction or series of transactions in which the resulting or
surviving
transferee entity has, in the aggregate, a net worth at least equal
to
that of Employer immediately before such transaction and expressly
assumes
this Agreement and all obligations and undertakings of Employer
hereunder,
or (iv) reduction in Employee's base salary or target bonus opportunity.
Following termination of Employee's employment in the event of
a
Constructive Discharge, Employee shall continue to receive Employee’s
annual salary, payable as immediately prior to termination, plus
all
benefits to which Employee is then entitled under subparagraph
2(e) above,
for the balance of this Agreement; provided, that if Employer is
unable to
continue to provide any such benefits to Employee at substantially
the
Benefit Cost, Employer shall have the right to pay Employee the
Benefit
Cost of such benefits in lieu of continuing to provide such benefits
to
Employee. It is provided, however, if Employee directly or indirectly
engages in or acts as an employee of or consultant for any trade
or
occupation that is in competition with Employer, such salary and
benefits
shall thereupon terminate. Employer and Employee, upon mutual agreement,
may waive any of the foregoing provisions that would otherwise
constitute
a Constructive Discharge. Within ten days of receiving such written
notice
from Employee, Employer may cure the event that constitutes a Constructive
Discharge.
|
| g) |
Return
of Property.
Upon any termination of this Agreement, Employee shall immediately
turn
over to Employer all of Employer's property, both tangible and
intangible.
To the extent that such Employer's property shall constitute a
benefit to
Employee under this Agreement, Employee shall receive from Employer
the
value of that benefit for the remaining term of this
Agreement.
|
| h) |
Additional
Agreements.
Upon any termination of this Agreement, regardless of the reason
for
termination, it is agreed:
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| (i) |
Inducing
Employees of Employer to Leave.
Any attempt on the part of Employee to induce others to leave Employer's
or any of its affiliates’ employ, or any efforts by Employee to interfere
with Employer's or any of its affiliates’ relationships with other
employees, would be harmful and damaging to Employer. Employee
expressly
agrees that during the term of this employment and for a period
of two (2)
years thereafter, Employee will not, in any way, directly or indirectly:
(A) induce or attempt to induce any employee to terminate his or
her
employment with Employer or any affiliate of Employer; (B) interfere
with
or disrupt Employer's or any of its affiliates’ relationship with other
employees; or (C) solicit, entice, take away or employ any person
employed
by Employer or any affiliate of
Employer.
|
| (ii) |
Confidentiality.
Employee agrees not to, without prior written consent of Employer,
divulge
to others, or use, for Employee’s own benefit or for the benefit of
others, any intellectual property, trade secrets or confidential
or
proprietary information or data of or regarding Employer or any
of its
affiliates, including without limitation, the contents of advertising,
customer lists, information regarding customers or their customers,
programming methods, business plans, strategies, financial statements,
copyrights, correspondence or other records of or regarding Employer
or
any of its affiliates, except to the extent to which such information
is
required by law to be disclosed to
others.
|
| (iii) |
Remedy.
Employee acknowledges that Employee will be conversant with Employer's
affairs, operations, trade secrets, customers, customers' customers
and
other proprietary information data; that Employee’s compliance with the
provisions of this subparagraph (h) is necessary to protect the
goodwill
and other proprietary rights of Employer; and that Employee’s failure to
comply with the provisions of this subparagraph (h) will result
in
irreparable and continuing damage to Employer for which there will
be no
adequate remedy at law. If Employee shall fail to comply with the
provisions of this subparagraph (h), Employer (and its respective
successors and assigns) shall be entitled to (A) cease making any
further
payments or providing any further benefits to Employee and (B)
injunctive
relief and such other and further relief as may be proper and necessary
to
ensure such compliance.
|
| (iv) |
Mitigation.
In no event shall Employee be obligated to seek other employment
or to
take other action by way of mitigation of the amounts payable to
Employee
under any of the provisions of this
Agreement.
|
| 5) |
Employment
Security.
|
| a) |
If
Employer suffers from any natural or manmade disaster, work stoppage,
civil disobedience, act of war, or any other emergency condition
beyond
Employee's control, the term of this Amended and Restated Employment
Agreement shall remain in full force and effect as if such event
had not
taken place.
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| b) |
In
the event of the merger, consolidation or acquisition of Employer
with or
by any other corporation, corporations or other business entities,
the
sale of Employer or a major portion of its assets, or of its business
or
good will or any other corporate reorganization involving Employer,
this
Amended and Restated Employment Agreement shall be assigned and
transferred to the successor in interest as an asset of Employer
and the
assignee shall assume Employer’s obligations hereunder, and Employee
agrees to continue to perform Employee’s duties and obligations hereunder.
Failure to assign this Amended and Restated Employment Agreement
prior to
any of the events set forth in this subparagraph 5(b) will obligate
Employer to fulfill the terms and conditions hereof prior to consummating
the applicable event.
|
| 6) |
Arbitration.
In the case of any dispute or disagreement arising out of or connected
with this Agreement, the parties hereby agree to submit such disputes
or
disagreements to the American Arbitration Association within ninety
(90)
days of such dispute or disagreement for resolution by a panel
of three
arbitrators designated by the American Arbitration Association.
The panel
of arbitrators shall be instructed to render their decision within
one
hundred twenty (120) days of the initial submission of the dispute
or
disagreement to them. Any decision or award by such arbitration
panel
shall be final and binding, and except in a case of gross fraud
or
misconduct by one or more of the arbitrators, the decision or award
rendered with respect to such dispute or disagreement shall not
be
appealable.
|
| 7) |
Miscellaneous.
|
| a) |
All
notices, requests, demands, or other communications hereunder shall
be in
writing, and shall be deemed to be duly given when delivered or
sent by
registered or certified mail, postage prepaid, to Employee’s last home
address as provided to and reflected on the records of Employer
and to
Employer when personally delivered to Employer’s Secretary or when sent by
registered or certified mail, postage prepaid, to such
officer.
|
| b) |
Employer
hereby agrees that no request, demand or requirement shall be made
to or
of Employee that would violate any federal or state law or
regulations.
|
| c) |
Should
any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction affect
any
provision of this Amended and Restated Employment Agreement, the
provision
so affected shall be automatically conformed to the law or determination;
otherwise, this Amended and Restated Employment Agreement shall
continue
in full force and effect.
|
| d) |
This
Amended and Restated Employment Agreement is made and entered into
in the
State of Florida and its validity and interpretation, and the performance
by the parties hereto of their respective duties and obligations
hereunder, shall be governed by the laws of the State of Florida
and of
the United States of America.
|
| e) |
This
Amended and Restated Employment Agreement supersedes all prior
employment
agreements and understandings, whether written or oral, and constitutes
the entire agreement between the parties relating to the employment
of
Employee, there being no representations, warranties or commitments
except
as set forth herein.
|
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| f) |
This
Amended and Restated Employment Agreement may be amended only by
an
instrument in writing executed by the parties
hereto.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Amended and Restated
Employment Agreement as of the day and date first set forth above.
|
Employee:
|
FPIC Insurance Group, Inc. | ||
| /s/ Xxxxxxx Xxxxxx, III | /s/ Xxxx X. Xxxxx | ||
|
|
|
||
| Xxxx
X. Xxxxx President and Chief Executive Officer |
| /s/ Xxxxx X. Xxxxx | /s/ Xxx X. Xxxxxx | ||
|
Witness |
Attest |
||
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