Exhibit 10.18
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day of
January, 2001, by and between NCRIC Group, Inc. ("Group"), NCRIC, Inc. ("NCRIC")
and Xxxxxxx X. Xxxxx. ("Executive").
Recitals:
A. Group and NCRIC desire to retain Executive as its Senior Vice President
and Chief Financial Officer on the terms and conditions hereinafter set forth;
and
B. Executive desires to continue such employment, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth herein, the parties hereto agree as follows:
1. Employment. NCRIC and Group each hereby agree to continue to employ
Executive for a term of three (3) years from the date of this Agreement as
Senior Vice President and Chief Financial Officer under the conditions
hereinafter specified. During said period, Executive also agrees to serve, if
elected, as an officer and director of any subsidiary or affiliate of Group.
Failure to reelect Executive as Senior Vice President and Chief Financial
Officer of Group and NCRIC without the consent of the Executive during the term
of this Agreement shall constitute a Termination Without Cause. Executive
accepts her employment under the conditions hereinafter specified and agrees to
devote her best efforts, energies and abilities to the service of NCRIC, Group
and their affiliates on a full-time basis.
2. Duties.
(a) Executive shall serve as Senior Vice President and Chief Financial
Officer of Group and of NCRIC and in such other commensurate executive
capacities of NCRIC and Group, and/or any one or more affiliates of Group or
NCRIC (collectively, the "Affiliated Companies) as she may from time to time be
assigned by the Board of Directors. Executive shall perform all of her duties
diligently and faithfully. However, it is understood and agreed that Executive
shall not receive compensation beyond that specified herein for services
provided to the Affiliated Companies.
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(b) Executive shall at all times devote her entire working time, attention,
energies, efforts and skills to the business of Group and NCRIC, and shall not,
directly or indirectly, engage in any other business activity, whether or not
for profit, gain or other pecuniary advantages, without the express written
permission of Group. Notwithstanding the foregoing, Executive may serve on the
board of directors of any non-competing company and receive compensation
therefore provided she obtains the advance written approval of Group, which
shall not be unreasonably withheld, and provided that any such service does not
adversely affect her performance of her duties for NCRIC or Group (it being
understood that membership in social, religious, charitable or similar
organizations does not require Board approval pursuant to this Section 2(b)).
Executive will not be required to account to NCRIC or Group for any compensation
she may receive for such approved service on the board of directors of a
non-competing company, and such compensation shall not diminish in any way the
compensation or benefits to which she is entitled under this Agreement.
3. Compensation. NCRIC shall pay Executive basic compensation of One
Hundred Seventy Thousand Dollars ($170,000) per year ("Base Salary"). Such Base
Salary shall be payable biweekly (or in such other frequency as employees are
paid). During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
January 31, 2002. The Board may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement). Any incentive compensation that may be paid to Executive
from time to time shall have no impact upon the Base Salary.
4. Benefits.
a. Retirement and/or Pension Plan(s). Executive shall be entitled to
participate in any retirement and/or pension plan(s) offered to NCRIC's or
Group's senior executives and/or key management employees as a group in
accordance with the terms of such plan(s), as they may be modified at NCRIC's or
Group's discretion from time to time.
b. Automobile Allowance. NCRIC shall pay Executive a monthly allowance of
$1,000.00 for her use in operating and maintaining an automobile necessary in
connection with the performance of her duties hereunder with any expenses not
covered by said $1,000.00 allowance being the sole responsibility of Executive.
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c. Health and Medical Insurance. Executive shall be entitled to participate
in any health and medical insurance plan(s) offered to NCRIC's senior executives
and/or key management employees as a group in accordance with the terms of such
plan(s), as they may be modified in their application to all employees at
NCRIC's discretion from time to time.
d. Paid Sick Leave. Executive shall accrue one (1) day of paid sick leave
per month, up to a maximum of sixty (60) days (or such other number of days as
provided in the standard sick leave policy of NCRIC) of paid sick leave at any
given time. All accrued, but unused, paid sick leave shall be forfeited upon
termination of employment.
e. Paid Vacation. Executive shall accrue four weeks of paid vacation during
each calendar year; however, in no event shall Executive use more than three
weeks at any one time. Accrued, but unused, paid vacation may be carried over
from one year to the next in accordance with the policy in effect for NCRIC
employees in general. All accrued, but unused, paid vacation is forfeited upon
termination of employment by either party; provided, however, that if Executive
provides advance notice of her intent to terminate her employment in accordance
with paragraph 7 of this Agreement, NCRIC shall pay her for all of her accrued,
but unused, paid vacation, less standard withholdings and deductions.
f. Life Insurance. NCRIC shall procure a term life insurance policy in a
face amount of no less than twice the amount of Executive's Base Salary (as in
effect on the date hereof) provided that Executive is insurable at standard
rates. Executive shall be entitled to designate the beneficiary or beneficiaries
of such policy in her sole discretion. In the event that Executive is not
insurable at standard rates, and desires to be insured, Executive shall be
responsible for payment of any premiums or amounts charged in excess of the
standard rates for such insurance.
g. Disability Insurance. Executive shall be entitled to participate in any
disability income insurance policy (both long and short term) offered to NCRIC's
senior executives and/or key management employees as a group in accordance with
the terms of such policies(s), as they may be modified at NCRIC's discretion
from time to time. NCRIC's disability income insurance policy provides for
payments to covered employees commencing after an "elimination period" of ninety
(90) days. If, and when, Executive should begin to receive monthly disability
payments under the terms of NCRIC's disability income insurance policy then in
force NCRIC agrees to supplement said monthly disability payments by paying to
Executive the difference
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between such sums paid by the disability insurer and Executive's Base Salary for
a maximum period of twelve (12) consecutive months. Following expiration of said
twelve (12) months, the coverage and provisions of NCRIC's disability income
insurance policy shall constitute the entire wage continuation plan provided in
this Agreement and, except for the payment of the premiums on such policy, NCRIC
shall have no further liability to Executive for wage continuation. It is
further understood that Executive's employment with NCRIC and Group shall be
terminated following twelve (12) consecutive months of disability (being unable
to carry out the normal functions and requirements of her position with NCRIC)
regardless of how and when the aforementioned disability income payments from
NCRIC's disability income insurance policy may be paid or due to Executive.
5. Expenses.
a. Business Expenses. NCRIC and Group shall reimburse Executive for
ordinary, necessary and reasonable business expenses incurred by her in the
discharge of her duties hereunder, including but not limited to travel, mileage
at the prevailing IRS rate, lodging and entertainment expenses, provided
Executive furnishes appropriate documentation for such expenses and that said
expenses are in accordance with the company's then prevailing policies and
procedures regarding said expenditures.
b. Continuing Education Expenses. NCRIC shall pay the ordinary and
necessary costs associated with continuing education classes or continuing
education programs Executive participates in which are related to the company's
business interests, provided Executive furnishes appropriate documentation to
NCRIC for such costs and gives the Chief Executive Officer of NCRIC reasonable
notice of any expenditures for continuing education. All such expenses in excess
of One Thousand Dollars ($1,000) must be approved by the Chief Executive Officer
in advance.
c. Professional Dues. NCRIC agrees to pay Executive's annual dues to the
American Institute of Certified Public Accountants.
d. Effect of Termination of Employment. All payment or reimbursement of
expenses authorized by Section 5 hereof shall cease upon Executive's termination
of employment regardless of cause for said termination, provided that any
expenses incurred by Executive prior to termination shall be reimbursed.
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6. Termination of Employment by NCRIC.
a. Termination for Cause. The employment of Executive under this Agreement,
may be terminated for "cause" by NCRIC and Group at any time by action of the
Board upon the occurrence of any one or more of the following events:
(i) Executive's fraud, dishonesty, gross negligence or willful misconduct
in the performance of her duties hereunder, including willful failure to perform
such duties as may properly be assigned her hereunder; or
(ii) Executive's material breach of any provision of this Agreement,
and Executive shall be notified in writing of such termination, which
notification shall specify the grounds cited by the Board for such termination
for cause. Any termination by reason of the foregoing shall not be in limitation
of any right or remedy which NCRIC may have under this Agreement or otherwise.
Should Executive dispute whether "cause" existed for her termination, she
shall notify NCRIC and Group of her dispute in writing within fourteen days of
the receipt of notice of termination, and the parties shall promptly proceed to
arbitration in accordance with paragraph 16 of this Agreement. NCRIC shall
continue to pay the Executive her Base Salary, and other compensation and
benefits in effect immediately prior to the termination. If it is determined
that termination was for cause, Executive shall return all cash amounts to NCRIC
promptly following the date of resolution by arbitration, with interest
commencing as of the date of the resolution of the dispute by arbitration (at
the prime rate as published in the Wall Street Journal from time to time). Any
cash amounts paid to Executive pending the resolution of the dispute by
arbitration shall offset any amounts due Executive under paragraph (b) below.
b. Termination Without Cause.
(i) NCRIC and Group may terminate Executive's employment without cause and
at any time. Executive shall be notified in writing of such termination on or
prior to the effective date of such termination.
(ii) If Executive's employment is terminated without cause, and Executive
waives all claims against Group, NCRIC and the Affiliated Companies relating to
or
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arising out of her employment or the termination of her employment by executing
a general release of such claims in the form attached to the Agreement,
Executive shall receive, as severance pay, an amount equal to two times the Base
Salary, plus accrued vacation. Such amount shall represent agreed-upon
liquidated damages for any loss, cost, expense or damages suffered as a result
of such termination, as well as consideration for Executive's execution of a
General Release of all claims against NCRIC and the Affiliated Companies. NCRIC
shall pay such amount to Executive in a lump sum on the effective date of
termination.
(iii) If a "Change of Control" of Group's or NCRIC's business occurs,
Executive may elect, in writing within three months of the effectiveness of the
Change in Control, to deem her employment terminated without cause for the
purposes of this paragraph. Executive shall notify Group, NCRIC or their
successor of her election. "Change of Control" shall be deemed to have occurred
if: Group or NCRIC merges with or consolidates with, or sells, leases, or
otherwise transfers all or substantially all of its assets to another entity
(which for the purpose of this Agreement shall include the sale or transfer of
fifty percent or more of the ownership of NCRIC or Group, but only if such sale
shall be made to an entity not affiliated with Group). However, in no event
shall it be deemed a "change of control" solely because NCRIC, A Mutual Holding
Company, changes its business form by converting to a stock company.
7. Termination of Employment By Executive.
Executive may voluntarily terminate her employment with NCRIC provided that
she gives NCRIC sixty days prior notice of such termination or pays NCRIC
liquidated damages equal to the amount of two months of Base Salary (Base Salary
divided by twelve, times two). It is agreed that such liquidated damages are to
compensate NCRIC for injury by reason of Executive's termination of her
employment and not as a penalty, it being impossible to ascertain or estimate
the entire or exact cost, damages or injury that NCRIC may sustain by reason of
such termination. Executive shall have the right to terminate her employment
hereunder without paying NCRIC liquidated damages and without in any way
affecting her right to compensation or reimbursement (including, but not limited
to, the right to receive severance payments set forth in this Agreement), or any
other right under this Agreement, if NCRIC or Group commits a material breach of
the terms and conditions of this Agreement and such breach is not cured within
thirty (30) days of NCRIC or Group receiving written notice of such breach from
Executive. Such termination shall be deemed a termination without cause under
Section 6 of this Agreement.
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8. Protection of Group and NCRIC
a. Confidential Information. Executive shall not at any time during or
after her employment with NCRIC and Group directly or indirectly disclose,
discuss, divulge, copy or otherwise suffer confidential information of Group,
NCRIC or the Affiliated Companies to be used, except as required by the
performance of her duties hereunder. For the purposes of this Agreement,
"confidential information" shall mean all information disclosed to Executive by
Group, NCRIC or the Affiliated Companies, or known by her as a consequence of or
through her employment with Group and NCRIC, where such information is not
generally known in the trade or industry, and where such information refers or
relates in any manner whatsoever to the business activities, processes, services
or products of Group, NCRIC or the Affiliated Companies. Such information
includes, but is not limited to, business and development plans (whether
contemplated, initiated or completed), development sites, business contacts,
customer lists, actuarial tables, loss data, marketing information, policy
forms, contracts, research of any kind, methods of operation, results of
analysis, business forecasts, financial data, costs, revenues, and similar
information. Upon termination of this Agreement, Executive shall immediately
return to Group and NCRIC all of its property, and all copies thereof, including
without limitation all confidential information which has been reduced to
tangible form, in her possession, custody or control.
b.Covenant Not to Compete. Executive agrees that she shall not, during her
employment and for a period of one (1) year after the date on which the
termination of Executive's employment (other than following a change in control)
is effective or the dispute relating thereto is resolved (whichever is later),
directly or indirectly, either as an officer, director, employee, agent,
adviser, consultant, principal, stockholder, partner, owner or in any other
capacity, on her own behalf or otherwise, in any way engage in, represent, be
connected with or have a financial interest in, any other insurance company, or
any corporation, firm, association, or other business entity which is, or to the
best of Executive's knowledge, is about to become, engaged in the same or
similar business as Group, NCRIC or any of their affiliates or which otherwise
competes with or is about to compete with Group, NCRIC or any of its affiliates
in the District of Columbia or any states where Group, NCRIC or any of its
Affiliated Companies (other than the captive insurance subsidiary of NCRIC) may
operate or are licensed to operate. Executive's ownership of not more than one
percent (1%) of the stock of any publicly traded corporation shall not be deemed
a violation of this covenant. Executive agrees that the restrictions
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imposed upon her by the provisions of this paragraph are fair and reasonable
considering the nature of Group's and NCRIC's business, and are reasonably
required for the protection of Group and NCRIC. For a period of twelve months
from the effective date of the termination of Executive's employment hereunder,
Executive will not solicit the employment of any then current officers or
employees of Group or any affiliate. The term "solicit to employ" shall not be
deemed to include general solicitations of employment not specifically directed
towards employees of either of the parties.
c. Remedies and Acknowledgment of Reasonableness. Executive acknowledges
that compliance with this paragraph is necessary for the protection of the
goodwill and other proprietary interests of NCRIC and Group, and that, after
carefully considering the extent of the restrictions upon her and the rights and
remedies conferred upon NCRIC under this paragraph, the same are reasonable in
time and territory, are designed to eliminate competition which otherwise would
be unfair to NCRIC, do not stifle the inherent skill and experience of
Executive, would not operate as a bar to Executive's sole means of support, are
fully required to protect the legitimate interests of NCRIC, and do not confer a
benefit upon NCRIC disproportionate to the detriment to Executive.
Executive further acknowledges and agrees that in the event of a breach of
this paragraph, neither Group nor NCRIC would not have an adequate remedy at law
because the damages flowing from such breach would not be readily susceptible of
measurement in monetary terms and that Group and NCRIC shall be entitled to
injunctive relief and may obtain a temporary order restraining any threatened
breach or future breach in addition to any other remedies which may be available
at law or equity. Nothing in this paragraph shall be deemed to limit Group's or
NCRIC's remedies at law or in equity for breach of this or any other paragraph
of this Agreement.
9. Death or Incapacitation. In the event that Executive dies or, due to a
physical or mental impairment, becomes unable to perform the essential functions
of her position with or without reasonable accommodation, this Agreement shall
be deemed terminated and Executive or her estate, as the case may be, shall be
entitled to no further salary, compensation or benefits hereunder, except (i)
any unpaid salary, incentive payments and vacation accrued and earned by
Executive up to and including the date of such termination, and (ii) any
disability, life insurance or other benefits to which Executive or her estate
may be entitled on the date of such termination in accordance with the terms and
conditions of any applicable benefit plan(s) as set forth in official plan
documents.
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10. Assignment. This Agreement is a personal service agreement and neither
party shall have the right to assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party.
11. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested. If
mailed to Group or NCRIC, such notices shall be sent to their principal place of
business, attention: Chief Executive Officer, or at such other address as NCRIC
or Group may hereafter designate in writing to Executive. If mailed to
Executive, such notices shall be addressed to her at her home address last known
on the records of Group and NCRIC, or at such other address as Executive may
hereafter designate in writing to Group and NCRIC.
12. Successors Bound. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, personal representatives, estates
and permitted successors and assigns.
13. Waiver. No provision hereof may be waived, except by a written
instrument signed by the party against whom such waiver is sought to be
enforced. The failure or waiver of either party hereto at any time, or from time
to time, to require performance by the other party of such other party's
obligation hereunder, shall not deprive that party of the right to insist upon
strict adherence to such obligation at any subsequent time. Each party hereto
agrees that any waiver of its rights arising out of any breach of this Agreement
by the other party shall not be construed as a waiver of any subsequent breach.
14. Amendment. No provision hereof may be altered or amended, except by a
written instrument signed by the party against whom such alteration or amendment
is to be enforced.
15. Governing Law. The parties agree that this Agreement shall in all
respects be construed, interpreted and enforced in accordance with and governed
by the laws of the District of Columbia, without regard to the principles of
conflict of laws thereof.
16. Arbitration. Whenever a "dispute" arises between the parties concerning
this Agreement (other than a dispute arising under paragraph 8 hereof) or their
employment relationship, including without limitation the termination thereof,
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the parties shall use their best efforts to resolve the "dispute" by mutual
agreement. If such a "dispute" cannot be so resolved, it shall be submitted to
final and binding arbitration to the exclusion of all other avenues of relief.
For the purposes of this paragraph, the term "dispute" means all controversies
or claims relating to terms, conditions or privileges of employment, including
without limitation claims for breach of contract, discrimination, harassment,
wrongful discharge, misrepresentation, defamation, emotional distress or any
other personal injury, but excluding claims for unemployment compensation or
worker's compensation. The dispute shall be submitted to the Washington, D.C.
office of the American Arbitration Association ("AAA") and adjudicated in
accordance with AAA's Rules for Commercial Arbitration then in effect. The
decision of the Arbitrator must be in writing and shall be final and binding on
the parties, and judgment may be entered on the arbitrator's award in any court
having jurisdiction thereof. The expenses of the arbitration shall be borne
equally by the parties, and each party shall be responsible for her or its own
costs and attorneys' fees; provided, that the Executive shall not be responsible
for the cost of arbitration if she is successful in whole or part in
arbitration. The Arbitrator shall be deemed to possess the powers to issue
mandatory orders and restraining orders in connection with such arbitration;
provided, however, that nothing in this paragraph shall be construed so as to
deny NCRIC or Group the right and power to seek and obtain injunctive relief in
a court of equity for any breach or threatened breach by Executive of any of the
provisions contained in paragraph 8 of this Agreement. This paragraph shall
survive the termination of this Agreement.
17. Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid or unenforceable by a court of competent
jurisdiction or an arbitrator, such provision shall be deleted from this
Agreement and the Agreement shall be construed to give full effect to the
remaining provisions thereof.
18. Headings and Captions. The paragraph headings and captions contained in
this Agreement are for convenience only and shall not be construed to define,
limit or affect the scope or meaning of the provisions hereof.
19. Entire Agreement. This Agreement contains and represents the entire
agreement between Executive and Group, NCRIC and the Affiliated Companies, and
supersedes all prior agreements, representations or understandings, oral or
written, express or implied with respect to the subject matter hereof. This
Agreement may not be modified or amended in any way unless in writing signed by
both Executive and the Chief Executive Officer of NCRIC and Group. No
representation, promise or inducement has been made by either party hereto that
is not embodied in this Agreement, and neither party shall be bound or liable
for any alleged representation, promise or inducement not specifically set forth
herein.
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement on
the date and year first written above.
NCRIC, Inc.
By:/s/ R. Xxx Xxxx, Xx.
-----------------------
R. Xxx Xxxx, Xx.
President and Chief Executive Officer
NCRIC Group, Inc.
By:/s/ R. Xxx Xxxx, Xx.
-----------------------
R. Xxx Xxxx, Xx.
President and Chief Executive Officer
Executive
/s/ Xxxxxxx X. Xxxxx
--------------------
Xxxxxxx X. Xxxxx
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