Exhibit 10.1
EXECUTIVE AGREEMENT
This EXECUTIVE AGREEMENT ("Agreement") with an effective date of January
1, 2004 is entered into by and between AMERISAFE, INC., a Texas corporation (the
"Company"), and Xxxx X. Xxxxxxxx (the "Executive").
WITNESSETH:
WHEREAS the Company desires to continue the employment and/or engagement
of services of Executive with the Company for the period provided in this
Agreement, and the Executive desires to continue such employment with and/or
provide services to the Company, all in accordance with the terms and conditions
set forth below;
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto hereby covenant and agree
as follows:
1. Employment.
(a) The Company hereby agrees to continue to employ and/or engage the
services of the Executive, and the Executive hereby accepts such
employment and/or engagement of services with the Company, for the
period set forth in Section 2 hereof, subject to the terms and
conditions hereinafter set forth.
(b) The Executive affirms and represents that he is under no obligation
to any former employer or other party which is in any way
inconsistent with, or which imposes any restriction upon, the
Executive's employment hereunder with the Company, the employment of
the Executive by the Company, or the Executive's undertakings under
this Agreement.
2. Term of Employment. Unless earlier terminated by the Executive or the
Company as provided in this Agreement, the term of the Executive's
employment and/or engagement under this Agreement shall be for a period
beginning on January 1, 2004 (the "Effective Date") and ending on the
third anniversary of the Effective Date, January 1, 2007, provided,
however, that this Agreement shall automatically renew for successive one
year periods, unless either party shall notify the other in writing not
less than thirty (30) days prior to the third anniversary date or any
successive anniversary date that it does not intend to renew this
Agreement. Such period, plus any annual renewal periods, or, if the
Executive's employment or engagement hereunder is earlier terminated as
provided herein and including termination pursuant to Section 9
(a)(i)-(iii), such shorter period, is sometimes referred to herein as the
"Employment Term".
3. Duties. The Executive shall be employed and/or engaged by the Company as
Chairman of the Board of Directors or such other position and/or title as
designated by the Board of Directors and shall endeavor in good faith to
competently perform such duties as are inherent in his employment and/or
engagement and shall also perform and discharge such other duties and
responsibilities as the Board of Directors of the Company shall from time
to time reasonably determine, not inconsistent with his position as
Chairman of the Board of Directors and/or any other position and/or title
as designated by the Board of
Directors. Executive shall also comply with any Articles of Incorporation
and By-Laws of the Company, as well as any other applicable rules,
agreements, policies and/or covenants concerning or related to corporate
governance of the Company. The Company and the Executive mutually agree
that the scope of the Executive's duties will require frequent travel and
the Company specifically authorizes the Executive, for the benefit of the
Company and the Executive, to perform his duties principally from his
personal residence in Florida, with such travel to other locations from
time to time as the Board of Directors of the Company may reasonably
prescribe. Except as may otherwise be approved in advance by the Board of
Directors of the Company, and except during vacation periods and
reasonable periods of absence due to sickness, personal injury or other
disability, the Executive shall devote his full time during the first year
of the Employment Term to the services required of him hereunder; provided
that the foregoing shall not prohibit the Executive from engaging
in reasonable charitable and community activities. The Executive shall
render his business services exclusively to the Company and its
subsidiaries during the first year of the Employment Term and shall use
his good faith efforts, judgment and energy to improve and advance the
business and interests of the Company and its subsidiaries in a manner
consistent with the duties of his position. During the second and
subsequent years of the Employment Term the Executive is allowed to engage
in other business activities subject to the terms of Sections 4, 8, and 10
of this agreement. During the second and subsequent years of the
Employment Term, the Executive shall reasonably and in good faith
cooperate with the Company and shall attend and participate in meetings,
conferences and/or other business events as requested by the Board of
Directors. During the second and subsequent years of the Employment Term,
the Executive shall also perform such other acts and/or perform such other
duties as may be required and/or necessary for the Company and/or the
Executive to fulfill legal, regulatory and/or compliance obligations,
fiduciary responsibilities and/or corporate reporting and/or governance
requirements.
4. Conflicts of Interest and Compliance. Executive shall not engage in any
conflict of interest and/or take any actions or engage in any conduct
which is contrary to the exclusive interests of the Company. Executive
shall comply with all applicable laws and regulations (federal, state
and/or local) and shall comply with all applicable directives, orders and
regulations of any governmental agency or regulatory body including
federal, state and local agencies and bodies. Executive shall also comply
with all policies and procedures of the Company and directives of the
Board of Directors. Executive understands, acknowledges and agrees that
he/she may hold a position of trust and that fiduciary duties and
responsibilities may apply under applicable law and that these duties and
responsibilities may be continuing in nature, even after separation from
employment and/or engagement of services. Executive agrees to fully and
faithfully perform and discharge all such duties, responsibilities and
obligations.
5. EEO Compliance. Executive shall not engage in any conduct which
constitutes an unlawful employment practice or which violates any laws or
regulations (federal, state and/or local) prohibiting discrimination,
harassment and/or retaliation. Executive acknowledges that the Company is
an Equal Opportunity Employer and prohibits all forms of unlawful
discrimination in the terms and conditions of employment and prohibits all
forms of harassment, including sexual harassment.
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6. Salary and Bonus.
(a) Salary. As compensation for the services to be performed by the
Executive hereunder during the Employment Term, the Company shall
pay the Executive a base salary at the annual rate of not less than
$350,000 during the first year (2004) of the Employment Term;
$200,000 during the second year (2005) of the Employment Term; and,
$175,000 during the third year (2006) and subsequent years of the
Employment Term (said amount, together with any increases thereto as
may be determined from time to time by the Compensation Committee of
the Board of Directors of the Company in its sole discretion, being
hereinafter referred to as "Salary"). Any Salary payable hereunder
shall be paid in regular intervals in accordance with the Company's
payroll practices from time to time in effect, but in no event less
than monthly.
(b) Bonus. The Executive shall be eligible to receive bonus compensation
from the Company in respect of each fiscal year (or portion thereof)
occurring during the Employment Term in amounts, if any, as may be
determined by the Compensation Committee of the Board of Directors
of the Company in its sole discretion.
(c) Withholding, Etc. The payment of any Salary and Bonus under this
Section 6 shall be subject to applicable withholding and payroll
taxes, and such other deductions as may be required under the
Company's employee benefit plans.
7. Other Benefits.
During the Employment Term, the Executive shall:
(a) be eligible to participate in all employee fringe benefits and
pension and/or profit sharing plans that may be provided by the
Company for its senior executive officers in accordance with the
provision of any such plans, as the same may be in effect from time
to time;
(b) be eligible to participate in all medical and health plans or other
employee welfare benefit plans that may be provided by the company
for its senior executive officers in accordance with the provisions
of any such plans, as the same be in effect from time to time;
(c) be entitled to at least 28 vacation/personal days during the first
year of the Employment Term (2004); the Executive shall also be
entitled to all paid holidays given by the company to its other
senior executive officers;
(d) be entitled to sick pay and disability benefits in accordance with
any Company policy that may be applicable to senior executive
officers from time to time,
(e) be entitled to a car allowance at the same level of reimbursement
received by the Executive during the 2003 calendar year for the
entire period of the Employment Term; and
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(f) be entitled to reimbursement for all reasonable out-of-pocket
business expenses incurred by the Executive in the performance of
his duties hereunder in accordance with company policy that may be
applicable to senior executive officers from time to time.
8. Confidential Information. The Executive hereby covenants, agrees and
acknowledges as follows:
(a) The Executive has and will have access to and will participate in
the development of or be acquainted with confidential or proprietary
information and trade secrets that directly or indirectly relate to
the business, prospects, operations and other aspects of the Company
and any other present or future affiliates, subsidiaries and/or
related entities of the Company (collectively with the Company, the
"Companies"), including but not limited to (1) customer lists; the
identity, lists or descriptions of new or prospective customers;
financial statements; cost reports or other financial information;
contract proposals or bidding information, business plans; training
and operations methods and manuals; personnel records; software
programs; reports and correspondence; and management systems,
policies or procedures, including related forms and manuals; (ii)
information pertaining to future developments such as future
marketing or acquisition plans or ideas; and (iii) all other
tangible and intangible property, which are used in the business and
operations of the Companies but not made public. The information and
trade secrets relating to the business of the Companies described
hereinabove in this paragraph (a) are hereinafter referred to
collectively as the "Confidential Information", provided that the
term "Confidential Information" shall not include any information
(x) that is or becomes publicly available (other than as a result of
violation of this Agreement by the Executive), or (y) that the
Executive receives or received on a non-confidential basis from a
source (other than the Companies or any of their representatives)
that is not prohibited from disclosing such information by a legal,
contractual or fiduciary obligation (provided, however that the
Executive shall not be deemed to be in violation of this clause (y)
unless he has actual knowledge of any such obligation on the party
of any such source).
(b) The Executive shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such
Confidential Information in any way except in connection with the
performance of the Executive's duties under this Agreement. The
Executive may disclose Confidential Information in response to an
order or subpoena of a court or governmental agency of competent
jurisdiction and authority provided, however, notice of such order
or subpoena shall be immediately communicated to the Company
telephonically and in writing so that the Company shall have an
opportunity to intervene and assert its rights to nondisclosure
prior to any response by Executive to such an order or subpoena and
in such notice, Executive shall advise as to whether or not he/she
intends to comply with and/or respond to the order and/or subpoena.
(c) The Executive acknowledges and agrees that a remedy at law for any
breach or threatened breach of the provisions of this Section 8
would be inadequate and,
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therefore, agrees that the Company shall be entitled to injunctive
relief in addition to any other available rights and remedies in
case of any such breach or threatened breach; provided, however,
that nothing contained herein shall be construed as prohibiting the
Company from pursuing any other rights and remedies available for
any such breach or threatened breach.
(d) The Executive agrees that upon termination of his employment and/or
engagement with the company for any reason, the Executive shall
promptly return to the Company all Confidential Information in his
possession in whatever form maintained (including, without
limitation, documentation in any format or medium, computer disks
and other electronic media).
(e) The obligations of the Executive under this Section 8 shall, except
as otherwise provided herein, survive the termination of the
Employment Term and/or the expiration or termination of this
Agreement for a period of two years.
9. Termination.
(a) The Executive's employment and/or engagement hereunder shall be
terminated upon the occurrence of any of the following:
(i) death of the Executive;
(ii) termination of the Executive's employment hereunder by the
Executive at any time (a "Resignation");
(iii) a Termination for Cause (as defined herein);
(iv) a Termination Without Cause (as defined herein);
The term "Termination for Cause" shall mean a termination of
the Executive's employment and/or engagement hereunder by
action of the Board of Directors of the Company at any time,
including during the Employment Term, as a result of any of
the following with respect to the Executive: (1) conviction of
the commission of a felony, (2) acts of dishonesty or moral
turpitude which are materially detrimental to the Companies,
(3) acts or omissions which the Executive reasonably knew were
likely to materially damage the business of the Company, (4)
failure by the Executive to obey the reasonable and lawful
orders of the Board of Directors of the Company, or (5) gross
negligence by the Executive in the performance of, or willful
disregard by the Executive of, his obligations hereunder;
provided, however, that prior to any termination pursuant to
clauses (4) or (5) above, the Board of Directors of the
Company shall have provided the Executive with written notice
of such action, failure or event and a reasonable period in
which to cure the same. This advance notice and cure provision
for termination pursuant to clauses (4) or (5) above shall not
apply and is not required if giving notice and/or a cure
period would be contrary to the best interests of the Company.
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The term "Termination Without Cause" shall mean the Company is
giving written notice at any time, including during the
Employment Term, to the Executive that the Executive's
employment and/or engagement is being terminated or nonrenewed
(pursuant to paragraph 2. hereof) other than pursuant to
clauses (i), (ii), or (iii) of the first paragraph of this
Section 9(a).
(b) Notwithstanding anything to the contrary expressed herein, the
Company shall not be obligated to make any payments to the Executive
or on his behalf of whatever kind or nature by reason of the
Executive's cessation of employment and/or engagement pursuant to
clauses (i), (ii), or (iii) of the first paragraph of this Section
9(a), other than (i) such amounts, if any, of his Salary as shall be
accrued and remained unpaid as of the date of said cessation and
(ii) such other amounts, if any, which may be then otherwise payable
to the Executive pursuant to the terns of the Company's benefits
plans or pursuant to Section 7 above.
(c) Notwithstanding anything to the contrary expressed herein if the
Executive's cessation of employment and/or engagement is pursuant to
clause (iv) of the first paragraph of this Section 9(a) on or after
January 1st, 2007, the Company shall not be obligated to make any
payments to the Executive or on his behalf of whatever kind or
nature other than (i) such amounts, if any, of his Salary as shall
be accrued and remained unpaid as of the date of said cessation and
(ii) such other amounts, if any, which may be then otherwise payable
to the Executive pursuant to the terms of the Company's benefits
plans or pursuant to Section 7 above.
(d) Notwithstanding anything to the contrary expressed herein if the
Executive's cessation of employment and/or engagement is pursuant to
clause (iv) of the first paragraph of this Section 9(a) at any time
before January 1st, 2007 the Employment Term shall be defined as the
period beginning on January 1st, 2004 and ending on January 1st,
2007 and the Company shall be obligated to make salary and bonus
payments to the Executive or on his behalf according to the terms of
Section 6, and provide the benefits to the Executive or on his
behalf, and such other amounts, if any, according to the terms of
the Company's benefit plans or pursuant to Section 7 above, during
the entire Employment Term. In this regard, the salary, bonus and
benefits obligations in Section 6 and Section 7 shall continue to
the date of cessation through the close of business on December 31,
2006 in the same manner, method, terms and/or installments as if
employment and/or engagement of services had not ceased. There shall
not be any right of the Executive to receive any lump sum payments
and/or any acceleration of any amounts (salary, bonus or otherwise)
or of any benefits.
10. Restrictive Covenants.
10.01 Non-competition and Non-solicitation of Customers
(a) The Executive agrees that during the Employment Term (as
defined in Section 2 of this Agreement), without the prior
written consent of the
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Company, Executive shall refrain, directly or indirectly, and
whether as a principal, agent, employee, owner, partner,
officer, director, shareholder, member or otherwise, alone or
in association with any other person or entity, from carrying
on or engaging in a business similar to that of the Company
and/or from soliciting customers of the Company within the
Designated Area, so long as the Company carries on like a
business therein.
(b) Definition of Designated Area. The term "Designated Area"
shall mean the states, parishes, counties and/or
municipalities designated in Attachment "A".
(c) Business of the Company. Executive acknowledges and
understands that the "business" of the Company involves and
relates to the underwriting of risks for highly hazardous
worker's compensation insurance and related services.
Executive further acknowledges, agrees and represents that
he/she understands and knows the business in which the Company
is engaged and the scope, activities and/or business pursuits
involved in the business of the Company and in the
underwriting of risks for highly hazardous worker's
compensation insurance and related services. Executive further
acknowledges and understands that the non-competition and
non-solicitation of customer restrictions in this Agreement
prohibit the Executive from engaging, in any capacity and/or
any position, and/or from conducting any activities and/or
business similar to that of the Company and under the specific
terms and conditions of this Agreement.
(e) Customers of the Company. For purposes of this Agreement,
"customers" shall include, but are not limited to, insured
businesses and/or entities who have and/or have had insurance
coverage with the Company and insurance agents with whom the
Company has contracts, agreements, arrangements and/or any
type of business, insurance placement and/or working
relationship. Executive acknowledges and represents that
he/she understands the nature of the Company's customer
relationships and who and/or what comprises its customers.
10.02 Non-solicitation. Executive shall not, during the Employment Term,
directly or indirectly solicit or induce, or attempt to solicit or induce, any
employee, agent of or consultant to the Company to leave his or her employment
or terminate his or her consultation agreement or similar relationship with the
Company.
10.03 Amerisafe Designation. As used in this Section 10, Amerisafe, Inc.
and/or the "Company" includes Amerisafe, Inc., American Interstate Insurance
Company, Silver Oak Casualty, Inc. and any and all predecessor entities,
successor entities, affiliate entities, parent companies and subsidiaries. The
parties acknowledge and agree that the restrictive covenants in this Section 10
inure to the benefit of and operate for the interest of all of the
above-mentioned companies and affiliates.
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10.04 Remedies. In the event of a breach, or a threatened or attempted
breach, of any provision of this Section 10 by the Executive, the parties
recognize that such a breach would cause irreparable harm to the Company, thus
the Company shall, in addition to all other remedies, be entitled to: (a) a
temporary, preliminary and/or permanent injunction against such breach without
the necessity of showing any actual damages or any irreparable injury; (b) a
decree for the specific performance of this Agreement; and/or (c) damages,
attorney's fees and costs. All remedies in favor of Company shall not be
exclusive, but shall be cumulative.
10.05 Construction, Reformation and Severability. It is understood and
agreed that, should any portion of any clause or paragraph of this Section 10 be
deemed too broad to permit enforcement to its full extent, or should any portion
of any clause or paragraph of this Section 10 be deemed unreasonable, then said
clause or paragraph shall be reformed and enforced to the maximum extent
permitted by law. Additionally, if any of the provisions of this Section 10 are
ever found by a court of competent jurisdiction to exceed the maximum
enforceable (i) periods of time, (ii) geographic areas of restriction, (iii)
scope of non-competition or non-solicitation and/or (iv) description of the
Company's business or customers, or for any other reason, then such
unenforceable element(s) of this Section 10 shall be reformed and reduced to the
maximum periods of time, geographic areas of restriction, scope of
non-competition or non-solicitation and/or description of the Company's business
that is permitted by law. In this regard, any unenforceable, unreasonable and/or
overly broad provision shall be reformed and/or severed so as to permit
enforcement to the fullest extent permitted by law. Reformation and severability
shall apply.
10.06 Reasonableness. Executive acknowledges, represents and agrees that
the restrictive covenants in this Section 10 are reasonable in nature, scope,
time and territory and in the terms and conditions set forth herein. Executive
acknowledges, represents and agrees that the Company has expended substantial
cost in training Executive and that the Company has provided him/her with access
to valuable information and has provided him/her with valuable experience. In
addition, Executive acknowledges, represents and agrees that the Company has
placed Executive in contact with its customers and has made Executive part of
its business plans. Executive further acknowledges, represents and agrees that
Executive would not have obtained such training, experience, contacts and
information from other sources without the employment relationship with the
Company. Executive further acknowledges, represents and agrees that the
foregoing have occurred and/or resulted based on the Company's reliance on these
restrictive covenants and Executive's representations and obligations made
herein. Executive further acknowledges, represents and agrees that this Section
10 and the obligations of Executive under these restrictive covenants are
reasonable in order to protect the legitimate interests of the Company.
Executive further acknowledges, represents and agrees that by virtue of his/her
job position, he/she has become an integral and influential component of the
Company's current and future business plans. It is Executive's desire and intent
that this Agreement be given full force and effect.
11. Non-Assignability.
(a) Neither this Agreement nor any right or interest hereunder shall be
assignable by the Executive or his beneficiaries or legal
representatives without the Company's prior written consent;
provided, however, that nothing in this Section 11(a) shall
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preclude the Executive from designating a beneficiary to receive any
benefit payable hereunder upon his death or incapacity.
(b) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation,
sale, assignment, encumbrance, charge, pledge, or hypothecation or
to exclusion, attachment, levy or similar process or to assignment
by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.
12. Binding Effect. Without limiting or diminishing the effect of Section 11
hereof, this Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, successors, legal
representatives and assigns.
13. Notices. All notices which are required or may be given pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and (i) delivered personally, (ii) five
business days after being mailed by certified or registered mail, return
receipt requested and postage prepaid, (iii) sent via a nationally
recognized overnight courier, or (iv) sent via facsimile confirmed by
certified or registered mail, return receipt requested and postage
prepaid, if to the Company at the Company's principal place of business,
and if to the Executive, at his home address most recently filed with the
Company, or to such other address or addresses as either party shall have
designated in writing to the other party hereto.
14. Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Louisiana and without regard to
the application of conflict of laws principles and/or conflicts of laws
and statutory provisions of the State of Louisiana.
15. Severability. The Executive agrees that in the event that any court of
competent jurisdiction shall finally hold that any provision of this
Agreement is void or constitutes an unreasonable restriction against the
Executive, this agreement shall not be rendered void but shall apply with
respect to such extent as such court may judicially determine constitutes
a reasonable restriction under the circumstances. If any part of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegible or incapable of being enforced in whole or in part by reason of
any rule of law or public policy, such part shall be deemed to be severed
from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and
provisions of this Agreement shall in every other respect continue in full
force and effect and no covenant or provision shall be deemed dependent
upon any other covenant or provision. Severability and reformation shall
apply.
It is understood and agreed that, should any portion of any clause or
paragraph of this Agreement be deemed too broad to permit enforcement to
its full extent, or should any portion of any clause or paragraph of this
Agreement be deemed unreasonable, then said clause or paragraph shall be
reformed and enforced to the maximum extent permitted by law.
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16. Waiver. Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right
or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
17. Entire Agreement; Modifications. This Agreement, with referenced
Attachment "A," constitutes the entire and final expression of the
agreement of the parties with respect to the subject matter hereof and
supersedes all prior and/or contemporaneous agreements, oral and written,
between the parties hereto with respect to the subject matter hereof. This
Agreement may be modified or amended only by an instrument in writing
signed by both parties hereto.
18. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
AMERISAFE, INC.
BY: /s/ C. Xxxxx Xxxxxxx, Xx.
--------------------------
C. Xxxxx Xxxxxxx, Xx.
EXECUTIVE:
BY: /s/ Xxxx X. Xxxxxxxx
--------------------
Xxxx X. Xxxxxxxx
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