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Exhibit 10.92
EMPLOYMENT AGREEMENT
AGREEMENT made effective this 7 day of January, 1999 between COLONIAL
CLAIMS CORPORATION, a Florida corporation, which corporation, shall hereinafter
be referred to as "Company" and J. Xxxxxxx Xxxxxxx, of 000 Xxxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxx 00000, hereinafter referred to as "Employee".
R E C I T A L S :
1. Company is engaged in the business of providing claims adjudication
and ancillary services primarily to insurance companies and financial
institutions throughout the United States.
2. The Company's business requires secrecy in connection with the
methods and systems employed, and, for the proper protection of the Company, it
is absolutely necessary and essential (which necessity Employee expressly
recognizes) that all matters connected with, arising out of, or pertaining to
the business of the Company, its methods and systems and the names of its
customers be kept secret and confidential as goodwill belonging to the Company.
3. The Company will sustain great loss and damage, if during the term
of this Agreement, or for a period of two (2) years immediately following its
termination for any reason whatsoever, the Employee should, for himself or
herself, or on behalf of any other person, persons, company, partnership or
corporation, call upon the customers or clientele or potential customers or
clients of the Company for the purpose of soliciting, selling or servicing any
of the programs or services offered by the Company or substantially similar
programs or products, or the solicitation of any Company employee or
independent claims adjuster previously retained by the Company for the purpose
of hiring such employee, or independent claims adjuster for which loss and
damage, by reason of his or her financial circumstances, Employee could not be
compelled by law to respond to damages in any action at law.
NOW, THEREFORE, Company and Employee, in consideration of the covenants
and agreements herein contained and in further consideration of the benefits
and advantages flowing from each to the other, covenant and agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE. Company hereby agrees to employ Employee.
SECTION 2. EMPLOYEE'S BEST EFFORTS. Employee hereby accepts employment by
Company, and agrees to devote his or her entire time and best efforts to this
employment. Employee agrees to perform such other duties as are customarily
performed by one holding such position in other, same or similar businesses as
that engaged in by Company, and shall also render such other and unrelated
services and duties as may be assigned to him or her from time to time by
Company.
SECTION 3. TERMS OF EMPLOYMENT.
(a) Company and Employee understand and agree that the term of
employment of this Agreement shall be for a period of five years from the date
hereof. If this Agreement
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has not been previously terminated as provided herein, at the expiration of the
Term, this Agreement shall continue until terminated by either party on ninety
(90) days' prior written notice to the other.
(b) Said employment may be terminated by the Company with cause, and no
notice or severance is owed. Involuntary termination with cause is defined as a
dismissal at any time based on failure to conform to the conditions of
employment, material breach of this Agreement, gross misconduct or willful
violation of Company policy or procedure as outlined in Section 2.12 on
Involuntary Termination contained in the Bankers Insurance Group, Inc. Human
Resources Policies and Procedures Manual, as amended from time to time, which
has been adopted verbatim by the Company.
(c) In the event this Agreement is terminated by the Company without
cause during the initial five year term, then the Employee shall be entitled to
any payments payable under Section 4 which have been earned but not yet paid,
and in addition, Employee shall be entitled to severance pay equal to
Employee's then current salary payable in accordance with the Company's usual
payroll practices for a period equal to twelve (12) months (the "Severance
Payment"). In the event that Employee is entitled to a Severance Payment
pursuant to this Section 3(c) and Employee secures employment at any time
during the remaining term of this Agreement following termination (the
"Severance Period"), then the Company shall be entitled to a credit against its
obligations to make the Severance Payment in the amount up to seventy-five
percent (75%) of Employee's base salary during the Severance Period paid to him
by his new employer.
(d) Notwithstanding anything contained herein to the contrary, in the
event Company shall discontinue operating its business, then this Agreement
shall terminate as of the last day of the month on which Company ceases
operations with the same force and effect as if such last day of the month were
originally set as the termination date hereof.
(e) If this Agreement is terminated for any reason by either the
Company or Employee, the Company shall have the absolute right to immediately
terminate its employment with Xxxxxxx X. Xxxxx on the same basis, be it
voluntary or involuntary. Likewise, if Xx. Xxxxxxx or Xx. Xxxxx become legally
separated or divorced from each other or institute dissolution proceedings, the
Company shall have the right to terminate either one or both of them for cause.
SECTION 4. EMPLOYEE'S COMPENSATION AND EXPENSES.
(a) As compensation for the services to be performed by Employee under
this Agreement, Company shall pay Employee, and Employee shall accept from
Company, a per annum compensation paid on a bi-weekly basis pursuant to the
schedule attached hereto as Schedule "A" and incorporated herein by reference.
(b) In addition, although not currently contemplated at the time this
Agreement is entered into, Employee may be entitled to earn additional
compensation pursuant to a bonus plan, and an employee stock option plan. If
Employee is eligible for either a bonus plan or the stock option plan, copies
of the plan will be provided to Employee.
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(c) The Employee shall be provided the same benefits and on the same
basis as other employees of the Company including, but not limited to, the
401(k) plan, life insurance, disability insurance and health insurance.
(d) Employee's salary, bonuses and allowances may be modified, as
agreed upon between Employee and Company, from time to time, and any such
modifications made during the term of this Agreement shall be incorporated as
part of the Agreement.
(e) Company shall reimburse Employee for all other reasonable,
ordinary and necessary expenses incurred by Employee on Company's behalf
pursuant to Company's directions and subject to Company's restrictions and
requirements.
SECTION 5. BUDGET. Employee shall prepare and deliver to the Board of Directors
of the Company's parent corporation at least ninety (90) days prior to fiscal
year-end a calendarized budget which includes a sales plan on a monthly basis
for the next fiscal year indicating how the Company expects to reach the target
for that fiscal year (the "Budget"). Employee shall use his or her best efforts
to cause the Company to operate within, in all material respects, the Budget
and failure to exercise his or her best efforts and to not achieve such goals,
in all material respects, shall be reason for termination. Failure of the
Company to achieve the results reflected in the Budget will not, in and of
itself, be deemed a violation by Employee of this Agreement and not constitute
an event giving rise to a "for cause" termination.
SECTION 6. FUNDS COLLECTED BY EMPLOYEE. Employee does explicitly understand and
agree that all funds received by him or her on behalf of Company, as may be
authorized by Company from time to time, shall be held in trust by Employee and
shall immediately be remitted to Company by Employee. Additionally, Employee
shall be responsible for any and all technical data, books, equipment, or other
property of Company which may come into his possession by reason of his or her
employment. In the event this employment is terminated for any reason
whatsoever, Employee shall immediately turn in to Company and account for all
such funds, equipment and property which may be in the possession of Employee
at such termination.
SECTION 7. RESTRICTIVE COVENANTS.
(a) Anti-Piracy. The Employee hereby expressly covenants and agrees,
which covenants and agreements are of the essence of this contract, that he or
she will not, during the term of this Agreement and for a period of two (2)
years immediately following the termination of this Agreement, for any reason
whatsoever, directly or indirectly, for himself or herself, or on behalf of, or
in conjunction with, any other person, persons, company, partnership or
corporation:
(1) call upon any customer or customers of Company solicited or
contacted by Employee while at the Company or whose account was
serviced by Employee while at the Company, pursuant to his or her
employment hereunder, for the purpose of soliciting, selling or
servicing any programs or services of the type sold
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and serviced by Company during the term hereof within the state of
Florida and such other states in which the Company shall conduct
business;
(2) nor will Employee divert, solicit or take away any customer or
customers of Company or the business or patronage of any such
customers of the Company for the purpose of selling or servicing any
programs or services of the type sold and serviced by Company during
the term hereof;
(3) nor will Employee call upon any prospective customer or customers
of the Company, for the purpose of soliciting, selling or servicing
programs or services of the type sold and serviced by Company
during the term hereof within the State of Florida and such other
states in which the Company shall conduct business;
(4) nor upon termination of Employee's employment from Company, whether
by resignation, discharge, or otherwise, and for a period of two
(2) years from the date of termination, shall Employee, directly or
indirectly, for himself or herself or on behalf of, or in
conjunction with, any other person, persons, company, partnership
or corporation: solicit, approach, or call upon any Company
employee, customers or independent claims adjusters who adjudicated
claims for the Company for the purpose of retaining or hiring the
Company employee or independent claims adjusters in any capacity;
and
(5) In the event of a breach or threatened breach by Employee of the
provisions of this Section 7, Company shall be entitled to an
injunction restraining Employee from directly or indirectly
soliciting, approaching, or calling upon any Company employee,
customers or independent claims adjusters for the purpose of
retaining or hiring the Company employee in any capacity and/or
in fact hiring the Company employee or independent claims
adjusters in any capacity; and, in addition to obtaining an
injunction, Company shall be entitled to recover damages from
Employee. In the event any Court determines the specified time
period to be unreasonable, arbitrary, or against public policy,
a lesser time period which is determined to be reasonable,
non-arbitrary and not against public policy may be enforced
against Employee by injunction, as well as by all other legal
remedies available to Company. In the event of any legal action
in connection with this agreement, the prevailing party shall be
entitled to recover all of its legal expenses, including
reasonable attorney's fees and costs, whether the same are
incurred in connection with trial or during an appeal and to
have the same awarded as part of the judgment in the proceeding
in which such legal expenses and attorney's fees were incurred.
(b) Nondisclosure. Employee recognizes and acknowledges that the list
of the Company's customers, trade secrets, data processing systems, computer
software, computer programs, or other systems, data, methods, or procedures
developed or used by the Company, as they may exist from time to time, are
valuable, special and unique assets of the Company's business. The Employee
will not, during or after the term of his or her employment without the prior
written consent of the Company, which consent may be arbitrarily withheld, and
except to the extent necessary to accomplish assignments on
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behalf of the Company in which the Employee is, at any given time during the
term of Employee's tenure with the Company, currently and actively engaged,
possess, transmit, copy, reproduce, or disclose the list of the Company's
customers or any part thereof or identify any of the independent claims
adjusters who adjusted claims for the Company or any of the Company's present
or future trade secrets, or any data processing systems, computer software,
computer programs or other systems, data, methods, or procedures to any person,
firm, corporation, association, or any other entity for any reason or purpose
whatsoever, nor will the undersigned assist anyone else to do so. In the event
of a breach or threatened breach by Employee of the provisions hereof, the
Company shall be entitled to an injunction restraining Employee from
disclosing, in whole or in part, the list of the Company's customers or the
Company's trade secrets, or from rendering any services to any person, firm,
corporation, association, or other entity to whom such list or such trade
secrets, in whole or in part, has been disclosed or is threatened to be
disclosed and requiring the return to the Company of all copies of customer
lists, manuals, data, software, computer programs, or written procedures in the
possession of Employee. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee. The
existence of any claim or cause of action of Employee against the Company shall
not constitute a defense to the enforcement by the Company of this covenant. No
failure of the Company to exercise any right given hereunder shall be taken or
construed as a waiver of its right to seek any remedies by reason of any past,
present, or future breaches of the Agreement on the part of Employee.
SECTION 8. SEVERABILITY OF RESTRICTIVE COVENANTS. Company and Employee agree
that the restrictive covenants contained in Section 7, or any of its
sub-paragraphs, are severable and separate and the unenforceability of any
specific covenant therein shall not affect the validity of any other covenants
set forth therein. These covenants on the part of the Employee shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the Employee against
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of said covenants.
Employee agrees and acknowledges that any violation by Employee of the
covenants set forth in Section 7 hereof would cause irreparable damage to
Company, and Employee further agrees that upon proof of the existence of such a
violation of the covenants set forth in said Section 7 hereof Company will be
entitled to injunctive relief against the Employee by any Court of competent
jurisdiction. In the event any Court of competent jurisdiction should determine
that the territorial restrictions set forth in Sections 7 hereof, and/or their
durations, are unreasonable in their scope, then, and in that event, the
territorial restrictions, and/or their duration, shall be limited to such
territory and/or duration as may be determined reasonable by a Court of
competent jurisdiction.
SECTION 9. KEY MAN INSURANCE. The Company may purchase key man term life
insurance on the life of Employee for the benefit of the Company (the "Life
Insurance Policy"). Employee agrees to submit to any reasonable physical
examination required in connection with the Life Insurance Policy and to
otherwise cooperate with the Company in connection with its obtaining the Life
Insurance Policy. Employee confirms to Company that to the best of his or her
knowledge, he or she is insurable at normal rates.
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SECTION 10. ATTORNEY'S FEES. The parties hereto agree that, in the event of any
legal action in connection with this Agreement, the prevailing party shall be
entitled to recover all of its legal expenses, including reasonable attorney's
fees and costs, whether the same are incurred in connection with trial or
appeal, and to have the same awarded as part of the judgment in the proceeding
in which such legal expenses and attorney's fees were incurred.
SECTION 11. CHOICE OF LAW AND VENUE. This agreement shall be construed
according to the laws of the State of Florida, without regard to choice of law
provisions. Venue to resolve any dispute under this Agreement shall be Pinellas
County, Florida.
SECTION 12. INVALIDITY OF PRIOR AGREEMENTS. This Agreement supersedes all prior
agreements and understandings between Employee and Company and this Agreement
expresses the whole and entire agreement between the parties with reference to
Employee's employment and it cannot be modified or changed by any oral or
verbal promise by whomsoever made, nor shall any written modification of it be
binding on Company until such written modification shall have been approved in
writing by the Company's Board of Directors.
SECTION 13. SEVERABILITY. All agreements and covenants contained herein are
severable and, in the event any of them shall be held to be invalid, illegal or
unenforceable by any competent Court, this contract shall be interpreted as if
such invalid, illegal or unenforceable agreement or covenants were not
contained herein.
SECTION 14. NON-WAIVER OF RIGHTS. All of the rights of Company and Employee
hereunder shall be cumulative and not alternative, but a waiver or indulgence
on the part of Company or Employee of any rights or entitlement hereunder shall
not be construed as a waiver of any other rights or entitlements hereunder by
either Company or Employee. No notice shall be required by Company or Employee
to enforce strict adherence to all the terms of this agreement.
SECTION 15. MISCELLANEOUS PROVISIONS. The provisions of this Agreement shall
extend to the successors, surviving corporations and assigns of Company.
Singular and masculine pronouns shall include plural, feminine, and artificial
persons and entities whenever the context permits.
SECTION 16. EMPLOYEE'S ACKNOWLEDGMENT. Employee certifies that he is over
twenty-one (21) years of age and hereby acknowledges having read the entire
contents of this Agreement before signing his name below and that he has
received a copy hereof for his own use.
IN WITNESS WHEREOF, the Company and Employee have affixed their hands
and seals on this, the day and year first above written, the Company acting
through its duly authorized officers.
Signed, Sealed and Delivered in the Presence of:
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WITNESSES: "COMPANY"
Colonial Claims Corporation
/s/ C. Xxxxxxx Xxxxxx By: /s/ Xxxxx X. Xxxx
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As Its: Secretary
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Date: 1-7-99
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WITNESSES: "EMPLOYEE"
/s/ Illegible /s/ J. Xxxxxxx Xxxxxxx
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J. Xxxxxxx Xxxxxxx
Date: 1-7-99
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SCHEDULE "A"
Annual Compensation shall be calculated as follows:
1. A base salary of $8,500.00 per month. On January 1, 2000 and each
January 1 thereafter, for the duration of the Employment Agreement, the base
salary shall be increased 5% over the previous year. In addition, a year-end
bonus of $18,000.00 if Company Revenues reach Four Million Dollars
($4,000,000.00) for calendar year ended December 31, 1999 and an additional
year-end bonus of $18,000.00 for each of the following four year-ends if
year-end Company Revenues are as follows:
Company
Year-Ended Revenues
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2000 $4,200,000
2001 $4,410,000
2002 $4,630,500
2003 $4,862,025
Company Revenues shall be defined as total revenues produced by the Company.
Plus,
2. Three percent (3%) of Company Revenues in excess of the Company
Revenue amounts for the years and amounts set forth in the table above. Payment
of the 3% bonus is subject to the Company maintaining a gross margin of 24% for
the year in question. Gross Margin shall be defined as gross revenues less
external adjuster expenses and all internal expenses. The 3% will be reduced
prorata for gross margins under 24%, for example, a gross margin of 22.5% would
result in a 1.5% bonus on company revenues in excess of the amounts set above.
