AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT, entered into as of
March 29, 2001, between CORE, INC., a Massachusetts corporation (hereinafter
called "CORE" or the "Company"), and Xxxxxx Xxxxxxxxx IV of Laguna Niguel,
California (hereinafter called "Executive").
WHEREAS, Executive is presently an employee and officer of CORE;
WHEREAS, pursuant to the terms and conditions of that certain Agreement
and Plan of Merger (the "Merger Agreement"), among the Fortis, Inc., a Nevada
corporation ("Fortis"), Core Merger Sub, Inc., a Massachusetts corporation
("Merger Corp.") and the Company, dated as of March 29, 2001, the Company will
become a wholly owned subsidiary of Fortis; and
WHEREAS, Executive had entered into an Employment Agreement with the
Company dated July 15, 1999, as amended by amendment dated as of January 18,
2001 (collectively, the "Original Agreement"); and
WHEREAS, in connection with the Merger Agreement, CORE and Executive
each desire to enter into this Amended and Restated Employment Agreement
concerning Executive's continuing employment with CORE, as a subsidiary of
Fortis;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and for other good and valuable consideration, the receipt of which
is acknowledged by both parties hereto, the Company and Executive agree as
follows:
1. EMPLOYMENT. The Company will employ Executive and Executive will
serve the Company as the Company's Chairman and CEO, all upon the terms and
conditions provided herein. Absent consent of Executive, Executive's primary
place of employment shall be within 50 (fifty) miles of 00000 Xxx Xxxxxx,
Xxxxxx, XX.
1.A EFFECTIVE DATE. The terms and conditions set forth in this
Agreement, while binding upon the parties hereto, shall become effective only
upon the Closing, as such term is defined in the Merger Agreement, such date
being hereinafter referred to as the "Effective Date" of this Agreement. In the
event the Merger Agreement is terminated for any reason, Executive will remain
subject to the terms and conditions set forth in the Original Agreement.
2. DUTIES. Executive shall report to the Chief Financial Officer of the
Fortis Benefits non-Medical Business Unit located in Kansas City, Missouri
("FBIC") (the "Supervisor"), and the Board of Directors of the Company.
Executive in conjunction with other executives of the Company shall be
responsible for the day to day business, operations and affairs of the Company.
Executive's duties shall consist in duties delegated to Executive by the
Supervisor or Board of Directors of the Company. In the performance
of his duties, Executive shall not be required to travel greater than 50
driving miles from his place of employment more than 25 days within the Term
as defined below.
3. TERM. The term of Executive's employment hereunder shall be for the
period beginning on the Closing, and ending 90 days after the Closing (the
"Term"). Notwithstanding the scheduled termination date, this Agreement is
subject to earlier termination as set forth in Section 8 hereof.
4. COMMITMENT OF EXECUTIVE. During the Term, Executive shall be
employed by the Company on a full-time basis, and shall not perform work for
compensation (except for reimbursement of reasonable expenses approved by the
Company) within the industries in which CORE, any of CORE's subsidiaries, or
FBIC are active for any person or entity other than the Company without first
obtaining the prior written consent of the Supervisor.
5. COMPENSATION.
(a) SALARY. During the Term of this Agreement, the Company
agrees to compensate Executive at the rate of not less than Two Hundred Eighty
Thousand Eight Hundred Dollars ($280,800) per annum (a "Base Salary").
(b) PAYROLL POLICIES. Executive's compensation shall be paid
in installments pursuant to the Company's personnel policies, as they may be
amended from time to time, less any applicable federal, state or local payroll
tax deductions incident on Executive, as well as any voluntary deductions
available under the Company's personnel policies and elected by Executive.
(c) BONUSES. Executive shall be eligible to receive a bonus at
the end of the Term, of up to Twenty Eight Thousand Eighty Dollars ($28,080) as
determined by the Supervisor, the criteria for which shall be whether, in the
view of a reasonable person knowledgeable of the situation, (i) Executive made a
reasonable effort to accomplish the goals for the Term established for him by
the Supervisor, (ii) those goals were reasonable given Executive's
responsibilities and resources, and (iii) those goals were in fact met. Though
not the exclusive means of reaching this conclusion, the mutual agreement of the
Supervisor and Executive to end Executive's employment prior to the scheduled
end of the Term (that is, "Termination without Cause" rather than "Termination
for Cause" in the context of this Agreement) will be taken to represent
satisfaction in full of these criteria, and result in payment of the full amount
indicated above.
6. ETHICAL CONDUCT. Executive agrees to adhere to all recognized
professional ethics and customs, and to avoid all actions or conduct that
injures, directly or indirectly, the professional standing and reputation of the
Company, any of the Company's Affiliates as hereinafter defined, or their
employees. Executive represents and warrants he is free to enter into this
Agreement and that there are no employment contracts, restrictive covenants or
other obligations preventing full performance of his duties hereunder.
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7. FRINGE BENEFITS.
(a) VACATION. Executive shall be entitled to a vacation period
without loss of compensation pursuant to the Company's personnel policies, as
they may be amended from time to time. In the event that Executive's employment
is terminated for any reason prior to the expiration of a complete calendar
year, the vacation period to which he is entitled shall be prorated in
accordance with the Company's policies, and he shall receive payment based on
the daily rate of his Base Salary on account of any unused vacation days.
(b) HOLIDAYS. In addition to his vacation time, Executive
shall be entitled without loss of compensation to those holidays and floating
holidays to which employees of the Company are entitled under the personnel
policies of the Company. Personal Absence Days shall be accumulated for
Executive in accordance with the personnel policies of the Company.
(c) HEALTH CARE COVERAGE. Executive shall be offered a health
care benefit package consistent with benefits available to other Company
employees as now in effect, and as modified hereafter.
(d) DISABILITY BENEFITS. If Executive is unable to work in his
capacity as Chairman and Chief Executive Officer on account of illness or
accidental injury, the Company agrees to continue Executive's Base Salary
(offset by the gross amount of any amounts payable under a Company-sponsored
disability or salary continuation program or programs) and fringe benefits for a
period at least equal to the number of days required to satisfy the qualifying
period for benefits under the long-term disability policy sponsored by the
Company and then in effect). During the Term, the Company shall provide
Executive at the Company's expense long-term disability insurance coverage which
shall be consistent with the long-term disability insurance coverage available
to other Company employees as now in effect, and as modified hereinafter.
(e) LIFE INSURANCE. Executive shall be offered the opportunity
to purchase life insurance coverage on a group basis, consistent with similar
benefits available to other Company employees under the Company personnel
policies now in effect, and as modified hereafter.
(f) OTHER FRINGE BENEFITS. Executive shall be entitled to
additional fringe benefits consistent with the personnel policies of the
Company, including but not limited to the travel allowance currently in effect
for Executive.
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8. TERMINATION OF AGREEMENT.
(a) CAUSE. Executive's employment hereunder may be terminated
by the Company for "Cause". For the purpose of this Agreement, "Cause" means:
(i) willful breach or habitual neglect of the
duties Executive is required to perform
hereunder which are not cured by Executive
within 30 days of written notice from the
Company of such breach or neglect;
(ii) any illegal act by Executive injurious to
the business or reputation of the Company or
any of its Affiliates;
(iii) Executive's engagement in gross misconduct
injurious to the business or reputation of
the Company or any of its Affiliates;
(iv) Executive's conviction of any crime which
constitutes a felony in the jurisdiction
committed (whether or not involving the
Company or any of its Affiliates); or
(v) a material breach by Executive of any
material provision of this Agreement, which
breach is not cured by Executive within
thirty (30) days of written notice from the
Company of such breach.
If the Company desires to terminate Executive's employment hereunder
for Cause, the Company shall give Executive written notice of the termination
date, which may be immediate, and shall specify in said notice the termination
provision of the Agreement and the factual basis upon which the termination
action is based.
(b) DISABILITY. Executive's employment hereunder may also be terminated
at the election of the Company in the event that Executive is disabled from
performing his duties hereunder for a period of at least one hundred eighty
(180) continuous days (or such longer period as may be required to satisfy the
qualifying period for benefits under the long-term disability policy sponsored
by the Company and then in effect) during the Term. In the event Executive's
employment is terminated by the Company because of such a disability of
Executive, the Company shall give Executive notice of a termination date, which
shall not be less than thirty (30) days subsequent to the date of the notice,
and Executive's employment hereunder shall terminate on the termination date as
so established by the Company.
(c) DEATH. Executive's employment hereunder shall terminate
automatically upon the death of Executive.
(d) EFFECT OF TERMINATION FOR CAUSE, DISABILITY OR DEATH. If
Executive's employment terminates pursuant to Section 8(a), 8(b), or 8(c), the
Company shall pay Executive his Base Salary, accrued but unpaid holiday pay, and
accrued and unused vacation time through the date of termination of Executive's
employment at the rate or
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rates then in effect, and the Company shall have no further obligations to
Executive under this Agreement, except for benefits expressly provided in
Section 8(d) and for continuation of benefits required of the Company by
applicable law.
(e) TERMINATION WITHOUT CAUSE; SEVERANCE. At the scheduled end of the
Agreement Term, or at such earlier date with the agreement of Executive, CORE
may terminate Executive's employment without cause, in which event Executive's
employment hereunder shall terminate and Executive shall be entitled to the
following payments or benefits:
(i) all amounts accrued and unpaid to Executive through
the termination date, including any Base Salary,
accrued but unpaid holiday pay, and accrued but
unused vacation time;
(ii) Base Salary for the period from the termination date
through the scheduled end of the Term;
(iii) severance payments comprising Base Salary and health
care coverage continuing for eighteen (18) months
from the date of termination, in the case of health
care coverage, and eighteen (18) months from the
scheduled end of the Term, in the case of Base Salary
(provided such payments of Base Salary shall be
reduced to reflect any salary, consulting fees or
other compensation received by Executive for services
rendered after one (1) year from the scheduled end of
the Term, and further provided, Executive shall
timely report to the Company any such compensation).
To the extent that such health care coverage cannot
by its terms be continued, Base Salary during the
severance period with respect to such coverage shall
be increased on a grossed-up basis (for the effects
of federal and applicable state and local income
taxes) to compensate Executive for the actual premium
costs of obtaining such coverage under COBRA or
comparable coverage through non-group insurance, if
less. Payments under this Section 8(e) shall be made
on a schedule consistent with CORE's payroll policies
and shall be subject to applicable tax deductions and
withholdings;
(iv) the executive package of outplacement services for
which Fortis has contracted with Right & Associates
(or the lesser of the cost of such package to Fortis
or the actual cost to Executive in the event that
Executive wishes to select a different outplacement
firm) for a period of up to eighteen (18) months
following the scheduled end date of the Term, but
ending prior to that time if Executive obtains a
comparable position, commences a new business, or no
longer requires these services; and
(v) continuation with reasonable Company controls of
e-mail and voice mail access (with reasonable
forwarding capability), continuation of Executive's
cell phone contract and on-line service provider, and
retention of current personal computer until the end
of the outplacement services according to the terms
of (iv) above - in
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which connection Executive will on a timely basis
forward to appropriate employees of the Company any
communications related to the business of the Company
which reach him in error.
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9. COVENANT NOT TO COMPETE; NON-SOLICITATION; CONFIDENTIAL INFORMATION.
(a) In consideration of and as an inducement to the Company to enter
into this Agreement, Executive shall not, for a period commencing on the
Effective Date of this Agreement and ending on the later of (i) one (1) year
after Executive's termination of employment with the Company, for any reason or
(ii) the date through which severance payments of Base Salary are due pursuant
to Section 8(e) above (such later date being referred to as the "Covenant End
Date"), serve, directly or indirectly, as an operator, owner, partner,
consultant, independent contractor, officer, director, sole proprietor or
employee of any firm, company, corporation or entity (other than the Company and
its Affiliates) which is engaged within the geographical area of the United
States in competition with the businesses of CORE or any of its Affiliates.
However, in the event that Executive is serving in such fashion, but for a unit
or division of such firm, company, corporation or entity which is not engaged
within the geographical area of the United States in competition with the
business of the Company or any of its Affiliates, then such service shall not
violate this Agreement.
(b) Executive agrees that for a period commencing on the Effective Date
of this Agreement and ending on the Covenant End Date:
(i) Executive will not directly or indirectly solicit,
hire or attempt to hire for any purpose whatsoever
(whether as an employee, consultant, advisor,
independent contractor or otherwise) any employee or
consultant of the Company or any of its Affiliates or
any person who was an employee or consultant of any
such corporation or corporations (and will use best
efforts to prevent any subsequent employer of
Executive or related entity or person from taking any
such actions);
(ii) Executive will not induce or attempt to induce any
customer, client, supplier, licensee or other
business relation of the Company or any of its
Affiliates to cease doing business with the Company
or any of its Affiliates or in any way interfere with
the relationship or potential relationship between
any such customer, client, supplier, licensee or
business relation, and the Company or any of its
Affiliates; and
(iii) Executive shall not solicit or attempt to solicit, or
accept business from, any entity which at any time
during the twelve month period prior to the date of
termination of Executive's employment with the
Company, was a client or customer of the Company or
any of its Affiliates for the purpose of doing
business with such client or customer in matters that
compete with the business of the Company or any of
its Affiliates. For the purpose of this covenant, the
clients and customers of the Company or any of its
Affiliates shall include those entities with which
the Company or any of its Affiliates had held
discussions or negotiations concerning services of
the Company or any of its Affiliates.
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(c) PUBLICLY-HELD STOCK. Nothing herein contained shall prevent
Executive from holding or making an investment in:
(i) securities listed on a national securities exchange
or sold in the over-the-counter market, provided that
such investments do not exceed in the aggregate five
percent (5%) of the issued and outstanding capital
stock of a corporation which is a competitor of the
Company or any of its Affiliates within the meaning
of this Section; or
(ii) interests in a mutual fund or other pooled investment
vehicle in which Executive has less than a five
percent (5%) interest.
(d) CONFIDENTIAL INFORMATION. Executive has previously executed and
delivered to CORE the Company's standard non-disclosure agreement with respect
to confidential information. Executive hereby re-affirms all his obligations
pursuant to the Company's standard non-disclosure agreement in the form attached
hereto as EXHIBIT A, which is hereby made a part of this Agreement.
(e) INJUNCTIVE RELIEF. Without intending to limit the remedies
available to the Company or any of its Affiliates, Executive acknowledges that a
breach of any of the covenants contained in this Agreement could result in
material irreparable injury to the Company or any of its Affiliates for which
there might be no adequate remedy at law, and that, in the event of such a
breach or threat thereof, the Company or any of its Affiliates shall be entitled
to obtain a temporary restraining order and/or a preliminary and permanent
injunction restraining Executive from engaging in any activities prohibited by
this Agreement or such other equitable relief as may be required to enforce
specifically any of the covenants of this Agreement.
(f) REASONABLENESS OF RESTRICTIONS. The parties are of the view that
the restrictions placed on Executive herein, in the light of all the
circumstances are reasonable as to scope, period of time and geographical area.
Nevertheless, it is the intent of the parties that this Agreement be enforceable
and restrict Executive's activities only to the extent permitted by law.
Accordingly, in the event that any provisions in this Agreement shall be
determined by arbitrators or by any court of competent jurisdiction to be
unenforceable by reason of its extending for too great a period of time over too
large a geographic area or range of activities, it shall be interpreted to
extend only over the maximum period of time, geographic area or range of
activities as to which it may be enforceable.
(g) DEFINITION OF "AFFILIATE." For the purposes of this Agreement,
"Affiliate" with respect to CORE shall mean FBIC and the direct and indirect
subsidiaries of CORE itself.
10. AVAILABILITY OF RECORDS. During the Term of this Agreement and for
a one (1) year period after any termination hereof, the Company agrees to make
available to Executive, his executors, administrators or heirs, for inspection
on the premises of the
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Company during normal working hours, copies of any records relating to
activities while employed by the Company and which relate to any rights or
benefits to which Executive was entitled at the time of his termination of
employment. However, upon the termination of this Agreement, Executive shall
not be entitled to retain any records or charts of the Company or any of its
Affiliates in his possession.
11. ARBITRATION. Any controversy or claim arising under or relating to
this Agreement, or breach therefor, shall be settled by arbitration in Xxxxxxx
County, Missouri in accordance with the rules of the American Arbitration
Association as in effect from time to time. Judgment upon the award rendered may
be entered in any court having jurisdiction thereof.
Notwithstanding anything contained in this Section 11, Executive agrees
that, in the event of any actual or threatened breach by Executive of his
undertakings in Section 9, the Company or any of its Affiliates shall be
entitled to immediate temporary injunctive and other equitable relief awarded in
or in addition to the arbitration as provided herein, which arbitration need not
have occurred at the time such relief is sought.
The provisions of this Agreement shall survive the termination of this
Agreement or of Executive's employment hereunder to the fullest extent required
to give effect to the righs and obligations of the parties, including but not
limited to the provisions of Sections 8, 9, 10 and 11 hereof that are to be
observed, carried out or performed after such termination.
12. ASSIGNABILITY. This Agreement shall inure to the benefit of the
successors and assigns of the Company. However, this Agreement is personal to
Executive, and he may not assign any of his rights or obligations hereunder.
13. AMENDMENTS. No amendment of or variation in the terms of this
Agreement shall be valid unless made in writing and signed by Executive and a
duly authorized representative of the Company.
14. NOTICES. Any notice required or permitted under this Agreement
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) if by delivery in person, or by overnight delivery,
facsimile, telegram or other standard form of telecommunications, or certified
or registered mail, postage prepaid, return receipt requested, to the Supervisor
at FBIC or his or her last known business address, with a copy to the last known
home office of the Company (in the case of the Supervisor or the Company), or to
the last known personal address of the Executive (in the case of Executive).
15. RULES OF CONSTRUCTION; HEADING AND VALIDITY. This Agreement shall
be constructed in accordance with the laws of Massachusetts.
The headings contained in this Agreement are for reference only and
shall not limit or otherwise affect the meaning of any provision of this
Agreement.
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If any provision of this Agreement or portion of such provision, or the
application thereof under any circumstances, is held invalid by final
arbitrator's award or by a court of competent jurisdiction, the remainder of
this Agreement (or the remainder of such provision) and the application thereof
under other circumstances shall not be affected by such partial invalidity.
In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted by all the parties
hereto. No presumption or burden of proof shall arise favoring or disfavoring
any party by virtue of the authorship of any provisions of this Agreement.
In the event of any inconsistency between this Agreement and Company
personnel policies, the terms and provisions of this Agreement shall apply and
control.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
between the parties hereto pertaining to the subject matter hereof and, when
effective, supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written of the parties, and there are no
warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as are specifically set forth
herein. Except as otherwise provided by this Agreement, no supplement,
modification, waiver or termination of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
IN WITNESS WHEREOF, the parties to this Agreement have caused the same
to be executed as of the date first above written.
CORE, INC.
("Company" or "CORE")
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, COO
/S/ Xxxxxx X. Xxxxxxxxx XX
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx XX
("Executive")
Exhibit A - Company Non-Disclosure Agreement
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