Exhibit 10.27
NON-PIRACY AGREEMENT
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AGREEMENT made this 2nd day of December, 1996 by and between
AMERICAN PHOENIX CORPORATION OF CONNECTICUT, a Connecticut corporation
(hereinafter the "Employer"), and the Employee, Xxxxxx Xxxxxxxx, signing below
(the "Employee").
PREAMBLE
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Employer is an independent insurance agency providing a variety of
insurance services. Although it is not intended for Employer and Employee to
enter into any employment agreement or into any written understanding as to the
terms under which Employee may be employed, it is intended as a condition of
such employment that Employee provide certain assurance to employer with respect
to the confidential information and trade secrets of Employer that are or will
become known to Employee. This Agreement is being entered into for such
purposes.
WITNESSETH:
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NOW, THEREFORE, Employer and Employee have agreed as follows:
1. Proprietary Rights. Recognizing that the Employer and its
Affiliated Companies (as defined below) are or will be engaged in a personal
service business involving confidential information concerning insureds, the
success of which business is in large part due to the exclusive retention of
such information, Employee does hereby agree as follows and acknowledges that
the following covenants are reasonable and necessary for the protection of the
Employer and its Affiliated Companies and may be enforced to the extent set
forth herein:
(a) Confidential Information. All information with
respect to the names of existing or future insurance accounts of the Employer,
American Phoenix Corporation, or any companies or entities in which the Employer
or American Phoenix Corporation now owns, or in the future may own, directly or
indirectly, fifteen (15%) percent or more of the issued and outstanding voting
securities or other equity interests (all such companies and affiliates,
including the Employer and American Phoenix Corporation being sometimes
collectively referred to herein as the "Affiliated Companies" and individually
as an "Affiliated Company") as well as information concerning the insurance
needs and requirements of such accounts, including, without limitation, policy
expiration dates, conditions, rates, and other confidential information dealing
with the nature of insurance accounts handled by any of the Affiliated Companies
and the manner in which those insurance accounts are handled is confidential
information of the Affiliated Companies and constitutes a trade secret of such
companies, and Employee will not at any time, whether during his employment by
the Employer or thereafter, communicate, divulge or make use of, any information
or knowledge relating to such trade secrets, or any other trade secrets, of any
of the Affiliated Companies, to any person or for any purpose except (i) as
authorized in writing by the appropriate Affiliated Company; (ii) as required by
insurance companies for rating and underwriting insurance policies covering the
operations of an Affiliated Company; or (iii) in the ordinary course of business
while in the performance of his duties as an employee.
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(b) Records. Employee agrees and acknowledges that all
books, records, notes, files, customer lists, and similar data and information
used by him or others employed by Employer during the course of his employment
are the property of Employer, and shall upon termination of the Employee's
employment, for whatever reason, remain the property of Employer, Employee
covenants that the same shall not be removed or copied, except in the
performance in the ordinary course by Employee of his duties for Employer, in
whole or in part by said Employee at any time, prior to or after such
termination, nor be used in any way for the benefit of any other person or
business entity other than one of the Affiliated Companies. All of such
documents shall, upon such termination of employment, be returned to Employer
forthwith, and Employer shall in addition to all other remedies and damages
available, have the right of specific performance to obtain such documents.
(c) Non-Solicitation; Non-Interference. Employee does
hereby agree that as long as he is employed by Employer, and for a period of
three (3) years thereafter, he shall not, except on behalf of one of the
Affiliated Companies, directly or indirectly: (1) interfere with any of the
Affiliated Companies' relationships with any of their respective accounts,
customers or employees, wherever located, by directly or indirectly soliciting
or attempting to solicit such accounts, customers or employees, by directly or
indirectly inducing them to discontinue their relationships with any of the
Affiliated Companies, or by directly or indirectly aiding or assisting any other
person in the solicitation or the attempted solicitation of any such accounts or
customers, it being recognized that such solicitation or inducement would injure
the goodwill of the affected company and/or be a misuse of such company's
confidential information and trade secrets; (2) interfere with any of the
Affiliated Companies' special marketing programs (as such term is commonly
understood in the insurance industry) in which any of the Affiliated Companies
may be participating with particular underwriters or other insurance carriers on
an exclusive or semi-exclusive basis, it being understood that said interference
would injure the particular Affiliated Company and be a misuse of confidential
information or trade secrets; or (3) serve as an insurance advisor, consultant
or risk manager for any of said accounts or customers. For purposes of the
foregoing "indirect" actions shall include, but not by way of limitation,
ownership of a substantial equity interest in or having a position of control
(such as being an officer or director) in an entity which takes any of the above
prohibited actions.
2. Remedies
(a) It is hereby agreed that, because of the unique
nature of the relationship between Employer and Employee, in the event Employee
violates the provisions of this Agreement, Employer shall be entitled to
liquidated damages from Employee in an amount equal to two and one-half (2-1/2)
times the commissions owed to or received by Employer or any of the other
Affiliated Companies during the twelve-month period immediately preceding such
violation with respect to all insurance business written by Employee or any
other employee or agent of Employer or any of the Affiliated Companies, which
business is either (a) lost by Employer or any of the other Affiliated Companies
as a result of actions taken by Employee (or any person or entity with respect
to which Employee is an agent, consultant, partner, shareholder, employee or
affiliate), irrespective of whether or not the Employee benefits by such loss of
business, or (b) lost by employer or any of the other Affiliated Companies to
Employee or to any person or entity (other than Employer or any of the other
Affiliated Companies) with respect to which Employee is an agent, consultant,
partner, shareholder, employee or affiliate, where Employee, such person or such
entity is acting other than as an employee or agent of Employer or any of the
other Affiliated Companies.
(b) It is further agreed that in the event of violations
of the Section l(c) provision governing non-solicitation of Employees, American
Phoenix Corporation or the appropriate Affiliated Company shall be entitled to
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damages in the amount of two (2) times the salary of each Employee loss as a
result of such solicitation, such salary being that at the time of such
Employee's departure from the affected company, it being acknowledged that this
figure is a reasonable approximation of the cost to such company of replacing
and retraining an employee.
(c) It is further agreed that, in view of the
insufficiency of monetary damages to adequately protect the Employer and the
other Affiliated Companies from and compensate them for a violation of the
provisions of this Agreement, Employer or any of the other Affiliated Companies
shall, in addition to the right to recover the liquidated damages provided for
above, also have the option of bringing an action for specific performance of
the provisions of this Agreement.
3. Enforcement. It is acknowledged that the covenants of Employee
set forth in this Agreement are intended not only for the benefit of the
Employer, but for the benefit of any of the other Affiliated Companies as well.
Accordingly, any action to enforce the covenants of this Agreement may be
brought by the Employer or any of the other Affiliated Companies at their
option.
4. Miscellaneous.
(a) Headings. The headings for sections in this Agreement
are only inserted as a guide to assist in the location of said sections and they
are not to be construed as any indication of the meaning or content of the
respective sections.
(b) Severability. In case any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality,
or unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained herein. If, moreover, any one or more of the
provisions contained in this Agreement shall, for any reason, be held to be
excessively broad as to time, duration, geographical scope, activity, or
subject, it shall be construed by limiting and reducing it so as to be
enforceable to the extent compatible with the applicable law as it then appears.
(c) Notices. Any and all notices referred to herein shall
be sufficient if furnished in writing, sent by certified mail (return receipt
requested) to the respective parties at the addresses subscribed below following
their signatures to this contract or at such other address as either party may
from time to time designate in writing.
(d) Waiver. No waiver of any provision of this Agreement
shall be effective unless contained in a writing executed by the party against
whom enforcement thereof is sought. A waiver of any specific term hereof shall
not be deemed to constitute a waiver of any other term hereof, nor shall a
waiver on any one or more occasions be deemed to imply or constitute a waiver of
the same or any other term on any other occasion.
(e) Amendment. No amendment to this Agreement shall be
effective unless in writing and signed by the party against whom enforcement
thereof is sought.
(f) Employment. It is understood that Employee's
employment by Employer is on an "at will" basis and that this is not intended to
be an employment agreement or to provide for any terms of employment.
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(g) Governing Law. This contract shall be construed and
enforced in accordance with the laws and decisions of the state of Connecticut.
(h) Dispute Resolution. If a dispute arises out of or
relates to this Agreement, or the breach hereof, and if said dispute is not
settled within a commercially reasonable time through negotiation, the parties
shall try in good faith to settle the dispute by mediation under the Commercial
Mediation Rules of the American Arbitration Association, before resorting to
arbitration, litigation, or some other dispute resolution procedure(s). No
resolution or attempted resolution of any dispute or disagreement pursuant to
this section shall be deemed to be a waiver of any term or provision of this
Agreement or a consent to any breach or default unless such waiver on consent
shall be in writing and signed by the party claimed to have waived or consented.
IN WITNESS WHEREOF, Employer and Employee have executed this Agreement
as of the day and year first above written.
AMERICAN PHOENIX CORPORATION
OF CONNECTICUT
Xxxxxx X. Xxxxxxxx By: /s/
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(Name of Employee)
/s/ Xxxxxx X. Xxxxxxxx Its: Chairman
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Signature
12/2/96 12/2/96
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Date Date
PIRCAVON
CAM: 5/21/96
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