EXHIBIT 10(U)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of November 6, 1999 (the "Effective Date"),
by and between FPIC INSURANCE GROUP, INC, a Florida corporation ("FPIC"), and
XXXX XXXXX, an individual residing at 0000 Xxxx Xxxx Xxxx, Xxxxxx Xxxx, Xxxxxxx
("Employee").
PREAMBLE
FPIC desires to procure the services of Employee upon the terms and
conditions set forth herein and Employee desires to provide services to FPIC
upon such terms and conditions.
ACCORDINGLY, in consideration of the respective covenants and
agreements of the parties herein contained, FPIC and Employee agree as follows:
1. DUTIES OF EMPLOYEE. FPIC agrees to employ Employee on the Effective
Date as its Vice President and Chief Marketing Officer reporting to FPIC's
President and subject to the oversight of FPIC's Board of Directors (the
"Board"). Employee hereby accepts such employment and agrees to discharge
faithfully, diligently and to the best of Employee's ability, the
responsibilities of such position. In addition to Employee's duties as Vice
President and Chief Marketing Officer, Employee shall assume and perform such
further reasonable responsibilities and duties and exercise such powers as
FPIC's President or the Board shall assign to Employee from time to time and
shall have such supervision and control over, and responsibility for, such
aspects of the business, operations, activities and affairs of FPIC as are
consistent with the organization documents of FPIC and the assignments to
Employee by FPIC's President and the Board.
2. DEVOTION OF FULL TIME TO FPIC'S BUSINESS. During the term of
Employee's employment hereunder, except as otherwise permitted by the Board or
this Agreement, Employee shall be employed only by FPIC and Employee shall
devote substantially all of Employee's full business time, attention, energies
and skills to the work of FPIC.
3. TERM.
(a) Unless sooner terminated as provided herein, the term of
this Agreement shall be for the period commencing November 6, 1999 and ending on
December 31, 2002 (the "Employment Term").
(b) At any time, Employee may voluntarily elect to terminate
this Agreement, and end the Employment Term, by providing FPIC at least 4 months
notice of such termination. Upon receipt of such notice, FPIC may, at its sole
discretion, elect to establish a termination date prior to the date specified in
Employee's notice.
(c) At any time, FPIC may elect to terminate this Agreement
and end the Employment Term, without Cause (as hereinafter defined) by providing
written notice to Employee, in which event, FPIC shall pay to Employee the
severance pay required pursuant to Section 7(b)(ii) below.
4. COMPENSATION.
(a) SALARY.
(i) FPIC shall pay Employee as compensation for
Employee's services for the 1999 calendar year and each calendar year
thereafter during the term of this Agreement an annual base salary of
at least Two Hundred Thousand and No/100 Dollars ($200,000.00), payable
in accordance with FPIC's normal payroll practices, but not less
frequently than twice per month.
(ii) Annual performance reviews will determine annual
or other salary increases to which Employee becomes entitled, based
upon FPIC's compensation and review policies.
(b) BONUS.
(i) Commencing with calendar year 2000 Employee will
have the opportunity to receive annual performance based bonuses of up
to 25% of the base salary provided in Section 4(a) of this Agreement
based upon various criteria pertaining to Employee's and FPIC's
performance and structured similarly to the performance based bonuses
paid to FPIC's other senior management executives under FPIC's then
current Executive Incentive Compensation Program. All bonuses, if any,
must be authorized by the Board.
(ii) Bonuses, if any, attributable to any calendar
year shall be paid within 90 days after the end of the calendar year
with respect to which the bonus is awarded.
(c) VACATION. Employee shall be entitled to paid
vacation for each calendar year on the same basis as FPIC's other executive
officers.
(d) FRINGE BENEFITS. Employee shall be entitled to participate
in any tax qualified profit sharing plans available to FPIC's employees. In
addition, Employee shall be eligible for health benefit plans available to all
FPIC employees. Participation in such plans shall be subject to and on a basis
consistent with the terms, conditions and overall administration of such plans
and arrangements. FPIC shall pay reasonable professional association fees of
Employee. Employee shall be entitled, following the expiration of the term of
the present lease of the automobile used by Employee and during the remainder of
the term of this Employment Agreement, to an automobile allowance of $500 per
month and shall be reimbursed for normal operational expenses incurred by
Employee in operating Employee's automobile.
(e) STAY BONUS. Commencing with calendar year 2000 and
continuing through the earlier of 2002 or the termination of the Employment Term
FPIC shall pay Employee a stay bonus equal to $88,899 per year, payable in equal
quarterly installments at the end of each calendar quarter.
(f) OMNIBUS INCENTIVE PLAN. FPIC acknowledges and agrees that
Employee shall be eligible to participate in the Florida Physicians Insurance
Company Omnibus Incentive Plan, which provides incentives to individuals whose
performance, contributions and skills add to the value of FPIC Insurance Group,
Inc.
(g) All payments shall be subject to legally required
withholdings.
5. EXPENSES. Subject to policies and procedures adopted by the
Board, or as otherwise required by applicable laws such as the Internal Revenue
Code of 1986, as amended, Employee shall be promptly reimbursed for the
reasonable business expenses Employee incurs on behalf of FPIC.
6. EMPLOYEE COVENANTS.
(a) CONFIDENTIAL INFORMATION. Employee will not, at any time
during the term of this Agreement or thereafter, divulge to any persons,
corporations or other entities, or use or cause or authorize any persons,
corporations or other entities to use, any information relating to FPIC, its
affiliates, or to Physicians Reciprocal Insurers, the New York domiciled
reciprocal insurer for which FPIC's subsidiary acts as attorney-in-fact ("PRI"),
that is regarded as confidential by FPIC or relating to the business or
interests of FPIC, its affiliates, or PRI, including, without limitation, the
contents of advertising, customer lists, information regarding customers or
their customers, programming methods, business plans, strategies, financial
statements, copyrights, correspondence or other records of FPIC, its affiliates,
or PRI. The restrictions of this Section shall not apply to information relating
to the business or interests of FPIC, its affiliates, or PRI that is, or shall
lawfully and rightfully become, public knowledge and in the public domain
through no fault or wrongful act of Employee; nor shall the restrictions of this
Section apply to information that is (i) disclosed by Employee after obtaining
prior written consent of FPIC, or (ii) is required or ordered to be divulged by
a court of competent jurisdiction or an administrative agency having lawful
authority to require disclosure of Employee's knowledge of such information. If
Employee is requested or required to disclose any such information, Employee
will provide FPIC with written notice thereof so that FPIC may seek a protective
order or other appropriate remedy and/or waive compliance with the provisions of
this Section 6(a).
(b) WRONGFUL INDUCEMENT. Employee acknowledges that any
attempt on the part of Employee to induce others to leave FPIC's employ or the
employ of any of its affiliates, or any efforts by Employee to interfere with
FPIC's or any of FPIC's affiliates' relationships with employees, or to
interfere with FPIC's or its affiliates' relationship with PRI, would be harmful
and damaging to FPIC or to FPIC's affiliate. Employee expressly agrees that
during the term of this Agreement and for any period of time during which FPIC
is paying to Employee salary and other benefits provided for in this Agreement
and for a period of two (2) years thereafter, Employee will not, in any manner,
directly or indirectly or through any means: (A) induce or attempt to induce any
employee to terminate his or her employment with FPIC or any affiliate; (B)
interfere with or disrupt FPIC's or any affiliate's relationship with their
employees; (C) solicit, entice, take away or employ any person employed by FPIC
or any affiliate; or (D) induce or attempt to induce PRI to terminate its
relationship with FPIC or its affiliates.
(c) RESTRICTIVE COVENANTS. Employee expressly agrees that
during the term of this Agreement and for any period of time during which FPIC
is paying to Employee salary or other benefits provided for in this Agreement
(including, but not limited to, pursuant to Section 7(b)) or in the event of the
termination of this Agreement pursuant to Section 3(b), or 7(a)(iv), for a
period of two (2) years thereafter, Employee shall not, directly or indirectly,
own, operate, manage, have a proprietary interest of any kind in, extend
financial assistance to, solicit, encourage or handle patronage for, be employed
by or serve as a consultant, officer, director, employee, or in any other
capacity for any person, corporation, company, partnership or other entity
engaged in the medical professional liability insurance business or the business
of providing management or other insurance services to any medical professional
liability insurer in or operating within the States of New York, Florida or
Missouri, except that Employee may own up to two percent (2%) of the outstanding
stock in a publicly held corporation engaged in such competing business provided
that such stock does not in any way represent any form of compensation for any
services rendered by Employee to such publicly held corporation.
(d) REASONABLE AND NECESSARY RESTRICTIONS. Employee
acknowledges that the restrictions, prohibitions and other provisions of this
Section 6 are reasonable, fair and equitable in scope, term and duration, are
necessary to protect the legitimate business interests of FPIC and its
affiliates, and are a material inducement to FPIC to enter into this Agreement.
Employee covenants that he will not challenge the enforceability of this Section
6 or any provision hereof nor will he raise any equitable defenses to such
enforcement.
(e) ENFORCEABILITY. In the event that any restriction
contained in this Section 6 shall be held to be too broad in scope or to long in
duration to allow enforcement of such restriction to its full extent, then such
restriction shall be enforced to the maximum extent permitted by law, and
Employee hereby consents and agrees that such scope and duration may be
judicially modified accordingly in any proceeding brought to enforce such
restriction.
(f) INADEQUACY OF REMEDY AT LAW. Employee acknowledges and
agrees that FPIC's or FPIC's affiliates' remedy at law from any breach of his
obligations under this Section 6 may be inadequate, and agrees and consents that
temporary and/or permanent or injunctive relief may be entered enjoining
Employee from breaching this Agreement and further agrees that any proceeding
may be brought to enforce any provision of this Section 6 without the
requirement that FPIC or its affiliate, as the case may be, prove actual damages
as a result of the breach of this Agreement.
(g) SURVIVAL. The provisions of this Section 6 shall survive
any termination of this Agreement.
7. TERMINATION.
(a) REASONS. This Agreement shall be terminated upon:
(i) The death of Employee;
(ii) The voluntary election of Employee
as provided in Section 3(b);
(iii) The election of FPIC as provided
in Section 3(c);
(iv) The mutual agreement of FPIC and
Employee, which agreement to terminate shall be in writing and signed by both
FPIC and Employee;
(v) The permanent disability of
Employee, provided, however, that in such event this Agreement shall
not terminate until FPIC so chooses. "Permanent disability" shall be
defined as Employee's inability, by reason of illness or a physical or
mental incapacity to perform the majority of Employee's usual duties
during substantially all the business days in a period of three
consecutive months. FPIC's right to terminate under these circumstances
shall be exercised in writing delivered to Employee and shall be
effective upon receipt by Employee;
(vi) FPIC's termination of this
Agreement for "Cause," in which event, notwithstanding any other
provisions of this Agreement, FPIC shall have no further obligations to
Employee under this Agreement other than payment of any amounts due
Employee through the effective date of termination and reimbursement of
any expenses, as provided in Section 7(b) hereof. For purposes of this
Agreement, "Cause" shall be defined to mean (1) any act or omission to
act on the part of Employee for which Employee is convicted of, or
pleads NOLO CONTENDERE to, a felony or fraud or embezzlement or that
constitutes gross negligence or wilful misconduct, or (2) Employee's
willful refusal to perform any material obligation under this Agreement
provided Employee fails to perform such material obligation within 10
days of written notice thereof to Employee.
(vii) In the event of Constructive
Discharge, by Employee's providing written notice thereof to FPIC
within three months after the occurrence of such event, specifying the
event relied upon for a Constructive Discharge. "Constructive
Discharge" shall mean any material change by FPIC of Employee's
position, functions, or duties to an inferior position, functions, or
duties from that in effect on the date of this Agreement, provided FPIC
has not reinstated Employee to Employee's former position, functions,
or duties within 15 days after notice from Employee that Employee
desires to be so reinstated.
(b) PAYMENTS.
(i) Upon termination of this Agreement, for any
reason, Employee shall be entitled to receive Employee's base salary
earned but unpaid as of the date of termination and any expenses not
yet reimbursed. If Employee voluntarily elects to terminate this
Agreement other than in the event of a Constructive Discharge, Employee
shall forfeit all rights to compensation and all benefits based upon
compensation after the date of such voluntary termination. If this
Agreement is terminated as a result of Employee's death, FPIC shall pay
to Employee the compensation that would otherwise have accrued to
Employee up to the date upon which Employee's death occurred to
Employee's spouse and if Employee is unmarried, to Employee's estate.
In no event shall Employee be entitled to any additional compensation
except as expressly provided for in this Agreement. If this Agreement
is terminated as the result of Employee's permanent disability, FPIC
shall pay to Employee the compensation that would have accrued up to
the date of termination.
(ii) If at any time during the term of this
Agreement, FPIC elects to terminate this Agreement as provided in
Section 3(c), or in the event of a Constructive Discharge, Employee
will be entitled to receive the greater of (a) Employee's salary
provided in Section 4(a) of this Agreement for the remainder of the
term of this Agreement and the remaining unpaid bonus payments provided
for in Section 4(e) of this Agreement, or (b) twenty-four months of
Employee's salary provided in Section 4(a) and the remaining unpaid
bonus payments provided for in Section 4(e) of this Agreement, payable
as provided in such Sections 4(a) and (e) commencing on the first day
of the week following such effective date of termination.
Notwithstanding the foregoing, if Employee breaches or fails to fulfill
Employee's obligations under or is in violation of Section 6 or Section
8 of this Agreement, no salary or other amounts that would otherwise be
payable under this Section 7(b) shall be payable to Employee.
8. PRI RELATIONSHIP. Employee acknowledges that the relationships of
FPIC and its affiliates with PRI and with the insureds of PRI are unique, key
assets of FPIC and its affiliates and of fundamental and material importance to
FPIC in determining to execute and deliver this Agreement. Therefore, Employee
acknowledges and agrees that he shall not at any time or in any manner interfere
with such relationships, or induce or attempt to induce PRI to terminate its
relationship or contractual agreements with FPIC or its affiliates.
Notwithstanding any other provisions of this Agreement, the provisions of this
Section 8 shall survive the termination of this Agreement.
9. NOTICES. Any notice, designation, consent, acceptance or other
communication provided for herein shall be in writing and shall be deemed given
when delivered by hand, by telecopy, receipt confirmed, or five business days
after mailed, postage prepaid, certified or registered, return receipt
requested, addressed to the other party at the address appearing below:
To FPIC: FPIC Insurance Group, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President and CEO
Fax: (000) 000-0000
To Employee: Xxxx Xxxxx
0000 Xxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
Either party may, by like notice to the other, change the address to which any
such communication shall be sent, and after notice of such change has been
received, any communications shall be sent to such party at such changed
address.
10. AMENDMENTS. No change or modification to this Agreement shall
be effective unless such change or modification is in writing and signed by both
parties hereto.
11. ASSIGNMENT. This Agreement constitutes a personal services
contract, and neither party may assign this Agreement or any of the rights,
obligations and responsibilities hereunder, except that FPIC may assign its
rights, obligations and responsibilities under this Agreement to (i) a successor
or assign of all or substantially all of its business or assets, or (ii) any
corporation with which it merges or with which it may be consolidated.
12. REPRESENTATIONS. Employee represents and agrees that Employee
has legal capacity to enter into this Agreement and the execution and delivery
of this Agreement will not violate or conflict with any other agreements or
contracts to which Employee is a party.
13. APPLICABLE LAW AND BINDING EFFECT. This Agreement shall be
construed and enforced under the laws of the State of Florida, and shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, personal representatives, successors and permitted assigns. This
Agreement supersedes and replaces in every respect, any and all prior employment
agreements, severance settlements, retirement benefits, and any and all other
related rights, expectations or understandings of any nature whatsoever between
FPIC and Employee or any affiliate of FPIC and Employee.
14. WAIVER NOT CONSENT. Any waiver of any breach of this Agreement
shall not be construed to be a continuing waiver or consent to any subsequent
breach by either party hereto.
15. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the application of
such term or provision to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law. Moreover, if a court of competent jurisdiction
deems any provisions hereto to be too broad in time, scope or area, it is
expressly agreed that such provision may be enforced to a lesser degree.
16. CAPTIONS. The paragraph headings contained in this Agreement
are for reference and convenience only, and shall not affect the construction of
any provision hereof.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original hereof, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of FPIC and by Employee as of the 6th day of November, 1999.
FPIC INSURANCE GROUP, INC.
By:
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Its:
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Xxxx Xxxxx
