Exhibit 10.2
EMPLOYMENT AGREEMENT dated as of September 1, 2006 by and between AMERISAFE, INC., a Texas
corporation (the “Company”), and Xxxx Xxxxxx (the “Employee”).
WITNESSETH:
WHEREAS the Company desires to induce the Employee to continue in the employment by the
company for the period provided in this Agreement, and the Employee is willing to continue such
employment with the Company on a full-time basis, 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:
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(a) |
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The Company hereby agrees to employ the Employee, and the Employee hereby accepts such
employment with the Company, for the period set forth in Section 2 hereof, subject to the
terms and conditions hereinafter set forth. |
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(b) |
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The Employee 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 Employee’s employment hereunder with the Company, the employment of
the Employee by the Company, or the Employee’s undertakings under this Agreement. |
| 2. |
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Term of Employment. Unless earlier terminated as provided in this Agreement, the
term of the Employee’s employment under this Agreement shall be for a period beginning on
September 25, 2006 (the “Effective Date”) and ending on the third anniversary of the Effective
Date, September 25, 2009, 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 intent to renew this Agreement. Such period, plus any annual renewal
periods, or, if the Employee’s employment hereunder is earlier terminated as provided herein
and including termination pursuant to Section 9 (a)(i)-(v), or such shorter period, is
sometimes referred to herein as the “Employment Term”. |
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Duties. The Employee shall be employed by the Company as a senior executive officer
and shall endeavor in good faith to competently perform such duties as inherent in his/her
employment and/or any designated job position and/or as specified by the Company and shall |
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also perform and discharge such other employment duties and responsibilities as the Board of
Directors of the Company shall from time to time reasonably determine, not inconsistent with
his/her position as a senior executive officer with the Company. Employee shall also comply
with any By-Laws of the Company, as applicable. The Employee shall perform his duties
principally at the offices of the Company at 0000 Xxxxxxx 000 Xxxx, XxXxxxxx, Xxxxxxxxx, with
such travel to such 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 Employee shall devote his full time
during normal business hours throughout the Employment Term to the services required of him
hereunder; provided that the foregoing shall not prohibit the Employee from engaging in
reasonable charitable and community activities. The Employee shall render his business services
exclusively to the Company and its subsidiaries during 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. |
| 4. |
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Conflicts of Interest and Compliance. Employee 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. Employee 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. Employee shall also comply with all policies and procedures of the
Company and directives of the Board of Directors. Employee 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. Employee agrees to fully and faithfully
perform and discharge all such duties, responsibilities and obligations. |
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| 5. |
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EEO Compliance. Employee 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. Employee acknowledges that
the Company is an Equal Opportunity Employer and prohibits all forms of unlawful
discrimination in the terms and condition of employment and prohibits all forms of harassment,
including sexual harassment. |
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| 6. |
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Salary and Bonus. |
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(a) |
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Salary. As compensation for the services to be performed by the Employee
hereunder during the Employment Term, the Company shall pay the Employee a base salary at
the annual rate of not less than One Hundred Seventy-five Thousand Dollars ($175,000) (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. |
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(b) |
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Bonus. The Employee 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 on the basis of performance-based criteria
to be established from time to time by such Committee in its sole discretion. |
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(c) |
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Withholding, Etc. The payment of any Salary and Bonus under this Section 6,
and the payment of any severance pay pursuant to Section 7 hereof, shall be subject to
applicable withholding and payroll taxes, and such other deductions as may be required
under the Company’s employee benefit plans. |
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Other Benefits. |
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During the Employment Term, the Employee shall: |
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(a) |
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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 other senior
executive officers in accordance with the provision of any such plans, as the same may
be in effect from time to time; |
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(b) |
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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 other senior
executive officers in accordance with the provisions of any such plans, as the same be
in effect from time to time; |
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(c) |
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be entitled to at least 23 vacation/personal days in each calendar year; the
Employee shall also be entitled to all paid holidays given by the company to its other
senior executive officers; |
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(iv) |
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be entitled to sick pay and disability benefits in accordance with any Company
policy that may be applicable to other senior executive officers from time to time; |
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(v) |
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be entitled to a car allowance consistent with Company practice as of the date
hereof; and |
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(vi) |
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be entitled to reimbursement for all reasonable out-of-pocket business expenses
incurred by the Employee 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. |
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Confidential Information. The Employee hereby covenants, agrees and acknowledges as
follows: |
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(a) |
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The Employee 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 subsidiaries 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 Employee), or (y) that the Employee 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 Employee 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). |
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(b) |
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The Employee 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 Employee’s duties under this Agreement. The
Employee 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 Employee to such an order
or subpoena and in such notice, Employee shall advise as to whether or not he/she intends
to comply with and/or respond to the order and/or subpoena. |
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(c) |
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The Employee acknowledges and agrees that a remedy at law for any breach or threatened
breach of the provisions of this Section 6 would be inadequate and, 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. |
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(d) |
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The Employee agrees that upon termination of his employment with the Company for any
reason, the Employee shall promptly return to the Company all Confidential Information in
his possession in whatever form maintained (including, without limitation, computer disks
and other electronic media). |
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(e) |
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The obligations of the Employee under this Section 8 shall, except as otherwise
provided herein, survive the termination of the Employment Term and the expiration or
termination of this Agreement for a period of five years. |
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(a) |
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The Employee’s employment hereunder shall be terminated upon the occurrence of any of
the following: |
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(i) |
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death of the Employee; |
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(ii) |
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the Employee’s inability to perform his duties on account of disability or
incapacity for a period of one hundred eighty (180) or more days, whether or not
consecutive, within any period of twelve (12) consecutive months; |
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(iii) |
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a Termination for Cause (as defined herein); |
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(iv) |
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a Termination Without Cause (as defined herein); or |
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(v) |
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termination of the Employee’s employment hereunder by the Employee at any time
other than a termination by the Employee pursuant to Section 9(a)(iv) hereof (a
“Resignation”). |
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The term “Termination for Cause” shall mean a termination of the Employee’s
employment 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 Employee: (1) indictment or arrest for the alleged commission of a
felony, (2) acts of dishonesty or moral turpitude which are materially detrimental
to the Companies, (3) acts or omissions which the Employee reasonably knew were
likely to materially damage the business of the Company, (4) failure by the Employee
to obey the reasonable and lawful orders of the Board of Directors of the Company,
or (5) gross negligence by the Employee in the performance of, or willful disregard
by the Employee 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 Employee 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: (1) the Company is giving written
notice at any time, including during the Employment Term, to the Employee that the
Employee’s employment is being terminated or non-renewed (pursuant to paragraph 2.
hereof) other than pursuant to clauses (i), (ii) or (iii) of |
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the first paragraph of this Section 7(a), or (2) the Employee giving written notice
to the Company that he is terminating his employment with the Company upon the
occurrence of any of the following items: |
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(A) |
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significant adverse change in the nature or scope of the
authorities, powers, functions, responsibilities or duties associated with the
job position designated and/or existing at the effective date of this
Agreement, a reduction in the Employee’s salary, or the termination of the
Employee’s rights to any employee benefits to which he was entitled pursuant to
this Agreement (other than a termination of rights or benefits applicable to
all executive officers), any of which is not remedied within 10 calendar days
after receipt by the Company of written notice from the Employee of such
change, reduction or termination as the case may be; |
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(B) |
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the Company shall require the Employee to have his principal
location of work changed to any location which is in excess of 25 miles from
the location thereof as of the date of this Agreement without his prior written
consent; or |
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(C) |
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without limiting the generality or effect of the foregoing, any
material breach of this Agreement by the Company or any successor thereto. |
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(D) |
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a “Change of Control”. For purposes of this Agreement and this
provision, a Change of Control shall mean the following: (i) sale of all or
substantially all of the Company’s assets to any person or entity, or (ii) a
merger, consolidation or other similar business combination of the Company or
of the subsidiaries of the Company taken as a whole (the “Subsidiaries”), with
or into another company when the Company is not the surviving company of such
merger, consolidation or other business combination. |
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(b) |
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In the event that the Employee’s employment is terminated at any time by a
Termination Without Cause, for a 12 month period following the effective date of such
termination, the Company shall (i) pay (as severance, termination pay, contract payout,
compensation and/or liquidated damages) the Salary that would have otherwise been
payable to the Employee during such period. This amount will be paid during such
period in accordance with the Company’s then existing payroll practices, methods and/or
pay periods. In addition, in the event that Employee’s employment is terminated at any
time by Termination Without Cause, the Company will pay and/or reimburse Employee for a
12 month period following such termination the actual cost of COBRA continuing health
coverage premiums. In this regard, if the Employee is eligible for COBRA continuing
health benefits and if Employee timely elects COBRA continuing health care coverage,
the Company will pay and/or reimburse up to a maximum of 12 months of COBRA continuing
health care coverage premiums. It shall be at the Company’s option and discretion to
either pay the COBRA premiums directly or to reimburse the Employee for premiums that |
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the Employee pays for COBRA continuing health coverage. Any premiums or amounts due for
COBRA continuing health coverage beyond the 12 month period referenced above shall be at
the sole cost and expense of Employee and will not be paid an/or reimbursed by the
Company. The above described obligations of the Company (continuation of salary for a
12 month period following Termination Without Cause and payment of COBRA premiums for a
12 month period following Termination Without Cause) shall be the exclusive remedies and
payment obligations and no other amounts or obligations will be due and owing by the
Company to Employee. In this regard, Termination Without Cause may be effectuated at
any time during the Employment Term or renewal and the only amounts that the Company
will be obligated or required to pay are the amounts calculated according to the
formulas set forth above. |
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(c) |
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Notwithstanding anything to the contrary expressed or implied herein, except as
required by applicable law and except as set forth in Section 9(b) above, the Company
shall not be obligated to make any payments to the Employee or on his behalf of
whatever kind or nature by reason of the Employee’s cessation of employment (including,
without limitation, by reason of a Termination for Cause), 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 Employee pursuant to the terms of the Company’s benefits plans or pursuant to
Section 7 above. |
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Restrictive Covenants. |
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10.01 |
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Noncompetition and Nonsolicitation of Customers. |
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(a) |
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The Employee agrees that during the Noncompete Period (as defined herein),
without the prior written consent of the Company, Employee 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. |
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(b) |
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Noncompete Period. For purposes of this Agreement, the “Noncompete
Period” shall mean the Employment Term plus: |
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(i) |
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in the event that the employment of the Employee is terminated
by a Termination Without Cause, a period of 12 months. As such, the Noncompete
Period would be the term and duration of employment and would extend beyond
terminations and/or separation for 12 months; or |
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(ii) |
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in the event that the employment of the Employee is terminated
by the Company by a Termination With Cause, or by the Employee’s Resignation
pursuant to Section 9(v) of this Agreement or the Employee’s nonrenewal under
Section 2 of this Agreement, the Noncompete Period |
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shall expire upon the expiration, termination and/or separation of the
Employee’s employment with the Company; provided, however, in such
event the Company shall have the exclusive option and absolute right of
extending the Noncompete Period for a period of 12 months following the
termination and/or separation of employment if the Company: (1) delivers
written notice to the Employee irrevocably exercising such option before
employment termination and/or separation or within 180 days after employment
separation and/or termination and (2) agrees to pay and does pay the
employee the Salary and Benefit amounts as designation under Section 9(b) of
this Agreement for such 12 month period. If the Company exercises this
option and right and complies with the requirements for same, the Noncompete
Period shall be extended for the 12 month period designed and Employee
agrees and acknowledges that he/she if bound by such period. |
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(c) |
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Definition of Designated Area. The term “Designated Area” shall mean
the states, parishes, counties and/or municipalities designated in Attachment “A”. |
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(d) |
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Business of the Company. Employee acknowledges and understands that
the “business” of the Company involves and relates to the underwriting of risks for
workers’ compensation insurance and related services. Employee 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 workers’ compensation
insurance and related services. Employee further acknowledges and understands that the
noncompetition and nonsolicitation of customer restrictions in this Agreement prohibit
the Employee 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. |
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(e) |
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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. Employee acknowledges and represents that
he/she understands the nature of the Company’s customer relationships and who and/or
what comprises its customers. |
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10.02 |
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Nonsolicitation. Employee shall not, during the Noncompete Period, 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. |
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10.03 |
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Amerisafe Designation. As used in this Section 10, Amerisafe, Inc. and/or the
“Company” includes Amerisafe, Inc., American Interstate Insurance Company, Silver |
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Oak Casualty, Inc., American Interstate Insurance Company of Texas, 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 enure to the benefit of and operate for the interest of all of the
above-mentioned companies and affiliates. |
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10.04 |
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Remedies. In the event of a breach, or a threatened or attempted breach, or
any provision of this Section 10 by the Employee, 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 the Company shall not
be exclusive, but shall be cumulative. |
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10.05 |
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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
noncompetition or nonsolicitation 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 noncompetition or nonsolicitation 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. |
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10.06 |
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Reasonableness. Employee 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. Employee acknowledges,
represents and agrees that the Company has expended substantial cost in training Employee
and that the Company has provided him/her with access to valuable information and has
provided him/her with valuable experience. In addition, Employee acknowledges, represents and
agrees that the Company has placed Employee in contact with its customers, and has made
Employee part of its business plans. Employee further acknowledges, represents and agrees
that Employee would not have obtained such training, experience, contacts and information
from other sources without the employment relationship with the Company. Employee further
acknowledges, represents and agrees that the foregoing have occurred and/or resulted based
on the Company’s reliance on these restrictive covenants and Employee’s representations and
obligations made herein. Employee further acknowledges, represents and agrees that this
Section 10 and the obligations of Employee under these restrictive covenants |
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are reasonable in order to protect the legitimate interests of the Company. Employee
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 the Employee’s desire and intent that this Agreement be
given full force and effect. |
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(a) |
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Neither this Agreement nor any right or interest hereunder shall be assignable by the
Employee or his beneficiaries or legal representatives without the Company’s prior written
consent; provided, however, that nothing in this Section 11(a) shall preclude the
Employee from designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity. |
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(b) |
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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. |
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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 ad their
respective heirs, successors, legal representatives and assigns. |
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| 13. |
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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 Employee, 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. |
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| 14. |
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Law Governing. This Agreement shall be governed by and construed in accordance with
the laws of the State of Louisiana. |
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| 15. |
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Severability. The Employee 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 Employee, 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 |
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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. |
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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. |
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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. |
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| 17. |
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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. |
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| 18. |
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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. |
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AMERISAFE, INC.
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By: |
/s/ C. Xxxxx Xxxxxxx, Xx.
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C. Xxxxx Xxxxxxx, Xx., President/CEO |
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EMPLOYEE:
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/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx |
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