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Exhibit 10.78
EMPLOYMENT AGREEMENT
AGREEMENT made effective this 19th day of June, 1998 between
INSURANCE MANAGEMENT SOLUTIONS, INC., a Florida corporation, which
corporation, together with its subsidiary companies, shall hereinafter be
referred to as "Company" and Xxxxxx X. Xxxxxxx of Bradenton, Florida,
hereinafter referred to as "Employee".
R E C I T A L S :
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1. Company is engaged in the business of providing comprehensive
outsourcing services to the property and casualty insurance industry with an
emphasis on providing full third party administration outsourcing services for
flood insurers and is also a provider of flood zone determination and ancillary
services primarily to insurance companies and financial institutions throughout
the State of Florida and such other states as the Company shall deem
appropriate.
2. The Company's business requires secrecy in connection with
the methods and systems employed, and, for the proper protection of the
Company, it is absolutely necessary and essential (which necessity Employee
expressly recognizes) that all matters connected with, arising out of, or
pertaining to the business of the Company, its methods and systems and the
names of its customers be kept secret and confidential as goodwill belonging
to the Company.
3. The Company will sustain great loss and damage, if during the
term of this Agreement, or for a period of two (2) years immediately following
its termination for any reason whatsoever, the Employee should, for himself or
herself, or on behalf of any other person, persons, company, partnership or
corporation, call upon the customers or clientele of the Company for the
purpose of soliciting, selling or servicing any of the programs or services of
the Company as described in Section 1 hereof, or the solicitation of any
Company employee for the purpose of hiring such employee, for which loss and
damage, by reason of his or her financial circumstances, Employee could not be
compelled by law to respond to damages in any action at law.
NOW, THEREFORE, Company and Employee, in consideration of the covenants
and agreements herein contained and in further consideration of the benefits
and advantages flowing from each to the other, covenant and agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE. Company hereby agrees to employ Employee as
Vice President - Claims.
SECTION 2. EMPLOYEE'S BEST EFFORTS. Employee hereby accepts employment by
Company, and agrees to devote his or her entire time and best efforts to this
employment. Employee agrees to perform such other duties as are customarily
performed by one holding such position in other, same or similar businesses as
that engaged in by Company, and shall also render such other and unrelated
services and duties as may be assigned to him or her from time to time by
Company.
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SECTION 3. TERMS OF EMPLOYMENT.
(a) Company and Employee understand and agree that the term of
employment of this Agreement shall be for a period of three years from the date
hereof and thereafter shall continue indefinitely until terminated by either
party pursuant to the terms herein.
(b) Said employment may be terminated by the Company with cause,
and no notice or severance is owed. Involuntary termination with cause is
defined as a dismissal at any time based on failure to conform to the
conditions of employment, material breach of this Agreement, gross misconduct
or willful violation of Company policy or procedure as outlined in Section 2.12
on Involuntary Termination contained in the Company's Human Resources Policies
and Procedures Manual, as amended from time to time.
(c) In the event this Agreement is terminated by the Company
without cause during the initial three year term, then the Employee shall be
entitled to any payments payable under Section 4 which have been earned but not
yet paid, and in addition, Employee shall be entitled to severance pay equal to
Employee's then current salary payable in accordance with the Company's usual
payroll practices for a period equal to twelve (12) months (the "Severance
Payment"). In the event that Employee is entitled to a Severance Payment
pursuant to this Section 3(c) and Employee secures employment at any time
during the twelve (12) months following termination (the "Severance Period"),
then the Company shall be entitled to a credit against its obligations to make
the Severance Payment in the amount up to seventy-five percent (75%) of
Employee's base salary during the Severance Period paid to him by his new
employer.
(d) Notwithstanding anything contained herein to the contrary, in
the event Company shall discontinue operating its business, then this Agreement
shall terminate as of the last day of the month on which Company ceases
operations with the same force and effect as if such last day of the month
were originally set as the termination date hereof.
SECTION 4. EMPLOYEE'S COMPENSATION AND EXPENSES.
(a) As compensation for the service to be performed by Employee
under this Agreement, Company shall pay Employee, and Employee shall accept
from Company, a base salary of $115,000.00 dollars ($115,000.00) per annum paid
on a bi-weekly basis.
(b) In addition to the base salary, Employee may be entitled to
earn additional compensation pursuant to a bonus plan, and an employee stock
option plan. If Employee is eligible for either a bonus plan or the stock
option plan, copies of the plan will be provided to Employee.
(c) The Employee shall be provided the same benefits and on the
same basis as other employees of the Company including, but not limited to, the
401(k) plan, life insurance, disability insurance and health insurance.
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(d) Employee's salary, bonuses and allowances may be modified, as
agreed upon between Employee and Company, from time to time, and any such
modifications made during the term of this Agreement shall be incorporated as
part of the Agreement.
(e) Company shall reimburse Employee for all other reasonable,
ordinary and necessary expenses incurred by Employee on Company's behalf
pursuant to Company's directions and subject to Company's restrictions and
requirements.
SECTION 5. FUNDS COLLECTED BY EMPLOYEE. Employee does explicitly understand
and agree that all funds received by him on behalf of Company, as may be
authorized by Company from time to time, shall be held in trust by Employee and
shall immediately be remitted to Company by Employee. Additionally, Employee
shall be responsible for any and all technical data, books, equipment, or other
property of Company which may come into his possession by reason of his or her
employment. In the event this employment is terminated for any reason
whatsoever, Employee shall immediately turn in to Company and account for all
such funds, equipment and property which may be in the possession of Employee
at such termination.
SECTION 6. RESTRICTIVE COVENANTS,
(a) Covenant not to Compete. The Employee hereby expressly
covenants and agrees, which covenants and agreements are of the essence of this
contract, that he or she will not, during the term of this Agreement and for a
period of two (2) years immediately following the termination of this
Agreement, for any reason whatsoever, directly or indirectly, for himself or
herself, or on behalf of, or in conjunction with, any other person, persons,
company, partnership or corporation:
(1) call upon any customer or customers of Company
solicited or contacted by Employee while at the
Company or whose account was serviced by Employee
while at the Company, pursuant to his or her
employment hereunder, for the purpose of soliciting,
selling or servicing any programs or services of the
type sold and serviced by Company during the term
hereof within the State of Florida and such other
states in which the Company shall conduct business;
(2) nor will Employee divert, solicit or take away any
customer or customers of Company or the business or
patronage of any such customers of the Company for
the purpose of selling or servicing any programs or
services of the type sold and serviced by Company
during the term hereof;
(3) nor will Employee call upon any prospective customer
or customers of the Company, solicited or contacted
by Employee or Employee's staff pursuant to his or
her employment hereunder, for the purpose of
soliciting, selling or servicing programs or
services of the type sold and serviced by Company
during the term hereof within the State of Florida
and such other states in which the Company shall
conduct business. For purposes of this Agreement, it
is agreed between the parties hereto that
prospective customers are defined as those called
upon by Employee or by Employee's staff two (2)
times or more during any part of the six
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(6) month period next preceding the termination of
this Agreement for any reasons whatsoever, or those
prospective customers as listed by Employee or by
Employee's staff as active potential prospects on
Employee's weekly or monthly sales call reports
submitted to Company during any part of the six (6)
month period next preceding the termination of this
Agreement for any reasons whatsoever;
(4) nor upon termination of Employee's employment from
Company, whether by resignation, discharge, or
otherwise, and for a period of two (2) years from
the date of termination, shall Employee, directly or
indirectly, for himself or herself or on behalf of,
or in conjunction with, any other person, persons,
company, partnership or corporation: solicit,
approach, or call upon any Company employee for the
purpose of retaining or hiring the Company employee
in any capacity. In the event of a breach or
threatened breach by Employee of the provisions of
this paragraph, Company shall be entitled to an
injunction restraining Employee from directly or
indirectly soliciting, approaching, or calling upon
any Company employee for the purpose of retaining or
hiring the Company employee in any capacity and/or
in fact hiring the Company employee in any capacity;
and, in addition to obtaining an injunction, Company
shall be entitled to recover damages from Employee.
In the event any Court determines the specified time
period to be unreasonable, arbitrary, or against
public policy, a lesser time period which is
determined to be reasonable, non-arbitrary and not
against public policy may be enforced against
Employee by injunction, as well as by all other
legal remedies available to Company. In the event of
any legal action in connection with this agreement,
the prevailing party shall be entitled to recover
all of its legal expenses, including reasonable
attorney's fees and costs, whether the same are
incurred in connection with trial or during an
appeal and to have the same awarded as part of the
judgment in the proceeding in which such legal
expenses and attorney's fees were incurred.
(b) Nondisclosures. Employee recognizes and acknowledges that the
list of the Company's customers, trade secrets, data processing systems,
computer software, computer programs, or other systems, data, methods, or
procedures developed or used by the Company, as they may exist from time to
time, are valuable, special and unique assets of the Company's business. The
Employee will not, during or after the term of his or her employment without
the prior written consent of the Company, which consent may be arbitrarily
withheld, and except to the extent necessary to accomplish assignments on
behalf of the Company in which the Employee is, at any given time during the
term of Employee's tenure with the Company, currently and actively engaged,
possess, transmit, copy, reproduce, or disclose the list of the Company's
customers or any part thereof or any of the Company's present or future trade
secrets, or any data processing systems, computer software, computer programs
or other systems, data, methods, or procedures to any person, firm,
corporation, association, or any other entity for any reason or purpose
whatsoever, nor will the undersigned assist anyone else to do so. In the event
of a breach or threatened breach by Employee of the provisions hereof, the
Company shall be entitled to an injunction restraining Employee from
disclosing, in whole or in part, the list of the Company's customers or the
Company's trade secrets, or from rendering any services to
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any person, firm, corporation, association, or other entity to whom such list
or such trade secrets, in whole or in part, has been disclosed or is threatened
to be disclosed and requiring the return to the Company of all copies of
customer lists, manuals, data, software, computer programs, or written
procedures in the possession of Employee. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available to it for
such breach or threatened breech, including the recovery of damages from the
Employee. The existence of any claim or cause of action of Employee against the
Company shall not constitute a defense to the enforcement by the Company of
this covenant. No failure of the Company to exercise any right given hereunder
shall be taken or construed as a waiver of its right to seek any remedies by
reason of any past, present, or future breaches of the Agreement on the part of
Employee.
SECTION 7. SEVERABILITY OF RESTRICTIVE COVENANTS. Company and Employee agree
that the restrictive covenants contained in Section 6, or any of its
sub-paragraphs, are severable and separate and the unenforceability of any
specific covenant therein shall not affect the validity of any other covenants
set forth therein. These covenants on the part of the Employee shall be
construed as an agreement independent of any other provision of this Agreement,
and the existence of any claim or cause of action of the Employee against
Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of said covenants.
Employee agrees and acknowledges that any violation by Employee of the
covenants set forth in Section 6 hereof would cause irreparable damage to
Company, and Employee further agrees that upon proof of the existence of such a
violation of the covenants set forth in said Section 8 hereof Company will be
entitled to injunctive relief against the Employee by any Court of competent
jurisdiction. In the event any Court of competent jurisdiction should determine
that the territorial restrictions set forth in Section 6 hereof, and/or their
durations, are unreasonable in their scope, then, and in that event, the
territorial restrictions, and/or their duration, shall be limited to such
territory and/or duration as may be determined reasonable by a Court of
competent jurisdiction.
SECTION 8. ATTORNEY'S FEES. The parties hereto agree that, in the event of any
legal action in connection with this Agreement, the prevailing party shall be
entitled to recover all of its legal expenses, including reasonable attorney's
fees and costs, whether the same are incurred in connection with trial or
appeal, and to have the same awarded as part of the judgment in the proceeding
in which such legal expenses and attorney's fees were incurred.
SECTION 9. CHOICE OF LAW AND VENUE. This agreement shall be construed according
to the laws of the State of Florida, without regard to choice of law
provisions. Venue to resolve any dispute under this Agreement shall be Pinellas
County, Florida.
SECTION 10. INVALIDITY OF PRIOR AGREEMENTS. This Agreement supersedes all prior
agreements and understandings between Employee and Company and this Agreement
expresses the whole and entire agreement between the parties with reference to
Employee's employment and it cannot be modified or changed by any oral or
verbal promise by whomsoever made, nor shall any written modification of it be
binding on Company until such written modification shall have been approved in
writing by the President of the Company.
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SECTION 11. SEVERABILITY. All agreements and covenants contained herein are
severable and, in the event any of them shall be held to be invalid, illegal or
unenforceable by any competent Court, this contract shall be interpreted as if
such invalid, illegal or unenforceable agreement or covenants were not contained
herein.
SECTION 12. NON-WAIVER OF RIGHTS. All of the rights of Company and Employee
hereunder shall be cumulative and not alternative, but a waiver or indulgence
on the part of Company or Employee of any rights or entitlement hereunder shall
not be construed as a waiver of an other rights or entitlements hereunder by
either Company or Employee. No notice shall be required by Company or Employee
to enforce strict adherence to all the terms of this agreement.
SECTION 13. MISCELLANEOUS PROVISIONS. The provisions of this Agreement shall
extend to the successors, surviving corporations and assigns of Company.
Singular and masculine pronouns shall include plural, feminine, and artificial
persona and entities whenever the context permits.
SECTION 14. EMPLOYEE'S ACKNOWLEDGEMENT. Employee certifies that he is over
twenty-one (21) years of age and hereby acknowledges having read the entire
contents of this Agreement before signing his name below and that he has
received a copy hereof for his use.
IN WITNESS WHEREOF, the Company and Employee have affixed their hands
and seals on this, the day and year first above written, the Company acting
through its duly authorized officers.
Signed, Sealed and Delivered in the Presence of:
WITNESSES: "COMPANY"
Insurance Management Solutions, Inc.
By: /s/ Xxxxx X. Xxxxxx
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---------------------------------- Xxxxx X. Xxxxxx
As Its: Chairman
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Date: 6/22/98
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WITNESSES: "EMPLOYEE"
By: /s/ Xxxxxx X. Xxxxxxx
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---------------------------------- Xxxxxx X. Xxxxxxx
Date: 6/19/98
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