EMPLOYMENT AGREEMENT
EXHIBIT
10.2
THIS EMPLOYMENT AGREEMENT
dated as of March 1, 2010 (the “Effective Date”), by and between AmTrust
Financial Services, Inc., 00 Xxxxxx Xxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx, a Delaware corporation (the “Company”) and Xxxxxxx X. Xxxxx,
an individual residing at 000 Xxxxxxxxxx Xxxxx, Xxxxxx, Xxxx 00000
(“Executive”).
WITNESSETH
WHEREAS, The Company and
Executive desire to enter into this Employment Agreement (the “Agreement”) in
order to set forth the terms and conditions of Executive’s employment, intending
to supersede any prior employment agreement, written or oral, whether with the
Company or other affiliates.
NOW, THEREFORE, in
consideration of the mutual covenants and promises contained herein and other
good and valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. Duties and
Responsibilities. The duties and responsibilities of Executive
shall be those of a senior executive of the Company as the same shall be
assigned to him, from time to time, by the Board of Directors of the
Company. Executive recognizes that, during the period of his
employment hereunder, he owes an undivided duty of loyalty to the Company (for
avoidance of doubt, in this section and throughout this Agreement, “Company”
includes all subsidiaries and affiliates of Company and all entities under
common control with Company) and agrees to devote all of his business time and
attention to the performance of his duties and responsibilities and to use his
best efforts to promote and develop the business of the
Company. Subject to the approval of the Board of Directors, which
shall not be unreasonably withheld, Executive shall be entitled to serve on
corporate, civic, and/or charitable boards or committees and to otherwise
reasonably participate as a member in community, civic, or similar organizations
and the pursuit of personal investments which do not present any material
conflicts of interest with the Company.
It is the
intention of the Company that Executive shall continue to serve as Chief
Operating Officer at the pleasure of the Board of Directors, reporting on a
day-to-day basis directly to the Chief Executive Officer. If elected,
Executive shall serve as a member of the Board of Directors of the Company or
such of its affiliates to which he may be elected, in each case, without
additional compensation. Executive also shall serve, without
additional compensation, as an officer of such affiliates of the Company as he
may be appointed.
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2. Employment
Period. For a period commencing on the Effective Date hereof
and ending on February 28, 2013 (the “Initial Employment Period”), the Company
hereby employs Executive in the capacities herein set
forth. Executive agrees, pursuant to the terms hereof, to serve in
such capacities for the Initial Employment Period. This Agreement
shall renew for successive one year periods (“Successive Employment Periods”)
unless one of the parties provides written notice of not less than ninety days
prior to the end of the Initial Employment Period or any Successive Employment
Period that the party will not renew the Agreement. The Initial Employment
Period and any Successive Employment Period(s) shall hereinafter be referred to
as the “Employment Period.”
3. Compensation and
Benefits.
(a) Salary. The
Company shall pay Executive a salary at the rate of Six Hundred Thousand Dollars
($600,000) per annum (“Salary”), payable in accordance with the Company’s normal
payroll process. Executive shall be entitled to a salary review
annually commencing on the anniversary of the Effective Date of this Agreement.
Such salary review shall be based entirely on merit and any salary adjustments
shall be determined by the Board of Directors of the Company solely at its
discretion. Hereinafter, “Salary” shall mean Salary as adjusted
herein.
(b) Profit
Bonus. (i) As of December 31 of each calendar year within
the Employment Period, Executive shall receive an annual bonus equal to one
percent (1%) of the Profit, as defined herein, of the Company for such calendar
year (the “Profit Bonus”), provided that the Profit is no less than seventy-five
(75%) percent of Profit Target, as defined xxxxx (the “Bonus
Threshold”). The Profit Bonus shall not exceed the Profit Bonus cap,
which shall be the amount equal to (x) three times Executive’s then current
Salary if the Profit is more than 110% of the Profit Target; (y) two times
Executive’s then current Salary if the Profit is 110% or less, but greater than
100% of the Profit Target; and (z) Executive’s then current salary if the Profit
is 100% or less, but equal to or greater than 75% of the Profit
Target. For purposes of computing the Profit Bonus, “Profit” means
the Company’s after-tax net income for the calendar year, excluding investment
gains and losses and extraordinary and non-recurring income, as determined in
accordance with generally accepted accounting principles on a consistent basis,
including appropriate reserves, by the Company’s independent public accountants
whose determination thereof shall be final, binding and
conclusive. “Profit Target” means, for each calendar year in the
Employment Period, the greater of the Profit for the preceding calendar year and
the Base Line Profit. “Base Line Profit” means the Profit of the
Company for the annual period ended December 31, 2009.
(ii) In
the event that the Company has made a Profit for the calendar year which does
not meet or exceed the Bonus Threshold, Executive shall receive a bonus as
determined by the Board of Directors, in its sole discretion.
(iii) The
Profit Bonus payable pursuant to this Section 3(b) shall be paid in cash or
stock options, restricted stock, restricted stock units or other form of equity
(collectively, “Equity”) as determined by the Board of Directors, in its sole
discretion, provided, however, that no less than one-third of the Profit Bonus
shall be payable in Equity.
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(iv) The
Profit Bonus for each year shall be paid within sixty (60) days after the
completion and issuance of Company’s consolidated financial statements for the
subject calendar year. The Profit Bonus shall be payable only if Executive is
employed by the Company on December 31 of the subject year.
(c) Executive
may also receive other bonus payments determined at the sole discretion of the
Board of Directors (“Discretionary Bonus”).
(d) All
amounts payable to Executive hereunder shall be subject to all required
withholding by the Company.
(e) Executive
shall also be entitled to the following benefits:
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(i)
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four
weeks (4) weeks of paid vacation for each twelve (12) months of the
Employment Period, or such greater period as may be approved from time to
time by the Board of Directors. Unused vacation time shall not
be carried over to any subsequent calendar
year;
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(ii)
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paid
holidays and any and all other work-related leave (whether sick leave or
otherwise) as provided to the Company’s other executive employees;
and
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(iii)
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participation
in such employee benefit plans to which senior executive employees of the
Company, their dependents and beneficiaries generally are entitled during
the Employment Period and, including, without limitation, health
insurance, disability and life insurance, retirement plans and other
present or successor plans and practices of Company for which executive
employees, their dependents and beneficiaries are
eligible.
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4. Reimbursement of
Expenses. The Company recognizes that Executive, in performing
Executive’s functions, duties and responsibilities under this Agreement, may be
required to spend sums of money in connection with those functions, duties and
responsibilities for the benefit of the Company and, accordingly, shall
reimburse Executive for travel and other out-of-pocket expenses reasonably and
necessarily incurred in the performance of his functions, duties and
responsibilities hereunder upon submission of written statements and/or bills in
accordance with the regular procedures of the Company in effect from time to
time.
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5. Disability. In
the event that Executive shall be unable to perform because of illness or
incapacity, physical or mental, all the functions, duties and responsibilities
to be performed by him hereunder for a consecutive period of three (3) months or
for a total period of four (4) months during any consecutive twelve (12) month
period, the Company may terminate this Agreement effective on or after the
expiration of such period (the “Disability Period”) upon five (5) business days’
written notice to Executive specifying the termination date (the “Disability
Termination Date”). Disability under this paragraph, shall be
determined by a physician who shall be selected by the Company and approved by
Executive. Such approval shall not be unreasonably withheld or delayed, and a
physician shall be deemed to be approved unless he or she is disapproved in
writing by Executive within ten (10) days after his or her name is
submitted. The Company may obtain disability income insurance for the
benefit of Executive in such amounts as the Company may
determine. Executive shall be entitled to receive his Salary payable
for the remainder of the Employment Period or one year, whichever is greater, at
the rate in effect immediately before such termination and any reimbursement of
expenses due him through the date of termination, except that Salary shall be
offset by the amount of any long term disability benefits the Company may have
elected to provide for him. The Company’s right to terminate
Executive’s employment for disability is subject to the requirements of the
Family Medical Leave Act, the Americans with Disabilities Act and applicable
state law.
6. Death. In
the event of the death of Executive during the Employment Period, this Agreement
and the employment of Executive hereunder shall terminate on the date of death
of Executive. Executive’s heirs or legal representatives shall be
entitled to receive his Salary payable for the remainder of the Employment
Period or one year, whichever is greater, at the rate in effect immediately
before such termination and any reimbursement of expenses due him through the
date of termination.
7.
Termination.
The
Company may discharge Executive for Cause at any time. “Cause”
shall include: (i) Executive’s habitual or gross negligence in the
performance of Executive’s duties and responsibilities with the Company,
including a failure by Executive to perform such duties and responsibilities,
provided such performance or neglect is not corrected (assuming it is
correctable) by Executive within twenty (20) business days after receipt of
written notice from the Company; (ii) any material breach by Executive of this
Agreement or any other agreement with the Company or any of its affiliates to
which Executive is a party, provided such performance or neglect is not
corrected (assuming a reasonable person would believe it is correctable) by
Executive within twenty (20) business days after receipt of written notice from
the Company; (iii) Executive’s breach of a fiduciary duty to the Company or
failure to act in the best interests of the Company; (iv) the arrest (following
an investigation of the facts which results in a determination by the Company of
the Executive’s culpability) of, conviction of, or admission by, Executive of a
felony or crime involving moral turpitude, whether or not committed in the
course of performing services for the Company; (v) the commission by Executive
of any acts of moral turpitude, including the commission by Executive of
embezzlement, theft or any other fraudulent act; or (vi) Executive’s violation
of the Company’s policies, provided such violation is not corrected (assuming a
reasonable person would believe it is correctable) by Executive within twenty
(20) business days after receipt of written notice from the
Company. Any written notice by the Company to Executive pursuant to
this paragraph 7 shall set forth, in reasonable detail, the facts and
circumstances claimed to constitute the Cause. If Executive is
discharged for Cause, the Company, without any limitations on any remedies it
may have at law or equity, shall have no liability for salary or any other
compensation and benefits to Executive after the date of such
discharge.
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8. Non-Disclosure of
Confidential Information. “Confidential Information” means all
information known by Executive about the Company’s business plans, present or
prospective customers, vendors, products, processes, services or activities,
including the costing and pricing of such services or activities, employees,
agents and representatives. Confidential Information does not include
information generally known, other than through breach of a confidentiality
agreement with the Company, in the industry in which the Company engages or may
engage. Executive will not, while this Agreement is in effect or
after its termination, directly or indirectly, use or disclose any Confidential
Information, except in the performance of Executive’s duties for the Company, or
to other persons as directed by the Board of Directors. Executive
will use reasonable efforts to prevent unauthorized use or disclosure of
Confidential Information and will take any and all actions reasonably deemed
necessary or appropriate by the Company from time to time in its sole discretion
to ensure the continued confidentiality and protection of the Confidential
Information. Executive will notify the Company promptly and in writing of any
circumstances of which Executive has knowledge relating to any possession or use
of any Confidential Information by any Person other than those authorized by the
terms of this Agreement. “Person” means any natural person,
corporation, general partnership, limited partnership, limited liability company
or partnership, proprietorship, other business organization, trust, union,
association or governmental or regulatory entities, department, agency or
authority. Upon termination of employment with the Company, Executive
will deliver to the Company all writings relating to or containing Confidential
Information, including, without limitation, notes, memoranda, letters, drawings,
diagrams, and printouts, including any tapes, discs or other forms of recorded
information. If Executive violates any provision of this Section
while this Agreement is in effect or after termination, the Company specifically
reserves the right, in appropriate circumstances, to seek full indemnification
from Executive should the Company suffer any monetary damages or incur any legal
liability to any person as a result of the disclosure or use of Confidential
Information by Executive in violation of this Section.
9. Return of Corporate
Property. Executive acknowledges and agrees that all notes,
records, reports, sketches, plans, unpublished memoranda or other documents,
whether in paper, electronic or other form (and all copies thereof), held by
Executive concerning any information relating to the business of the Company,
whether confidential or not, are the property of the
Company. Executive will deliver to the Company at the termination or
expiration of the Employment Period, and at any other time the Company may
request, all equipment, files, property, memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data
(and all electronic, paper or other copies thereof) belonging to the Company
which includes, but is not limited to, any materials that contain, embody or
relate to Confidential Information, Work Product (as defined in Section 10
below) or the business of the Company, which he may then possess or have under
his control.
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10. Intellectual Property
Rights. Executive acknowledges and agrees that all inventions,
technology, processes, innovations, ideas, improvements, developments, methods,
designs, analyses, trademarks, service marks, and other indicia of origin,
writings, audiovisual works, concepts, drawings, reports and all similar,
related, or derivative information or works (whether or not patentable or
subject to copyright), including but not limited to all patents, copyrights,
copyright registrations, trademarks, and trademark registrations in and to any
of the foregoing, along with the right to practice, employ, exploit, use,
develop, reproduce, copy, distribute copies, publish, license, or create works
derivative of any of the foregoing, and the right to choose not to do or permit
any of the aforementioned actions, which relate to the Company’s actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive prior to or
while employed by the Company (collectively, the “Work Product”) belong to the
Company. All Work Product created by Executive while employed by the
Company will be considered “work made for hire,” and as such, the Company is the
sole owner of all rights, title, and interests therein. All
other rights to any new Work Product and all rights to any existing Work
Product, including but not limited to all of Executive’s rights to any
copyrights or copyright registrations related thereto, are conveyed, assigned
and transferred to the Company pursuant to this Agreement. Executive
will promptly disclose and deliver such Work Product to the Company and, at the
Company’s expense, perform all actions reasonably requested by the Company
(whether during or after the Employment Period) to establish, confirm and
protect such ownership (including, without limitation, the execution of
assignments, copyright registrations, consents, licenses, powers of attorney and
other instruments).
11. Restrictive
Covenant.
(a) Prohibited
Activities. Executive agrees that he shall not (unless he has
received the prior written consent of the Company), during the term of this
Agreement and for a period of one year following the date of termination (the
“Non-Compete Period”), directly or indirectly, for any reason, for his own
account or on behalf of or together with any other person or firm engage in any
capacity or as an owner or co-owner of or investor in, whether as an independent
contractor, consultant or advisor, or as a representative of any kind, in any
business selling any products or providing any services in competition with the
Company based on the lines of business being written by the Company as of the
termination of this Agreement; provided, however, that Executive may own not
more than five percent (5%) of the outstanding securities of any class of any
corporation engaged in any such business, if such securities are listed on a
national securities exchange or regularly traded in the over-the-counter market
by a member of a national securities association.
(b) Executive
further agrees that he shall not (unless he has received the prior written
consent of the Company), during the term of this agreement and for a period of
three years following the date of termination (the “Non-Solicitation
Period”):
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(i)
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hire
or solicit for employment or call, directly or indirectly, through any
person or firm, on any person who is at that time (or at any time during
the one year prior thereto) employed by or representing the Company with
the purpose or intent of attracting that person from the employ of the
Company;
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(ii)
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call
on, solicit or perform services for, directly or indirectly through any
person or firm, any person or firm that at that time is, or at any time
within one year prior to that time was, a customer, agent, administrator
or producer of or for the Company or any prospective customer, agent,
administrator or producer that had or, to the knowledge of Executive, was
about to receive a business proposal from the Company, for the purpose of
soliciting or selling any product or service in competition with the
Company; or
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(iii)
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call,
directly or indirectly through any person or firm, on any entity which has
been called on by the Company in connection with a possible acquisition by
the Company with the knowledge of that entity’s status as such an
acquisition candidate, for the purpose of acquiring that entity or
arranging the acquisition of that entity by any person or firm other than
the Company.
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(c) Reasonable
Restraint. The parties hereto agree that Sections 11(a) and
(b) impose a reasonable restraint on Executive in light of the activities and
business of the Company on the date hereof and the current business plans of the
Company.
12. Construction. If
the provisions of paragraph 11 should be deemed unenforceable, invalid, or
overbroad in whole or in part for any reason, then any court of competent
jurisdiction designated in accordance with paragraph 14 is hereby authorized,
requested, and instructed to reform such paragraph to provide for the maximum
competitive restraint upon Executive’s activities (in time, product, geographic
area and customer or employee solicitation) which shall then be legal and
valid.
13. Injunctive Relief;
Damages. Executive agrees that violation of or threatened
violation of any of paragraphs 8, 9, 10 or 11 would cause irreparable injury to
the Company for which any remedy at law would be inadequate, and the Company
shall be entitled in any court of law or equity of competent jurisdiction to
preliminary, permanent and other injunctive relief, without the necessity of
providing bond or other security, against any breach or threatened breach of the
provisions contained in any of said paragraphs 8, 9,10 or 11 hereof, and such
compensatory damages as shall be awarded. Further, in the event of a
violation of the provisions of paragraph 11, the Non-Compete and
Non-Solicitation Periods referred to therein shall be extended for a period of
time equal to the period that any violation occurred.
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14. Jurisdiction and
Venue. The Company and Executive hereby each consents to the
exclusive jurisdiction of the Supreme Court of the State of New York or the
United States District Court for the Southern District of New York with respect
to any dispute arising under the terms of this Agreement and further consents
that any process or notice of motion therewith may be served by certified or
registered mail or personal service, within or without the State of New York,
provided a reasonable time for appearance is allowed. Each party
acknowledges and agrees that any controversy which may arise under this
Agreement is likely to involve complicated and difficult issues, and therefore
each party hereby irrevocably and unconditionally waives any right such party
may have to a trial by jury in respect or any litigation directly or indirectly
arising out of or relating to this agreement, or the breach, termination or
validity of this Agreement, or the transactions contemplated by this
Agreement.
15. Indemnification. To
the fullest extent permitted by, and subject to, the Company’s Certificate of
Incorporation and By-laws, the Company shall indemnify and hold harmless
Executive against any losses, damages or expenses (including reasonable
attorney’s fees) incurred by him or on his behalf in connection with any
threatened or pending action, suit or proceeding in which he is or becomes a
party by virtue of his employment by the Company or any affiliates or by reason
of his having served as an officer or director of the Company or any other
corporation at the express request of the Company, or by reason of any action
alleged to have been taken or omitted in such capacity.
16. Severability. If
any provision of this Agreement is held to be invalid, illegal, or
unenforceable, that determination will not affect the enforceability of any
other provision of this Agreement, and the remaining provisions of this
Agreement will be valid and enforceable according to their terms.
17. Successors to
Company. Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of Executive and the Company and
any successor or assign of the Company, including, without limitation, any
corporation acquiring, directly or indirectly, all or substantially all of the
assets of the Company, whether by merger, consolidation, sale or otherwise (and
such successor shall thereafter be deemed embraced within the term “Company” for
the purposes of this Agreement), but shall not otherwise be assignable by the
Company. The services to be provided by Executive hereunder may not
be delegated nor may Executive assign any of his rights hereunder.
18. No
Restrictions. Executive represents and warrants that as of the
date of this Agreement Executive is not subject to any contractual obligations
or other restrictions, including, but not limited to, any covenant not to
compete, that could interfere in any way with his employment
hereunder.
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19. Miscellaneous.
(a) This
Agreement constitutes the entire understanding of the parties with respect to
the subject hereof, may be modified only in writing, is governed by laws of New
York, without giving effect to the principles of conflict of laws thereof, and
will be binding and inure to the benefit of Executive and Executive’s personal
representatives, and the Company, their successors and assigns.
(b) The
failure of any of the parties hereto to enforce any provision hereof on any
occasion shall not be deemed to be a waiver of any provision or succeeding
breach of such provision or any other provision.
(c) All
notices under this Agreement shall be given by registered or certified mail,
return receipt requested, directed to parties at the following addresses or to
such other addresses as the parties may designate in writing:
If to the Company:
00 Xxxxxx Xxxx, 0xx
Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X.
Xxxxxxx
If to Executive
Xxxxxxx X. Xxxxx
000
Xxxxxxxxxx Xxxxx
Xxxxxx,
Xxxx 00000
(d) In
furtherance and not in limitation of the foregoing, this Agreement supersedes
any employment agreement between the Company and Executive, written or oral, and
any such agreement hereby is terminated and is no longer binding on either
party.
20. Key Man Insurance
Authorization. At any time during the term of this Agreement,
the Company will have the right (but not the obligation) to insure the life of
Executive for the sole benefit of the Company and to determine the amount of
insurance and type of policy. The Company will be required to pay all
premiums due on such policies. Executive will cooperate with the
Company in taking out the insurance by submitting to physical examination, by
supplying all information required by the insurance company, and by executing
all necessary documents. Executive, however, will incur no financial
obligation by executing any required document, and will have no interest in any
such policy.
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21. Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
deemed to be duplicate originals.
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By:
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/s/
Xxxxx X. Xxxxxxx
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/s/
Xxxxxxx X. Xxxxx
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Xxxxx
X. Xxxxxxx
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Xxxxxxx
X.
Xxxxx
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