Exhibit 10.17
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day of
January, 2001, by and between NCRIC Group, Inc. ("Group"), NCRIC, Inc. ("NCRIC")
and R. Xxx Xxxx, Xx. ("Executive").
Recitals:
A. Group and NCRIC desire to retain Executive as its President and Chief
Executive Officer on the terms and conditions hereinafter set forth; and
B. Executive desires to continue such employment, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
set forth herein, the parties hereto agree as follows:
1. Employment. NCRIC and Group each hereby agree to continue to employ
Executive for a term of five (5) years from the date of this Agreement as
President and Chief Executive Officer under the conditions hereinafter
specified. Executive shall also be appointed as a director of NCRIC and (subject
to stockholder approval) Group. During said period, Executive also agrees to
serve, if elected, as an officer and director of any subsidiary or affiliate of
Group. Failure to reelect Executive as President and Chief Executive Officer and
director (in the case of Group, subject to stockholder approval) of Group and
NCRIC without the consent of the Executive during the term of this Agreement
shall constitute a Termination Without Cause. Executive accepts this employment
under the conditions hereinafter specified and agrees to devote his best
efforts, energies and abilities to the service of NCRIC and Group on a full-time
basis.
2. Duties.
(a) Executive shall serve as President and Chief Executive Officer of Group
and of NCRIC and in such other commensurate executive capacities of NCRIC and
Group, and/or any one or more affiliates of Group or NCRIC (collectively, the
"Affiliated Companies") as he may from time to time be assigned by the Board of
Directors. Executive shall perform all of his duties diligently and faithfully.
However, it is understood and agreed that Executive shall not receive
compensation beyond that specified herein for services provided to the
Affiliated Companies.
(b) Executive shall at all times devote his entire working time, attention,
energies, efforts and skills to the business of Group and NCRIC, and shall not,
directly or indirectly, engage in any other business activity, whether or not
for profit, gain or other
1
pecuniary advantages, without the express written permission of Group.
Notwithstanding the foregoing, Executive may serve on the board of directors of
any non-competing company and receive compensation therefore provided he obtains
the advance written approval of Group, which shall not be unreasonably withheld,
and provided that any such service does not adversely affect his performance of
his duties for NCRIC or Group (it being understood that membership in social,
religious, charitable or similar organizations does not require Board approval
pursuant to this Section 2(b)). Group acknowledges that Executive is serving on
the boards of directors of the companies listed on Exhibit 2B attached hereto
and hereby grants its approval to such service. Executive will not be required
to account to NCRIC or Group for any compensation he may receive for such
approved service on the board of directors of a non-competing company, and such
compensation shall not diminish in any way the compensation or benefits to which
he is entitled under this Agreement.
3. Compensation. NCRIC shall pay Executive basic compensation of Two
Hundred Ninety Thousand Dollars ($290,000) per year ("Base Salary"). Such Base
Salary shall be payable biweekly (or in such other frequency as employees are
paid). During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
January 31, 2002. The Board may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement). Any incentive compensation that may be paid to Executive
from time to time shall have no impact upon the Base Salary.
4. Benefits.
a. Retirement and/or Pension Plan(s). Executive shall be entitled to
participate in any retirement and/or pension plan(s) offered to NCRIC's or
Group's senior executives and/or key management employees as a group in
accordance with the terms of such plan(s), as they may be modified at NCRIC's or
Group's discretion from time to time.
b. Automobile Allowance. Executive shall be entitled to an automobile of
the Executive's reasonable selection to be used by Executive in rendering
services to NCRIC and Group, together with reimbursement for all gas, oil,
maintenance, insurance and repairs required by reason of the business use of
such vehicle. Executive also shall comply with all reporting requirements
established by the Company regarding the use of such automobile.
c. Health and Medical Insurance. Executive shall be entitled to participate
in any health and medical insurance plan(s) offered to NCRIC's senior executives
and/or key management employees as a group in accordance with the terms of
2
such plan(s), as they may be modified in their application to all employees at
NCRIC's discretion from time to time.
d. Paid Sick Leave. Executive shall accrue one (1) day of paid sick leave
per month, up to a maximum of twelve (12) days of paid sick leave at any given
time. All accrued, but unused, paid sick leave shall be forfeited upon
termination of employment if said termination shall be for cause.
e. Paid Vacation. Executive shall accrue four weeks of paid vacation during
each calendar year; however, in no event shall Executive use more than three
weeks at any time. Accrued, but unused, paid vacation in excess of ten days
shall expire on December 31st of the year in which it accrues. No more than ten
days of accrued, but unused, paid vacation may be carried over from one year to
the next. All accrued, but unused, paid vacation is forfeited upon termination
of employment by either party; provided, however, that if Executive provides
advance notice of his intent to terminate his employment in accordance with
paragraph 7 of this Agreement, NCRIC shall pay him for all of his accrued, but
unused, paid vacation, less standard withholdings and deductions.
f. Life Insurance. NCRIC shall procure a term life insurance policy in a
face amount of no less than twice the amount of Executive's Base Salary (as in
effect on the date hereof) provided that Executive is insurable at standard
rates. Executive shall be entitled to designate the beneficiary or beneficiaries
of such policy in his sole discretion. In the event that Executive is not
insurable at standard rates, and desires to be insured, Executive shall be
responsible for payment of any premiums or amounts charged in excess of the
standard rates for such insurance.
g. Disability Insurance. NCRIC shall procure a disability income insurance
policy (both long and short term) providing the highest benefits commercially
available, and provided Executive is insurable at standard rates. In the event
that Executive is not insurable at standard rates, and desires to be insured,
Executive shall be responsible for payment of any premiums or amounts charged in
excess of the standard rates. NCRIC's disability income insurance policy
provides for payments to covered employees commencing after an "elimination
period" of ninety (90) days. If, and when, Executive should begin to receive
monthly disability payments under the terms of NCRIC's disability income
insurance policy then in force NCRIC agrees to supplement said monthly
disability payments by paying to Executive the difference between such sums paid
by the disability insurer and Executive's Base Salary for a maximum period of
twelve (12) consecutive months. Following expiration of said twelve (12) months,
the coverage and provisions of NCRIC's disability income insurance policy shall
constitute the entire wage
3
continuation plan provided in this Agreement and, except for the payment of the
premiums on such policy, NCRIC shall have no further liability to Executive for
wage continuation. It is further understood that Executive's employment with
NCRIC and Group shall be terminated following twelve (12) consecutive months of
disability (being unable to carry out the normal functions and requirements of
his position with NCRIC) regardless of how and when the aforementioned
disability income payments from NCRIC's disability income insurance policy may
be paid or due to Executive.
5. Expenses.
a. Business Expenses. NCRIC and Group shall reimburse Executive for
ordinary, necessary and reasonable business expenses incurred by him in the
discharge of his duties hereunder, including but not limited to travel, lodging
and entertainment expenses, provided Executive furnishes appropriate
documentation for such expenses and that said expenses are in accordance with
the company's then prevailing policies and procedures regarding said
expenditures.
b. Continuing Education Expenses. NCRIC shall pay the ordinary and
necessary costs associated with continuing education classes or continuing
education programs Executive participates in which are related to the company's
business interests, provided Executive furnishes appropriate documentation to
NCRIC for such costs and gives the Chairman of the Board of NCRIC reasonable
notice of any expenditures for continuing education. All such expenses in excess
of One Thousand Dollars ($1,000) must be approved by Board in advance.
c. Country Club Dues. NCRIC shall pay the dues for Executive's membership
in one country club or similar institution as well as the Georgetown Club. NCRIC
shall not pay or reimburse Executive for any non-mandatory costs associated with
such membership, including but not limited to food, beverage and entertainment
costs, greens fees, and court fees, unless Executive is otherwise entitled to
reimbursement of such costs pursuant to paragraph 5(a) of this Agreement.
x. Xxxxx Presidents Organization. Should Executive join Young Presidents
Organization (YPO), NCRIC shall pay the dues and related membership fees
associated therewith.
e. Effect of Termination of Employment. All payment or reimbursement of
expenses authorized by Section 5 hereof shall cease upon Executive's termination
of employment regardless of cause for said termination, provided that any
expenses incurred by Executive prior to termination shall be reimbursed.
4
6. Termination of Employment by NCRIC.
a. Termination for Cause. The employment of Executive under this Agreement,
may be terminated for "cause" by NCRIC and Group at any time by action of the
Board upon the occurrence of any one or more of the following events:
(i) Executive's fraud, dishonesty, gross negligence or willful misconduct
in the performance of his duties hereunder, including willful failure to perform
such duties as may properly be assigned him hereunder; or
(ii) Executive's material breach of any provision of this Agreement,
and Executive shall be notified in writing of such termination, which
notification shall specify the grounds cited by the Board for such termination
for cause. Any termination by reason of the foregoing shall not be in limitation
of any right or remedy which NCRIC may have under this Agreement or otherwise.
Should Executive dispute whether "cause" existed for his termination, he
shall notify NCRIC and Group of his dispute in writing, and the parties shall
promptly proceed to arbitration in accordance with paragraph 16 of this
Agreement. NCRIC shall continue to pay the Executive his Base Salary, and other
compensation and benefits in effect immediately prior to the termination. If it
is determined that termination was for cause, Executive shall return all cash
amounts to NCRIC promptly following the date of resolution by arbitration, with
interest commencing as of the date of the resolution of the dispute by
arbitration (at the prime rate as published in the Wall Street Journal from time
to time). Any cash amounts paid to Executive pending the resolution of the
dispute by arbitration shall offset any amounts due Executive under paragraph
(b) below.
b. Termination Without Cause.
(i) NCRIC and Group may terminate Executive's employment without cause and
at any time. Executive shall be notified in writing of such termination on or
prior to the effective date of such termination.
(ii) If Executive's employment is terminated without cause, and Executive
waives all claims against Group, NCRIC and the Affiliated Companies relating to
or arising out of his employment or the termination of his employment by
executing a general release of such claims in the form attached to the
Agreement, Executive shall receive, as severance pay, an amount equal to three
times the Base Salary. Such amount shall represent agreed-upon liquidated
damages for any loss, cost, expense or damages suffered as a result of such
termination, as well as consideration for Executive's execution of a General
Release of all claims against NCRIC and the Affiliated Companies. NCRIC shall
pay such amount to Executive in a lump sum on the effective date of termination.
5
(iii) If a "Change of Control" of Group's or NCRIC's business occurs,
Executive may elect, in writing within three months of the effectiveness of the
Change in Control, to deem his employment terminated without cause for the
purposes of this paragraph. Executive shall notify Group, NCRIC or their
successor of his election. "Change of Control" shall be deemed to have occurred
if: (1) Group or NCRIC merges with or consolidates with, or sells, leases, or
otherwise transfers all or substantially all of its assets to another entity
(which for the purpose of this Agreement shall include the sale or transfer of
fifty percent or more of the ownership of NCRIC, but only if such sale shall be
made to an entity not affiliated with Group). However, in no event shall it be
deemed a "change of control" solely because NCRIC, A Mutual Holding Company,
changes its business form by converting to a stock company.
7. Termination of Employment By Executive.
Executive may voluntarily terminate his employment with NCRIC provided that
he gives NCRIC sixty days prior notice of such termination or pays NCRIC
liquidated damages equal to the amount of two months of Base Salary (Base Salary
divided by twelve, times two). It is agreed that such liquidated damages are to
compensate NCRIC for injury by reason of Executive's termination of his
employment and not as a penalty, it being impossible to ascertain or estimate
the entire or exact cost, damages or injury that NCRIC may sustain by reason of
such termination.
8. Protection of Group and NCRIC
a. Confidential Information. Executive shall not at any time during or
after his employment with NCRIC and Group directly or indirectly disclose,
discuss, divulge, copy or otherwise suffer confidential information of Group,
NCRIC or the Affiliated Companies to be used, except as required by the
performance of his duties hereunder. For the purposes of this Agreement,
"confidential information" shall mean all information disclosed to Executive by
Group, NCRIC or the Affiliated Companies, or known by him as a consequence of or
through his employment with Group and NCRIC, where such information is not
generally known in the trade or
6
industry, and where such information refers or relates in any manner whatsoever
to the business activities, processes, services or products of Group, NCRIC or
the Affiliated Companies. Such information includes, but is not limited to,
business and development plans (whether contemplated, initiated or completed),
development sites, business contacts, customer lists, actuarial tables, loss
data, marketing information, policy forms, contracts, research of any kind,
methods of operation, results of analysis, business forecasts, financial data,
costs, revenues, and similar information. Upon termination of this Agreement,
Executive shall immediately return to Group and NCRIC all of its property, and
all copies thereof, including without limitation all confidential information
which has been reduced to tangible form, in his possession, custody or control.
b.Covenant Not to Compete. Executive agrees that he shall not, during his
employment and for a period of one (1) year after the date on which the
termination of Executive's employment (other than following a change in control)
is effective or the dispute relating thereto is resolved (whichever is later),
directly or indirectly, either as an officer, director, employee, agent,
adviser, consultant, principal, stockholder, partner, owner or in another
capacity, on his own behalf or otherwise, in any way engage in, represent, be
connected with or have a financial interest in, any other insurance company, or
any corporation, firm, association, or other business entity which is, or to the
best of Executive's knowledge, is about to become, engaged in the same or
similar business as Group, NCRIC or any of their affiliates or which otherwise
competes with or is about to compete with Group, NCRIC or any of its affiliates
in the District of Columbia or any states where Group, NCRIC or any of its
Affiliated Companies may operate or are licensed to operate. Executive's
ownership of not more than one percent (1%) of the stock of any publicly traded
corporation shall not be deemed a violation of this covenant. Executive agrees
that the restrictions imposed upon him by the provisions of this paragraph are
fair and reasonable considering the nature of Group's and NCRIC's business, and
are reasonably required for the protection of Group and NCRIC. For a period of
twelve months from the effective date of the termination of Executive's
employment hereunder, Executive will not solicit the employment of any then
current officers or employees of Group or any affiliate. The term "solicit to
employ" shall not be deemed to include general solicitations of employment not
specifically directed towards employees of either of the parties.
c. Remedies and Acknowledgment of Reasonableness. Executive acknowledges
that compliance with this paragraph is necessary for the protection of the
goodwill and other proprietary interests of NCRIC and Group, and that, after
carefully considering the extent of the restrictions upon him and the rights and
remedies conferred upon NCRIC under this paragraph, the same are reasonable in
7
time and territory, are designed to eliminate competition which otherwise would
be unfair to NCRIC, do not stifle the inherent skill and experience of
Executive, would not operate as a bar to Executive's sole means of support, are
fully required to protect the legitimate interests of NCRIC, and do not confer a
benefit upon NCRIC disproportionate to the detriment to Executive.
Executive further acknowledges and agrees that in the event of a breach of
this paragraph, neither Group nor NCRIC would not have an adequate remedy at law
because the damages flowing from such breach would not be readily susceptible of
measurement in monetary terms and that Group and NCRIC shall be entitled to
injunctive relief and may obtain a temporary order restraining any threatened
breach or future breach in addition to any other remedies which may be available
at law or equity. Nothing in this paragraph shall be deemed to limit Group's or
NCRIC's remedies at law or in equity for breach of this or any other paragraph
of this Agreement.
9. Death or Incapacitation. In the event that Executive dies or, due to a
physical or mental impairment, becomes unable to perform the essential functions
of his position with or without reasonable accommodation, this Agreement shall
be deemed terminated and Executive or his estate, as the case may be, shall be
entitled to no further salary, compensation or benefits hereunder, except (i)
any unpaid salary, incentive payments and vacation accrued and earned by
Executive up to and including the date of such termination, and (ii) any
disability, life insurance or other benefits to which Executive or his estate
may be entitled on the date of such termination in accordance with the terms and
conditions of any applicable benefit plan(s) as set forth in official plan
documents.
10. Assignment. This Agreement is a personal service agreement and neither
party shall have the right to assign this Agreement or any rights or obligations
hereunder without the prior written consent of the other party.
11. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested. If
mailed to Group or NCRIC, such notices shall be sent to their principal place of
business, attention: Chairman of the Board, or at such other address as NCRIC or
Group may hereafter designate in writing to Executive. If mailed to Executive,
such notices shall be addressed to him at his home address last known on the
records of Group and NCRIC, or at such other address as Executive may hereafter
designate in writing to Group and NCRIC.
8
12. Successors Bound. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, personal representatives, estates
and permitted successors and assigns.
13. Waiver. No provision hereof may be waived, except by a written
instrument signed by the party against whom such waiver is sought to be
enforced. The failure or waiver of either party hereto at any time, or from time
to time, to require performance by the other party of such other party's
obligation hereunder, shall not deprive that party of the right to insist upon
strict adherence to such obligation at any subsequent time. Each party hereto
agrees that any waiver of its rights arising out of any breach of this Agreement
by the other party shall not be construed as a waiver of any subsequent breach.
14. Amendment. No provision hereof may be altered or amended, except by a
written instrument signed by the party against whom such alteration or amendment
is to be enforced.
15. Governing Law. The parties agree that this Agreement shall in all
respects be construed, interpreted and enforced in accordance with and governed
by the laws of the District of Columbia, without regard to the principles of
conflict of laws thereof.
16. Arbitration. Whenever a "dispute" arises between the parties concerning
this Agreement (other than a dispute arising under paragraph 8 hereof) or their
employment relationship, including without limitation the termination thereof,
the parties shall use their best efforts to resolve the "dispute" by mutual
agreement. If such a "dispute" cannot be so resolved, it shall be submitted to
final and binding arbitration to the exclusion of all other avenues of relief.
For the purposes of this paragraph, the term "dispute" means all controversies
or claims relating to terms, conditions or privileges of employment, including
without limitation claims for breach of contract, discrimination, harassment,
wrongful discharge, misrepresentation, defamation, emotional distress or any
other personal injury, but excluding claims for unemployment compensation or
worker's compensation. The dispute shall be submitted to the Washington, D.C.
office of the American Arbitration Association ("AAA") and adjudicated in
accordance with AAA's Rules for Commercial Arbitration then in effect. The
decision of the Arbitrator must be in writing and shall be final and binding on
the parties, and judgment may be entered on the arbitrator's award in any court
having jurisdiction thereof. The expenses of the arbitration shall be borne
equally by the parties, and each party shall be responsible for his or its own
9
costs and attorneys' fees. The Arbitrator shall be deemed to possess the powers
to issue mandatory orders and restraining orders in connection with such
arbitration; provided, however, that nothing in this paragraph shall be
construed so as to deny NCRIC or Group the right and power to seek and obtain
injunctive relief in a court of equity for any breach or threatened breach by
Executive of any of the provisions contained in paragraph 8 of this Agreement.
This paragraph shall survive the termination of this Agreement.
17. Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid or unenforceable by a court of competent
jurisdiction or an arbitrator, such provision shall be deleted from this
Agreement and the Agreement shall be construed to give full effect to the
remaining provisions thereof.
18. Headings and Captions. The paragraph headings and captions contained in
this Agreement are for convenience only and shall not be construed to define,
limit or affect the scope or meaning of the provisions hereof.
19. Entire Agreement. This Agreement contains and represents the entire
agreement of the parties and supersedes all prior agreements (including the
Employment Agreement dated October 1, 1997, by and between National Capital
Reciprocal Insurance Company, National Capital Underwriters, Inc. and
Executive), representations or understandings, oral or written, express or
implied with respect to the subject matter hereof. This Agreement may not be
modified or amended in any way unless in writing signed by both Executive and
the Chairman of the Board of NCRIC and Group. No representation, promise or
inducement has been made by either party hereto that is not embodied in this
Agreement, and neither party shall be bound or liable for any alleged
representation, promise or inducement not specifically set forth herein.
10
IN WITNESS WHEREOF, the parties have executed this Employment Agreement on
the date and year first written above.
NCRIC, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx, M.D.
--------------------------------
Xxxxxx X. Xxxxxxxx, M.D.
Chairman of the Board
NCRIC Group, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx, M.D.
--------------------------------
Xxxxxx X. Xxxxxxxx, M.D.
Chairman of the Board
Executive
/s/ R. Xxx Xxxx, Xx.
--------------------
R. Xxx Xxxx, Xx.
