Exhibit 10.5
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FORM OF EMPLOYMENT AGREEMENT
BY AND BETWEEN
SELF FUNDED BENEFITS, INC.
D/B/A INSURANCE DESIGN ADMINISTRATORS
AND
XXXXXX X. XXXXX
Draft 3/25/99
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
_____________, 1999, by and between Self Funded Benefits, Inc., d/b/a Insurance
Design Administrators, a New Jersey corporation (the "Company"), and Xxxxxx X.
Xxxxx ("Employee").
PRELIMINARY RECITALS
A. Reference is made to that certain Merger Agreement dated as of
_____________, 1999 (the "Merger Agreement"), by and among the Company,
CenterPoint Advisors, Inc., a Delaware corporation ("CenterPoint"), and the
stockholders of the Company identified on Schedule A to the Merger Agreement,
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providing for the merger of the Company into a wholly owned subsidiary of
CenterPoint.
B. Employee has been a substantial owner and executive officer of the
Company since _________, and has extensive knowledge and a unique understanding
of its business.
C. The Company desires to employ Employee, and Employee desires to be
employed by the Company, all under the terms and conditions set forth herein.
D. It is a condition to the consummation of the Merger Agreement that the
Company and Employee enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants of
the parties hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Employment.
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1.1 Engagement of Employee. The Company agrees to employ Employee as
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Chief Executive Officer of the Company and Employee agrees to accept such
employment, all in accordance with the terms and conditions of this
Agreement.
1.2 Duties and Powers. At all times during the Employment Period (as
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defined herein), Employee will serve as the Company's Chief Executive
Officer and will have such responsibilities, duties and authority, and will
render such services for the Company as the Chief Operating Officer of the
Business and Financial Service Group of CenterPoint or its designee (in
either case, the "Reporting Person") shall from time to time reasonably
direct; provided, however, that such duties and responsibilities shall be
commensurate with the position of Chief Executive Officer of the Company.
Employee agrees diligently and faithfully to serve the Company, comply with
all Company and CenterPoint policies and
procedures in effect from time to time, and to devote Employee's best
efforts, highest talents and skills and full time and attention during
normal business hours to the furtherance and success of the Company's
business. All parties acknowledge and agree that the management of the
business and affiliates of the Company are subject to the fiduciary and
legal duties of the board of directors of CenterPoint.
1.3 Employment Period. Employee's employment under this Agreement
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shall be for a period of four years beginning on the date of the closing of
the Merger Agreement (the "Initial Employment Period"). This Agreement
shall automatically renew for successive one-year periods (each one-year
period shall be referred to herein as a "Renewal Period") unless either the
Company or Employee, as the case may be, provides written notice to the
other party at least ninety (90) days prior to the termination of any such
period, stating its, his or her desire to terminate this Agreement. The
Initial Employment Period and each successive Renewal Period shall be
referred to herein together as the "Employment Period". Notwithstanding
anything to the contrary contained herein, the Employment Period is subject
to termination pursuant to Sections 1.5 and 1.6 below.
1.4 Place of Employment. Employee's services hereunder shall be
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rendered at such locations in the state of New Jersey and within a twenty-
five mile radius of the Company's current office as shall be determined by
the Board, subject to such travel as may be reasonably required in
connection with the business of the Company. Employee shall not be
required to relocate to any other area without his or her consent.
1.5 Termination of Employment for Cause, Death or Disability. The
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Company has the right to terminate Employee's employment under this
Agreement and with the Company, by notice to Employee in writing at any
time, for Cause (as hereinafter defined), and such employment shall
automatically be terminated upon the death or the Disability (as
hereinafter defined) of Employee. Any such termination shall be effective
upon the date of service of such notice pursuant to Section 6.7 hereof, in
the case of termination for Cause, or immediately upon the death or
Disability of Employee, and the Employment Period shall terminate as of the
effective date of such termination.
"Cause," as used herein, means the occurrence of any of the following
events:
(i) final non-appealable conviction of (A) a felony or (B) any
crime involving moral turpitude;
(ii) the willful failure of Employee to comply with reasonable
and lawful directions of the Reporting Person after (A) written notice
is delivered to Employee describing such willful failure and (B) if
reasonably possible or practical to cure, Employee has failed to cure
or take substantial steps to cure such willful failure after a
reasonable period of time, as determined by the Board in its
discretion (not to be less than 30 days from the date of such notice);
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(iii) the good faith determination by the Board of Directors of
the Company (the "Board") in the exercise of its reasonable judgment
that Employee has committed an act or acts in the course of his
employment constituting fraud or misappropriation of material Company
property;
(iv) a material breach by Employee of any of the terms,
conditions or covenants set forth in Section 3 of this Agreement; or
(v) a material breach by Employee of any of the other material
terms or conditions of this Agreement if (A) written notice is
delivered to Employee describing such breach and (B) if reasonably
possible or practical to cure, Employee has failed to cure or take
substantial steps to cure such breach after a reasonable period of
time, as determined by the Board in its discretion (not to be less
than 30 days from the date of such notice).
Employee shall be deemed to have a "Disability" for purposes of this
Agreement if he is unable to perform, by reason of physical or mental
incapacity, his material duties or obligations under this Agreement, with
or without reasonable accommodation, for a total period of 90 days in any
360-day period. The Board shall determine, according to the facts then
available, including without limitation, the examination report of a
physician selected by Employee, whether and when the Disability of the
Employee has occurred. Such determination shall not be arbitrary or
unreasonable if Employee contests a determination of Disability, and the
Board shall be bound by the expert medical opinion of a physician mutually
agreed upon by Employee (or his representative, if any) and the Company,
after such physician has completed an examination of Employee. In the
event Employee and the Company cannot agree on a physician, the two
physicians so selected shall select a third physician, whose opinion shall
be final. Employee agrees to make reasonable efforts to make himself
available for such examination upon the reasonable request of the Company.
1.6 Termination of Employment without Cause. The Company has the
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right to terminate Employee's employment with the Company and under this
Agreement, by 30 days written notice to Employee in writing at any time,
without Cause (as defined in this Agreement). Any such termination shall
be effective upon the expiration of such 30 day period.
2. Compensation and Benefits.
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2.1 Salary. In consideration of Employee performing his duties under
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this Agreement during the Employment Period, the Company will pay Employee
a base salary at a rate of $200,000 per annum (the "Base Salary"), payable
in accordance with the Company's regular payroll policy for salaried
employees. The Base Salary may be increased (but not decreased), from time
to time during the Employment Period, as
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determined by the Compensation Committee of the Board (the "Compensation
Committee"), based upon CenterPoint's policies and procedures. If the
Employment Period is terminated pursuant to Section 1.5 above or for any
other reason, then the Base Salary for any partial year will be prorated
based on the number of days elapsed in such year during which services were
actually performed by Employee.
2.2 Bonus.
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(a) For calendar year 1999, Employee shall be eligible to earn a
bonus of up to 50% of Employee's Base Salary as described in the
CenterPoint bonus plan if the Company achieves its performance targets
set forth in the budget which bonus plan and budget shall be
established in writing at the closing of the Merger Agreement.
(b) For future years, Employee shall be eligible to earn an
annual bonus of up to 100% of Employee's Base Salary under
CenterPoint's bonus plan for executive employees based upon such
factors as (i) the financial performance of the Company, and (ii) the
achievement of personal performance goals. Such criteria and goals,
and the amount of a bonus, if any, shall be established by the
Compensation Committee of the Board of Directors of CenterPoint.
(c) Any bonus for a partial year shall be prorated for that year.
All bonuses awarded to Employee hereunder shall be payable in
accordance with the terms of the bonus plan.
2.3 Compensation After Termination of Employment.
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(a) If the Company shall terminate Employee's employment during
the Employment Period for any reason (other than for Cause pursuant to
Section 1.5 of this Agreement), or if Employee shall voluntarily
terminate his employment during the Employment Period and within 60
days after a Constructive Termination (as defined below), Employee
shall be entitled to receive severance compensation equal to the
amount of his Base Salary for the remainder of the Initial Employment
Period (the "Severance Period"), (B) (i) if permitted under Company's
group health insurance coverage, continuation at the cost of Company
of coverage thereunder for Employee and, if dependent coverage is then
in effect, his covered dependents (subject to such changes in coverage
as shall apply to Company's employees generally and provided that if
the cost of dependent coverage prior to termination of employment was
being paid by Employee, such cost shall continue to be payable by
Employee) or (ii) if not so permitted, reimbursement by the Company of
the premiums for group health insurance coverage otherwise payable by
Employee under COBRA, until the end of the Severance Period or until
other employment is obtained by Employee, whichever occurs first, and
(C) his pro rated bonus (if any),
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as determined by the Compensation Committee of the Board in its good faith
judgement, for the period of any partial fiscal year immediately preceding
the termination date ((A), (B) and (C) collectively, the "Severance
Benefits"). The Severance Benefits payable under (A) and (B)(ii) above
shall be paid in equal installments on the Company's normal payroll payment
dates occurring during the Severance Period. It shall be a condition to
Employee's right to receive the Severance Benefits that (i) Employee shall
execute and deliver to the Company a written separation agreement, in form
and substance reasonably satisfactory to the Company (but not inconsistent
with this Agreement), which agreement shall, among other things, contain a
general release by Employee of all claims arising out of Employee's
employment or termination of employment (but excluding claims for
indemnification for third party claims), and (ii) Employee shall be in
compliance with all of Employee's obligations which expressly survive
termination hereof, including without limitation those arising under
Section 3 hereof. The Severance Benefits are intended to be in lieu of all
other payments to which Employee might otherwise be entitled in respect of
termination of Employee's employment without Cause. In addition to the
payment of Severance Benefits, all options to purchase CenterPoint stock
granted to Employee prior to the date of (i) a termination by the Company
without cause, (ii) Employee's voluntary termination of his employment
during the Employment Period and within 90 days of a Constructive
Termination, or (iii) Employee's death or Disability shall vest and become
exercisable on the date of such event and for a period of one year
thereafter. Except as expressly provided above, no fringe or other employee
benefits shall be payable during or after the Severance Period.
(b) If Employee's employment shall be terminated by Company for
"Cause" pursuant to Section 1.5 or if Employee shall voluntarily terminate
his employment during the Employment Period under circumstances not
described in Section 2.3 above, the Company shall have no further
obligations hereunder or otherwise with respect to Employee's employment
from and after the effective date of the termination of the Employment
Period (except for the payments required under Section 2.1), and the
Company shall continue to have all other rights available hereunder
(including, without limitation, all rights under Section 3 hereof at law or
in equity).
(c) For the avoidance of doubt, except as set forth in this
Section 2.3(c), Severance Benefits shall not be payable if Employee's
employment is terminated by reason of his death or Disability, but shall
continue to be payable during the Severance Period if his employment is
terminated without Cause or by reason of Constructive Termination and he
subsequently dies or becomes disabled. If Employee dies during the
Employment Period, Employee's designated beneficiary shall receive the Base
Salary for a six month period, which amounts shall be paid on the Company's
normal payroll payment dates during such six month period.
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(d) "Constructive Termination" as used herein, shall be deemed to
have occurred if the Company (i) demotes Employee to a position
substantially below that of Chief Executive Office of the Company or
assigns the Employee duties and responsibilities that are not commensurate
with such position, (ii) substantially reduces Employee's Base Salary,
fails to comply with applicable CenterPoint compensation policies
(including, without limitation, failure to pay any bonus due pursuant to
the CenterPoint bonus plan described in Section 2.2) or materially reduces
his employee benefits and perquisites, taken in the aggregate, unless such
reduction is the result of a termination of a benefit plan as to
substantially all managerial employees of the Company or (iii) requires
Employee to relocate in violation of Section 1.4.
(e) The occurrence of a "change in control of the Company," as
that term in hereafter defined, shall constitute a Constructive
Termination. For purposes of this Agreement, "change in control of the
Company" means (i) the acquisition of ownership by any person or group of
two (2) or more persons, of fifty percent (50%) or more of the assets of
the Company, or of the issued and outstanding common stock of the Company,
whether by or as a result of purchase, tender offer, exchange offer,
merger, or otherwise, and whether by or as a result of one transaction or a
series of transactions; or (ii) the adoption of a plan of liquidation or
dissolution of the Company. "Person," as used herein, means any individual,
trust, partnership, limited liability company, joint venture, corporation
or business entity, however known, foreign or domestic. Under no
circumstances shall an event which would constitute a change in control of
CenterPoint constitute a change in control of the Company unless it
otherwise constitutes a change in control of the Company.
2.4 Benefits, Expenses and Pension Plan.
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(a) During the Employment Period, the Company agrees to provide
to Employee such fringe and other employee benefits as are generally
provided, from time to time, to senior officers of CenterPoint or the
subsidiaries of CenterPoint (upon no less favorable terms as provided
to such officers), and in a manner which considered in total is
consistent with the past practices of the Company, including without
limitation, vacation, health insurance, life insurance and disability
insurance benefits, and the opportunity to participate in
CenterPoint's stock option plans. Employee acknowledges that
CenterPoint and the Company shall retain the right to discontinue or
modify any employee benefit program (including, without limitation,
CenterPoint's stock option plans) at any time. The Company will
reimburse Employee in accordance with Company policy for his normal
out-of-pocket expenses reasonably incurred in the course of performing
his duties hereunder.
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[(b) During the Employment Period, Employee shall be entitled to
an automobile allowance of $_______ per month.] [Existing Lease]
3. Covenants.
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3.1 Employee's Acknowledgment. Employee acknowledges that:
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(a) the Company is and will be engaged in the business of
providing professional services, in particular third party benefits
administration (the "Business") during the Employment Period and
thereafter;
(b) Employee will occupy a position of trust and confidence with
the Company after the date of this Agreement and, during the
Employment Period and Employee's employment under this Agreement,
Employee will become familiar with the Company's proprietary and
confidential information concerning the Company and the Business;
(c) the agreements and covenants contained in this Section 3 are
essential to protect the Company and the goodwill of the Business and
are a condition precedent to the Company's entering into this
Agreement;
(d) Employee's employment with the Company has special, unique
and extraordinary value to the Company and the Company would be
irreparably damaged if Employee were to provide services to any person
or entity in violation of the provisions of this Agreement; and
(e) Employee has means to support himself or herself and his or
her dependents other than by engaging in the Business, or a business
substantially similar to the Business, and the provisions of this
Section 3 will not impair such ability.
3.2 Non-Compete. Employee hereby agrees that during the period of
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time commencing as of the date hereof and ending as of the date that is two
years after Employee's employment with the Company has (other than by the
expiration of this Agreement at the end of the Employment Period without
renewal) been terminated (the "Restrictive Period"), he shall not, for any
reason whatsoever, directly or indirectly, for himself or on behalf of or
in conjunction with any other person:
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(a) engage, as an officer, director, shareholder, owner, partner,
joint venturer, or in a managerial capacity, whether as an employee,
independent contractor, consultant or advisor, or as a sales
representative, in any business selling any products or services in
direct competition with the Company or any of the subsidiaries or
affiliates thereof, within any business market where the Company or
any subsidiary or affiliate thereof conducted or conducts business at
any time prior to the termination (the "Territory"),
(b) sell or provide any competitive products or services to, or
solicit for the purpose of selling or providing any competitive
products or services to, any person or entity that was a customer of
the Company at any time during the one-year period preceding or that
was known by Employee to have been actively being solicited by the
Company to become a customer of the Company at any time during such
period,
(c) call upon any person who is, at that time, within the
Territory, an employee of the Company (including the subsidiaries or
affiliates thereof) for the purpose or with the intent of enticing
such employee away from or out of the employ of the Company (including
the subsidiaries and affiliates thereof), or hire such person, or
(d) enter into, or call upon or request non-public information
for the purpose of entering into, an Acquisition Transaction (as
hereinafter defined) with any entity with respect to which CenterPoint
or any subsidiary or affiliate thereof has made an offer or proposal
for, or entered into discussions or negotiations for, or evaluated
with the intent of making a proposal for, an Acquisition Transaction,
within the preceding one-year period.
For purposes of this Agreement, an "Acquisition Transaction" means a
merger, consolidation, purchase of material assets, purchase of a material
equity interest, tender offer, recapitalization, accumulation of shares,
proxy solicitation or other business combination. Notwithstanding the
above, the foregoing covenant shall not be deemed to prohibit Employee from
acquiring as an investment not more than one percent (1%) of the capital
stock of a competing business whose stock is traded on a national
securities exchange or over-the-counter market so long as Employee does not
consult with or is not employed by such competitor.
3.3 Intellectual Property Rights. Employee will promptly
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communicate, disclose and transfer to the Company free of all encumbrances
and restrictions (and will execute and deliver any papers and take any
reasonable action at any time deemed reasonably necessary by the Company to
further establish such transfer) all of Employee's right, title and
interest in and to all ideas, discoveries, inventions and improvements
relating to the Business created, originated, developed or conceived of by
Employee solely
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or jointly with others during the term of Employee's employment hereunder,
whether or not during normal working hours. Employee agrees that all right,
title and interest in and to all such ideas, discoveries, inventions and
improvements shall belong solely to the Company, whether or not they are
protected or protectible under applicable patent, trademark, service xxxx,
copyright or trade secret laws. Employee agrees that all work or other
material containing or reflecting any such ideas, discoveries, inventions
or improvements shall be deemed work made for hire as defined in Section
101 of the Copyright Act, 15 U.S.C.(S)101. Such transfer shall include all
patent rights, copyrights, trademark and service xxxx rights, and trade
secret rights (if any) to such ideas, discoveries, inventions and
improvements in the United States and in all other countries. Employee
further agrees, at the expense of the Company, to take all such reasonable
actions and to execute and deliver all such assignments and other lawful
papers relating to any aspect of the prosecution of such rights in the
United States and all other countries as the Company may request at any
time during the Employment Period or after termination thereof. This
Section 3.3 shall not prohibit Employee from engaging in any business in a
manner which does not violate the provisions of this Agreement.
3.4 Interference with Relationships. Other than in the performance
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of his or her duties hereunder, during the Restrictive Period, Employee
shall not, directly or indirectly, as employee, agent, consultant,
stockholder, director, partner or in any other individual or representative
capacity, solicit or intentionally encourage any present or future
customer, supplier or other third party to terminate or otherwise alter
his, her or its relationship with the Company.
3.5 Confidential Information. Other than in the performance of his
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duties hereunder, during the Restrictive Period and thereafter, Employee
shall keep secret and retain in strictest confidence, and shall not,
without the prior written consent of the Company, directly or indirectly
furnish, make available or disclose to any third party or use for the
benefit of himself or any third party, any Confidential Information. As
used in this Agreement, "Confidential Information" shall mean any
information relating to the business or affairs of CenterPoint, the Company
or the Business, including, but not limited to, information relating to
financial statements, employees, clients, suppliers, pricing, marketing,
equipment, programs, strategies, analyses, profit margins, or other
proprietary information of or used by CenterPoint, the Company or any other
subsidiary of CenterPoint in connection with the Business and the business
of each of CenterPoint's subsidiaries; provided, however, that Confidential
Information shall not include any information which is in the public domain
or becomes known in the industry through no wrongful act on the part of
Employee. Employee acknowledges that the Confidential Information is vital,
sensitive, confidential and proprietary to the Company and CenterPoint.
3.6 Blue-Pencil. If any court of competent jurisdiction shall at any
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time deem the Restrictive Period too lengthy or the Territory too
extensive, the other provisions of
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this Section 3 shall nevertheless stand, the Restrictive Period herein
shall be deemed to be the longest period permissible by law under the
circumstances and the Territory herein shall be deemed to comprise the
largest territory permissible by law under the circumstances. The court in
each case shall reduce the time period and/or territory to permissible
duration or size.
3.7 Return of Company Materials Upon Termination. Employee
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acknowledges that all price lists, sales manuals, catalogs, binders, client
lists and other client information, supplier lists and other supplier
information, financial information, memoranda, correspondence and other
records or documents including information stored on computer disks or in
computer readable form, containing Confidential Information prepared by
Employee or coming into Employee's possession by virtue of Employee's
employment by the Company is and shall remain the property of the Company
and that upon termination of Employee's employment hereunder, Employee
shall return immediately to the Company all such items, together with all
copies thereof, in Employee's possession.
3.8 Remedies. Employee acknowledges and agrees that the covenants
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set forth in this Section 3 (collectively, the "Restrictive Covenants") are
reasonable and necessary for the protection of the Company's business
interests, that irreparable injury will result to the Company if Employee
breaches any of the terms of said Restrictive Covenants, and that in the
event Employee breaches or threatens to breach any such Restrictive
Covenants, the Company will have no adequate remedy at law. Employee
accordingly agrees that in the event Employee breaches or threatens to
breach any of the Restrictive Covenants, the Company shall be entitled to
immediate temporary injunctive and other equitable relief, without the
necessity of showing actual monetary damages. Nothing contained herein
shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or the threat of such a breach by
Employee, including the recovery of any damages which it is able to prove.
3.9 Company. For purposes of this Section 3, (i) the term "Company"
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shall include the Company and its respective subsidiaries, affiliates,
permitted assignees and any permitted successors in interest of the
Company, if any, or their subsidiaries or affiliates and (ii) the term
"Business" shall include the business activities of the Company and its
subsidiaries.
3.10 Reasonable Restraint. It is agreed by the parties hereto that
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the foregoing covenants in this Section 3 impose a reasonable restraint on
Employee in light of the activities and business of CenterPoint (including
the subsidiaries thereof) on the date of execution of this Agreement and
the current plans of CenterPoint; but it is also the intent of the parties
that such covenants be construed and enforced for the Company in accordance
with the changing activities and business of the Company throughout the
respective terms of these covenants.
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It is further agreed by the parties that, in the event that the
Employee ceases to be employed by the Company, CenterPoint or any affiliate
thereof, and Employee enters into a business or pursues activities not in
competition with CenterPoint and/or any subsidiary thereof, or similar
activities or businesses in locations the operations of which, under such
circumstances, does not violate this Section 3 and in any event such new
business, activities or location are not in violation of this Section 3,
Employee shall not be chargeable with a violation of this Section 3 if
CenterPoint and/or any subsidiary thereof shall thereafter enter the same,
similar or competitive (i) business, (ii) course of activities or (iii)
location, as applicable.
3.11 Independent Covenant. All of the covenants of this Section 3
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shall be construed as an agreement independent of any provision of this
Agreement, and the existence of any claim or cause of action of Employee
against the Company, CenterPoint or any subsidiary or affiliate thereof,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Company of such covenants. It is
specifically agreed that the respective periods of time during which
Employee's covenants as set forth in this Section 3 are effective shall be
computed by excluding from any such computation any time during which
Employee is in violation of any provision of this Section 3.
4. Effect of Termination. If Employee or the Company should terminate
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Employee's employment for any reason, then, notwithstanding such termination,
those provisions contained in Sections 2.3, 3, 4 and 5 hereof shall remain in
full force and effect.
5. Income Tax Treatment. Employee and the Company acknowledge that it is
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the intention of the Company to deduct all amounts paid under Section 2 hereof
as ordinary and necessary business expenses for income tax purposes. Employee
agrees and represents that he or she will treat all such amounts as required
pursuant to all applicable tax laws and regulations.
6. Miscellaneous.
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6.1 Life Insurance. The Company may at its discretion and at any
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time apply for and procure as owner and for its own benefit and at its own
expense, insurance on the life of Employee in such amounts and in such form
or forms as the Company may choose. Employee shall cooperate with the
Company in procuring such insurance and shall, at the request of the
Company, submit to such medical examinations, supply such information and
execute such documents as may be reasonably and customarily required by the
insurance company or companies to whom the Company has applied for such
insurance. Employee shall have no interest whatsoever in any such policy
or policies, except that, upon the termination of Employee's employment
hereunder, Employee may purchase any and all such insurance from the
Company for an amount equal to the actual premiums thereon previously paid
by the Company.
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6.2 Assignment. No party hereto may assign or delegate any of its
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rights or obligations hereunder without the prior written consent of the
other party hereto; provided, however, that the Company shall have the
right to assign all or any part of its rights and obligations under this
Agreement upon written notice to Employee to any affiliate of the Company
to which the Business of the Company is assigned at any time or any
surviving entity following any merger or consolidation of the Company and
any other entity. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
legal representatives, heirs, permitted successors and assigns of the
parties hereto whether so expressed or not.
6.3 Entire Agreement. Except as otherwise expressly set forth
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herein, this Agreement sets forth the entire understanding of the parties,
and supersedes and preempts all prior oral or written understandings and
agreements, with respect to the subject matter hereof.
6.4 Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
6.5 Amendment; Modification. No amendment or modification of this
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Agreement and no waiver by any party of the breach of any covenant
contained herein shall be binding unless executed in writing by the party
against whom enforcement of such amendment, modification or waiver is
sought. No waiver shall be deemed a continuing waiver or a waiver in
respect of any subsequent breach or default, either of a similar or
different nature, unless expressly so stated in writing.
6.6 Governing Law. This Agreement shall be construed and enforced in
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accordance with, and all questions concerning the construction, validity,
interpretation and performance of this Agreement shall be governed by, the
laws of the State of New Jersey, without giving effect to provisions
thereof regarding conflict of laws.
6.7 Notices. All notices, demands or other communications to be
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given or delivered hereunder or by reason of the provisions of this
Agreement shall be in writing and shall be deemed to have been properly
served if (a) delivered personally, (b) delivered
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by a nationally recognized overnight courier service, (c) sent by certified
or registered mail, return receipt requested and first class postage
prepaid, or (d) sent by facsimile transmission followed by a confirmation
copy delivered by a nationally recognized overnight courier service the
next day. Such notices, demands and other communications shall be sent to
the addresses indicated below:
(a) If to Employee:
Xxxxxx X. Xxxxx
000 Xxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
with a copy to:
Xxxxx Xxxxx, Esq.
Cole, Schotz, Meisel, Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
(b) If to the Company:
Insurance Design Administrators
000 Xxxxxx Xxxx
P. O. Xxx 000
Xxxxxxx, Xxx Xxxxxx 00000-0000
Attention: ___________________
with a copy to:
CenterPoint Advisors, Inc.
000 Xxxx Xxxxxxxxxx Xxxxxx, 00/xx/ Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
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or to such other address or facsimile number or to the attention of such
other person or entity as the recipient party has specified by prior
written notice to the sending party. Date of service of such notice shall
be (i) the date such notice is personally delivered or sent by facsimile
transmission (with issuance by the transmitting machine of a confirmation
of successful transmission), (ii) five business days after the date of
mailing if sent by certified or registered mail or (iii) one business day
after date of delivery to the overnight courier if sent by overnight
courier.
6.8 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same Agreement.
6.9 Descriptive Headings; Interpretation. The descriptive headings in
------------------------------------
this Agreement are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation. The Preliminary Recitals set forth above are
incorporated by reference into this Agreement.
6.1 No Strict Construction. The language used in this Agreement will be
----------------------
deemed to be the language chosen by the parties hereto to express their mutual
interest, and no rule of strict construction will be applied against any party
hereto.
6.1 Arbitration. Any controversy or claim arising out of or relating to
-----------
this Agreement, the making, interpretation or the breach thereof, other than a
claim solely for injunctive relief for any alleged breach of the provisions of
Section 3 as to which the parties shall have the right to apply for relief in
any court of competent jurisdiction, shall be resolved by arbitration in
Hackensack, New Jersey, in accordance with the Federal Arbitration Act and the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. Judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof and any party to the
arbitration may, if such party so elects, institute proceedings in any court
having jurisdiction for the specific performance of any such award. Without
limiting the generality of the foregoing sentence, the claims to which this
provision shall apply include, but are not limited to: (i) any claims arising
out of or related to this Agreement or breach thereof; (ii) any claims arising
under any federal, state, or local statute or the common law of any state,
regarding compensation or employee benefits, or discrimination, retaliation,
harassment, or denial of equal employment opportunity based on sex, race, color,
religion, national origin, disability, age, marital status, or any other
category protected by law; (iii) any claims arising under the common law of the
United States or any state relating to Employee's employment with Company,
including without limitation claims alleging negligence, defamation, public
policy, tort, infliction of emotional distress, fraud, or misrepresentation; or
(iv) any civil claims that Company may have against Employee relating to
Employee's employment with Company. Anything herein to the contrary
notwithstanding, this Section 6.11 shall not apply to: (i) any claim by Employee
for workers compensation benefits or unemployment compensation benefits; or (ii)
any claim by
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Company or Employee for injunctive or equitable relief, including without
limitation claims related to the enforcement of Section 3 hereof, which may be
brought in any court of competent jurisdiction. Employee and Company expressly
waive any right to resolve any dispute covered by this Section by filing suit in
court for trial by a judge or jury. The arbitrator shall include in any award in
the prevailing party's favor costs and expenses of the arbitration. In the event
the arbitrator does not rule in favor of the prevailing party in respect of all
the claims alleged by such party, the arbitrator shall include in any award in
favor of the prevailing party the amount of his, her or its reasonable costs and
expenses of the arbitration as he or she deems just and equitable under the
circumstances. Except as provided above, each party to the arbitration shall
bear his, her or its own attorney's fees and expenses and the parties shall bear
equally all other costs and expenses of the arbitration.
7. Settlement. The Company's obligation to make the payments provided for
----------
in this Agreement and otherwise perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Employee or others other than
any such set-off, counterclaim, recoupment, defense or other claim, right or
action to which the Company may become entitled in connection with a final
judgment in its favor resulting from any theft, embezzlement, conversion or
similar act by the Employee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELF FUNDED BENEFITS, INC. D/B/A INSURANCE
DESIGN ADMINISTRATORS
By:_______________________________________________
Name:_____________________________________________
Title:____________________________________________
EMPLOYEE:
__________________________________________________
Xxxxxx X. Xxxxx
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