EXHIBIT 10(W)
FPIC INSURANCE GROUP, INC.
EMPLOYMENT AGREEMENT
This Employment Agreement is made and entered into as of the 1st day of
May 2000 by and between FPIC Insurance Group, Inc., a Florida corporation, with
its principal place of business at 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx,
Xxxxxxx 00000 (hereinafter referred to as "Employer"), and XXXX X. XXXXXXX, an
individual presently residing at 54 Magnolia, 0000 Xxxxxxxx Xxxx, Xxxxxxxxx
#000, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as "Employee").
WITNESSETH:
WHEREAS, Employer desires to retain the services of Employee as the
Senior Vice President-Operations of Employer, and Employee desires to perform
such services for Employer on the terms and conditions set forth herein;
WHEREAS, Employee represents and Employer acknowledges that Employee is
fully qualified, without the benefit of any further training or experience, to
perform the responsibilities and duties, with commensurate authorities, of the
position of Senior Vice President-Operations of Employer; and
WHEREAS, Employee agrees to devote Employee's full time and business
effort, attention and energies to the diligent performance of Employee's duties
hereunder;
NOW, THEREFORE, Employer and Employee, intending to be legally bound,
covenant and agree as follows:
1. TERMS OF EMPLOYMENT.
(a) Employee's employment hereunder shall be for a term
beginning May 1, 2000 and ending April 30, 2002,
which term shall be extended for an additional twelve
months at the end of each twelve month period upon
Employer's Board of Directors (from time to time
herein referred to as the "Board"), or a committee
thereof, giving notice to Employee prior to the end
of such twelve month period that it wishes to extend
this Employment Agreement for an additional twelve
month period.
(b) In the event Employer does not give notice to
Employee prior to the end of any twelve month period
that it wishes to extend this Employment Agreement as
specified in subparagraph 1(a) above, Employee may
voluntarily terminate Employee's employment under
this Employment Agreement by thereafter giving at
least ninety (90) days written notice to Employer.
Following the effective date of such voluntary
termination, Employee shall continue to receive
Employee's annual salary, payable as immediately
prior to termination, plus all benefits to which
Employee is then entitled under subparagraph 2(e)
below, for the balance of the term of this Employment
Agreement; provided, that if Employer is unable to
continue to provide any such benefits to
Employee at substantially the same cost it would
incur were Employee still employed by Employer (the
"Benefit Cost"), Employer shall have the right to pay
Employee the Benefit Cost of such benefits in lieu of
continuing to provide such benefits to Employee. It
is provided, however, if Employee directly or
indirectly engages in or acts as an employee of or
consultant for any trade or occupation that is in
competition with Employer, such salary and benefits
shall thereupon terminate.
(c) The duties of Employee shall be as determined by the
Board in accordance with this Employment Agreement
and the By-Laws of Employer in effect from time to
time. Without limiting the generality of the
foregoing, Employee shall report to and advise the
Board regarding the management and operation of
Employer's business. Employee agrees to devote
Employee's full time business efforts, attention and
energies to the diligent performance of Employee's
duties hereunder and will not, during the term
hereof, accept employment, full or part-time, from
any other person, firm, corporation, governmental
agency or other entity that, in the reasonable
opinion of the Board, would conflict with or detract
from Employee's capable performance of such duties,
provided, however, Employee may devote reasonable
amounts of time to activities of a public service,
civic, or not-for-profit nature.
2. COMPENSATION AND EXPENSES. Employer shall pay, or provide,
and Employee shall accept as full consideration for the services to be rendered
hereunder, and as a reimbursement or provision for expenses incurred by
Employee, the following:
(a) An annual salary of $150,000 payable in twenty-four
(24) equal payments during each annual period of this
Employment Agreement; provided, however, that
effective January 1 of each year beginning in 2001,
Employee's annual compensation shall be increased in
accordance with the provision for salary increases
set forth in paragraph (b) below. Employee's minimum
total compensation, which in no event may be reduced
in whole or in part, shall be the annual salary at
the rate of compensation received by Employee for any
given period of time or at the time of Employee's
termination.
(b) Annual performance reviews will determine annual
salary increases to which Employee becomes entitled,
effective January 1, 2001, based upon Employer's then
current Compensation Program.
(c) Incentive compensation payable with respect to each
year beginning with the year 2000 based on Employee's
individual performance and the performance of
Employer for such year
pursuant to Employer's then current Executive
Incentive Compensation Program.
(d) Any additional compensation payable by resolution of
the Board for outstanding performance.
(e) Such benefits as may be made available from time to
time to senior management employees of Employer, but
at no time less than: (i) an automobile allowance of
$400 per month and (ii) initiation fees, dues and
assessments of membership in a club of Employee's
choice, as reasonably approved by Employer's Board or
an appropriate committee thereof.
3. EXPENSES. Employer agrees to reimburse Employee for
ordinary and necessary expenses incurred by Employee in performing services for
Employer pursuant to the terms of this Employment Agreement, in accordance with
established corporate policies and legal requirements.
4. TERMINATION. Unless the employment of Employee previously
has been terminated pursuant to subparagraph 1(b), this Employment Agreement may
be terminated in the manner set forth in subparagraphs (a) through (f) below.
(a) VOLUNTARY TERMINATION BY EMPLOYEE.
Employee may terminate this Employment Agreement at
any time by giving at least ninety (90) days written
notice to Employer, with no further obligation on
Employer's part under this Agreement after the
effective date of such termination.
(b) VOLUNTARY TERMINATION BY EMPLOYER.
Employer may terminate this Employment Agreement at any time for any reason
sufficient to it, by act of its Board. Such termination shall be
immediately effective. Following such voluntary termination, Employee shall
continue to receive Employee's annual salary, payable as immediately prior
to termination, together with any benefits accrued to the date of
termination, plus all benefits to which Employee is then entitled under
subparagraph 2(e) above, for the balance of the then current Employment
Agreement; provided, that if the Employer is unable to continue to provide
any such benefits to Employee at substantially the Benefit Cost, Employer
shall have the right to pay Employee the Benefit Cost of such benefits in
lieu of continuing to provide such benefits to Employee. It is provided,
however, if Employee directly or indirectly engages in or acts as an
employee of or consultant for any trade or occupation that is in
competition with Employer, such salary and benefits shall thereupon
terminate.
(c) PERMANENT DISABILITY OF EMPLOYEE.
If Employee has been, for substantially all the normal working days during
three (3) consecutive months, unable to perform Employee's responsibilities
and duties and to exercise Employee's authorities in a satisfactory manner
due to mental or physical disability, then Employee may be deemed
"permanently disabled," and Employee's employment may be terminated at the
election of the Board. Any determination of permanent disability made by
Employer shall be final and conclusive. In the event that Employer deems
Employee "permanently disabled," Employee shall be entitled to
receive the unpaid balance of Employee's annual salary, together with
other accrued benefits pursuant to subparagraph 2(e) above to the date
of the determination of being permanently disabled, payable as
immediately prior to termination for the remaining term of this
Employment Agreement, less any amount received by Employee under any
Employer-provided long term disability coverage and/or program;
provided, that if Employer is unable to continue to provide any such
benefits to Employee at substantially the Benefit Cost, Employer shall
have the right to pay Employee the Benefit Cost of such benefits in
lieu of continuing to provide such benefits to Employee. It is
provided, however, if Employee directly or indirectly engages in or
acts as an employee of or consultant for any trade or occupation that
is in competition with Employer, such salary and benefits shall
thereupon terminate.
(d) DEATH OF EMPLOYEE.
This Employment Agreement shall terminate on the date
of Employee's death, and Employer shall pay, in a
lump sum, to the estate or personal representative of
Employee the unpaid balance of Employee's annual
salary, together with other accrued benefits under
subparagraph 2(e) above, to the date of death.
(e) TERMINATION FOR CAUSE.
Employer's Board may terminate this Agreement for
Cause (as defined below), but only after a written
notice specifying the Cause has been submitted to
Employee. Employee shall be granted a reasonable
opportunity to respond to the notice, in writing, and
in an appearance before the Board. A determination by
the Board to terminate this Agreement for Cause may
be made at a meeting of the Board at which a quorum
is present and by a vote of at least a majority of
the entire then current membership of the Board. If
Employer terminates this Employment Agreement for
Cause under this subparagraph, Employer shall not be
obligated to make any further payments or provide any
further benefits under this Employment Agreement
other than amounts accrued at the time of such
termination. "Cause" for the purposes of this
Agreement consists of the following:
(i) Employee's commission of dishonest acts,
fraud, misappropriation, or embezzlement affecting
Employer;
(ii) Employee's commission of any felony under
state or federal law; or
(iii) the failure or refusal of Employee to comply
with any reasonable lawful policy, directive or
instruction of the Board, consistent with
subparagraph l(c) hereof.
(f) CONSTRUCTIVE DISCHARGE. Employee may terminate
this Employment Agreement in the event of
Constructive Discharge (as defined below) by
providing written notice to Employer within three
months after the occurrence of such event, specifying
the event relied upon for a Constructive Discharge.
"Constructive Discharge" shall mean any (i) material
change by Employer of Employee's position to an
inferior position from that in effect on the date of
this Agreement, (ii) assignment, reassignment, or
relocation by Employer of Employee without Employee's
consent to another place of employment more than 50
miles from
Employee's current place of employment, (iii)
liquidation, dissolution, consolidation or merger of
Employer, or transfer of all or substantially all of
its assets, other than a transaction or series of
transactions in which the resulting or surviving
transferee entity has, in the aggregate, a net worth
at least equal to that of Employer immediately before
such transaction and expressly assumes this Agreement
and all obligations and undertakings of Employer
hereunder, or (iv) reduction in Employee's base
salary or target bonus opportunity. Following
termination of Employee's employment in the event of
a Constructive Discharge, Employee shall continue to
receive Employee's annual salary, payable as
immediately prior to termination, plus all benefits
to which Employee is then entitled under subparagraph
2(e) above, for the balance of this Agreement;
provided, that if Employer is unable to continue to
provide any such benefits to Employee at
substantially the Benefit Cost, Employer shall have
the right to pay Employee the Benefit Cost of such
benefits in lieu of continuing to provide such
benefits to Employee. It is provided, however, if
Employee directly or indirectly engages in or acts as
an employee of or consultant for any trade or
occupation that is in competition with Employer, such
salary and benefits shall thereupon terminate.
Employer and Employee, upon mutual agreement, may
waive any of the foregoing provisions that would
otherwise constitute a Constructive Discharge. Within
ten days of receiving such written notice from
Employee, Employer may cure the event that
constitutes a Constructive Discharge.
(g) Upon any termination of this Agreement, Employee
shall immediately turn over to Employer all of
Employer's property, both tangible and intangible. To
the extent that such Employer's property shall
constitute a benefit to Employee under this
Agreement, Employee shall receive from Employer the
value of that benefit for the remaining term of this
Agreement.
(h) Upon any termination of this Agreement, regardless of
the reason for termination, it is agreed:
(i) INDUCING EMPLOYEES OF EMPLOYER TO LEAVE. Any
attempt on the part of Employee to induce others to
leave Employer's or any of its affiliates' employ, or
any efforts by Employee to interfere with Employer's
or any of its affiliates' relationships with other
employees, would be harmful and damaging to Employer.
Employee expressly agrees that during the term of
this employment and for a period of two (2) years
thereafter, Employee will not, in any way, directly
or indirectly: (A) induce or attempt to induce any
employee to terminate his or her employment with
Employer or any affiliate of Employer; (B) interfere
with or disrupt
Employer's or any of its affiliates' relationship
with other employees; or (C) solicit, entice, take
away or employ any person employed by Employer or any
affiliate of Employer.
(ii) CONFIDENTIALITY. Employee agrees not to, without
prior written consent of Employer, divulge to others,
or use, for Employee's own benefit or for the benefit
of others, any intellectual property, trade secrets
or confidential or proprietary information or data of
or regarding Employer or any of its affiliates,
including without limitation, the contents of
advertising, customer lists, information regarding
customers or their customers, programming methods,
business plans, strategies, financial statements,
copyrights, correspondence or other records of or
regarding Employer or any of its affiliates, except
to the extent to which such information is required
by law to be disclosed to others.
(iii) REMEDY. Employee acknowledges that Employee
will be conversant with Employer's affairs,
operations, trade secrets, customers, customers'
customers and other proprietary information data;
that Employee's compliance with the provisions of
this subparagraph (h) is necessary to protect the
goodwill and other proprietary rights of Employer;
and that Employee's failure to comply with the
provisions of this subparagraph (h) will result in
irreparable and continuing damage to Employer for
which there will be no adequate remedy at law. If
Employee shall fail to comply with the provisions of
this subparagraph (h), Employer (and its respective
successors and assigns) shall be entitled to (A)
cease making any further payments or providing any
further benefits to Employee and (B) injunctive
relief and such other and further relief as may be
proper and necessary to ensure such compliance.
(iv) MITIGATION. In no event shall Employee be
obligated to seek other employment or to take other
action by way of mitigation of the amounts payable to
Employee under any of the provisions of this
Agreement.
5. EMPLOYMENT SECURITY.
(a) If Employer suffers from any natural or manmade
disaster, work stoppage, civil disobedience, act of
war, or any other emergency condition beyond
Employee's control, the term of this Employment
Agreement shall remain in full force and effect as if
such event had not taken place.
(b) In the event of the merger, consolidation or
acquisition of Employer with or by any other
corporation, corporations or other business entities,
the sale of Employer or a major portion of its
assets, or of its business or good will or any other
corporate reorganization involving Employer, this
Employment Agreement shall be assigned and
transferred to the successor in interest as an asset
of Employer and the assignee shall assume Employer's
obligations hereunder, and Employee agrees to
continue to perform Employee's duties and obligations
hereunder. Failure to assign this Employment
Agreement prior to any of the events set forth in
this subparagraph 5(b) will obligate Employer to
fulfill the terms and conditions hereof prior to
consummating the applicable event.
6. ARBITRATION. In the case of any dispute or disagreement arising out
of or connected with this Agreement, the parties hereby agree to submit such
disputes or disagreements to the American Arbitration Association within ninety
(90) days of such dispute or disagreement for resolution by a panel of three
arbitrators designated by the American Arbitration Association. The panel of
arbitrators shall be instructed to render their decision within one hundred
twenty (120) days of the initial submission of the dispute or disagreement to
them. Any decision or award by such arbitration panel shall be final and
binding, and except in a case of gross fraud or misconduct by one or more of the
arbitrators, the decision or award rendered with respect to such dispute or
disagreement shall not be appealable.
7. MISCELLANEOUS.
(a) All notices, requests, demands, or other
communications hereunder shall be in writing, and
shall be deemed to be duly given when delivered or
sent by registered or certified mail, postage
prepaid, to Employee's last home address as provided
to and reflected on the records of Employer and to
Employer when personally delivered to Employer's
Secretary or when sent by registered or certified
mail, postage prepaid, to such officer.
(b) Employer hereby agrees that no request, demand or
requirement shall be made to or of Employee that
would violate any federal or state law or
regulations.
(c) Should any valid federal or state law or final
determination of any administrative agency or court
of competent jurisdiction affect any provision of
this Employment Agreement, the provision so affected
shall be automatically conformed to the law or
determination; otherwise, this Employment Agreement
shall continue in full force and effect.
(d) This Employment Agreement is made and entered into in
the State of Florida and its validity and
interpretation, and the performance
by the parties hereto of their respective duties and
obligations hereunder, shall be governed by the laws
of the State of Florida and of the United States of
America.
(e) This Employment Agreement constitutes the entire
agreement between the parties respecting the
employment of Employee, there being no
representations, warranties or commitments except as
set forth herein.
(f) This Employment Agreement may be amended only by an
instrument in writing executed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the day and date first set forth above.
Employee: FPIC Insurance Group, Inc.
By
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Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxxxx
President and Chief
Executive Officer
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Witness Attest
