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EXHIBIT 10.2
EMPLOYMENT AND
CONFIDENTIALITY AGREEMENT
THIS EMPLOYMENT AND CONFIDENTIALITY AGREEMENT (the "Agreement") is made
as of May 28, 1997, between SUMMIT HOLDING SOUTHEAST, INC., a Florida
corporation (the "Company"), and XXXXXXX X. XXXX, a resident of the State of
Florida ("Executive").
BACKGROUND
Prior to the date hereof, Executive was employed by Summit Holding
Corporation ("SHC"), a wholly-owned subsidiary of Employers Self Insurers Fund
("ESIF"), as its Vice President and Chief Financial Officer. On the date hereof,
in accordance with that certain Amended Plan of Conversion and Agreement of
ESIF, several transactions have occurred: (i) ESIF has converted from a group
self-insurance fund to an assessable mutual insurance company, an interim step
required to satisfy the Florida Insurance Code; (ii) the assessable mutual
company has converted to a stock insurance company with the name Bridgefield
Employers Insurance Company ("Bridgefield"); and (iii) certain policyholders of
ESIF have exchanged their rights to receive common stock of Bridgefield for,
among other things, the Company's Series A Preferred Stock, causing Bridgefield
to become a wholly-owned subsidiary of the Company. The Company desires to
continue the employment of Executive in the capacities and on the terms and
conditions set forth below. Executive desires to accept employment on the terms
and conditions set forth below.
AGREEMENT
NOW, THEREFORE, for and in consideration of the employment and
continued employment of Executive by the Company, the premises, and the mutual
agreements hereinafter set forth, the parties agree as follows:
1. Definitions. The following terms used herein shall have the
definitions set forth below:
(a) "Affiliate" means any person or entity directly or indirectly
controlling, controlled by, or under common control with another person.
(b) "Area" means the States of Florida, Georgia, Kentucky, Louisiana
and North Carolina.
(c) "Business" or "Business of the Company" means the business of
insurance related administrative services for self insurer funds, including,
without limitation, marketing, policy issuance and servicing, claims processing
and administration, loss
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control, brokerage, audits, financial and data processing services, and risk
management services.
(d) "Cause" means (i) conduct amounting to fraud or dishonesty against
the Company; (ii) willful violation of any directives to Employee from the Board
of Directors of the Company, where such violation is not cured to the reasonable
satisfaction of the Board of Directors of the Company within five (5) days after
written notice of such violation has been given to Executive; (iii) a conviction
or plea of guilty or nolo contendere to a felony or a crime involving dishonesty
against the Company; or (iv) Executive's failure to observe the requirements of
Sections 2(c), 5 and 6 hereof.
(e) "Competing Enterprise" means any person or any business
organization of whatever form, engaged directly or indirectly within the Area in
the Business of the Company.
(f) "Disability" means (i) the inability of Executive to perform the
duties of Executive's employment due to physical or emotional incapacity or
illness, where such inability is expected to be of long-continued and indefinite
duration or (ii) Executive shall be entitled to (x) disability retirement
benefits under the federal Social Security Act or (y) recover benefits under any
long-term disability plan or policy maintained by the Company. In the event of a
dispute, the determination of Disability shall be made reasonably by the Board
of Directors of the Company and shall be supported by advice of a physician
competent in the area to which such Disability relates.
(g) "Excluded Information" means any data or information that is a
Trade Secret hereunder (1) that has been voluntarily disclosed to the public by
the Company or any Affiliate thereof or has become generally known to the public
(except where such public disclosure has been made by or through the Executive
or by a third person or entity with the knowledge of the Executive without
authorization by the Company); (2) that has been independently developed and
disclosed by parties other than the Executive or the Company or any Affiliate
thereof to the Executive or to the public generally without a breach of any
obligation of confidentiality by any such person running directly or indirectly
to the Company or any Affiliate thereof; or (3) that otherwise enters the public
domain through lawful means.
(h) "Subsidiaries" means Bridgefield, SHC, Summit Consulting, Inc.,
Summit Claims Management, Inc., Summit Loss Control Services, Inc., Commercial
Insurance of Central Florida, Inc., Bridgefield Casualty Insurance Company and
Summit Healthcare Holdings, Inc.
(i) "Trade Secrets" means information which derives economic value,
actual or potential, from not being generally known and not being readily
ascertainable to other persons who can obtain economic value from its disclosure
or use and which is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy or confidentiality. Trade Secrets may
include either technical or non-technical data, including
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without limitation, (1) any useful process, machine, chemical formula,
composition of matter, or other device which (A) is new or which Executive has a
reasonable basis to believe may be new, (B) is being used or studied by the
Company or a Subsidiary and is not described in a printed patent or in any
literature already published and distributed externally by the Company or such
Subsidiary, and (C) is not readily ascertainable from inspection of a product of
the Company; (2) any engineering, technical, or product specifications including
those of features used in any current product of the Company or to be used, or
the use of which is contemplated, in a future product of the Company or a
Subsidiary; (3) any application, operating system, communication system, or
other computer software (whether in source or object code) and all flow charts,
algorithms, coding sheets, routines, subroutines, compilers, assemblers, design
concepts, test data, documentation, or manuals related thereto, whether or not
copyrighted, patented or patentable, related to or used in the Business of the
Company or a Subsidiary; or (4) information concerning the customers, suppliers,
products, pricing strategies of the Company or its Subsidiaries, personnel
assignments and policies of the Company, or matters concerning the financial
affairs and management of the Company or any Affiliate; provided however, that
Trade Secrets shall not include any Excluded Information.
2. Terms of Engagement; Duties
(a) The Company hereby employs Executive as the Vice President and
Chief Financial Officer of the Company and each of its Subsidiaries. In such
capacity Executive shall report to the President and Chief Executive Officer of
the Company and shall perform such other duties and responsibilities relating to
the Business of the Company as may be assigned or delegated to him from time to
time by the President and Chief Executive Officer of the Company.
(b) Executive accepts such employment and agrees to:
(i) devote substantially all of Executive's effort, time,
energy, and skill (reasonable vacations and reasonable absences due to
illness excepted) during regular business hours to the duties of his
employment hereunder;
(ii) faithfully, loyally, and industriously perform such
duties, subject to the supervision of the Board of Directors of the
Company; and
(iii) diligently follow and implement all lawful management
policies and decisions of the Company and its Subsidiaries that are
communicated to Executive.
(c) During the Term of this Agreement, Executive shall not engage
(whether or not during normal business hours) in any other business or
professional activity, whether or not such activity is pursued for gain, profit
or other pecuniary advantage; but this shall not be construed as preventing
Executive from (i) investing his personal assets in businesses which do not
compete with the Business of the Company in such form or manner as will not
require any services on the part of Executive in the operation or the
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affairs of the entities in which such investments are made and in which his
participation is solely that of an investor, (ii) purchasing securities in any
corporation whose securities are regularly traded on a national securities
exchange provided that such purchase shall not result in his collectively owning
beneficially at any time five (5%) percent or more of the equity securities of
any corporation engaged in a business competitive to the Business of the
Company, or (iii) participating in conferences, preparing or publishing papers
or books or teaching so long as the President and Chief Executive Officer
approves of such activities prior to Executive's engaging in them. Prior to
commencing any activity described in clause (iii) above, Executive shall inform
the President and Chief Executive Officer in writing of any such activity.
3. Compensation.
(a) In consideration of the services rendered by Executive pursuant to
this Agreement, the Company shall pay to Executive a base salary of Two Hundred
Thirty Thousand Dollars ($230,000) per annum (the "Base Salary"), which Base
Salary will be reviewed periodically and may be increased (but not decreased) by
the Company from time to time. The Base Salary shall be paid in accordance with
the Company's standard payroll practices in effect from time to time, and shall
be subject to such deductions and withholdings as are required by law or by
policies of the Company.
(b) In addition to the Base Salary, Executive shall receive an annual
bonus in an amount equal to 1.67% of the net earnings after taxes ("Net Income")
of the Company and the Subsidiaries, on a consolidated basis, to the extent the
Net Income exceeds Eight Million Two Hundred Fifty Thousand Dollars ($8,250,000)
for the calendar year 1997 and Twelve Million One Hundred Sixty Thousand Dollars
($12,160,000) for each of calendar years 1998 and 1999. Net Income shall be
calculated by the Company's Chief Financial Officer, in consultation with, and
with the approval of, the Audit Committee of the Board of Directors, after
deduction of all expenses, including, without limitation, taxes, interest,
depreciation and amortization, and all salaries and bonuses. The Company shall
pay Executive his annual bonus within ten (10) days after calculation thereof by
the Company's Chief Financial Officer.
(c) Executive shall also have the right to participate in any medical,
hospitalization, dental, disability income, life or other similar insurance
plans maintained by the Company from time to time to the extent that Executive's
position, tenure, salary, age, health and other qualifications make him eligible
to participate, and such other fringe benefits as are provided to the other
senior management employees of the Company, provided that the Company shall not
be required to adopt or continue any insurance plans or fringe benefit plans.
(d) The Company shall reimburse Executive for all reasonable business
expenses (including a $1,000 per month car allowance) incurred by Executive in
connection with the business of the Company subject to compliance with the
expense
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reimbursement policies established by the Company and in sufficient
detail to comply with Internal Revenue Service Regulations.
(e) The remuneration and benefits set forth in this Section 3 shall be
the only compensation payable to Executive with respect to his employment
hereunder, and Executive shall not be entitled to receive any compensation in
addition to that set forth in this Section 3 for any services rendered by him in
any capacity to the Company or any affiliated corporation unless agreed to in
writing by the Company or such affiliated corporation.
4. Term and Termination of this Agreement. The term of employment of
Executive (the "Term") pursuant to this Agreement shall commence on the date
hereof and shall continue for a term of three (3) years from the date hereof or
until sooner terminated as provided herein.
(a) Executive's employment hereunder may be terminated only (i) upon
the death or Disability of Executive; and (ii) by the Company for Cause.
(b) Upon termination of Executive's employment hereunder pursuant to
this Section 4, the Company shall have no further obligation to Executive or his
personal representative with respect to remuneration due under this Agreement,
except for Base Salary earned but unpaid at date of termination and, except
where Executive's employment hereunder is terminated pursuant to clauses (i) or
(iii) of the definition of "Cause," a pro rata portion (based on the number of
days of the fiscal year of the Company during which this Agreement was in
effect) of the bonus payable under Section 3(b) with respect to the fiscal year
of the Company in which Executive's employment hereunder was terminated;
provided however, Executive's covenants in Sections 5 and 6 of this Agreement
shall survive the termination of Executive's employment hereunder.
5. Ownership, Non-Disclosure, and Non-Use of Trade Secrets.
(a) Executive acknowledges and agrees that all Trade Secrets, and all
physical embodiments thereof, are confidential to and shall be and remain the
sole and exclusive property of the Company and its Subsidiaries and that any
Trade Secrets produced by the Executive during the period of Executive's
employment by the Company shall be considered "work for hire" as such term is
defined in 17 U.S.C. Section 101, the ownership and copyright of which shall be
vested solely in the Company. Executive agrees (i) immediately to disclose to
the Company all Trade Secrets developed in whole or part by Executive during the
Term of Executive's employment by the Company, and (ii) at the request and
expense of the Company, to do all things and sign all documents or instruments
reasonably necessary in the opinion of the Company to eliminate any ambiguity as
to the rights of the Company in such Trade Secrets including, without
limitation, providing to the Company Executive's full cooperation in any
litigation or other proceeding to establish, protect, or obtain such rights.
Upon request by the Company, and in any event upon termination of Executive's
employment by the Company for any reason,
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Executive shall promptly deliver to the Company all property belonging to the
Company or any of its Affiliates, including, without limitation, all Trade
Secrets (and all embodiments thereof) then in Executive's custody, control, or
possession.
(b) Executive agrees that all Trade Secrets of the Company or its
Subsidiaries received or developed by Executive as a result of Executive's
employment with the Company will be held in trust and strictest confidence, that
Executive will protect such Trade Secrets from disclosure, and that Executive
will make no use of such Trade Secrets, except in connection with Executive's
employment hereunder, without the Company's prior written consent. The
obligations of confidentiality contained in this Agreement will apply during
Executive's employment by the Company and (i) with respect to all Trade Secrets
consisting of scientific or technical data, at any and all times after
expiration or termination (for whatever reason) of such employment; and (ii)
with respect to all other Trade Secrets, for a period of two (2) years after
such expiration or termination, unless a longer period of protection is provided
by law.
6. Non-Compete: Non-Solicitation Covenants.
(a) In consideration of the amounts to be paid to Executive hereunder,
Executive covenants that Executive shall, during the Term of this Agreement, and
for such period of time (not to exceed one (1) year) following the termination
or expiration of the Term of this Agreement or Executive's employment hereunder
as such payments continue, observe the following separate and independent
covenants:
(i) Neither Executive nor any Affiliate will, without the
prior written consent of the Company, within the Area, either directly
or indirectly, (1) become financially interested in a Competing
Enterprise (other than as a holder of less than five percent (5%) of
the outstanding voting securities of any entity whose voting securities
are listed on a national securities exchange or quoted by the National
Association of Securities Dealers, Inc. National Market System), or,
(2) engage in or be employed by any Competing Enterprise as a
consultant, officer, director, or executive or managerial employee.
(ii) Neither Executive nor any Affiliate will, without the
prior written consent of the Company, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others,
solicit, divert, or appropriate, or attempt to solicit, divert, or
appropriate, to any Competing Enterprise within the Area, any person or
entity whose account with the Company was serviced by the Company or
one of its Subsidiaries during the Term of this Agreement.
(iii) Neither Executive nor any Affiliate will, without the
Company's prior written consent, either directly or indirectly, on
Executive's own behalf or in the service or on behalf of others,
solicit, divert, or hire away, or attempt to solicit, divert, or hire
away, to any Competing Enterprise, any person employed by the Company
or one of its Subsidiaries, whether or not such employee is a full-time
or
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a temporary employee of the Company or such Subsidiary and whether or
not such employment is pursuant to written agreement and whether or not
such employment is at will.
(b) As consideration for Executive's agreements in this Section 6,
Company shall pay to executive the amount of $8,333.33 per month up to a maximum
of twelve (12) consecutive months following the termination or expiration of the
Term. Failure of the Company to make any such payments shall release Executive
from his obligations under this Section 6 from and after the date when such
payments cease to be made. All such monthly payments shall be subject to such
deductions for withholdings and like amounts as required by law, and shall
commence thirty (30) days after the effective date of the termination or
expiration of the Term, with subsequent monthly payments being due on the same
date (or if such date is not a business day of the Company, then on the next
business day) in each of the succeeding eleven (11) months thereafter.
7. Remedies. Executive acknowledges and agrees that the Company is
engaged in the Business of the Company in and throughout the Area, and that by
virtue of the training, duties, and responsibilities attendant with Executive's
employment by the Company and the special knowledge of the Business and
operations of the Company that Executive will have as a consequence of
Executive's employment by the Company, great loss and irreparable damage would
be suffered by the Company if the Executive should breach or violate any of the
terms or provisions of the covenants and agreements set forth herein. Executive
further acknowledges and agrees that each such covenant and agreement is
reasonably necessary to protect and preserve the interest of the Company.
Therefore, in addition to all the remedies provided at law or in equity,
Executive agrees and consents that the Company shall be entitled to a temporary
restraining order and a permanent injunction to prevent a breach of any of the
covenants or agreements of Executive contained herein. The existence of any
claim, demand, action or cause of action of Executive against the Company shall
not constitute a defense to the enforcement by the Company of any of the
covenants or agreements herein whether predicated upon this Agreement or
otherwise, and shall not constitute a defense to the enforcement by the Company
of any of its rights hereunder.
8. General Provisions.
(a) In the event that any one or more of the provisions, or parts of
any provisions, contained in the Agreement shall for any reason be held to be
invalid, illegal, or unenforceable in any respect by a court of competent
jurisdiction, the same shall not invalidate or otherwise affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
Specifically, but without limiting the foregoing in any way, each of the
covenants of the parties to this Agreement contained herein shall be deemed and
shall be construed as a separate and independent covenant and should any part or
provision of any of such covenants be held or declared invalid by any court of
competent jurisdiction, such
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invalidity shall in no way render invalid or unenforceable any other part or
provision thereof or any other covenant of the parties not held or declared
invalid.
(b) This Agreement and the rights and obligations of the Company
hereunder may be assigned by the Company to any subsidiary of or successor to
the Company, and shall inure to the benefit of, shall be binding upon, and shall
be enforceable by any such assignee, provided that any such assignee shall agree
to assume and be bound by this Agreement. This Agreement and the rights and
obligations of Executive hereunder may not be assigned by Executive.
(c) The waiver by the Company of any breach of this Agreement by
Executive shall not be effective unless in writing, and no such waiver shall
operate or be construed as a waiver of the same or another breach on a
subsequent occasion.
(d) This Agreement and the rights of the parties hereunder shall be
governed by and construed in accordance with the laws of the State of Florida.
The parties agree that any appropriate state court located in Polk County,
Florida or any Federal Court located in Hillsborough County, Florida shall have
exclusive jurisdiction of any case or controversy arising under or in connection
with this Agreement and shall be a proper forum in which to adjudicate such case
or controversy. The parties hereto consent to the jurisdiction of such courts.
(e) This Agreement embodies the entire agreement of the parties
relating to the employment of Executive by the Company. No amendment or
modification of this Agreement shall be valid or binding upon the Company or
Executive unless made in writing and signed by the parties. All prior
understandings and agreements relating to the employment of Executive by the
Company are hereby expressly terminated.
(f) Any notice, request, demand, or other communication required to be
given hereunder shall be made in writing and shall be deemed to have been fully
given if personally delivered or if mailed by overnight delivery (the date on
which such notice, request, demand, or other communication is received shall be
the date of delivery) to the parties at the following addresses (or at such
other addresses as shall be given in writing by any party to the other party
hereto):
If to Executive:
Xx. Xxxxxxx X. Xxxx
0000 X - X Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
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If to Company:
Summit Holding Southeast, Inc.
0000 X - X Xxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: 941) 000-0000
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Bird
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(g) This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, and it shall not be necessary
for the same counterpart of this agreement to be signed by all of the
undersigned in order for the agreements set forth herein to be binding upon all
of the undersigned in accordance with the terms hereof.
IN WITNESS WHEREOF, the Company and Executive have each executed and
delivered this Agreement as of the date first above written.
COMPANY:
SUMMIT HOLDING SOUTHEAST, INC.
By: /S/ XXXX XXXXXX
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XXXX XXXXXX
CHAIRMAN OF THE BOARD
EXECUTIVE:
/S/ XXXXXXX X. XXXX
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XXXXXXX X. XXXX
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