EXHIBIT 10.5
EMPLOYMENT AGREEMENT
Xxxxxxxxxx.xxx, Inc., a Delaware corporation (the "Company") and Xxx Xxxxx
("Executive") enter into this Employment Agreement as of JANUARY 23, 2001 (the
"Agreement"), effective as of Monday, February 12, 2001 (the "Effective Date").
WHEREAS, both the Executive and the Company are willing to enter into this
Agreement upon the terms and conditions herein set forth;
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Company and Executive
hereby covenant and agree as follows:
16. TERM OF EMPLOYMENT.
The Company shall employ Executive, and Executive shall be employed by the
Company for the period that begins effective as of February 12, 2001 and ends on
December 31, 2002 or such earlier date as Executive's employment terminates
under Section 4 of this Agreement (the "Employment Term"). After expiration of
the initial term, as set forth herein, the Employment Term shall automatically
be renewed each January 1 for successive one-year terms unless the Company or
Executive delivers written notice to the other party at least sixty (60) days
preceding the expiration of the initial term or any one-year extension date of
the intention not to extend the term of this Agreement.
17. PERFORMANCE OF DUTIES.
Executive shall have the title of Senior Vice President, Chief Information
Officer. Executive will report to the Company's President and Chief Executive
Officer, or such other officer as the Board of Directors may direct. Executive
will have such powers and perform such duties as are normally incident to the
position of Vice President as provided in the Company's by-laws and in
accordance with applicable law. Executive will discharge his duties subject to
and in observance of such reasonable rules, regulations, policies, directions
and restrictions as may be established from time to time by the Company.
Throughout the Employment Term, Executive shall devote substantially his
full business time, attention, knowledge and skills, faithfully, diligently and
to the best of his ability, to the active performance of his duties and
responsibilities hereunder, and do such traveling as may reasonably be required
in connection with the performance of such duties and responsibilities.
3. COMPENSATION.
(a) BASE SALARY. For services rendered by Executive to the Company during
the Employment Term the Company will pay Executive an annual base salary payable
in monthly or more frequent installments, in accordance with the usual payroll
practice of the Company in an amount equal to $135,000 (the "Base Salary"), less
income tax withholdings and other normal employee deductions. The Base Salary
shall not be decreased during the Employment Term but may, at the sole
discretion of the Company, from time to time be increased by an amount which the
Company deems appropriate.
(b) BONUS. At the reasonable determination and sole discretion of the
Board, the Executive shall be eligible to receive periodic performance-based
bonuses based upon the factors reasonably chosen by the Board, including,
without limitation, the profitability of the Company and performance of, or
contribution by, Executive with respect thereto. Such bonus shall be payable
within ninety (90) days after the end of the fiscal year in which it (they) is
(are) earned.
(c) VACATION. After a period of 90 days of continuous, full-time service
and continuing throughout the Employment Term, Executive will be entitled to
take, at such times as are mutually convenient to Executive and the Company, a
total of three (3) weeks of paid vacation annually in accordance with the
Company's policy.
(d) FRINGE BENEFITS. The Company shall make available to Executive,
throughout the Employment Term, such benefits and perquisites as are generally
provided by the Company to its executive employees. Executive shall be eligible
to participate in and receive coverage and benefits under all group insurance,
stock ownership and other employee benefit plans, programs and arrangements of
the Company which are hereafter adopted by the Company for the benefit of its
senior
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executive employees, subject to and on a basis consistent with the terms,
conditions and overall administration of such plans, programs and arrangements.
(e) BUSINESS EXPENSES. The Company shall reimburse Executive for the
reasonable and necessary business expenses incurred by Executive in connection
with the performance of his employment duties during the Employment Term. Such
expenses shall include, but are not limited to, all expenses of travel and
living expenses while away from home on business or at the request of and in the
service of the Company, provided that such expenses are incurred and accounted
for in accordance with the policies and procedures established by the Company.
Reimbursement shall be made upon the presentation by Executive to the Company of
reasonably detailed statements of such expenses.
4. TERMINATION.
(a) WITH OR WITHOUT CAUSE FOR ANY REASON OR NO REASON. This Employment
Agreement may be terminated at any time at the option of the Company or the
Executive with or without cause for any reason or no reason. As used in this
Agreement, the term "Cause" means: (i) executive's conviction of, or plea of
nolo contendere to, a felony; (ii) Executive's breach of any legal duty of
loyalty to the Company, misappropriation of the Company's funds, or dishonest,
fraudulent, illegal or unethical business conduct; (iii) Executive's failure to
satisfactorily perform his duties under this Agreement, which failure continues
after notice from the Company and a reasonable cure period; (iv) Executive's
breach of any obligations provided in this Agreement; (v) Executive's illegal
use of controlled substances, (vi) any material breach of this Agreement by the
Executive (other than one identified above) which shall continue after notice
from the Company and a reasonable cure period. Termination for Cause shall be
effective immediately for those events described in subparagraphs (i), (ii),
(iv), and (v). Termination for Cause shall be effective immediately upon the
giving of notice by the Company to Executive of the continuance of Executive's
failure to perform or comply with respect to the items described in subparagraph
(iii) above or the continuance of a breach described in subparagraph (vi) above.
In the event that the Executive is purportedly terminated for cause and a court,
arbitrator, or other tribunal having jurisdiction determines that Cause was not
present, then such purported termination for Cause shall be deemed a termination
without Cause pursuant to this section
(b) DEATH. This Employment Agreement shall terminate automatically
effective upon the death of Executive.
(c) DISABILITY. This Employment Agreement shall terminate automatically
effective upon Notice of Termination to Executive (or such later date as may be
specified in such notice) following a determination by the Board of Directors
that the Executive is unable to perform, onsite, the essential functions of his
employment position due to a disability of Executive that cannot be reasonably
accommodated by the Company.
(d) TERMINATION BY EXECUTIVE. Executive may terminate the Employment Term
upon written Notice of Termination to the Company delivered to the Company
president at least 60 days before the effective date of such termination.
(e) NOTICE OF TERMINATION. Any termination of the Employment Term by the
Company or by Executive (other than termination upon Executive's death) shall be
communicated by written Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Employment Term under the
section so indicated.
(f) TERMINATION DISPUTES. If, within 15 days after any Notice of
Termination is given, the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties, by a binding and final arbitration
award or by a final judgment, order or decree of a court of competent
jurisdiction (the time for appeal therefrom having expired and no appeal having
been perfected).
5. SEVERANCE BENEFITS.
(a) TERMINATION WITH OR WITHOUT CAUSE FOR ANY REASON OR NO REASON. If the
Employment Agreement is terminated with cause by the Company or terminated by
Executive for any reason or no reason, the Company shall have no further
liability, financial or otherwise, under this Agreement except to pay Executive
(i) the value of any accrued salary or other compensation due to Executive as of
the effective date of such termination, and (ii) any benefit payable under the
employee benefit plans, programs and arrangements of the Company in which
Executive is a participant on the date of delivery of the Notice of Termination.
If the Employment Agreement is terminated without cause by the Company for any
reason or no reason, the Company shall pay Executive (i) six (6) months of Base
Salary under Section 3(a) of this Agreement, (ii) the value of any accrued
salary or other compensation due to Executive as of the effective date of such
termination, and (iii) any benefit payable under the employee benefit plans,
programs and arrangements of the Company in which Executive is a participant on
the date of delivery of the Notice of Termination for a period of six (6)
months.
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(b) COMPENSATION UPON DEATH. If the Employment Term is terminated by the
death of the Executive, the Company shall have no further liability under this
Agreement except to pay Executive (i) the value of any accrued salary, or other
compensation due to Executive as of the date of the Executive's death, and (ii)
any benefit payable under all employee benefit plans, programs and arrangements
of the Company in which Executive is a participant on the date of his death.
(c) COMPENSATION UPON DISABILITY. If the Employment Term is terminated by
the Company due to Executive's disability, the Company shall have no further
liability under this Agreement except to pay Executive (i) the value of any
accrued salary or other compensation due to Executive as of the effective date
of such termination, and (ii) any benefit payable under the employee benefit
plans, programs and arrangements of the Company in which Executive is a
participant on the date of delivery of the Notice of Termination, provided,
however, that in the event Executive is paid disability benefits under any
disability benefit plan of the Company in which he participates, any salary
payments made to Executive during such period shall be reduced by the sum of
such amounts.
16. CONFIDENTIAL INFORMATION.
(a) DISCLOSURE AND USE. Executive shall not disclose or use at any time,
either during or after Executive's employment with the Company or any other
direct or indirect subsidiary of the Company (collectively referred to herein as
the "Company"), any trade secrets or other confidential information, whether
patentable or not, of the Company, including but not limited to, technical or
non-technical data, a formula, pattern, compilation, program, device, method,
technique, drawing, process, financial data, or list of actual or potential
customers or suppliers, of which Executive is or becomes informed or aware
during his employment, whether or not developed by Executive, except (i) as may
be required for Executive to perform his employment duties with the Company;
(ii) to the extent such information has been disclosed to Executive by a third
party who is not subject to restriction on the dissemination of such information
or becomes generally available to the public other than as a result of a
disclosure by a party who is not subject to restriction on the dissemination of
such information; (iii) information which must be disclosed as a result of a
subpoena or other legal process, after the Company has had the opportunity to
request a suitable protective order for such information, or (iv) unless
Executive shall first secure the Company's prior written authorization. This
covenant shall survive the termination of Executive's employment with the
Company, and shall remain in effect and be enforceable against Executive for so
long as any such Company secret or confidential information retains economic
value, whether actual or potential, from not being generally known to other
persons who can obtain economic value from its disclosure or use. Executive
shall execute such reasonable further agreements of Executive's obligations to
the Company concerning non-disclosure of Company trade secrets and confidential
information as the Company may require from time to time.
(b) RETURN OF MATERIALS. Upon termination of the Employment Term,
Executive (or in the event of termination due to Executive's death, his estate
or devisee, legatee or other designee, as applicable) shall promptly deliver to
the Company all assets of the Company, including materials of a secret or
confidential nature relating to the Company's business, which are in the
possession or under the control of Executive.
17. INVENTIONS AND DISCOVERIES.
Executive hereby assigns to the Company all of his rights, title and
interest in and to all inventions, discoveries, processes, designs and other
intellectual property, including without limitation, copyrights, patents,
trademarks and trade names (hereinafter referred to collectively as the
"Inventions"), and all improvements on existing Inventions made or discovered by
Executive during the Employment Term. Promptly upon the development or making of
any such Invention or improvement thereon, Executive shall disclose the same to
the Company and shall execute and deliver to the Company such reasonable
documents as the Company may request to confirm the assignment of Executive's
rights therein and, if requested by the Company, shall assist the Company in
applying for copyrights and trademark protection and in applying for and
prosecuting any patents which may be available for said Invention or
improvement. The Company acknowledges and hereby notifies Executive that this
section 6 does not apply to an Invention for which no equipment, supplies,
facility or trade secret information of the Company was used and which was
developed entirely on Executive's own time, unless (a) the Invention relates to
(i) the business of the Company, or (ii) the Company's actual or demonstrably
anticipated research or development, or (b) the Invention results from any work
performed by Executive for the Company.
8. RESTRICTIVE COVENANTS.
(a) RESTRICTION ON COMPETITION. During the Employment Term and for a
two-year period following the Employment Term, Executive shall not, without the
prior written authorization of the Board of Directors of the Company, directly
or indirectly render services of a business, professional or commercial nature
(whether for compensation or otherwise) to any person or entity directly
competitive or severely adverse to the Company's business welfare or engage in
any activity whether alone, as a partner, or as an officer, director, employee,
consultant, independent contractor, or
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stockholder in any other corporation, person, or entity which is directly
competitive with or severely adverse to the Company's business welfare. Such
competitive person or entity shall include, but not be limited to, any person or
firm directly or indirectly engaged in the insurance agency or brokerage
business or the business of providing automation services of any kind to
insurance agents or brokers. This section 8(a) shall not, however, prohibit
Executive from being employed by an insurance company or investing in the
publicly traded securities issued by any such competitive or adverse
corporation, provided the holdings thereof by Executive do not constitute more
that two percent of any one class of such securities.
(b) RESTRICTION ON EMPLOYEE SOLICITATION. During the Employment Term and
for a two-year period following the Employment Term, Executive shall not employ
or attempt to employ or assist anyone else to employ any person who is at such
time, or at any time during the preceding year was, an employee of or consultant
to the Company, provided that this clause shall not restrict Executive from
employing a third party vendor who supplies generic services to the industry. As
used in this section 8, the verb "employ" shall include its variations, for
example, retain, engage or conduct business with; the term the "Company" shall
include subsidiaries or affiliates, if any, of the Company.
(c) REASONABLE SCOPE AND TIME. The parties acknowledge that the time,
scope, and other provisions of this Agreement have been specifically negotiated
by the parties and agree that all such provisions are reasonable under the
circumstances and are given as an integral and essential part of Executive's
employment hereunder. In the event that any covenant contained in this Agreement
is determined by any court of competent jurisdiction to be unenforceable by
reason of its extending for too great a period of time or by reason of its being
too extensive in any other respect, it shall be interpreted to extend only over
the maximum period of time for which it may be enforceable and to the maximum
intent in all other respects as to which it may be enforceable, all as
determined by such court in such action.
16. SEVERABILITY.
If any provision of this Agreement is held invalid or unenforceable,
either in its entirety or by virtue of its scope or application to given
circumstances, such provision shall thereupon be deemed (i) modified only to the
extent necessary to render it valid, or (ii) not applicable to given
circumstances, or (iii) excised from this Agreement, as the situation may
require, and this Agreement shall be construed and enforced as if such provision
had been included herein as so modified in scope or application, or had not been
included herein, as the case may be.
17. ARBITRATION OF DISPUTES.
Any controversy or claim arising out of or relating to this Agreement, or
the breach of this Agreement, (other than a controversy arising out of or
relating to Sections 4, 5, 6, 7 or 8 hereof), shall be settled by arbitration in
Chicago, Illinois, conducted in accordance with the American Arbitration
Association Commercial Arbitration Rules and the Supplementary procedures for
Large, Complex Disputes, by an independent arbitrator. Either the Company or
Executive may institute such arbitration proceeding by giving written notice to
the other party. The decision of the arbitrator shall be final and binding upon
both parties hereto. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
18. ENFORCEMENT.
Executive hereby acknowledges that the Company would suffer irreparable
injury if the provisions of sections 6, 7, and 8 herein, which shall survive the
termination of this Agreement, were breached and that the Company's remedies at
law would be inadequate in the event of such breach or threatened breach.
Accordingly, Executive hereby agrees that any such breach or threatened breach
may, in addition to any and all other available remedies (including those
remedies provided in section 10), be preliminarily and permanently enjoined in a
court of law or equity by the Company without bond.
19. LEGAL FEES AND EXPENSES.
In the event of litigation or arbitration under this Agreement, the
prevailing party shall be entitled, in addition to such other relief as may be
granted, to its attorneys' fees and costs incurred by reason of such litigation
or arbitration.
13. GENERAL PROVISIONS.
(a) NOTICES. Any notice, request, demand or other communication required
or permitted to be given hereunder shall be in writing and personally delivered
or sent by registered or certified mail, return receipt requested, or by a
facsimile, telegram or telex followed by a confirmation letter sent by
registered or certified mail, return receipt requested, addressed as follows:
To the Company: Xxxxxxxxxx.xxx, Inc.
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0000 Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
To Executive: Xx. Xxx Xxxxx
0000 Xxxxx Xxxx, Xxxxx, XX 00000
Either the Company or Executive may, at any time, by notice to the other,
designate another address for service of notice on such party. When the letter,
facsimile, telegram or telex is dispatched as provided for above, the notice
shall be deemed to be made when the addressee receives the letter, facsimile,
telegram or telex, or within three days after it is sent, whichever is earlier.
(b) AMENDMENTS. Neither this Agreement nor any of the terms or conditions
hereof may be waived, amended or modified except by means of a written
instrument duly executed by the party to be charged therewith.
(c) CAPTIONS AND HEADINGS. The captions and section headings used in this
Agreement are for convenience of reference only, and shall not affect the
construction or interpretation of this Agreement or any of the provisions
hereof.
(d) GOVERNING LAW. This Agreement, and all matters or disputes relating to
the validity, construction, performance or enforcement hereof, shall be
governed, construed and controlled by and under the laws of the State of
Illinois without regard to principles of conflicts of law.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and permitted
assigns.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original hereof, but all of
which together shall constitute one and the same instrument.
(g) ENTIRE AGREEMENT. Except as otherwise set forth or referred to in this
Agreement, this Agreement constitutes the sole and entire agreement and
understanding between the parties hereto as to the subject matter hereof, and
supersedes all prior discussions, agreements and understandings of every kind
and nature between them as to such subject matter.
(h) RELIANCE BY THIRD PARTIES. This Agreement is intended for the sole and
exclusive benefit of the parties hereto and their respective heirs, executors,
administrators, personal representatives, successors and permitted assigns, and
no other person or entity shall have any right to rely on this Agreement or to
claim or derive any benefit therefrom absent the express written consent of the
party to be charged with such reliance or benefit.
14. EFFECTIVE DATE.
This Agreement shall be effective on the Effective Date.
15. POSITION TITLE AND JOB DESCRIPTION
It is agreed and understood between the Company and the Executive that the
following Position and Job Description were extensively discussed prior to the
execution of this Employment Agreement and that both the Company and the
Executive acknowledge and agree as to the mutual expectations, responsibilities
and obligations as depicted below:
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XXXXXXXXXX.XXX, INC. CONFIDENTIAL
-------------------- -------------------------------
POSITION TITLE AND DESCRIPTION: DATE: REV. DATE:
SENIOR VICE PRESIDENT, CHIEF INFORMATION OFFICER JAN. 9, 2001 JAN. 12. 2001
EXECUTIVE SUMMARY: Overall responsibility for all electronic information systems
operations including Internet operations, legacy system operations, telephonic
equipment operations, computer operations, web programming and applications,
technical support, systems analysis, systems support, maintenance, growth
planning and programming. Establishes technical priorities, standards, and
procedures, as well as budgeting and planning associated with IS and Internet
Operations. Ensures sufficient systems capacity for organizational needs.
Reports to COO or CEO. Public speaking, PowerPoint presentations, article
published are expected.
Must maintain active status and public demeanor as COO or CEO in-waiting at all
times.
ONSITE TIME COMMITMENT: 7:30 A.M. - 5:30 P.M.
50 hrs. per week minimum onsite first year plus
-1/2 day Saturdays first 6 months.
ESSENTIAL DUTIES:
16. Manage and execute timely completion of technical projects as determined
by senior management.
- Responsible for management, supervision and training of all IS personnel.
- Researches, evaluates, plans and implements new information systems,
computer hardware and networks as required for on-going operations and
long range needs.
- Develops, maintains, and provides support for Xxxxxxxxxx.xxx website,
including integrity and security of company Web site.
- Responsible for administration of all Internet domains and addresses
maintained by the Company.
- Manages day to day operation of computer systems and IS function.
- Assists other departments in the selection and usage of system
applications and personal computers appropriate to their needs.
- Manages day-to-day operation of website/Ensures that all Internet
standards are met.
- Responsible for budget planning and spending for IS department.
- Responsible for integrity and security of company information stored in
system and on internal and external networks.
QUALIFICATIONS:
- Proven communication, organizational, leadership and general management
skills.
- Excellent general management and project management skills.
- Masters degree required. CLU and/or CPCU designations (or active student
status in either program) required.
- 5 years working knowledge experience life and property & casualty
insurance industry, particular emphasis on brokerage and and/or
underwriting functions.
- Possess project and people management experience in large-scale data
processing and transactional processing projects, electronic publishing,
image processing, or operation of WWW servers.
- Must have 10 or more years experience managing an IS department, with
hands-on web design, real-time transaction systems and programming
experience.
- Broad knowledge of hardware, networking, internet programming and software
options for an IS system.
COMPENSATION PACKAGE:
- $135,000 base salary first year
- Plus...Specific Project Completion Cash Bonuses:
- TBD on project basis with COO and CEO, est. $30k first year.
- Plus... 150,000 stock options granted at closing market price on
first day at work:
- Exercise 50k end of 12 mos., 50k end of 2nd 12 mos., 50k end
of 36th mos. All stock options terminate immediately upon
Employment Agreement termination for any reason or no reason
- Paid vacation: 3 weeks per 12 months of service, OK after 3 months
of initial service.
16. ACKNOWLEDGEMENT.
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EXECUTIVE ACKNOWLEDGES THAT HE HAS READ, UNDERSTOOD AND ACCEPTS THE PROVISIONS
OF THIS AGREEMENT, WHICH IS THE ENTIRE AGREEMENT BETWEEN THE EXECUTIVE AND THE
COMPANY. EXECUTIVE ALSO ACKNOWLEDGES THAT HE HAS HAD THE OPPORTUNITY TO AND HAS
REVIEWED THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH COMPETENT COUNSEL.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the date written above.
For XXXXXXXXXX.XXX, INC. For EXECUTIVE
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxx Xxxxx
------------------------------------- -----------------------------------
Xxxxxx X. Xxxxx Xxx Xxxxx
President and Chief Executive Officer Senior Vice President and Chief
Information Officer
Date: January 23, 2001 Date: January 23, 2001
------------------------------------- -----------------------------------
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