FPIC INSURANCE GROUP, INC. EMPLOYMENT AGREEMENT
FPIC
INSURANCE GROUP, INC.
This
Employment Agreement is made and entered into as of the 1st day of November
2002
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 Xxxxxx X. Xxxxx, Xx.,
000 X. Xxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (hereinafter referred to as
“Employee”).
WITNESSETH:
WHEREAS,
Employer desires to retain the services of Employee as the President of First
Professionals Insurance Company, Inc. (“First Professionals”), a subsidiary of
Employer and Employee desires to perform such services for Employer on the
terms
and conditions set forth herein; and
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
President of First Professionals; 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.
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(a)
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Employee's
employment hereunder shall be for an initial term beginning November
1,
2002 and ending December 31, 2004, which term shall be extended for
an
additional twelve months at the end of each twelve month period,
commencing with the twelve month period ending December 31, 2003,
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.
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(b)
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In
the event Employer does not give notice to Employee prior to the
end of
any twelve month period, commencing with the twelve month period
ending
December 31, 2003, 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
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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.
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(c)
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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.
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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:
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(a)
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An
annual salary of $225,000 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 2003, 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.
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(b)
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Annual
performance reviews will determine annual salary increases to which
Employee becomes entitled, effective January 1, 2003, based upon
Employer's then current Compensation
Program.
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(c)
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Incentive
compensation payable with respect to each year beginning with the
year
2002 based on Employee's individual performance and the performance
of
Employer for such year pursuant to Employer's then current Executive
Incentive Compensation Program.
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(d)
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Any
additional compensation payable by resolution of the Board for outstanding
performance.
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(e)
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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
lease
of $750 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.
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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.
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(a)
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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.
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(b)
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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.
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(c)
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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
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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.
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(d)
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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.
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(e)
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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.
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(f)
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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.
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(g)
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Return
of Property.
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.
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(h)
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Additional
Agreements.
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
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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.
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5. Employment
Security.
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(a)
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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.
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(b)
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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
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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.
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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.
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(a)
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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.
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(b)
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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.
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(c)
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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.
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(d)
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(e)
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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.
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(f)
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This
Employment Agreement may be amended only by an instrument in writing
executed by the parties hereto.
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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. | |
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| /s/ Xxxxxx X. Xxxxx, Xx. | By: | /s/ Xxxx X. Xxxxx |
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Xxxxxx X. Xxxxx, Xx. |
Xxxx X. Xxxxx President and Chief Executive Officer
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| /s/ Xxxx X. Xxxxxx | /s/ Xxxx X. Xxxxxx | |
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Witness |
Attest |
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