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Exhibit 10(9)
NON-COMPETITION AND NON-SOLICITATION AGREEMENT
THIS AGREEMENT between Frontier Insurance Company, a New York corporation
("Frontier") and Capsure Holdings Corp., a Delaware corporation ("Capsure"),
dated as of the 22nd day of May, 1996.
WITNESSETH:
WHEREAS, Capsure is a holding company owning insurance companies
underwriting specialty property and casualty insurance and is the ultimate
parent of United Capitol Holding Company ("UCHC") and its subsidiary Companies,
United Capitol Insurance Company ("UCIC"), United Capitol Managers, Inc. and
Xxxxxxx Underwriting Group, Incorporated ("Xxxxxxx"), collectively hereinafter
called the "United Capitol Companies"; and
WHEREAS, Capsure has determined it is in the best interest of Capsure and
its stockholders to sell the United Capitol Companies; and
WHEREAS, Frontier is desirous of purchasing the United Capitol Companies
on terms and conditions set forth in that certain Stock Purchase Agreement
dated February 29, 1996; and
WHEREAS, in order to induce Frontier to consummate such purchase, Capsure
has agreed to enter into this non-competition and non-solicitation agreement
(the "Agreement");
NOW, THEREFORE, Capsure and Frontier hereby agree as follows:
1. Definitions:
The following terms, as used herein, have the meanings indicated below:
"In force" shall have its customary meaning as respects insurance policies
underwritten by the property and casualty insurance industry.
"Person" means an individual, corporation, partnership, association,
trust, limited liability company, limited liability partnership or other entity
or organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Restricted Insurance" means the following types of general liability
insurance policies covering any risk (except as provided in this paragraph)
located in the United States and its possessions: directors' and officers'
(with a risk profile and characteristics substantially similar to the majority
of such business written by Xxxxxxx during calendar year 1995), asbestos
abatement, contractors environmental remediation, demolition contractors, pest
control, crane operations, security guards, or errors and omissions (excluding
errors and omissions for tax preparers, notaries and insurance agents, and
errors and omissions with a risk profile and characteristics not
historically written by UCIC). Notwithstanding the foregoing, Capsure and its
subsidiaries
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shall not be restricted from selling, underwriting, placing or writing surety
bonds, notary bonds or fidelity bonds.
2. Non-Competition:
For the period ending on the third anniversary of the date hereof, Capsure will
not, and will cause its subsidiaries not to, in the United States and its
possessions, without the prior written consent of Frontier, (a) directly or
indirectly, sell, underwrite, place or write any Restricted Insurance;
provided, however, that nothing herein shall prohibit Capsure or its
subsidiaries from owning not more than 5% of the stock or other securities of
any corporation whose securities are publicly traded over-the-counter or on a
national securities exchange, or (b) acquire any insurance business in which
40% or more of the gross written premiums during the most recent calendar year
was from Restricted Insurance; provided, however, that Capsure or its
subsidiaries may acquire a group of insurance businesses in which not more than
40% of the gross written premiums of such group are from Restricted Insurance.
3. Non-Solicitation of Policies:
For the period ending on the third anniversary of the date hereof, Capsure
will not, and will cause its subsidiaries not to (a) solicit, directly or
indirectly, for placement, brokerage or sale, for itself and/or any other
Person, any insurance policy of UCIC or Xxxxxxx which was "in force" with UCIC
or administered by Xxxxxxx on the date hereof or (b) accept or place (through
renewals or otherwise) for itself or any other Person, any insurance policy
which was "in force" with UCIC or administered by Xxxxxxx on the date hereof.
4. Non-Solicitation of Employees:
(a) For the period ending on the third anniversary of the date hereof,
Capsure will not, and will cause its subsidiaries not to, without the prior
written consent of Frontier, solicit to hire in any capacity any of the
individuals listed on Schedule A hereto (comprising all employees of the United
Capitol Companies at the date hereof), except those employees whose employment
is terminated by the United Capitol Companies after the date hereof.
(b) For the period ending on the third anniversary of the date hereof,
Frontier will not, and will cause its subsidiaries not to, without the prior
written consent of Capsure, solicit to hire in any capacity any employees of
Capsure or its subsidiaries at the date hereof, except those employees whose
employment is terminated by Capsure or its subsidiaries after the date hereof.
5. Confidentiality:
Except as required by law or if such information becomes known to the
public through no breach of this Agreement, Capsure agrees to treat, and cause
its subsidiaries to treat, as strictly secret and confidential all information
relating to the United Capitol Companies, including financial information and
customer lists, divulged or made known to them or to which they had access
prior to the date hereof.
6. Jurisdiction and Venue:
The parties hereby irrevocably consent to the personal jurisdiction of and
the propriety of venue in the courts of the State of Illinois and of any
federal court located in such State in connection with any action or proceeding
arising out of or relating to this Agreement, any document or instrument
delivered pursuant to,
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in connection with, or simultaneously with this Agreement, or a breach of this
Agreement or any document or instrument.
7. Law:
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to principles of conflicts in law.
8. Notices:
All notices hereunder shall be in writing and shall be, (1) sent by
registered or certified mail, return receipt request, or (2) served by personal
service. If intended for Frontier, such notice shall be addressed to Frontier,
attention of its President at Frontier's most current address for its executive
offices, or to such other address as Frontier shall give notice to Capsure in
the manner herein provided; and if intended for Capsure, such notice shall be
addressed to Capsure, attention of its President at Capsure's most current
address for its executive offices, or at such other address as Capsure shall
give notice to Frontier in the manner herein provided. Personal service of
notices may be substituted for mailing provided a written receipt of such
service is provided by the recipient party. For purposes of this Section,
notice shall be deemed received upon actual receipt.
9. Severability:
Capsure and Frontier agree that if any provision of this Agreement is held
to be invalid or unenforceable by a court of competent jurisdiction due to its
geographic scope, period of duration, or any other provision, such provision
shall be interpreted in a manner that is valid and enforceable while coming
closest to effectuating the intent of the parties as expressed in this
Agreement.
10. Assignment:
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either of the parties hereto without the prior
written consent of the other party.
11. Headings:
The headings contained in this Agreement are inserted for convenience only
and do not constitute part of this Agreement.
12. Entire Agreement:
This Agreement constitutes the entire understanding between the parties
with respect to the matters referred to herein and no waiver or modification to
the terms hereof shall be valid unless in writing signed by the party to be
charged and only to the extent therein set forth.
13. Counterparts:
This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and each of which shall be
deemed an original.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the day and year first above written.
CAPSURE HOLDINGS CORP.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: XXXXX X. XXXXXXXXX
Title: PRESIDENT
FRONTIER INSURANCE COMPANY
/s/ Xxxxxx X. Xxxxxx
By: -------------------------------
Name: XXXXXX X. XXXXXX
Title: PRESIDENT
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CAPSURE HOLDINGS CORP.
SCHEDULE A
Xxxxx Xxxxxx Xxx Xxxxxxx
Xxxx Xxxxxxxx Xxxxx Xxxxxx - p/t
Xxxx Xxxxx Xxx Xxxx
Xxxxx Xxxxx Xxxx Xxxxxx
Xxx Xxxxxx Xxxxxx Xxxxxxxxxx
Xxxx Xxxxxx Xxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx Dubba Xxxxxxxxxxx
Xxxxxx Xxxxxxxx Xxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxx Xxxxxx
Sujitra Chaisangsukkul Xxxxx Xxxxxx
Xxxx Xxxxxx Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx
Xxx Crease Xxxxxxx Zizitski
Xxxxx Den Xxxxxxx
Xxxxx XxXxXxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxxxx Xxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxx Xxxx
Xxxx Xxxx
Xxxx Xxxxxx
Xxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxx Xxxxxxxxx
Xxx Xxxxxxxx
Xxxxx Xxxx - p/t
Xxxx Xxxxx
Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxxxxx
