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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made effective this 1st day of April, 2001
between INSURANCE MANAGEMENT SOLUTIONS GROUP, INC., a Florida corporation, which
corporation, together with its subsidiary companies, shall hereinafter be
referred to as "Company" and Xxxxxxx X. Xxxxxxx, hereinafter referred to as
"Employee".
R E C I T A L S :
WHEREAS, Company is engaged in the business of providing comprehensive
outsourcing services to the property and casualty insurance industry with an
emphasis on providing full third party administration outsourcing services for
flood insurers and is also a provider of flood zone determination and ancillary
services primarily to insurance companies and financial institutions throughout
the State of Florida and such other states as the Company shall deem
appropriate;
WHEREAS, The Company's business requires secrecy in connection with the
methods and systems employed, and, for the proper protection of the Company, it
is absolutely necessary and essential (which necessity Employee expressly
recognizes) that all matters connected with, arising out of, or pertaining to
the business of the Company, its methods and systems and the names of its
customers be kept secret and confidential as goodwill belonging to the Company.
NOW, THEREFORE, Company and Employee, in consideration of the covenants
and agreements herein contained and in further consideration of the benefits and
advantages flowing from each to the other, covenant and agree as follows:
SECTION 1. EMPLOYMENT OF EMPLOYEE. Company hereby agrees to employ Employee on a
full time equivalency basis of thirty five (35) hours per week, for a six (6)
month term that begins on April 9, 2001 ("Commencement Date") and ends on the
six (6) month anniversary of the Commencement Date.
SECTION 2. EMPLOYEE'S BEST EFFORTS. Employee hereby accepts employment by
Company, and agrees to devote his best efforts and a minimum of thirty five (35)
hours per week to this employment. Employee agrees to perform such other duties
as are customarily performed by one holding such position in other, same or
similar businesses as that engaged in by Company, and shall also render such
other and unrelated services and duties as may be assigned to him from time to
time by Company.
SECTION 3. TERMS OF EMPLOYMENT.
(a) The Employee's hire date is April 1, 2001. Notwithstanding, the
Employee shall not begin his employment with the Company until April 9, 2001 and
Employee shall only be compensated for work performed on behalf of the Company
on or after April 9, 2001. Employee will become Chief Financial Officer of the
Company as of the date this Agreement is executed by the Employee and Company.
Company and Employee understand and agree that the term of employment of this
Agreement shall be for a period of six (6) months from the Commencement Date and
thereafter may continue only upon mutual agreement of Company and Employee.
(b) During the term of this Agreement, Employee's employment may be
terminated by the Company with cause, and no notice or severance is owed.
Involuntary termination with cause is defined as a dismissal at any time based
on failure to conform to the conditions of employment, material breach of this
Agreement, gross misconduct or willful
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violation of Company policy or procedure as outlined in Section 2.12 on
Involuntary Termination contained in the Company's Human Resources Policies and
Procedures Manual, as amended from time to time.
(c) After the first sixty (60) days of Employee's employment with
Company, Employee's employment may be terminated by the Company without cause
upon thirty (30) days prior written notice from Company to Employee. Further, at
any time during the term of this Agreement, Employee may terminate his
employment with Company upon thirty (30) days prior written notice to Company.
(d) The Company agrees to include Employee as an insured, on the same
basis as provided to other officers and directors of Company, in any insurance
policy providing indemnification to any officers and directors of company.
(e) Notwithstanding anything contained herein to the contrary, in the
event Company shall discontinue operating its business, then this Agreement
shall terminate as of the last day of the month on which Company ceases
operations with the same force and effect as if such last day of the month were
originally set as the termination date hereof.
SECTION 4. EMPLOYEE'S COMPENSATION AND EXPENSES.
(a) As compensation for the service to be performed by Employee under
this Agreement, Company shall pay Employee, and Employee shall accept from
Company, a salary of Three Thousand Two Hundred and Ninety and 00/100 Dollars
($3,290) per week paid on a bi-weekly basis.
(b) The Employee shall be provided the same benefits and on the same
basis as other employees of the Company including, but not limited to, the
401(k) plan, life insurance, disability insurance, vacation accruals and health
insurance. Further, until such day that the Employee is eligible for the Company
sponsored health insurance plan (specifically, July 1, 2001) the Company shall
pay the difference between the premium paid by the Employee for COBRA health
insurance benefits and the premium being paid by Company associates for the
Company sponsored (family) health insurance plan. The Employee shall submit a
copy of his COBRA health insurance statement to the Company's human resources
department for the processing of this benefit.
(c) Employee's salary and allowances may be modified, as agreed upon
between Employee and Company, from time to time, and any such modifications made
during the term of this Agreement shall be incorporated as part of the
Agreement.
(d) Company shall reimburse Employee for all other reasonable, ordinary
and necessary expenses incurred by Employee on Company's behalf pursuant to
Company's directions and subject to Company's restrictions and requirements.
SECTION 5. FUNDS COLLECTED BY EMPLOYEE. Employee does explicitly understand and
agree that all funds received by him on behalf of Company, as may be authorized
by Company from time to time, shall be held in trust by Employee and shall
immediately be remitted to Company by Employee. Additionally, Employee shall be
responsible for any and all technical data, books, equipment, or other property
of Company which may come into his possession by reason of his employment. In
the event this employment is terminated for any reason whatsoever, Employee
shall immediately turn in to Company
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and account for all such funds, equipment and property which may be in the
possession of Employee at such termination.
SECTION 6. NONDISCLOSURE. Employee recognizes and acknowledges that the list of
the Company's customers, trade secrets, data processing systems, computer
software, computer programs, or other systems, data, methods, or procedures
developed or used by the Company, as they may exist from time to time, are
valuable, special and unique assets of the Company's business. The Employee will
not, during or after the term of his employment without the prior written
consent of the Company, which consent may be arbitrarily withheld, and except to
the extent necessary to accomplish assignments on behalf of the Company in which
the Employee is, at any given time during the term of Employee's tenure with the
Company, currently and actively engaged, possess, transmit, copy, reproduce, or
disclose the list of the Company's customers or any part thereof or any of the
Company's present or future trade secrets, or any data processing systems,
computer software, computer programs or other systems, data, methods, or
procedures to any person, firm, corporation, association, or any other entity
for any reason or purpose whatsoever, nor will the undersigned assist anyone
else to do so. In the event of a breach or threatened breach by Employee of the
provisions hereof, the Company shall be entitled to an injunction restraining
Employee from disclosing, in whole or in part, the list of the Company's
customers or the Company's trade secrets, or from rendering any services to any
person, firm, corporation, association, or other entity to whom such list or
such trade secrets, in whole or in part, has been disclosed or is threatened to
be disclosed and requiring the return to the Company of all copies of customer
lists, manuals, data, software, computer programs, or written procedures in the
possession of Employee. Nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach, including the recovery of damages from the Employee. The
existence of any claim or cause of action of Employee against the Company shall
not constitute a defense to the enforcement by the Company of this covenant. No
failure of the Company to exercise any right given hereunder shall be taken or
construed as a waiver of its right to seek any remedies by reason of any past,
present, or future breaches of the Agreement on the part of Employee.
SECTION 7. SEVERABILITY OF RESTRICTIVE COVENANTS. Company and Employee agree
that the restrictive covenants contained in Section 6, are severable and
separate and the unenforceability of any specific covenant therein shall not
affect the validity of any other covenants set forth therein. These covenants on
the part of the Employee shall be construed as an agreement independent of any
other provision of this Agreement, and the existence of any claim or cause of
action of the Employee against Company, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Company of
said covenants. Employee agrees and acknowledges that any violation by Employee
of the covenants set forth in Section 6 hereof would cause irreparable damage to
Company, and Employee further agrees that upon proof of the existence of such a
violation of the covenants set forth in said Section 6 hereof Company will be
entitled to injunctive relief against the Employee by any Court of competent
jurisdiction.
SECTION 8. ARBITRATION. The parties agree that any dispute about the validity,
interpretation, effect or alleged violations of this Agreement ("Arbitrable
Dispute") between Employee and Company, must be submitted to final and binding
arbitration in Tampa, Florida before an experienced employment arbitrator
licensed to practice law in Florida and selected in accordance with the
Employment Dispute Rules of the American Arbitration Association. The arbitrator
may not modify or change this Agreement in any way.
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Each party shall pay the fees of their respective attorneys, the expenses of
their witnesses and any other expenses connected with the arbitration, but all
other costs of the arbitration, including the fees of the arbitration, cost of
any record or transcript of the arbitration, administrative fees and other fees
and costs shall be paid in equal shares by Employee and Company. The party
losing the arbitration shall reimburse the party who prevailed for all expenses
the prevailing party paid pursuant to the preceding two sentences.
Arbitration in this manner shall be the exclusive remedy for any Arbitrable
Dispute. The arbitrator's decision or award shall be fully enforceable and
subject to an entry of judgment by a court of competent jurisdiction. Should
Employee or Company attempt to resolve an Arbitrable Dispute by any method other
than arbitration pursuant to this Section, the responding party shall be
entitled to recover from the initiating party all damages, expenses and
attorneys' fees incurred as a result and the responding party shall be entitled
to the return of any payments that party made under this Agreement.
Notwithstanding the foregoing, a dispute relating to alleged violations of
Section 6 of this Agreement, may be resolved through a means other than
Arbitration.
SECTION 9. CHOICE OF LAW AND VENUE. This agreement shall be construed according
to the laws of the State of Florida, without regard to choice of law provisions.
SECTION 10. INVALIDITY OF PRIOR AGREEMENTS. This Agreement supersedes all prior
agreements and understandings between Employee and Company and this Agreement
expresses the whole and entire agreement between the parties with reference to
Employee's employment and it cannot be modified or changed by any oral or verbal
promise by whomsoever made, nor shall any written modification of it be binding
on Company until such written modification shall have been approved in writing
by the President of the Company.
SECTION 11. SEVERABILITY. All agreements and covenants contained herein are
severable and, in the event any of them shall be held to be invalid, illegal or
unenforceable by any competent Court, this contract shall be interpreted as if
such invalid, illegal or unenforceable agreement or covenants were not contained
herein.
SECTION 12. NON-WAIVER OF RIGHTS. All of the rights of Company and Employee
hereunder shall be cumulative and not alternative, but a waiver or indulgence on
the part of Company or Employee of any rights or entitlement hereunder shall not
be construed as a waiver of any other rights or entitlements hereunder by either
Company or Employee. No notice shall be required by Company or Employee to
enforce strict adherence to all the terms of this agreement.
SECTION 13. MISCELLANEOUS PROVISIONS. The provisions of this Agreement shall
extend to the successors, surviving corporations and assigns of Company.
Singular and masculine pronouns shall include plural, feminine, and artificial
persons and entities whenever the context permits.
SECTION 14. EMPLOYEE'S ACKNOWLEDGMENT. Employee certifies that he is over
twenty-one (21) years of age and hereby acknowledges having read the entire
contents of this Agreement before signing his name below and that he has
received a copy hereof for his own use.
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IN WITNESS WHEREOF, the Company and Employee have affixed their hands
and seals on this, the day and year first above written, the Company acting
through its duly authorized officers.
Signed, Sealed and Delivered in the Presence of:
WITNESSES: "COMPANY"
Insurance Management Solutions Group, Inc.
By:
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As Its: President/CEO
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Date: 5/7/01
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WITNESSES: "EMPLOYEE"
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Date: 5/7/01
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