Exhibit 10.16
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into as of
the 21st day of April, 2003, by and between American Prepaid Professional
Services, Inc. (the "Company"), a Florida corporation (the "Company") and Xxxxxx
X. Xxxxxxx (the "Executive").
WHEREAS, the Company provides dental and vision health care benefits and
activities related thereto, including network-based dental and vision care,
reduced fee-for-service, third party administration, PPO dental and vision
plans, and indemnity dental and vision plans (the "Business"); and
WHEREAS, the Company desires to employ Executive in the capacity and on the
terms and conditions hereinafter set forth and Executive is willing to serve in
such capacity and on such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions set forth in this Agreement, and for other good and valuable
consideration, the parties hereto hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive in the
position of Chief Financial Officer of the Company, and the Executive hereby
accept such employment upon the terms and conditions set forth in this
Agreement. For purposes of this Agreement, "employment" shall mean any period of
time during the term hereof which the Company is paying the Executive salary or
wages.
2. DUTIES OF THE EXECUTIVE. The Executive agrees to perform and
discharge the duties which may be assigned to the Executive from time to time by
the Company's Board of Directors or its designees and consistent with the
Executive's general area of experience, knowledge and skill. The Executive also
agrees to materially comply with all of the Company's material policies,
standards and regulations and to follow the reasonable instructions and
directives of the Executive's superiors within the Company, as promulgated by
the Board of Directors of the Company. The Executive will devote his full
professional and business related time, skills and commercially reasonable
efforts to the Business and the Executive will not, during the term of this
Agreement, be engaged (whether or not during normal business hours) in any other
business or professional activity (excluding reasonable and appropriate
charitable activities), whether or not such activity is pursued for gain, profit
or other pecuniary advantage without the prior written consent of the Board of
Directors of the Company, which consent will not be unreasonably withheld.
3. COMPENSATION AND BENEFITS.
(a) Annual Salary. During the term of employment, American Prepaid
shall pay the Executive a salary (the "Base Salary") at an annual rate as shall
be determined from time to time by the Chief Executive Officer of American
Prepaid, provided, however, that such rate per annum shall not be less than
$240,000. Such salary shall be subject to withholding under applicable law and
shall be payable in periodic installments in accordance with American Prepaid's
usual practice for its executives, as in effect from time to time.
(b) Annual Bonus Payment. Upon completion of each fiscal year and as
determined by the Compensation Committee of the Board of Directors of the
Company, the Executive shall be eligible to receive a bonus ("Annual Bonus") in
accordance with any bonus plan then in effect for executives of the Company of
equivalent position and title, provided the Executive is employed by the Company
at the time said Annual Bonus, if any, is paid in the normal course (typically
2nd Quarter). Notwithstanding the above, it is agreed that Executive is
guaranteed a first year (2003) bonus equal to 20% of Executive's Base Salary
paid during 2003 ("Guaranteed Bonus"). Said Guaranteed Bonus shall be due and
payable in the 2nd Quarter of 2004.
(c) Other Benefits. The Executive will be entitled to such fringe
benefits as may be provided from time-to-time by the Company to its Executives,
including, but not limited to, group health insurance, disability, dental,
vision, retirement and any other fringe benefits now or hereafter provided by
the Company to its Executives, if and when the Executive meets the eligibility
requirements for any such benefit. The Company reserves the right to change or
discontinue any Executive benefit plans or program now being offered to its
Executives; provided, however, that all benefits provided for executive officers
of the Company will be provided to the Executive on an equal basis and the
aggregate of such benefits shall not be less than those currently in effect or
otherwise be materially less favorable to the Executive.
(d) Option Grant.
(i) CompBenefits Corporation ("CompBenefits") agrees to grant to
the Executive a non-qualified ("time vested") stock option to purchase
125,000 shares of CompBenefits' common stock pursuant to a time vested
stock option agreement in the form attached hereto as Exhibit "A". The
purchase option shall have a price per share equal to 100% of the fair
market value per share of CompBenefit's common stock (as determined by the
Board of Directors of CompBenefits Corporation) on the date on which such
time vested options are granted; and
(ii) Grant to the Executive a non-qualified ("performance based
vesting") stock option to purchase 20,000 shares of CompBenefits' common
stock pursuant to a performance based vesting stock option agreement in the
form attached
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hereto as Exhibit "B." The performance vesting benchmarks will be
established by the Board of Directors and once established said performance
vesting benchmarks shall become a part of, by exhibit, the performance
based vesting stock option agreement. The purchase option shall have a
price per share equal to 100% of the fair market value per share of
CompBenefits' common stock (as determined by the Board of Directors of
CompBenefits) on the date on which such performance based options are
granted.
(e) Business Expenses. The Executive will be reimbursed for all
reasonable expenses incurred in the discharge of the Executive's duties under
this Agreement pursuant to the Company's standard reimbursement policies.
(f) Vacation. The Executive shall receive paid vacation annually in
accordance with the Company's practices for executive officers of the Company.
(g) Withholding. The Company will deduct and withhold from the
payments made to the Executive under this Agreement, state and federal income
taxes, FICA and other amounts normally withheld from compensation due
Executives.
4. TERM AND TERMINATION. The Executive's employment with the Company
will be for a period commencing on the date hereof and expiring on the first to
occur of (i) termination by the Company (with or without Cause) and (ii) the
Executive's resignation (with or without Good Reason).
(a) Definition of Cause. For purposes of this Agreement, "Cause" shall
mean the occurrence of any of the following:
(i) The Executive (A) materially breaches any of the terms or
conditions set forth in Sections 5, 6, or 7 of this Agreement or (B)
materially breaches any of the other terms and conditions set forth in this
Agreement including, without limitation, the failure to use commercially
reasonable efforts in the performance of duties assigned to the Executive
on a full time basis, and, in the case of either clause (A) or clause (B),
fails to cure such breach within twenty (20) days after the Executive's
receipt from the Company of written notice of such breach, which notice
shall describe in reasonable detail the basis for the Company's belief that
the Executive is in breach hereof;
(ii) the Executive commits any act in bad faith materially
detrimental to the business or reputation of the Company;
(iii) the Executive is convicted of (or admits in writing to the
commission of) any crime involving fraud, deceit or moral turpitude;
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(iv) the Executive intentionally engages in unethical, dishonest,
or illegal activities that have an adverse effect upon the business or
reputation of the Company; or
(v) the Executive dies or becomes mentally or physically
incapacitated or disabled so as to be unable to perform the Executive's
duties under this Agreement. For purposes of this Agreement, the Executive
shall be deemed to be mentally or physically incapacitated or disabled so
as to be unable to perform his duties if and to the extent he becomes
permanently disabled under the Company's long-term disability policy then
in effect.
(b) Definition of Good Reason. For purposes of this Agreement, "Good
Reason" shall mean the occurrence of any of the following:
(i) the Company materially breaches any of the terms or
conditions set forth in this Agreement and fails to cure its breach within
twenty (20) days after its receipt from the Executive of written notice of
such breach, which notice describes in reasonable detail the Executive's
belief that the Company is in breach hereof;
(ii) the Company materially diminishes the Executive's duties or
reassigns the Executive to a position not consistent with the Executive's
general area of knowledge, experience and skills, or assigns substantial
additional responsibilities to the Executive;
(iii) the Company reduces the Executive's Base Salary;
(iv) the Company relocates the Executive's principle place of
employment to more than 35 miles from the Executive's then current
principal place of employment;
(v) the Company transfers substantially all of its assets to a
successor entity and such entity fails to assume the Company's obligations
under this Agreement.
For purposes of this Agreement, "termination of employment," "termination of the
Executive" and "termination of this Agreement" shall have the same meaning
unless otherwise agreed to in writing by the parties hereto.
(c) Severance Payments. In the event of termination of the Executive
by the Company without Cause or resignation by the Executive with Good Reason:
(i) the Executive shall be entitled to receive severance payments
equal to his Base Salary until the first anniversary of the date of such
termination which
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amounts will be payable at the same times as the Base Salary would have
been payable had the Executive not been terminated;
(ii) during the period of time during which the severance
payments are being made pursuant to (i) above, the Company will either
continue the Executive's health (medical, dental and vision) insurance as
provided in Section 3(c) to the extent permitted under applicable law and
the Company's group health insurance policies or reimburse the Executive
for his cost for comparable coverage to the extent such coverage cannot be
provided under such policies; provided that, notwithstanding anything
herein to the contrary, the Company shall not be required to continue to
provide the Executive with health benefits under this paragraph to the
extent the Executive becomes entitled to receive benefits substantially
similar to those which the Executive otherwise would have been entitled to
receive hereunder.
All payments under this Section 4 shall be subject to tax withholding to the
extent required under applicable law. The severance pay and continuation of
health benefits contemplated by this Section 4 are agreed by the parties hereto
to be in full satisfaction and compromise of any claim arising out of any
termination of the Executive's employment by the Company without Cause or by the
Executive with Good Reason. A release and hold harmless agreement will be
provided to Executive on or about the termination date and this document will be
required to be executed by Executive and returned to American Prepaid prior to
the obligation of American Prepaid to pay any severance pay or provide continued
benefit coverage hereunder. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise.
(d) Termination for Other Reasons. In the event of termination of the
Executive for any reason other than (i) by the Company without Cause or (ii)
resignation by the Executive with Good Reason (e.g., termination by the Company
with Cause or resignation by the Executive without Good Reason), the Executive
shall be entitled to receive his Base Salary and the other benefits described in
Section 3 above through the date of termination.
(e) Other Benefits. Except as otherwise provided in Section 4(c), the
Executive's eligibility to receive or participate in benefit and compensation
plans shall terminate as of the date of termination of his employment unless
specifically provided otherwise under the terms of a particular benefit or
compensation plan or unless otherwise provided by law. Subject to the preceding
sentence, all of the Executive's rights to benefits and bonuses which accrue or
become payable after the termination of his employment shall cease upon such
termination.
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5. NON-DISCLOSURE AND USE OF PROPRIETARY INFORMATION. The Executive
recognizes and acknowledges that the Company's Proprietary Information (as
defined below), as they may exist from time-to-time, are valuable, special and
unique assets of the Business. The Executive further acknowledges that access to
such Proprietary Information relating to the Business of the Company is
essential to the performance of the Executive's duties under this Agreement.
Therefore, in order to obtain access to such Proprietary Information, the
Executive agrees that the Executive will not, in whole or in part, disclose such
Proprietary Information to any person, firm, corporation, association or any
other entity for any reason or purpose whatsoever, nor will the Executive make
use of any such information for the Executive's own purposes or for the benefit
of any person, firm, corporation, association or other entity (except the
Company). For purposes of this Agreement, the term "Proprietary Information"
means information that is not generally known to the public and that is used,
developed or obtained by the Company in connection with its business, including
but not limited to (i) products or services, (ii) fees, costs and pricing
structures, (iii) designs, (iv) analysis, (v) drawings, photographs and reports,
(vi) computer software, including operating systems, applications and program
listings, (vii) flow charts, manuals and documentation, (viii) data bases, (ix)
accounting and business methods, (x) inventions, devices, new developments,
methods and processes, whether patentable or unpatentable and whether or not
reduced to practice, (xi) customers and clients and customer or client lists,
(xii) copyrightable works, (xiii) all technology and trade secrets, and (xiv)
all similar and related information in whatever form. These restrictions will
not apply to any Proprietary Information which: (A) is in the public domain,
provided that the Executive was not responsible, directly or indirectly, for
such Proprietary Information entering the public domain without the Company's
consent; (B) becomes known to the Executive, during the term of this Agreement,
from a third party not known to the Executive to be under a confidential
relationship with the Company; or (C) is required by law or governmental
tribunal to be disclosed; provided, however, that if the Executive is legally
compelled to disclose any Proprietary Information, the Executive will provide
the Company with prompt written notice of such legal compulsion so that the
Company may seek a protective order or other available remedy.
6. NON-COMPETITION COVENANT.
(a) Basic Covenant. During the term of this Agreement and for the
period ending on the first anniversary of the date of termination of employment
(the "Restricted Period") for any reason, the Executive will not directly or
indirectly, on the Executive's own behalf or in the service of or on behalf of
any other individual or entity, compete with the Company in the Business within
the Geographical Area (as hereinafter defined). The term "compete" means to
engage, directly or indirectly, on the Executive's own behalf or in the service
of or on behalf of any other individual or entity, either as a proprietor,
Executive, agent, independent contractor, consultant, director, officer, partner
or stockholder (other than a stockholder of a corporation listed on a national
securities exchange or whose stock is regularly
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traded in the over-the-counter market, provided that the Executive at no time
owns, directly or indirectly, in excess of five percent of the outstanding stock
of any class of any such corporation and does not participate in its management)
in providing management, executive, marketing or other services. For purposes of
this Agreement, the term "Geographical Area" means those areas in the United
States and in foreign countries in which the Executive or the Company is or has
engaged in providing or marketing business products or services at any time
prior to the termination of employment. The Geographical Area currently includes
Alabama, Arkansas, Colorado, Florida, Georgia, Illinois, Indiana, Kansas,
Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Jersey, North
Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas,
Virginia and West Virginia.
(b) Non-Interference. During the Restricted Period, the Executive will
not, directly or indirectly, on the Executive's own behalf or in the service of
or on behalf of any other individual or entity, interfere with, disrupt, or
attempt to disrupt the past, present or prospective relationships, contractual
or otherwise, between the Company and any supplier, consultant, or client of the
Company. The term "prospective relationship" is defined as any relationship
where the Company has actively sought an individual or entity as a prospective
supplier, consultant, or client.
(c) Construction. The parties hereto agree that any judicial authority
construing all or any portion of this Section 6 or Section 7 below will be
empowered to sever any portion of the Geographical Area, Business or time
period, client base, prospective relationship or prospect list or any prohibited
business activity from the coverage of such Section and to apply the provisions
of such Section to the remaining portion of the Geographical Area, Business or
time period, the client base or the prospective relationship or prospect list,
or the remaining business activities not so severed by such judicial authority.
In addition, it is the intent of the parties that the judicial authority replace
each such severed provision with a provision as similar in terms to such severed
provision as may be possible and be legal, valid and enforceable. It is the
intent of the parties that Sections 6 and 7 be enforced to the maximum extent
permitted by law. In the event that any provision of either such Section is
determined not to be specifically enforceable, the Company shall nevertheless be
entitled to bring an action to seek to recover monetary damages as a result of
the breach of such provision by the Executive.
(d) Non-Solicitation of Executives Covenant. The Executive further
agrees and represents that during the Restricted Period, the Executive will not,
directly or indirectly, on the Executive's own behalf or in the service of, or
on behalf of any other individual or entity, (i) divert or solicit, or attempt
to divert or solicit, to or for any individual or entity which is engaged in
providing Business services, or (ii) otherwise hire or engage, any person
employed by the Company who was employed by the Company at any time during the
Restricted Period, whether or not such Executive is a full-time Executive or a
temporary Executive of the Company whether or not such Executive is employed
pursuant to a written agreement and whether or not such Executive is employed
for a determined period or at-will, unless such person has not been
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employed by the Company for a period of at least 180 days, and except as
otherwise agreed to by the Company.
7. EXISTING RESTRICTIVE COVENANTS. The Executive represents and
warrants that the Executive's employment with the Company does not and will not
breach any agreement which the Executive has with any individual or entity to
keep in confidence information or not to compete with any such individual or
entity. The Executive will not disclose to the Company or use on either of their
behalf any confidential information of any other party required to be kept
confidential by the Executive.
8. RETURN OF CONFIDENTIAL INFORMATION. The Executive acknowledges that
as a result of the Executive's employment with the Company, the Executive may
come into the possession and control of Proprietary Information, such as
proprietary documents, drawings, specifications, manuals, notes, computer
programs, or other proprietary material. The Executive acknowledges, warrants
and agrees that the Executive will return to the Company all such items and any
copies or excerpts thereof, and any other properties, client lists, client
contracts, files or documents obtained as a result of the Executive's employment
with the Company, immediately upon the termination of the Executive's employment
with the Company.
9. REMEDIES. The Executive agrees and acknowledges that the violation
of any of the covenants or agreements contained in Section 5, 6, 7 and 8 of this
Agreement would cause irreparable injury to the Company, that the remedy at law
for any such violation or threatened violation thereof would be inadequate, and
that the Company will be entitled, in addition to any other remedy, to temporary
and permanent injunctive or other equitable relief without the necessity of
proving actual damages including, without limitation, the right to terminate all
payments under this Agreement. Sections 4 through 17, inclusive, of this
Agreement, shall survive termination of the Executive's employment under this
Agreement.
10. NOTICES. Any notice or communication under this Agreement will be
in writing and sent by registered or certified mail addressed to the respective
parties as follows:
If to the Company: If to the Executive:
American Prepaid Professional Xxxxxx X. Xxxxxxx
Services, Inc. 0000 Xxxxxxxxx Xxxxx Xxxxx
000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000 Xxxxxxxx, XX 00000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
11. SEVERABILITY. Subject to the application of Section 6(c) to the
interpretation of Sections 6 and 7, in case one or more of the provisions
contained in this
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Agreement is for any reason held to be invalid, illegal or unenforceable in any
respect, the same will not affect any other provision in this Agreement, and
this Agreement will be construed as if such invalid or illegal or unenforceable
provision had never been contained therein. It is the intent of the parties that
this Agreement be enforced to the maximum extent permitted by law.
12. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of
the parties relating to the subject matter hereof and supersedes all prior
agreements, oral or written, regarding such subject matter. No amendment or
modification of this Agreement will be valid or binding upon the parties unless
made in writing and signed by the parties.
13. BINDING EFFECT. This Agreement will be binding upon the parties
and their respective heirs, representatives, successors, transferees and
permitted assigns, as applicable.
14. ASSIGNMENT. This Agreement is one for personal services and is not
assignable by the Executive. The Company may assign this Agreement to any of its
affiliates, provided that the Company shall remain liable for the obligations of
its affiliates under this Agreement.
15. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which is deemed to be an original and all of which taken
together constitute one and the same agreement.
16. GOVERNING LAW. This Agreement is entered into and will be
interpreted and enforced pursuant to the laws of the State of Georgia. The
parties hereto hereby agree that the appropriate forum and venue for any
disputes between any of the parties hereto arising out of this Agreement shall
be any federal court in the State of Georgia and each of the parties hereto
hereby submits to the personal jurisdiction of any such court. The foregoing
shall not limit the rights of any party to obtain execution of judgment in any
other jurisdiction. The parties further agree, to the extent permitted by law,
that a final and unappealable judgment against either of them in any action or
proceeding contemplated above shall be conclusive and may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified or exemplified copy of which shall be conclusive evidence of the
fact and amount of such judgment.
17. NO STRICT CONSTRUCTION. The language used in this Agreement shall
be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction shall be applied against any
party.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement as
of the day and year first above written.
AMERICAN PREPAID PROFESSIONAL
SERVICES, INC.
By: /s/ Xxxxx Xxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ----------------------------------------
Xxxxx Xxxxx Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
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