Exhibit 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement made and entered into this 18th day
of October 2001, to be effective on October 18, 2001 ("Effective Date"), by and
between INSpire Insurance Solutions, Inc., a Texas corporation ("Employer"), and
Xxxxxxx X. Xxxxxx, a resident of Texas ("Employee").
WITNESSETH:
WHEREAS, Employer is a corporation engaged in business in the State of Texas and
throughout the United States; WHEREAS, Employer desires to employ Employee in
the capacity of Chief Executive Officer and President stems upon the terms and
conditions hereinafter set forth; and
WHEREAS, Employee agreeing to enter into this Agreement with respect to his
Services employment and services upon terms and conditions hereinafter set
forth.
NOW, THEREFORE in consideration of the mutual covenants and
obligations contained herein, Employer hereby employs Employee and Employee
hereby accepts such employment upon the terms and conditions hereinafter set
forth:
1 . Term of Agreement. The term of this Agreement shall begin on
October 18th 2001. The Agreement can be terminated as set forth in Section 8.
2. Duties of Employee. Employee agrees that during the term of this
Agreement, he will devote his full professional and business-related time,
skills and best efforts to the businesses of Employer in the capacity of CEO and
President or such other capacity as Employer and Employee may agree upon. In
addition, Employee shall devote all necessary time and his best efforts in the
performance of any other duties as may be assigned to him from time to time by
the Board of Directors of Employer including, but not limited to, serving on
Employer's Board of Directors if elected. Employee shall devote his full
professional and business skills to Employer as his primary responsibility.
Employer shall take such action as may be necessary to cause Employee to be
appointed to the Board of Directors of the Company (and to any executive or
similar committees thereof) and to have Employee nominated for election to the
Board of Directors to serve as a director during each year of Employee may
engage in personal, passive investment activities provided such activities do
not interfere with the performance of his duties hereunder and violate the
noncompetition and nondisclosure provisions set forth herein.
3. Compensation.
(a) Base Salary. Employer shall pay Employee a monthly base
salary of twenty seven thousand and eighty three dollars ($27,083)
which equates to $325,000.00 per annum. Such base salary will be
adjusted from time to time in accordance with then current standard
salary administration guidelines of Employer. Employee's salary shall
be subject to all appropriate federal and state withholding taxes and
shall be payable in accordance with the normal payroll procedures of
Employer. Employee shall also receive a monthly car allowance of
$1000. Such car allowance may be adjusted from time to time in
accordance with the then standard practice.
(b) Annual Bonus. In addition to the salary set forth in
Section 3(a) hereof, Employee shall be entitled to participate in a
bonus incentive plan based on individual contribution and shall
receive a pro-rata share for the period ending 12/31/01. Employer
agrees that the Bonus Plan shall not be terminated by Employer prior
to the termination of this Agreement.
(c) Stock Options. Employee will receive an equity position
of 800,000 stock options, under an incentive plan. Employee shall be
granted stock options for shares of common stock of Employer pursuant
to the terms of a Stock Option Agreement granted under the MiliRisk,
Inc. 1997 Stock Option Plan, as amended, a copy of which has been
provided to Employee. All options will vest upon attaining the strike
price. (Strike price will be re-calculated within sixty (60) days of
the reverse split)
Tier 1 Tier 2 Tier 3 Tier 4 Tier 5 Tier 6 Tier 7
--------------- ------------- ------------ ------------ ------------ ------------ ------------ -------------
Shares 200,000 100,000 100,000 100,000 100,000 100,000 100,000
--------------- ------------- ------------ ------------ ------------ ------------ ------------ -------------
Strike Price Market 1.50 2.5 3.5 4.5 5.5 6.5
--------------- ------------- ------------ ------------ ------------ ------------ ------------ -------------
Vesting Immediate Immediate Immediate Immediate Immediate Immediate Immediate
--------------- ------------- ------------ ------------ ------------ ------------ ------------ -------------
4. Fringe Benefits. The terms of this Agreement shall not foreclose
Employee from participating with other employees of Employer in such fringe
benefit or incentive compensation plans as may be authorized and adopted from
time to time by Employer; provided, however, that Employee must meet any and all
eligibility provisions required under said fringe benefit or incentive
compensation plans. Employee may be granted such other fringe benefits or
perquisites as Employee and Employer may from time to time agree upon.
5. Vacations. Employee shall be entitled to the number of paid
vacation days in each calendar year as shall be determined by the Board of
Directors of Employer from time to time. In no event, however, shall Employee be
entitled to less than four weeks paid vacation during each calendar year.
6. Reimbursement of Expenses. Employer recognizes that Employee will
incur legitimate business expenses in the course of rendering services to
Employer hereunder. Accordingly, Employer shall reimburse Employee, upon
presentation of receipts or other adequate documentation, for all necessary and
reasonable business expenses incurred by Employee in the course of rendering
services to Employer under this Agreement.
7. Working Facilities. Employee shall be furnished an office and such
other facilities and services suitable to his position and adequate for the
performance of his duties, which shall be consistent with the policies of
Employer.
8. Termination. The employment relationship between Employee and
Employer created hereunder shall terminate upon the occurrence of any one of the
following events:
(a) Death or Permanent Disability. The death or permanent disability
of Employee. For the purpose of this Agreement, the "permanent disability" of
Employee shall mean Employee's inability, because of his injury, illness, or
other incapacity (physical or mental), to perform the essential functions of the
position contemplated herein, with or without reasonable accommodation to
Employee with respect to such injury, illness or other incapacity, for a
continuous period of 150 days or for 180 days out of a continuous period of 360
days. Such permanent disability shall be deemed to have occurred on the 150th
consecutive day or on the 180th day within the specified period, whichever is
applicable.
(b) Termination for Cause. The following events, which for purposes of
this Agreement shall constitute "cause" for termination:
(1) The willful breach by Employee of any provision of Sections 2, 11,
12, or 13 hereof (including but not limited to a refusal to follow lawful
directives of the Board of Directors of Employer) after notice to Employee of
the particular details thereof and a period of 10 days thereafter within which
to cure such breach and the failure of Employee to cure such breach within such
10 day period;
(2) Any act of fraud, misappropriation or embezzlement by Employee
with respect to any aspect of Employer's business;
(3) The illegal use of drugs by Employee during the term of this
Agreement that, in the determination of the Board of Directors of Employer,
substantially interferes with Employee's performance of his duties hereunder;
(4) Substantial failure of performance by Employee that is repeated or
continued after 30 day written notice to Employee of such failure and that is
reasonably determined by the Board of Directors of Employer to be materially
injurious to the business or interests of Employer and which failure is not
cured by Employee within such 30 day period; or
(5) Conviction of Employee by a court of competent jurisdiction of a
felony or of a crime involving moral turpitude.
Any notice of discharge shall describe with reasonable specificity the
cause or causes for the termination of Employee's employment, as well as the
effective date of the termination (which effective date may be the date of such
notice). If Employer terminates Employee's employment for any of the reasons set
forth above, Employer shall have no further obligations hereunder from and after
the effective date of termination (other than as set forth below) and shall have
all other rights and remedies available under this or any other agreement and at
law or in equity.
(c) Termination by Employee with Notice. Employee may terminate this
Agreement without liability to Employer arising from the resignation of Employee
upon six (6) months written notice to Employer. Employer retains the right after
proper notice of Employee's voluntary termination to require Employee to cease
employment immediately; provided, however, in such event, Employer shall remain
obligated to pay Employee his salary during the six (6) months notice period.
During such six (6) months notice period, Employee shall provide such consulting
services to Employer as Employer may reasonably request and shall assist
Employer in training his successor and generally preparing for an orderly
transition.
(d) Termination by Employer with Notice. Employer may terminate this
Agreement at any time upon six (6) months written notice to Employee; provided,
however, upon such notice Employee shall not be required to perform any services
for Employer other than during the period of three (3) months immediately
following the receipt of such notice of termination in which Employee shall
assist Employer in training his successor and generally preparing for an orderly
transition.
9. Compensation Upon Termination.
(a) General. Upon the termination of Employee's employment under this
Agreement before the expiration of the stated term hereof for any reason,
Employee shall be entitled to compensation as set forth in Section 8 (i) the
salary earned by him before the effective date of termination, as provided in
Section 3(a) hereof, prorated on the basis of the number of full days of service
rendered by Employee during the year to the effective date of termination, (ii)
any accrued, but unpaid, vacation or sick leave benefits, (iii) any authorized
but unreimbursed business expenses, and (iv) any accrued, but unpaid annual
bonus.
(b) Termination For Other Than Cause. If such termination is the
result of the discharge of Employee by Employer for any reason other than (i)
his death or permanent disability, (ii) by Employer or Employee with notice
pursuant to Section 8(d) or 8(c), respectively, or (iii) for cause (as defined
in Section 8(b) hereof), then Employee shall not be entitled to receive a
severance payment.
(c) Termination For Cause. If the employment relationship hereunder is
terminated by Employer for cause (as defined in Section 8(b) hereof), Employee
shall not be entitled to any severance compensation, except as provided in
Section 9(a) above.
(d) Termination by Employer with Notice. If the employment
relationship is terminated by Employer other than for cause or the permanent
disability of Employee, then Employee shall be entitled to receive as a
severance payment and as compensation for all services performed hereunder
pursuant to Section 8(d) hereof an amount equal to the salary that Employee
would have received for the remainder of the term of this Agreement or six (6)
months, whichever is less, in accordance with the regular payroll periods of
Employer during the applicable period.
(e) Termination by Employee with Notice. If the employment
relationship is terminated by Employee pursuant to the provisions of Section
8(c) hereof, Employee shall be entitled to receive as a severance payment and as
compensation for all services performed hereunder pursuant to Section 8(c)
hereof the salary that Employee would have received for the remainder of the
term of this Agreement or six (6) months, whichever is less, in accordance with
the regular payroll period of Employer during the applicable period.
(f) Survival. The provisions of Sections 9, 11, 12, and 13 hereof
shall survive the termination of the employment relationship hereunder and this
Agreement to the extent necessary or reasonably appropriate to effect the intent
of the parties hereto as expressed in such provisions.
10. Other Agreements. This Agreement shall be separate and apart from,
and shall be deemed to alter the terms of, any executive compensation
agreements, deferred compensation agreements, bonus agreements, general
employment benefits plans, stock option plans and any other plans or agreements
entered into between Employee and Employer pursuant to which Employee has been
granted specific rights, benefits or options.
11. Noncompetition. Employer agrees that employee upon termination of
this agreement shall have the right to pursue any and all employment
opportunities whether directly or indirectly related to the business of
employer.
12. Confidential Data. Employee further agrees that, during his
employment with Employer and thereafter, he will keep confidential and not
divulge to anyone, disseminate nor appropriate for his own benefit or the
benefit of another any confidential information described in Exhibit A attached
hereto and incorporated by reference herein (the "Confidential Data"). Employee
hereby acknowledges and agrees that this prohibition against disclosure of
Confidential Data is in addition to, and not in lieu of, any rights or remedies
that Employer may have available pursuant to the laws of any jurisdiction or at
common law to prevent the disclosure of trade secrets, and the enforcement by
Employer of its rights and remedies pursuant to this Agreement shall not be
construed as a waiver of any other rights or available remedies that it may
possess in law or equity absent this Agreement.
13. Nonsolicitation of Employees. Employee covenants that, during his
employment with Employer and for a period of one (1) year from the date of
termination of his employment with Employer, he will not (i) directly or
indirectly induce or attempt to induce any employee of Employer to terminate his
or her employment or (ii) without prior written consent of Employer, offer
employment either on behalf of himself or on behalf of any other individual or
entity to any employee of Employer or to any terminated employee of Employer.
14. Property of Employer. Employee acknowledges that from time to time
in the course of providing services pursuant to this Agreement he shall have the
opportunity to inspect and use certain property, both tangible and intangible,
of Employer and Employee hereby agrees that such property shall remain the
exclusive property of Employer, and Employee shall have no right or proprietary
interest in such property, whether tangible or intangible, including, without
limitation, Employee's customer and supplier lists, contract forms, books of
account, computer programs and similar property.
15. Equitable Relief. Employee acknowledges that the services to be
rendered by him are of a special, unique, unusual, extraordinary, and
intellectual character, which gives them a peculiar value, and the loss of which
cannot reasonably or adequately be compensated in damages in an action at law,
and that a breach by him of any of the provisions contained in this Agreement
will cause Employer irreparable injury and damage. Employee further acknowledges
that he possesses unique skills, knowledge and ability and that competition by
him in violation of this Agreement or any other breach of the provisions of this
Agreement would be extremely detrimental to Employer. By reason thereof,
Employee agrees that Employer shall be entitled, in addition to any other
remedies it may have under this Agreement or otherwise, to injunctive and other
equitable relief to prevent or curtail any breach of this Agreement by him.
16. "Change of Control". In the event (each such event, a "Change of
Control") Employer becomes a subsidiary of another corporation or entity or is
merged or consolidated into another corporation or entity or substantially all
of the assets of Employer are sold to another corporation or entity becomes the
owner of record or beneficially of securities of Employer that represent
thirty-three and one-third percent (33 1/3%) or more of the combined voting
power of Employer's then outstanding securities entitled to elect Directors; or
those directors nominated by the original Board of Directors no longer
constitute a majority, then this is deemed to be a "Change of Control"; all
options not vested at date of "change of Control" will immediately vest.
17. Successors Bound. This Agreement shall be binding upon Employer
and Employee, their respective heirs, executors, administrators or successors in
interest, including without limitation, any corporation, partnership or other
entity acquiring control of Employer pursuant to Section 16 hereof.
18. Severability and Reformation. The parties hereto intend all
provisions of this Agreement to be enforced to the fullest extent permitted by
law. If, however, any provision of this Agreement is held to be illegal,
invalid, or unenforceable under present or future law, such provision shall be
fully severable, and this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision were never a part hereof, and the
remaining provisions shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its
severance.
19. Integrated Agreement. This Agreement constitutes the entire
Agreement between the parties hereto with regard to the subject matter hereof,
and there are no agreements, understandings, specific restrictions, warranties
or representations relating to said subject matter between the parties other
than those set forth herein or herein provided for.
20. Attorneys' Fees. If any action at law or in equity, including any
action for declaratory or injunctive relief, is brought to enforce or interpret
the provisions of this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys' fees from the nonprevailing party, which fees may
be set by the court in the trial of such action, or may be enforced in a
separate action brought for that purpose, and which fees shall be in addition to
any other relief which may be awarded.
21. Notices. All notices and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed to have
been duly given if delivered personally, mailed by certified mail (return
receipt requested) or sent by overnight delivery service, cable, telegram,
facsimile transmission or telex to the parties at the following addresses or at
such other addresses as shall be specified by the parties by like notice: (a) If
to Employer: INSpire Insurance Solutions, Inc. 000 Xxxxxxx Xxxxxx Xxxx Xxxxx,
Xxxxx 00000-0000
(b) If to Employee: Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxxxx, #0000
Xxxx Xxxxx, Xxxxx
Notice so given shall, in the case of notice so given by mail, be deemed to be
given and received on the fourth calendar day after posting, in the case of
notice so given by overnight delivery service, on the date of actual delivery
and, in the case of notice so given by cable, telegram, facsimile transmission,
telex or personal delivery, on the date of actual transmission or, as the case
may be, personal delivery.
22. Further Actions. Whether or not specifically required under the
terms of this Agreement, each party hereto shall execute and deliver such
documents and take such further actions as shall be necessary in order for such
party to perform all of his or its obligations specified herein or reasonably
implied from the terms hereof.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAW, AND NOT THE LAW OF CONFLICTS, OF THE STATE
OF TEXAS.
24. Assignment. This Agreement is personal to Employee and may not be
assigned in any way by Employee without the prior written consent of Employer.
This Agreement shall not be assignable or delegable by Employer, other than to
an affiliate of Employer, except if there is a Change of Control as defined in
Section 16, Employer may assign its rights and obligations hereunder to the
person, corporation, partnership or other entity that has gained such control.
25. Counterparts. This Agreement may be executed in counterparts, each
of which will take effect as an original and all of which shall evidence one and
the same Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
INSPIRE INSURANCE SOLUTIONS, INC.
By:__________________________________
Name:________________________________
By:__________________________________
Name:________________________________
Chair, Compensation Committee
Title:________________________________
EMPLOYEE:
______________________________________
Xxxxxxx X. Xxxxxx
EXHIBIT A
CONFIDENTIAL INFORMATION
1. All software/systems (including all present, planned and future
software), whether licenses or unlicensed, developed by or on behalf of or
otherwise acquired by INSpire Insurance Solutions, Inc. or any of its
subsidiaries.
"All software/system" shall mean:
o all code in whatever form
o all data pertaining to the architecture and design
of such software systems
o all documentation in whatever form
o all flowcharts
o any reproduction or recreation in whole or in part
of any of the above in whatever form.
2. All business plans and strategies including
o strategic plans
o product plans
o marketing plans
o financial plans
o operating plans
o resource plans
o all research and development plans including all
data produced by such efforts.
3. Internal policies, procedures, methods and approaches which are
unique to INSpire Insurance Solutions, Inc. and are not public.
4. Any information relating to the employment, job responsibility,
performance, salary and compensation of any present or future officer or
employee of INSpire Insurance Solutions, Inc.
