EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day
of January, 2002, by and between NCRIC Group, Inc. ("Group"), NCRIC, Inc.
("NCRIC") and Xxxxxxx X. Xxxxxxx. ("Executive").
RECITALS:
A. Group and NCRIC desire to retain Executive as its Senior Vice
President Claims and Risk Management on the terms and conditions hereinafter set
forth; and
B. Executive desires to continue such employment, on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants set forth herein, the parties hereto agree as follows:
1. Employment. NCRIC and Group each hereby agree to continue to
employ Executive for a term of three (3) years from the date of this Agreement
as Senior Vice President Claims and Risk Management under the conditions
hereinafter specified. During said period, Executive also agrees to serve, if
elected, as an officer and director of any subsidiary or affiliate of Group.
Failure to reelect Executive as Senior Vice President Claims and Risk Management
without the consent of the Executive during the term of this Agreement shall
constitute a Termination Without Cause. Executive accepts his employment under
the conditions hereinafter specified and agrees to devote his best efforts,
energies and abilities to the service of NCRIC, Group and their affiliates on a
full-time basis.
2. Duties.
(a) Executive shall serve as Senior Vice President Claims
and Risk Management of NCRIC and in such other commensurate executive capacities
of NCRIC and Group, and/or any one or more affiliates of Group or NCRIC
(collectively, the "Affiliated Companies) as he may from time to time be
assigned by the Board of Directors. Executive shall perform all of his duties
diligently and faithfully. However, it is understood and agreed that Executive
shall not receive compensation beyond that specified herein for services
provided to the Affiliated Companies.
(b) Executive shall at all times devote his entire
working time, attention, energies, efforts and skills to the business of Group
and NCRIC, and shall not, directly or indirectly, engage in any other business
activity, whether or not for profit, gain or other pecuniary advantages, without
the express written permission of Group. Notwithstanding the foregoing,
Executive may serve on the board of directors of any non-competing company and
receive compensation therefore provided he obtains the advance written approval
of Group, which shall not be unreasonably withheld, and provided that any such
service does not adversely affect his performance of his duties for NCRIC or
Group (it being understood that membership in social, religious, charitable or
similar organizations does not require Board approval pursuant to this Section
2(b)). Executive will not be required to account to NCRIC or Group for any
compensation he may receive for such approved service on the board of directors
of a non-competing company, and such compensation shall not diminish in any way
the compensation or benefits to which he is entitled under this Agreement.
3. Compensation. NCRIC shall pay Executive basic compensation of
One Hundred Twenty Eight Thousand Three Hundred Ninety Eight Dollars
($128,398.00) per year ("Base Salary"). Such Base Salary shall be payable
biweekly (or in such other frequency as employees are paid). During the period
of this Agreement, Executive's Base Salary shall be reviewed at least annually;
the first such review will be made no later than January 31, 2002. The Board may
increase, but not decrease, Executive's Base Salary (any increase in Base Salary
shall become the "Base Salary" for purposes of this Agreement). Any incentive
compensation that may be paid to Executive from time to time shall have no
impact upon the Base Salary.
4. Benefits.
a. Retirement and/or Pension Plan(s). Executive shall be
entitled to participate in any retirement and/or pension plan(s) offered to
NCRIC's or Group's senior executives and/or key management employees as a group
in accordance with the terms of such plan(s), as they may be modified at NCRIC's
or Group's discretion from time to time.
b. Automobile Allowance. NCRIC shall pay Executive a
monthly allowance of $717.17 for his use in operating and maintaining an
automobile necessary in connection with the performance of his duties hereunder
with any expenses not covered by said $717.17 allowance being the sole
responsibility of Executive.
2
c. Health and Medical Insurance. Executive shall be
entitled to participate in any health and medical insurance plan(s) offered to
NCRIC's senior executives and/or key management employees as a group in
accordance with the terms of such plan(s), as they may be modified in their
application to all employees at NCRIC's discretion from time to time.
d. Paid Sick Leave. Executive shall accrue one (1) day
of paid sick leave per month, up to a maximum of sixty (60) days (or such other
number of days as provided in the standard sick leave policy of NCRIC) of paid
sick leave at any given time. All accrued, but unused, paid sick leave shall be
forfeited upon termination of employment.
e. Paid Vacation. Executive shall accrue four weeks of
paid vacation during each calendar year; however, in no event shall Executive
use more than three weeks at any one time. Accrued, but unused, paid vacation
may be carried over from one year to the next in accordance with the policy in
effect for NCRIC employees in general. All accrued, but unused, paid vacation is
forfeited upon termination of employment by either party; provided, however,
that if Executive provides advance notice of his intent to terminate his
employment in accordance with paragraph 7 of this Agreement, NCRIC shall pay his
for all of his accrued, but unused, paid vacation, less standard withholdings
and deductions.
f. Life Insurance. NCRIC shall procure a term life
insurance policy in a face amount of no less than twice the amount of
Executive's Base Salary (as in effect on the date hereof) provided that
Executive is insurable at standard rates. Executive shall be entitled to
designate the beneficiary or beneficiaries of such policy in his sole
discretion. In the event that Executive is not insurable at standard rates, and
desires to be insured, Executive shall be responsible for payment of any
premiums or amounts charged in excess of the standard rates for such insurance.
g. Disability Insurance. Executive shall be entitled to
participate in any disability income insurance policy (both long and short term)
offered to NCRIC's senior executives and/or key management employees as a group
in accordance with the terms of such policies(s), as they may be modified at
NCRIC's discretion from time to time. NCRIC's disability income insurance policy
provides for payments to covered employees commencing after an "elimination
period" of ninety (90) days. If, and when, Executive should begin to receive
monthly disability payments under the terms of NCRIC's disability income
insurance policy then in force NCRIC agrees to supplement said monthly
disability payments by paying to Executive the difference
3
between such sums paid by the disability insurer and Executive's Base Salary for
a maximum period of twelve (12) consecutive months. Following expiration of said
twelve (12) months, the coverage and provisions of NCRIC's disability income
insurance policy shall constitute the entire wage continuation plan provided in
this Agreement and, except for the payment of the premiums on such policy, NCRIC
shall have no further liability to Executive for wage continuation. It is
further understood that Executive's employment with NCRIC and Group shall be
terminated following twelve (12) consecutive months of disability (being unable
to carry out the normal functions and requirements of his position with NCRIC)
regardless of how and when the aforementioned disability income payments from
NCRIC's disability income insurance policy may be paid or due to Executive.
5. Expenses.
a. Business Expenses. NCRIC and Group shall reimburse
Executive for ordinary, necessary and reasonable business expenses incurred by
him in the discharge of his duties hereunder, including but not limited to
travel, mileage at the prevailing IRS rate, lodging and entertainment expenses,
provided Executive furnishes appropriate documentation for such expenses and
that said expenses are in accordance with the company's then prevailing policies
and procedures regarding said expenditures.
b. Continuing Education Expenses. NCRIC shall pay the
ordinary and necessary costs associated with continuing education classes or
continuing education programs Executive participates in which are related to the
company's business interests, provided Executive furnishes appropriate
documentation to NCRIC for such costs and gives the Chief Executive Officer of
NCRIC reasonable notice of any expenditures for continuing education. All such
expenses in excess of One Thousand Dollars ($1,000) must be approved by the
Chief Executive Officer in advance.
c. Effect of Termination of Employment. All payment or
reimbursement of expenses authorized by Section 5 hereof shall cease upon
Executive's termination of employment regardless of cause for said termination,
provided that any expenses incurred by Executive prior to termination shall be
reimbursed.
4
6. Termination of Employment by NCRIC.
a. Termination for Cause. The employment of Executive
under this Agreement, may be terminated for "cause" by NCRIC and Group at any
time by action of the Board upon the occurrence of any one or more of the
following events:
(i) Executive's fraud, dishonesty, gross
negligence or willful misconduct in the performance of his duties
hereunder, including willful failure to perform such duties as may
properly be assigned him hereunder; or
(ii) Executive's material breach of any provision
of this Agreement,
and Executive shall be notified in writing of such termination, which
notification shall specify the grounds cited by the Board for such termination
for cause. Any termination by reason of the foregoing shall not be in limitation
of any right or remedy which NCRIC may have under this Agreement or otherwise.
Should Executive dispute whether "cause" existed for his termination,
he shall notify NCRIC and Group of his dispute in writing within fourteen days
of the receipt of notice of termination, and the parties shall promptly proceed
to arbitration in accordance with paragraph 16 of this Agreement. NCRIC shall
continue to pay the Executive his Base Salary, and other compensation and
benefits in effect immediately prior to the termination. If it is determined
that termination was for cause, Executive shall return all cash amounts to NCRIC
promptly following the date of resolution by arbitration, with interest
commencing as of the date of the resolution of the dispute by arbitration (at
the prime rate as published in the Wall Street Journal from time to time). Any
cash amounts paid to Executive pending the resolution of the dispute by
arbitration shall offset any amounts due Executive under paragraph (b) below.
b. Termination Without Cause.
(i) NCRIC and Group may terminate Executive's employment without cause
and at any time. Executive shall be notified in writing of such termination on
or prior to the effective date of such termination.
(ii) If Executive's employment is terminated without cause, and
Executive waives all claims against Group, NCRIC and the Affiliated Companies
relating to or arising out of his employment or the termination of his
employment by executing a general release of such claims, Executive shall
receive, as severance pay, an amount
5
equal to two times the Base Salary, plus accrued vacation. Such amount shall
represent agreed-upon liquidated damages for any loss, cost, expense or damages
suffered as a result of such termination, as well as consideration for
Executive's execution of a General Release of all claims against NCRIC and the
Affiliated Companies. NCRIC shall pay such amount to Executive in a lump sum on
the effective date of termination.
(iii) If a "Change of Control" of Group's or NCRIC's business occurs,
Executive may elect, in writing within three months of the effectiveness of the
Change in Control, to deem his employment terminated without cause for the
purposes of this paragraph. Executive shall notify Group, NCRIC or their
successor of his election. "Change of Control" shall be deemed to have occurred
if: Group or NCRIC merges with or consolidates with, or sells, leases, or
otherwise transfers all or substantially all of its assets to another entity
(which for the purpose of this Agreement shall include the sale or transfer of
fifty percent or more of the ownership of NCRIC or Group, but only if such sale
shall be made to an entity not affiliated with Group). However, in no event
shall it be deemed a "change of control" solely because NCRIC, A Mutual Holding
Company, changes its business form by converting to a stock company.
7. Termination of Employment By Executive.
Executive may voluntarily terminate his employment with NCRIC provided
that he gives NCRIC sixty days prior notice of such termination or pays NCRIC
liquidated damages equal to the amount of two months of Base Salary (Base Salary
divided by twelve, times two). It is agreed that such liquidated damages are to
compensate NCRIC for injury by reason of Executive's termination of his
employment and not as a penalty, it being impossible to ascertain or estimate
the entire or exact cost, damages or injury that NCRIC may sustain by reason of
such termination. Executive shall have the right to terminate his employment
hereunder without paying NCRIC liquidated damages and without in any way
affecting his right to compensation or reimbursement (including, but not limited
to, the right to receive severance payments set forth in this Agreement), or any
other right under this Agreement, if NCRIC or Group commits a material breach of
the terms and conditions of this Agreement and such breach is not cured within
thirty (30) days of NCRIC or Group receiving written notice of such breach from
Executive. Such termination shall be deemed a termination without cause under
Section 6 of this Agreement.
6
8. Protection of Group and NCRIC
a. Confidential Information. Executive shall not at any
time during or after his employment with NCRIC and Group directly or indirectly
disclose, discuss, divulge, copy or otherwise suffer confidential information of
Group, NCRIC or the Affiliated Companies to be used, except as required by the
performance of his duties hereunder. For the purposes of this Agreement,
"confidential information" shall mean all information disclosed to Executive by
Group, NCRIC or the Affiliated Companies, or known by his as a consequence of or
through his employment with Group and NCRIC, where such information is not
generally known in the trade or industry, and where such information refers or
relates in any manner whatsoever to the business activities, processes, services
or products of Group, NCRIC or the Affiliated Companies. Such information
includes, but is not limited to, business and development plans (whether
contemplated, initiated or completed), development sites, business contacts,
customer lists, actuarial tables, loss data, marketing information, policy
forms, contracts, research of any kind, methods of operation, results of
analysis, business forecasts, financial data, costs, revenues, and similar
information. Upon termination of this Agreement, Executive shall immediately
return to Group and NCRIC all of its property, and all copies thereof, including
without limitation all confidential information which has been reduced to
tangible form, in his possession, custody or control.
b. Covenant Not to Compete. Executive agrees that he
shall not, during his employment and for a period of one (1) year after the date
on which the termination of Executive's employment (other than following a
change in control) is effective or the dispute relating thereto is resolved
(whichever is later), directly or indirectly, either as an officer, director,
employee, agent, adviser, consultant, principal, stockholder, partner, owner or
in an other capacity, on his own behalf or otherwise, in any way engage in,
represent, be connected with or have a financial interest in, any other
insurance company, or any corporation, firm, association, or other business
entity which is, or to the best of Executive's knowledge, is about to become,
engaged in the same or similar business as Group, NCRIC or any of their
affiliates or which otherwise competes with or is about to compete with Group,
NCRIC or any of its affiliates in the District of Columbia of any states where
Group, NCRIC or any of its Affiliated Companies (other than the captive
insurance subsidiary of NCRIC) may operate or are licensed to operate.
Executive's ownership of not more than one percent (1%) of the stock of any
publicly traded corporation shall not be deemed a violation of this covenant.
Executive agrees that the restrictions imposed upon him by the provisions of
this paragraph are fair and reasonable considering the nature of Group's and
NCRIC's business, and are reasonably required
7
for the protection of Group and NCRIC. For a period of twelve months from the
effective date of the termination Executive's employment hereunder, Executive
will not solicit the employment of any of then current officers or employees of
Group or any affiliate. The term "solicit to employ" shall not be deemed to
include general solicitations of employment not specifically directed towards
employees of either of the parties.
c. Remedies and Acknowledgment of Reasonableness.
Executive acknowledges that compliance with this paragraph is necessary for the
protection of the goodwill and other proprietary interests of NCRIC and Group,
and that, after carefully considering the extent of the restrictions upon his
and the rights and remedies conferred upon NCRIC under this paragraph, the same
are reasonable in time and territory, are designed to eliminate competition
which otherwise would be unfair to NCRIC, do not stifle the inherent skill and
experience of Executive, would not operate as a bar to Executive's sole means of
support, are fully required to protect the legitimate interests of NCRIC, and do
not confer a benefit upon NCRIC disproportionate to the detriment to Executive.
Executive further acknowledges and agrees that in the event of a breach
of this paragraph, neither Group nor NCRIC would not have an adequate remedy at
law because the damages flowing from such breach would not be readily
susceptible of measurement in monetary terms and that Group and NCRIC shall be
entitled to injunctive relief and may obtain a temporary order restraining any
threatened breach or future breach in addition to any other remedies which may
be available at law or equity. Nothing in this paragraph shall be deemed to
limit Group's or NCRIC's remedies at law or in equity for breach of this or any
other paragraph of this Agreement.
9. Death or Incapacitation. In the event that Executive dies or,
due to a physical or mental impairment, becomes unable to perform the essential
functions of his position with or without reasonable accommodation, this
Agreement shall be deemed terminated and Executive or his estate, as the case
may be, shall be entitled to no further salary, compensation or benefits
hereunder, except (i) any unpaid salary, incentive payments and vacation accrued
and earned by Executive up to and including the date of such termination, and
(ii) any disability, life insurance or other benefits to which Executive or-his
estate may be entitled on the date of such termination in accordance with the
terms and conditions of any applicable benefit plan(s) as set forth in official
plan documents.
10. Assignment. This Agreement is a personal service agreement and
8
neither party shall have the right to assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other party.
11. Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed properly given if delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested. If
mailed to Group or NCRIC, such notices shall be sent to their principal place of
business, attention: Chief Executive Officer, or at such other address as NCRIC
or Group may hereafter designate in writing to Executive. If mailed to
Executive, such notices shall be addressed to him at his home address last known
on the records of Group and NCRIC, or at such other address as Executive may
hereafter designate in writing to Group and NCRIC.
12. Successors Bound. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, estates and permitted successors and assigns.
13. Waiver. No provision hereof may be waived, except by a written
instrument signed by the party against whom such waiver is sought to be
enforced. The failure or waiver of either party hereto at any time, or from time
to time, to require performance by the other party of such other party's
obligation hereunder, shall not deprive that party of the right to insist upon
strict adherence to such obligation at any subsequent time. Each party hereto
agrees that any waiver of its rights arising out of any breach of this Agreement
by the other party shall not be construed as a waiver of any subsequent breach.
14. Amendment. No provision hereof may be altered or amended,
except by a written instrument signed by the party against whom such alteration
or amendment is to be enforced.
15. Governing Law. The parties agree that this Agreement shall in
all respects be construed, interpreted and enforced in accordance with and
governed by the laws of the District of Columbia, without regard to the
principles of conflict of laws thereof.
16. Arbitration. Whenever a "dispute" arises between the parties
concerning this Agreement (other than a dispute arising under paragraph 8
hereof) or their employment relationship, including without limitation the
termination thereof, the parties shall use their best efforts to resolve the
"dispute" by mutual agreement. If such a "dispute" cannot be so resolved, it
shall be submitted to final and binding
9
arbitration to the exclusion of all other avenues of relief. For the purposes of
this paragraph, the term "dispute" means all controversies or claims relating to
terms, conditions or privileges of employment, including without limitation
claims for breach of contract, discrimination, harassment, wrongful discharge,
misrepresentation, defamation, emotional distress or any other personal injury,
but excluding claims for unemployment compensation or worker's compensation. The
dispute shall be submitted to the Washington, D.C. office of the American
Arbitration Association ("AAA") and adjudicated in accordance with AAA's Rules
for Commercial Arbitration then in effect. The decision of the Arbitrator must
be in writing and shall be final-and binding on the parties, and judgment may be
entered on the arbitrator's award in any court having jurisdiction thereof. The
expenses of the arbitration shall be borne equally by the parties, and each
party shall be responsible for his or its own costs and attorneys' fees;
provided, that the Executive shall not be responsible for the cost of
arbitration if he is successful in whole or part in arbitration. The Arbitrator
shall be deemed to possess the powers to issue mandatory orders and restraining
orders in connection with such arbitration; provided, however, that nothing in
this paragraph shall be construed so as to deny NCRIC or Group the right and
power to seek and obtain injunctive relief in a court of equity for any breach
or threatened breach by Executive of any of the provisions contained in
paragraph 8 of this Agreement. This paragraph shall survive the termination of
this Agreement.
17. Severability. In the event that any provision of this
Agreement conflicts with the law under which this Agreement is to be construed,
or if any such provision is held invalid or unenforceable by a court of
competent jurisdiction or an arbitrator, such provision shall be deleted from
this Agreement and the Agreement shall be construed to give full effect to the
remaining provisions thereof.
18. Headings and Captions. The paragraph headings and captions
contained in this Agreement are for convenience only and shall not be construed
to define, limit or affect the scope or meaning of the provisions hereof.
19. Entire Agreement. This Agreement contains and represents the
entire agreement between Executive and Group, NCRIC and the Affiliated
Companies, and supersedes all prior agreements, representations or
understandings, oral or written, express or implied with respect to the subject
matter hereof. This Agreement may not be modified or amended in any way unless
in a writing signed by both Executive and the Chief Executive Officer of NCRIC
and Group. No representation, promise or inducement has been made by either
party hereto that is not embodied in this Agreement, and neither party shall be
bound or liable for any alleged representation, promise or inducement not
specifically set forth herein.
10
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the date and year first written above.
NCRIC, Inc.
By: /s/ R. Xxx Xxxx, Xx.
---------------------------
R. Xxx Xxxx, Xx.
President and Chief Executive Officer
NCRIC Group, Inc.
By: /s/ R. Xxx Xxxx, Xx.
---------------------------
R. Xxx Xxxx, Xx.
President and Chief Executive Officer
Executive
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxx
11
