EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") made effective this 1st day of October,
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 :
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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;
WHEREAS, the Company will sustain great loss and damage, if during the
term of this Agreement, or for a period of two (2) years immediately following
its termination for any reason whatsoever, the Employee should, for himself or
herself, or on behalf of any other person, persons, company, partnership or
corporation, call upon the customers or clientele of the Company for the purpose
of soliciting, selling or servicing any of the programs or services of the
Company, or the solicitation of any Company employee for the purpose of hiring
such employee, for which loss and damage, by reason of his or her financial
circumstances, Employee could not be compelled by law to respond to damages in
any action at law.
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 as
Chief Financial Officer of the Company, for a term of three (3) years that
begins on October 1, 2001 ("Commencement Date") and ends on the three-year
anniversary of the Commencement Date.
SECTION 2. EMPLOYEE'S BEST EFFORTS. Employee hereby accepts employment by
Company, and agrees to devote his best efforts 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 shall remain April 1, 2001.
(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 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) 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.
In the event Employee's employment with the Company is terminated without cause
during the term of this Agreement, then the Employee shall be entitled to any
payments payable under Section 1 which have been earned but not yet paid; and,
in addition, Employee shall be entitled to severance pay equal to Employee's
then current salary payable in accordance with the Company's usual payroll
practices for a period of 12 months ("the Severance Payment"). In the event that
the Employee is entitled to a Severance Payment pursuant to this section 3C and
Employee secures employment at any time during the 12 months following
termination (the "Severance Period"), Severance Payments will cease, except that
Employee shall be paid a guaranteed minimum of six (6) months severance.
Employee will notify Company immediately upon securing new employment.
(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 ninety and 00/100 Dollars
($3,290.00) 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, health
insurance, incentive compensation plans and stock option plans.
(c) Employee's salary and allowances will be reviewed annually, as
agreed upon subject to discussions between Employee and Company, on the
commencement date, 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.
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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 and account for all such funds, equipment
and property which may be in the possession of Employee at such termination.
SECTION 6. RESTRICTIVE COVENANTS.
(a) Covenant not to Compete. The Employee hereby expressly covenants and
agrees, which covenants and agreements are of the essence of this contract, that
he will not, during the term of this Agreement and for a period of two (2) years
immediately following the termination of this Agreement, for any reason
whatsoever, directly or indirectly, for himself or herself, or on behalf of, or
in conjunction with, any other person, persons, company, partnership or
corporation:
(1)call upon any customer or customers of Company solicited or
contacted by Employee while at the Company or whose account was
serviced by Employee while at the Company, pursuant to his or her
employment hereunder, for the purpose of soliciting, selling or
servicing any programs or services of the type sold and serviced by
Company during the term hereof within the state of Florida and such
other states in which the Company shall conduct business;
(2)nor will Employee divert, solicit or take away any customer or
customers of Company or the business or patronage of any such
customers of the Company for the purpose of selling or servicing any
programs or services of the type sold and serviced by Company during
the term hereof,
(3)nor will Employee call upon any "prospective customer" or customers
of the Company, solicited or contacted by Employee or Employee's
staff pursuant to his or her employment hereunder, for the purpose of
soliciting, selling or servicing programs or services of the type
sold and serviced by Company during the term hereof within the State
of Florida and such other states in which the Company shall conduct
business.
For purposes of this Agreement, it is agreed between the parties
hereto that the term "prospective customer" is defined as any person
or company called upon by Employee or by Employee's staff two (2)
times or more during any part of the six (6) month period next
preceding the termination of this Agreement for any reason
whatsoever, or those prospective customers as listed by Employee or
by Employee's staff as active potential prospects on Employee's
weekly or monthly sales call reports submitted to Company during any
part of the six (6) month period next preceding the termination of
this Agreement for any reasons whatsoever;
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(4)nor will Employee, directly or indirectly, for himself or herself or
on behalf of, or in conjunction with, any other person, persons,
company, partnership or corporation: solicit, approach, or call upon
any Company employee for the purpose of retaining or hiring the
Company employee in any capacity. In the event of a breach or
threatened breach by Employee of the provisions of this paragraph,
Company shall be entitled to an injunction restraining Employee from
directly or indirectly soliciting, approaching, or calling upon any
Company employee for the purpose of retaining or hiring the Company
employee in any capacity and/or in fact hiring the Company employee
in any capacity; and, in addition to obtaining an injunction, Company
shall be entitled to recover damages from Employee.
In the event any Court determines that any of the above specified time periods
to be unreasonable, arbitrary, or against public policy, a lesser time period
which is determined to be reasonable, non-arbitrary and not against public
policy may be enforced against Employee by injunction, as well as by all other
legal remedies available to Company.
(b) Non Disclosure. 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.
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.
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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;
provided, however, that nothing herein shall be construed as prohibiting the
Company from pursuing any other remedies available to it for such breach or
threatened breach of any of the above restrictive covenants, including the
recovery of damages from the Employee. No failure of the Company to exercise any
right given under this Agreement 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 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.
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.
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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.
/s/ XXXX X. SLUDA By: /s/ XXXXX X. XXXXXX
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President and
As Its: Chief Executive Officer
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Date: October 4, 2001
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WITNESSES: "EMPLOYEE"
Xxxxxxx X. Xxxxxxx
/s/ XXXX X. SLUDA Date: October 4, 2001
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