1
EXHIBIT 10(f)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of June 1, 1999 (this "Agreement"), between
MOBILE AMERICA CORPORATION, a Florida corporation ("Company") and XXXXXX X.
XxXXXXXX ("Executive").
WITNESSETH:
WHEREAS, Executive is currently serving as a Vice President of the Company; and
WHEREAS, Company and the Executive desire to enter into this Agreement for
employment.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:
1. Agreement to Employ.
Upon the terms and subject to the conditions of this Agreement, the
Company hereby employs Executive and Executive hereby accepts
employment by the Company.
2. Term; Position and Responsibilities.
a) Term of Employment. The employment of Executive pursuant
hereto shall commence on the date of this Agreement (the
"Effective Date"), and shall remain in effect for a term
expiring on the third anniversary of the Effective Date
unless sooner terminated pursuant to the provisions of
Section 6 hereof (the "Term").
b) Position and Responsibilities. During the Term, Executive
will be employed as Vice President and, in addition, in such
other executive capacity or capacities for the Company as may
be agreed from time to time by Executive and the Company, and
he will devote substantially all of his skill, knowledge and
working time to the conscientious performance of such duties,
except (i) for reasonable vacation time and absence for
sickness or similar disability and (ii) such time, reasonably
determined by Executive, as may be devoted to the fulfillment
of civic and personal responsibilities. Executive hereby
represents that his employment hereunder and compliance by
him with the terms and conditions of this Agreement will not
conflict with or result in the breach of any agreement to
which he is a party or by which he may be bound.
3. Compensation.
As full compensation for all services to be rendered by Executive in
the capacities referred to in the Agreement, Executive shall receive
an annual base salary of $134,620.08, payable in accordance with the
Company's payroll practices in effect from time to time. The annual
base salary hereunder shall be subject to increase (but not decrease)
each year in accordance with the Company's annual review of
Executive's annual base salary. In addition to his annual base salary,
Executive shall be eligible to receive, consistent with any existing
Company executive bonus policies in effect from time to time, an
annual bonus determined in the Company's sole discretion based on the
Company's executive bonus criteria.
-8-
2
4. Benefits.
During the Term:
a) General. The Company will provide life insurance, medical
insurance and other benefits (including its money purchase
pension plan) comparable to those provided from time to time
to the Company's other executive officers;
b) Vacation and Sick Leave. Executive shall be entitled to paid
vacation and to reasonable sick leave in accordance with the
Company's policies as in effect from time to time; and
c) Living Accommodations. So long as Executive is employed by
the Company in South Florida, the Company will provide living
facilities similar to Executive's current facilities, less
$500 per month payable by Executive.
5. Expenses.
The Company shall reimburse Executive for reasonable travel, lodging,
meal and other reasonable expenses incurred by him in connection with
his performance of services hereunder upon submission of evidence,
reasonably satisfactory to the Company, of the incurrence and purpose
of each such expense.
6. Termination of Employment.
a) Termination Due to Death or Disability. Executive's
employment shall automatically terminate upon his death or in
accordance with Section 6(g) upon the Company's determination
of his Disability (provided Executive has not returned to the
full time performance of his duties during the 30 day notice
period). For purposes of this Agreement, "Disability" shall
mean a physical or mental disability or infirmity (other than
Executive's existing dyslexia) that prevents the performance
by Executive of his duties hereunder lasting (or likely to
last, based on competent medical evidence) for a continuous
period of six months or longer. The reasoned and good faith
judgment of the Company as to Disability shall be final and
shall be based on such competent medical evidence as shall be
presented to it by Executive or by any physician or group of
physicians or other competent medical experts employed by
Executive or the Company.
b) Termination by the Company for Cause. Executive's employment
with the Company may be terminated for "Cause" by the
Company. "Cause" shall mean (i) the failure by Executive to
substantially perform his duties (other than as a result of a
physical or mental disability or infirmity) and continuance
of such failure for more than 30 days after the Company
notifies Executive in writing that he is failing to
substantially perform his duties, provided that such writing
shall set forth the facts and circumstances giving rise to
such claim, (ii) Executive's engaging in willful misconduct
(including, without limitation, any criminal, fraudulent or
dishonest conduct) that is materially injurious to the
Company or any of its affiliates or subsidiaries, (iii)
Executive's conviction of, or entering a plea of nolo
contendere to, any crime that constitutes a felony (exclusive
of (x) traffic-related offenses, and (y) environmental, labor
and other offenses related to the operation of the Company
where Executive is adjudged to have acted in good faith in
what he reasonably believed to be the best interest of the
Company) or involves moral turpitude, or (iv) the breach by
Executive of any written covenant or agreement with the
Company or any of its affiliates not to disclose any
information pertaining to the Company or any of its
affiliates (except where such disclosure by Executive is made
in good faith in what he reasonably believes to be the best
interest of the Company) or not to compete or interfere with
the Company or any of its affiliates.
-9-
3
c) Termination by Executive for Good Reason. Executive may
terminate his employment for "Good Reason". "Good Reason"
shall mean a termination of employment by Executive upon 30
days notice following (i) the failure of the Company timely
to pay Executive's salary, bonus or benefits or otherwise to
perform its obligations under this Agreement, (ii) the
Company requiring Executive to relocate outside the State of
Florida or to West Florida, or (iii) the Company's reduction
(but not modification) of Executive's responsibilities
materially below executive level responsibilities, provided
that (x) Executive shall have given the Company written
notice of the circumstances constituting Good Reason and the
Company shall have failed to cure such circumstances within
20 days (5 days for monetary defaults), and (y) Executive
shall not have caused the occurrence constituting Good Reason
through the exercise of his authority as an officer of the
Company.
d) Termination Without Cause. The Company or Executive may
terminate Executive's employment with the Company "Without
Cause" upon 90 days written notice to the non-terminating
party. A termination "Without Cause" shall mean a termination
of employment by the Company other than due to death or
Disability as described in Section a) or for Cause as defined
in Section 6b) or a termination of employment by Executive
other than for Good Reason.
e) Notice and Effect of Termination. Any termination of
Executive's employment by the Company pursuant to Section a)
(in the case of Disability), b) or 6d), or by Executive
pursuant to Section c) or 6d), shall be communicated by a
written "Notice of Termination" addressed to Executive or the
Company, as appropriate. A "Notice of Termination" shall mean
a notice stating that Executive's employment hereunder has
been or will be terminated, indicating the specific
termination provisions in this Agreement relied upon and
setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination
of employment.
f) Payments Upon Certain Terminations.
i) Termination Without Cause or for Good Reason. In the
event of a termination of Executive's employment by
the Company Without Cause or a termination by
Executive of his employment with the Company for
Good Reason, in either case before the second
anniversary of the Effective Date, the Company shall
pay to Executive (x) his base salary at the annual
base rate in effect immediately prior to the Date of
Termination (as defined in Section 6(g) below)
during the Severance Period, less (y) the total
compensation (whether received as salary, consulting
fee or otherwise and calculated on a pre-tax basis)
accrued, earned or received by Executive from any
new employer, client or contractor during the
Severance Period, provided that the Company may, at
any time and at its discretion, pay to Executive in
a single lump sum an amount equal to the Company's
good faith determination of the present value of the
installments of the base salary remaining to be paid
to Executive, as of the date of such lump sum
payment, calculated using a discount rate equal to
the then prevailing interest rate payable on direct
obligations of the U.S. Treasury having a term as
close as practicable to the period from the date of
termination of employment through the last day of
the Severance Period. "Severance Period" means a
period beginning on the date on which Notice of
Termination is effective as provided by Section 6(e)
or, if no such Notice is given, the date of
termination of employment (the "Notice Date") and
continuing until the second anniversary of the
Effective Date.
-10-
4
In addition, during the Severance Period, Executive
will continue to receive the benefits to which he
was entitled pursuant to Section 4 (a) as of the
Date of Termination. If for any reason at any time
the Company is unable to treat Executive as being or
having been an employee of the Company under any
benefits plan in which he is entitled to participate
and as a result thereof Executive receives reduced
benefits under such plan during the period that
Executive is continuing to receive his full base
salary, the Company shall provide Executive with
such benefits by direct payment (computed on an
after tax basis) or at the Company's option by
making available equivalent benefits from other
sources. During the Severance Period, Executive
shall not be entitled to participate in any of the
Company's employee benefit plans that are introduced
after the Date of Termination, except that an
appropriate adjustment shall be made if such new
employee benefit plan is a replacement for or
amendment to an employee benefit plan in effect as
of the Date of Termination.
ii) Termination Upon Death or Disability. If Executive's
employment shall terminate upon his death or
Disability, the Company shall pay Executive his full
base salary through the Date of Termination at the
annual base rate in effect immediately prior to the
Date of Termination, provided that in the case of
Executive's Disability, the provisions of Section 6
(f)(i)(B) shall also apply to Executive as if
Section 6 (f)(i)(A)were otherwise applicable.
iii) Termination for Cause or Voluntary Termination by
Executive. If the Company shall terminate
Executive's employment for Cause or if Executive
shall voluntarily terminate his employment with the
Company for other than Good Reason, he shall be paid
his full base salary and benefits through the Date
of Termination at the annual base rate in effect
immediately prior to the Date of Termination.
g) Date of Termination. As used in this Agreement, the term
"Date of Termination" shall mean (i) if Executive's
employment is terminated by his death, the date of his death,
(ii) if Executive's employment is terminated for Cause, the
date on which Notice of Termination is given as contemplated
by Section 6(e), (iii) if Executive's employment is
terminated by the Company due to Executive's Disability or by
Executive for Good Reason, 30 days after the date on which
Notice of Termination is given as contemplated by Section
6(e), and (iv) if Executive's employment is terminated by
Executive or by the Company Without Cause, 90 days after the
date on which Notice of Termination is given as contemplated
by Section 6(e).
7. Consulting and Non-Competition Agreement.
Contemporaneously herewith the Company and Executive shall enter into
the Consulting and Non-Competition Agreement attached hereto as
Exhibit A, which shall be effective upon termination of Executive's
employment for any reason, including expiration of the Term, and shall
run from the Date of Termination or the first day after expiration of
the Term, as applicable.
8. Health Insurance.
If Executive ceases to be either an employee or director of the
Company, the Company will include Executive in its group health and
life insurance plan until Executive is entitled to Medicare benefits
provided that (A) such Company plan, as then in effect, permits
Executive as a retired employee to be included in the plan, and (B)
Executive reimburses the Company for the cost of including him in such
plan.
-11-
5
9. Unauthorized Disclosure.
a) During and after the Term, without the written consent of the
Company, (i) Executive shall not disclose to any person
(other than an employee or director of the Company or its
affiliates, or a person to whom disclosure is reasonably
necessary or appropriate in connection with the performance
by Executive of his duties under this Agreement or as a
director of the Company) or use to compete with the Company
or any of its affiliates any confidential or proprietary
information, knowledge or data that is not theretofore
publicly known and in the public domain obtained by him while
in the employ of the Company with respect to the Company or
any of its affiliates or with respect to any products,
improvements, customers, methods of distribution, sales,
prices, profits, costs, contracts (including, without
limitation the terms and provisions of this Agreement),
suppliers, business prospects, business methods, techniques,
research, trade secrets or know-how of the Company or any of
its affiliates (collectively, "Proprietary Information"), and
(ii) Executive shall use his reasonable efforts to keep
confidential any such Proprietary Information and to refrain
from making any such disclosure, in each case except as may
be required by law or as may be required in connection with
any judicial or administrative proceedings or inquiry.
b) The covenant contained in this Section 9 shall survive the
termination of Executive's employment pursuant to this
Agreement and shall be binding upon Executive's heirs,
successors and legal representatives.
10. Return of Documents.
In the event of the termination of Executive's employment for any
reason, Executive will deliver to the Company all documents and data
of any nature pertaining to his work with the Company and its
affiliates (except for documents relating to Executive's employment,
benefits, taxes and other personal matters), and he will not take with
him any documents or data of any description or any reproduction
thereof, or any documents containing or pertaining to any Proprietary
Information.
11. Injunctive Relief with Respect to Covenants.
Executive acknowledges and agrees that the covenants and obligations
of Executive with respect to non-disclosure, confidentiality and the
property of the Company and its affiliates relate to special, unique
and extraordinary matters and that, notwithstanding any other
provision of this Agreement to the contrary, a violation of any of the
terms of such covenants and obligations will cause the Company and its
affiliates irreparable injury for which adequate remedies are not
available at law. Therefore, Executive expressly agrees that the
Company and its affiliates (which shall be express third-party
beneficiaries of such covenants and obligations) shall be entitled to
an injunction (whether temporary or permanent), restraining order or
such other equitable relief (including the requirement to post bond)
as a court of competent jurisdiction may deem necessary or appropriate
to restrain Executive from committing any violation of the covenants
and obligations contained in Sections 9 and 10 hereof. These
injunctive remedies are cumulative and in addition to any other rights
and remedies the Company and its affiliates may have at law or in
equity. Further, the Executive represents that his experience and
capabilities are such that the provisions of Sections 9 and 10 hereof
will not prevent him from earning his livelihood.
-12-
6
12. Entire Agreement.
Except as otherwise expressly provided herein, this Agreement and the
attached Consulting and Non-Competition Agreement and an Agreement
Regarding Severance and Change in Control dated July 21, 1997, between
the Company and Employee as an officer of the Company constitute the
entire agreements among the parties hereto with respect to the subject
matter hereof, and all promises, representations, understandings,
arrangements and prior agreements relating to such subject matter
(including those made to or with Executive by any other person or
entity) are merged herein and superseded hereby and thereby. Without
limiting the foregoing, Executive acknowledges that Executive is not
entitled to any retirement benefits (except amounts payable to
Executive under the Company's money purchase pension plan).
13. Miscellaneous.
a) Binding Effect. This Agreement shall be binding on and inure
to the benefit of the Company, and its respective permitted
successors and assigns as provided in Section 13(j). This
Agreement shall also be binding on and inure to the benefit
of Executive and his heirs, executors, administrators and
legal representatives. If Executive's employment is
terminated by reason of his death, all amounts payable by the
Company pursuant to Section 6(f)(ii) shall be paid in
accordance with the terms of this Agreement to Executive's
devisee, legatee, or other designee or, if there be no such
designee, to his estate.
b) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS
THEREUNDER. ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS
AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT SHALL
BE BROUGHT IN ANY STATE COURT OR UNITED STATES FEDERAL COURT
SITTING IN XXXXX COUNTY IN THE STATE OF FLORIDA, AS THE PARTY
BRINGING SUCH SUIT MAY ELECT IN ITS SOLE DISCRETION, AND EACH
PARTY HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE
JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF SUCH SUIT,
LEGAL ACTION OR PROCEEDING. EACH PARTY HERETO WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES
THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN ANY
SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY SUCH
SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
c) Taxes. The Company may withhold from any payments made under
this Agreement all federal, state, city or other applicable
taxes as shall be required pursuant to any law, governmental
regulation or ruling.
d) Amendments. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or
discharge is approved by the Company or a person authorized
thereby and is agreed to in writing by Executive, and such
officer of the Company as may be specifically designated by
the Company. No waiver by any party hereto at any time of any
breach by any other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time. No waiver of any provision of this
Agreement shall be implied from any course of dealing between
or among the parties hereto or from any failure by any party
hereto to assert its rights hereunder on any occasion or
series of occasions. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not
set forth expressly in this Agreement.
-13-
7
e) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not be affected thereby.
f) Notices. Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i)
in writing, (ii) delivered personally, by nationally
recognized overnight courier service or by certified or
registered mail, first-class postage prepaid and return
receipt requested, (iii) deemed to have been received on the
date of delivery, and (iv) addressed as follows (or to such
other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
A. if the Company, to it:
Mobile America Corporation
00000-000 Xxxxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx & Lardner
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
B. if to Executive, to him at the address listed on the
signature page hereof with a copy to:
Xxxxx X. XxXxxxxx
00000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
g) Survival. Sections 7, 8, 9, 10, 11, 12 and 13, and if
Executive's employment terminates in a manner giving rise to
a payment under Section 6(f), Section 6(f) shall survive the
termination of this Agreement and the termination of the
employment of Executive
h) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
i) Headings. The section and other headings contained in this
Agreement are for the convenience of the parties only and are
not intended to be a part hereof or to affect the meaning or
interpretation hereof.
-14-
8
j) Assignment. This is a contract for personal services by
XxXxxxxx and may not be assigned by XxXxxxxx without the
Company's prior written consent except to a corporation or
other entity controlled by him which assumes his obligations
hereunder and provided XxXxxxxx affirms that such assignment
does not release McCorkle's obligations hereunder. The
Company shall have the right to assign this Agreement in
connection with a sale of the Company's business or a
significant subsidiary thereof, which shall inure to the
benefit of the Company and its successors and assigns
k) Attorney's Fees. If any party to this Agreement breaches any
provision of this Agreement, then the breaching party shall
pay to the non-breaching party all of the non-breaching
party's costs and expenses incurred by that party in
enforcing this Agreement, including reasonable attorneys'
fees and expenses, whether or not suit be brought and whether
incurred before or at trial, on appeal or on remand
IN WITNESS WHEREOF, the Company has duly executed this Agreement by
their respective authorized representatives and Executive has hereunto set his
hand, in each case effective as of the date first above written.
MOBILE AMERICA CORPORATION,
a Florida corporation
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
Executive:
---------------------------------------------
XXXXXX X. XxXXXXXX
Address:
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
-15-
9
EXHIBIT A
CONSULTING AND NON-COMPETITION AGREEMENT
CONSULTING AND NON-COMPETITION AGREEMENT, dated this ____ day of June, 1999
(this "Agreement"), between MOBILE AMERICA CORPORATION, a Florida corporation
("Company") and XXXXXX X. XXXXXXXX ("XxXxxxxx").
WITNESSETH:
WHEREAS, the Company is engaged, through its wholly owned subsidiaries, in the
underwriting and marketing of minimum requirement automobile insurance and
other insurance products and related businesses;
WHEREAS, this Agreement is to be effective as of the later of the date (the
"Commencement Date") XxXxxxxx is no longer entitled to receive payments as an
employee under the Employment Agreement or the date he terminates his employee
positions with the Company and its subsidiaries;
WHEREAS, the Company desires to retain XxXxxxxx as a consultant on the terms
and conditions set forth in this Agreement in order (i) to provide for a smooth
transition in management and (ii) to continue to give the Company the benefit
of the invaluable contacts, experience and expertise acquired by XxXxxxxx over
his many years of service with the Company; and
WHEREAS, the Company desires to obtain, and XxXxxxxx desires to provide,
assurances that XxXxxxxx will (i) refrain from competing with the Company for a
specified period, (ii) not solicit agents, employees or customers of the
Company and (iii) not disclose confidential information concerning the Company.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements contained herein and for other good and valuable consideration, the
Company and XxXxxxxx hereby agree as follows:
1. Retention as Consultant. XxXxxxxx shall be retained by the Company as
an independent contractor and consultant, and not as an employee,
during the period (the "Consulting Period") beginning on the
Commencement Date and ending on the first to occur of (i) the fifth
anniversary of the Commencement Date (the "Termination Date"); or (ii)
the last day of the month in which XxXxxxxx'x death occurs (the "Date
of Death").
-16-
10
2. Consulting Services. During the Consulting Period, XxXxxxxx shall
personally provide the Company, at the request of the President or
interim President or the Board, consulting services consistent with
his present skills, training, job activities and stature with the
Company. The services required hereunder shall not require XxXxxxxx to
maintain regular hours at Company offices, shall be rendered at places
and times reasonably acceptable to XxXxxxxx, shall not require more
than 500 hours per year and shall not conflict with other
entrepreneurial or business activities of interest to XxXxxxxx which
are not in violation of this Agreement. XxXxxxxx will be asked to
provide consulting advice to the Company on matters as to which his
knowledge of and experience with the Company and its business make him
uniquely qualified to render such advice. XxXxxxxx shall perform such
services as an independent contractor and consultant and not as an
employee and shall not have authority to bind the Company for any
purpose.
3. Compensation.
a) During the Consulting Period, in exchange for the consulting
services provided by XxXxxxxx hereunder, provided that
XxXxxxxx is not in breach of the covenants set forth in
Sections 5, 6, 7, and 8 of this Agreement, the Company will
pay XxXxxxxx a consulting fee of $50,000 per year, payable in
equal monthly installments in arrears.
b) Upon expiration of the Consulting Period (i.e. the Consulting
Period ends for reasons other than XxXxxxxx'x death), after
the end of the Consulting Period and during the remainder of
the Restrictive Period (as hereinafter defined), the Company
will pay XxXxxxxx $50,000 per year during the remainder of
the Restrictive Period, payable in arrears in equal monthly
installments, in exchange for XxXxxxxx'x compliance with the
covenants described in Sections 5, 6, 7, and 8 of this
Agreement.
c) During the Consulting Period, XxXxxxxx shall be entitled to
reimbursement for reasonable travel and other out-of-pocket
expenses incurred by him in the performance of his consulting
services hereunder, consistent with the Company's policies
for the reimbursement of business expenses.
d) No payments shall be due and payable under this Section 3 in
the event that and for so long as XxXxxxxx is in breach of
Section 5, 6, 7, or 8 of this Agreement, after receipt of a
written notice thereof and a failure to cure within 10 days
of such notice.
4. Benefits.
b) Director Benefits. During XxXxxxxx'x tenure as a director,
the Company will provide XxXxxxxx with the life insurance and
medical insurance and other fringe benefits as may be
provided from time to time to the Company's outside directors
for so long as the Company provides such benefits to its
outside directors, but XxXxxxxx shall not be entitled to
receive directors' fees, Board or committee meeting fees or
other compensation paid to or awarded to outside directors.
c) Employee Benefits. Effective on the Commencement Date,
XxXxxxxx shall no longer be eligible to participate in the
Company's money purchase pension plan or any other benefit
plans and programs provided by the Company to its employees.
d) Health and Life Insurance at XxXxxxxx'x Cost. If XxXxxxxx
ceases to be a director of the Company, or if the Company
ceases to provide its directors with group health insurance,
then the Company will include XxXxxxxx in its group health
insurance plan until he is eligible for Medicare, provided
that (A) the Company plan then in effect permits XxXxxxxx as
a retired employee to be included in such plan and (B)
XxXxxxxx reimburses the Company for the cost of so including
XxXxxxxx in the Company's group plan.
-17-
11
5. Covenant Not to Compete.
a) Restriction. In consideration for the payments and benefits
to be provided to XxXxxxxx under Section 3(b), and to the
fullest extent permitted under applicable law, XxXxxxxx shall
not, directly or indirectly engage in, participate in,
represent in any way or be connected with, as an officer,
director, partner, owner, employee, agent, independent
contractor, consultant, proprietor or stockholder (except for
the ownership of a less than 5% stock interest in a publicly
traded corporation) or otherwise, any business or activity,
in any state in which the Company is then doing business,
which competes with the Business of the Company (as
hereinafter defined).
b) Restrictive Period. The provisions of Section 5 shall be in
effect for a period beginning on the Commencement Date and
continuing until the earlier of (i) the tenth anniversary of
the Commencement Date or (ii) the Date of Death (the
"Restrictive Period").
c) Business of the Company. For purposes of this Agreement, the
"Business of the Company" shall mean any business line or
activity that is engaged in by the Company or any of its
subsidiaries, or any assignee or successor of the Company on
the Commencement Date.
6. Non-Solicitation of Agents, Employees and Representatives. In
consideration for the payments and benefits to be provided to XxXxxxxx
under Section 3(b), during the Restrictive Period, XxXxxxxx shall not,
directly or indirectly, for his own account or the account of any
other person or entity with which he shall become associated in any
capacity or in which he shall have any ownership interest, (a) without
the prior written consent of the Company, solicit for employment or
employ or engage as an agent or representative any person who, at any
time during the preceding 12 months, is or was employed by or
otherwise engaged, as an employee, agent or representative of the
Company to perform services for the Company or any of its affiliates,
regardless of whether such employment or engagement is direct or
through an entity with which such person is employed or associated, or
(b) otherwise intentionally interfere with the relationship of the
Company or any of its affiliates with any person or entity who or
which is at the time employed by or otherwise engaged to perform
services for the Company or any such affiliate, or (c) induce any
employee, agent or representative of the Company or any of its
affiliates to engage in any activity which XxXxxxxx is prohibited from
engaging in under Sections 5,6, 7 and 8 hereof or to terminate his or
her employment or engagement with the Company or such affiliate.
7. Nonsolicitation of Customers. In consideration for the payments and
benefits to be provided to XxXxxxxx under Section 3(b), during the
Restrictive Period, XxXxxxxx shall not undertake any business with or
solicit the business of any person, firm or company who shall have
been a customer of the Company and with whom any executive of Company
or his subordinates has dealt with during the then immediately
preceding twelve (12) months which might affect the Company's business
relationship with such customer (if the Company reasonably determines
that such activities will not adversely affect its business
relationship with its customer and such activities do not otherwise
violate the covenants not to compete contained herein, the Company
shall provide XxXxxxxx its written consent to such activities). During
the Restrictive Period, XxXxxxxx shall not cause or attempt to cause
any customer to cease being a customer of the Company, or to change
its relationship with the Company in a manner which would adversely
affect the Company's business. For purposes hereof, "customer"
includes any contractor, supplier, licensee or other person with a
business relationship with the Company.
-18-
12
8. Unauthorized Disclosure. During and after the Restrictive Period,
without the written consent of the Company, (i) XxXxxxxx shall not
disclose to any person (other than an employee or director of the
Company or its affiliates, or a person to whom disclosure is
reasonably necessary or appropriate in connection with the performance
by XxXxxxxx of his duties under this Agreement or as a director of the
Company) or use to compete with the Company or any of its affiliates
any confidential or proprietary information, knowledge or data that is
not theretofore publicly known and in the public domain obtained by
him while in the employ of the Company or while acting as a consultant
hereunder with respect to the Company or any of its affiliates or with
respect to any products, improvements, customers, methods of
distribution, sales, prices, profits, costs, contracts (including,
without limitation the terms and provisions of this Agreement),
suppliers, business prospects, business methods, techniques, research,
trade secrets or know-how of the Company or any of its affiliates
(collectively, "Proprietary Information"), and (ii) XxXxxxxx shall use
reasonable best efforts to keep confidential any such Proprietary
Information and to refrain from making any such disclosure, in each
case except as may be required by law or as may be required in
connection with any judicial or administrative proceedings or inquiry.
9. Injunctive Relief with Respect to Covenants. XxXxxxxx acknowledges and
agrees that the covenants and obligations of XxXxxxxx with respect to
non-competition, non-solicitation, confidentiality and non-disclosure
with respect to the Company and its affiliates relate to special,
unique and extraordinary matters and that, notwithstanding any other
provision of this Agreement to the contrary, a violation of any of the
terms of such covenants and obligations will cause the Company and its
affiliates irreparable injury for which adequate remedies are not
available at law. Therefore, XxXxxxxx expressly agrees that the
Company and its affiliates (which shall be express third-party
beneficiaries of such covenants and obligations) shall be entitled to
an injunction (whether temporary or permanent), restraining order or
such other equitable relief (including the requirement to post bond)
as a court of competent jurisdiction may deem necessary or appropriate
to restrain XxXxxxxx from committing any violation of the covenants
and obligations contained in Sections 5, 6, 7, and 8 hereof. These
injunctive remedies are cumulative and in addition to any other rights
and remedies the Company and its affiliates may have at law or in
equity.
10. Entire Agreement. Except as otherwise expressly provided herein, this
Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements
relating to such subject matter (including those made to or with
XxXxxxxx by any other person or entity) are merged herein and
superseded hereby and thereby.
11. Legal Expenses. The Company shall reimburse XxXxxxxx for the
reasonable attorneys' fees and expenses incurred by him in connection
with the negotiation and execution of this Agreement and the other
agreements being executed by XxXxxxxx contemporaneously herewith.
12. Miscellaneous.
a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA
WITHOUT REFERENCE TO PRINCIPLES OF CONFLICT OF LAWS
THEREUNDER. ANY AND ALL SUITS, LEGAL ACTIONS OR PROCEEDINGS
AGAINST ANY PARTY HERETO ARISING OUT OF THIS AGREEMENT SHALL
BE BROUGHT IN ANY STATE COURT OR UNITED STATES FEDERAL COURT
SITTING IN XXXXX COUNTY IN THE STATE OF FLORIDA, AS THE PARTY
BRINGING SUCH SUIT MAY ELECT IN ITS SOLE DISCRETION, AND EACH
PARTY HEREBY SUBMITS TO AND ACCEPTS THE EXCLUSIVE
JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF SUCH SUIT,
LEGAL ACTION OR PROCEEDING. EACH PARTY HERETO WAIVES PERSONAL
SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES
THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED
MAIL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, LEGAL ACTION OR PROCEEDING IN
-19-
13
ANY SUCH COURT AND HEREBY FURTHER WAIVES ANY CLAIM THAT ANY
SUCH SUIT, LEGAL ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
b) Taxes. XxXxxxxx recognizes that the payments provided under
this Agreement including without limitation those provided
pursuant to Section 3 may result in taxable income to him
which the Company and its affiliates will report to their
appropriate taxing authorities. XxXxxxxx agrees to pay all
necessary and appropriate income and self-employment taxes on
such income.
c) Attorney's Fees. If any party to this Agreement breaches any
provision of this Agreement, then the breaching party shall
pay to the non-breaching party all of the non-breaching
party's costs and expenses incurred by that party in
enforcing this Agreement, including reasonable attorneys'
fees and expenses, whether or not suit be brought and whether
incurred before or at trial, on appeal or on remand.
d) Amendments. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or
discharge is approved by the Company or a person authorized
thereby and is agreed to in writing by XxXxxxxx, and such
officer of the Company as may be specifically designated by
the Company. No waiver by any party hereto at any time of any
breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any
prior or subsequent time. No waiver of any provision of this
Agreement shall be implied from any course of dealing between
or among the parties hereto or from any failure by any party
hereto to assert its rights hereunder on any occasion or
series of occasions. No agreements or representations, oral
or otherwise, express or implied, with respect to the subject
matter hereof have been made by either party which are not
set forth expressly in this Agreement.
e) Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid,
illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions
contained herein shall not be affected thereby. Should any
restrictive covenant in Sections 5, 6, 7 or 8 of this
Agreement be determined by a court of law or equity to be
unreasonable or unenforceable, XxXxxxxx agrees that to the
extent it is valid and enforceable, XxXxxxxx shall be bound
by the same, the intention of the parties being that the
Company be given the broadest protection allowed by law or
equity with respect to such provision.
f) Notices. Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i)
in writing, (ii) delivered personally, by nationally
recognized overnight courier service or by certified or
registered mail, first-class postage prepaid and return
receipt requested, (iii) deemed to have been received on the
date of delivery, and (iv) addressed as follows (or to such
other address as the party entitled to notice shall hereafter
designate in accordance with the terms hereof):
if to Company, to:
Mobile America Corporation
00000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
-20-
14
if to XxXxxxxx, to:
Xxxxxx X. XxXxxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxx X. XxXxxxxx
00000 Xxxxxxxx Xxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
g) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
h) Headings. The section and other headings contained in this
Agreement are for the convenience of the parties only and are
not intended to be a part hereof or to affect the meaning or
interpretation hereof.
i) Assignment. This is a contract for personal services by
XxXxxxxx and may not be assigned by XxXxxxxx without the
Company's prior written consent except to a corporation or
other entity controlled by him which assumes his obligations
hereunder and provided XxXxxxxx affirms that such assignment
does not release XxXxxxxx'x obligations hereunder. The
Company shall have the right to assign this Agreement in
connection with a sale of the Company's business or a
significant subsidiary thereof, which shall inure to the
benefit of the Company and its successors and assigns.
IN WITNESS WHEREOF, the Company has duly executed this Agreement by its
authorized representative and XxXxxxxx has hereunto set his hand, in each case
effective as of the date first above written.
MOBILE AMERICA CORPORATION
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
---------------------------------------------
XXXXXX X. XXXXXXXX
-21-
