WHEREAS, the Company and Executive are parties to an employment agreement, dated as of August 5, 2013 (the Prior Agreement), pursuant to which Executive was employed as Chief Financial Officer of the Company;
WHEREAS, the Prior Agreement expired on October 1, 2015; and
WHEREAS, Executive and the Company now desire to enter into this Agreement in connection with Executives continuing employment for the Term (as defined below) as the Chief Financial Officer of the Company;
NOW, THEREFORE, in consideration of the covenants and promises contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Employment and Acceptance. The Company will employ Executive, and Executive will accept employment, subject to the terms of this Agreement, as of October 1, 2015 (Effective Date).
2. Term. Subject to earlier termination pursuant to Section 5, this Agreement and the employment relationship hereunder will continue from the Effective Date until the second anniversary of the Effective Date. As used in this Agreement, the Term means the period beginning on the Effective Date and ending on the date Executives employment terminates in accordance with this Section 2 or Section 5. In the event that Executives employment terminates, the Companys obligation to continue to pay all Base Salary and other benefits then accrued will terminate except as may be provided for in Section 5.
3. Duties and Title.
(a) Title. The Company will employ Executive to render full-time services to the Company, its parent, its subsidiaries and its affiliates (singularly, Related Company or collectively, Related Companies). During the Term, the Company will employ Executive as Chief Financial Officer of the Company, reporting to the Chief Executive Officer.
(b) Duties. During the Term, Executive will have such authority and responsibilities and will perform such duties as the Chief Executive Officer or Chief Operating Officer may assign, commensurate with his position. Executive will devote all Executives full working-time and attention to the performance of such duties and to the promotion of the Companys or a Related Companys business and interests.
(c) Other Business Activities. Executive may not engage in any activity that conflicts with the Companys or a Related Companys interests or would materially interfere
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with the performance of Executives duties to the Company, as determined by the Company in its sole discretion. Executive may not hold, directly or indirectly, an ownership interest of more than 2% in any entity which competes with the Company or a Related Company, as determined by the Company in its sole discretion.
4. Compensation and Benefits by the Company. As compensation for all services rendered pursuant to this Agreement, the Company will provide Executive the following during the Term:
(a) Base Salary. The Company will pay Executive a base salary at the annual rate of $375,000, payable in accordance with the Companys customary payroll practices. The Base Salary may be subject to adjustment by the Compensation Committee of the Board of Directors of the Company (the Compensation Committee) based on the recommendation of the Chief Executive Officer of the Company. For purposes of this Agreement, Base Salary means Executives base salary as adjusted. Base Salary shall be paid in installments in accordance with the Companys regular payroll practices.
(b) Annual Bonus. For each fiscal year during the Term, Executive may be awarded an annual bonus payment as determined by the Company in its sole discretion (Annual Bonus). Executives employment with the Company must continue through the date any Annual Bonus is paid.
(c) Participation in Executive Benefit Plans. Executive is entitled, if and to the extent eligible, to participate in the Companys benefit plans generally available to Company employees in similar positions. Executive is eligible to participate in the Companys equity incentive plans, including the 2009 Omnibus Incentive Plan, as it may be amended from time to time, at the Compensation Committees discretion based on the recommendations of management of the Company, and any successor plans thereto.
(d) Vacation. Executive will receive paid vacation of 3 weeks per fiscal year. Beginning with 2016, any unused vacation for a given calendar year shall accrue, and the aggregate value of any unused accrued vacation shall be paid to Executive upon the termination of Executives employment with the Company, provided that Executive has submitted a report to the Committee within 30 days following the end of each calendar year reporting on the number of accrued and unused vacation days for such year and the total number of accrued but unused vacation days for all prior years.
(e) Expense Reimbursement. The Company will reimburse Executive for all appropriate business expenses Executive incurs in connection with Executives duties under this Agreement in accordance with the Companys policies as in effect from time to time.
5. Termination of Employment.
(a) Payment Upon Termination. If Executives employment terminates for any reason, Executive will receive, within 30 days of termination, a lump sum cash payment equal to (1) accrued but unpaid Base Salary through the date of termination, (2) any employee
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benefits Executive may be entitled to pursuant to the Companys employee benefit plans through the date of termination and (3) expenses reimbursable under Section 4(e) incurred but not yet reimbursed to Executive through the date of termination.
(b) Payment Upon Termination Without Cause. If during the Term the Company terminates Executives employment without Cause (which may be done at any time without prior notice), within 30 days of termination Executive will receive, in addition to the payment specified in Section 5(a), a lump-sum cash payment equal to Executives Base Salary for a period equal to the remaining Term of the Agreement, provided Executive executes (without revocation) a valid release agreement in a form reasonably acceptable to the Company. The Company will have no obligation to provide the payments set forth in this Section 5(b) in the event that Executive breaches the provisions of Section 6. For purposes of this Agreement, Cause means, as determined by Company (or its designee), (1) Executives material breach of Executives obligations or representations under this Agreement, (2) Executives arrest for, conviction of or plea of nolo contendere to a felony, (3) Executives acts of dishonesty resulting or intending to result in personal gain or enrichment at the Companys or a Related Companys expense, (4) Executives fraudulent, unlawful or grossly negligent conduct in connection with Executives duties under this Agreement, (5) Executives engaging in personal conduct which seriously discredits or damages the Company or a Related Company, (6) contravention of the Companys specific lawful directions or continuing inattention to or continuing failure to adequately perform the duties described under Section 3(b), (7) Executives material breach of the Companys manuals, written policies, codes or procedures, (8) initiation of a regulatory inquiry, investigation or proceeding regarding Executives performance of duties on the Companys or a Related Companys behalf or (9) breach of Executives covenants set forth in Section 6 below before termination of employment. A termination for Cause is effective immediately or on such other date set forth by the Company.
(c) Termination Because of Death. If Executives employment terminates because of Executives death, within 30 days of termination Executives legal representatives will receive, in addition to the payments specified in Section 5(a), a lump-sum cash payment equal to Executives unpaid Base Salary from the date of termination through the last day of the month in which Executives death occurred and any employee benefits Executive may be entitled to pursuant to the Companys employee benefit plans through such period.
(d) Termination Because of Disability. The Company may terminate Executives employment because of Executives Disability. For purposes of this Agreement, Disability means a determination by the Company that, as a result of a physical or mental injury or illness, Executive is unable to perform the essential functions of Executives job with or without reasonable accommodation for a period of 90 consecutive days or 60 days in any six (6)-month period.
6. Restrictions and Obligations of Executive.
(a) Non-Disparagement. Executive will not at any time (whether during or after the Term) publish or communicate to any person or entity any Disparaging remarks, comments or statements concerning the Company or a Related Company, and their respective
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present and former members, partners, directors, officers, shareholders, employees, agents, attorneys, successors, assigns, clients and agents. Disparaging remarks, comments or statements are those that impugn the character, honesty, integrity, morality, business acumen or abilities in connection with any aspect of the operation of business of the individual or entity being disparaged.
(b) Confidentiality. During the course of Executives employment, Executive has had and will have access to certain trade secrets and confidential information relating to the Company and the Related Companies which is not readily available from sources outside the Company. The parties agree that the business in which the Company engages is highly sales-oriented and the goodwill established between Executive and the Companys customers and potential customers is a valuable and legitimate business interest worthy of protection under this Agreement. Executive recognizes that, by virtue of Executives employment by the Company, Executive is granted otherwise prohibited access to the Companys confidential and proprietary data which is not known to its competitors and which has independent economic value to the Company and that Executive will gain an intimate knowledge of the Companys reinsurance business and its policies, customers, employees and trade secrets, and of other confidential, proprietary, privileged or secret information of the Company and its clients (collectively, all such nonpublic information is referred to as Confidential Information). This Confidential Information includes, but is not limited to, data relating to the Companys marketing and servicing programs, procedures and techniques, business, management and personnel strategies, analytic tools and processes, the criteria and formulae used by the Company in pricing its insurance products and claims management, loss control and information management services, the Companys computer system, reinsurance marketing program and the skill of marketing and selling products, the structure and pricing of special reinsurance products or packages that the Company has negotiated with various underwriters, lists of prospects, customer lists and renewals, the identity, authority and responsibilities of key contacts at clients accounts, the composition and organization of clients business, the peculiar risks inherent in a clients operations, highly sensitive details concerning the structure, conditions and extent of a clients existing insurance and reinsurance coverages, policy expiration dates and premium amounts, commission rates, risk management service arrangements, loss histories and other data showing clients particularized insurance requirements and preferences.
Except as required by law or an order of a court or governmental agency with jurisdiction, Executive will not, during the Term or any time thereafter, disclose any Confidential Information, directly or indirectly, to any person or entity for any reason or purpose whatsoever, nor will Executive use it in any way. Executive will take all reasonable steps to safeguard the Confidential Information and to protect it against disclosure, misuse, espionage, loss and theft. Executive understands and agrees that Executive will acquire no rights to any such Confidential Information.
At the Companys request from time to time and upon the termination of Executives employment for any reason, Executive will promptly deliver to the Company all copies and embodiments, in whatever form, of all Confidential Information in Executives possession or within Executives control (including, but not limited to, memoranda, records, notes, plans, photographs, manuals, notebooks, documentation, program listings, flow charts,
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magnetic media, disks, diskettes, tapes and all other materials containing any Confidential Information) irrespective of the location or form of such material. If requested by the Company, Executive will provide the Company with written confirmation that all such materials have been delivered to the Company as provided herein.
Notwithstanding anything herein to the contrary, Executive shall have the right under Federal law to certain protections for cooperating with or reporting legal violations to the Securities and Exchange Commission (the SEC) and/or its Office of the Whistleblower, as well as certain other governmental entities. No provisions in this Agreement are intended to prohibit Executive from disclosing this Agreement to, or from cooperating with or reporting violations to, the SEC or any other such governmental entity, and Executive may do so without disclosure to the Company. The Company may not retaliate against Executive for any of these activities, and nothing in this Agreement would require Executive to waive any monetary award or other payment that Executive might become entitled to from the SEC or any other governmental entity.
(c) Non-Solicitation or Hire. While employed by the Company and for a period of 12 months following the termination of Executives employment for any reason, Executive will not directly or indirectly solicit or attempt to solicit or induce, directly or indirectly, (1) any party who is a client, customer or policyholder of the Company or a Related Company, or who was a client, customer or policyholder of the Company or a Related Company at any time during the 12-month period immediately prior to the date of termination, for the purpose of marketing, selling or providing to any such party any services or products offered by or available from the Company or a Related Company and (2) any employee of the Company or a Related Company or any person who was an employee of the Company or a Related Company during the 12-month period immediately prior to the date Executives employment terminates to terminate such employees employment relationship with the Company or a Related Company, in either case, to enter into a similar relationship with Executive or any other person or any entity in competition with the Company or a Related Company. During the Term and for a period of 12 months following the termination of Executives employment for any reason, Executive will not enter into an employment relationship, directly or indirectly, with any employee of the Company or a Related Company or any person who was an employee of the Company or a Related Company during the 12-month period immediately prior to the date Executives employment terminates.
(d) Non-Competition. While employed by the Company and for a period of 12 months following Executives termination of employment for any reason, Executive will not, whether individually, as a director, manager, member, stockholder, partner, owner, employee, consultant or agent of any business, or in any other capacity, other than on behalf of the Company or a Related Company, organize, establish, own, operate, manage, control, engage in, participate in, invest in, permit Executives name to be used by, act as a consultant or advisor to, render services for (alone or in association with any person, firm, corporation or business organization) or otherwise assist any person or entity that engages in or owns, invests in, operates, manages or controls any venture or enterprise which engages or proposes to engage in any business conducted by the Company or a Related Company during the 12-month period immediately prior to the date Executives employment terminates.
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(e) Company Policies. During the Term and all periods thereafter, Executive will remain in strict compliance with the Companys policies and guidelines, including the Companys code of business conduct or code of ethics.
7. Representations and Warranties by Executive. Executive represents and warrants the following:
(a) Skills and Competencies. Any resume, employment history or related information directly or indirectly provided by Executive to the Company, whether orally or in writing, is true, complete and accurate in all respects. Further, Executive is qualified by education and experience to perform the duties contemplated by this Agreement.
(b) Absence of Restrictions. Executive is not a party to or subject to any restrictive covenants, legal restrictions or other agreements in favor of any entity or person which would in any way preclude, inhibit, impair or limit Executives ability to perform Executives obligations under this Agreement, including, but not limited to, non-competition agreements, non-solicitation agreements or confidentiality agreements.
(c) Absence of Litigation. Within the 5-year period ending on the Effective Date, Executive has not been involved in any proceeding, claim, lawsuit or investigation alleging wrongdoing by Executive in connection with any prior employer before any court or public or private arbitration board or panel.
8. Remedies; Specific Performance. The parties acknowledge and agree that Executives breach or threatened breach of any of the restrictions set forth in Section 6 will result in irreparable and continuing damage to the Company and the Related Companies for which there may be no adequate remedy at law and that the Company and the Related Companies are entitled to equitable relief, including specific performance and injunctive relief as remedies for any such breach or threatened or attempted breach. Executive consents to the grant of an injunction (temporary or otherwise) against Executive or the entry of any other court order against Executive prohibiting and enjoining Executive from violating, or directing Executive to comply with, any provision of Section 6. Executive also agrees that such remedies are in addition to any and all remedies, including damages, available to the Company and the Related Companies against Executive for such breaches or threatened or attempted breaches. In addition, without limiting the Companys and the Related Companies remedies for any breach of any restriction on Executive set forth in Section 6, except as required by law, Executive is not entitled to any payments set forth in Section 5(b) if Executive has breached the covenants contained in Section 6. Executive will immediately return to the Company any such payments previously received under Section 5(b) upon such a breach and, in the event of such breach, the Company will have no obligation to pay any of the amounts that remain payable by the Company under Section 5(b).
9. Code Section 409A. The provisions of this Section 9 shall apply notwithstanding any provision of this Agreement related to the timing of payments following Executives termination or resignation.
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(a) Delay of Payments. If, at the time of Executives termination or resignation with the Company, Executive is a Specified Employee (as defined below), then the payments under Section 5(b), any outstanding awards payable under the 2009 Omnibus Incentive Plan and any other amounts payable under this Agreement that the Company determines constitutes deferred compensation within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the Code), and which are subject to the six-month delay required by Treas. Reg. Section 1.409A-1(c)(3)(v), shall be delayed and not paid to Executive until the first business day following the six-month anniversary of Executives date of termination or resignation (the Short-Term Deferral Date), at which time such delayed amounts will be paid to Executive in a cash lump sum (the Catch-Up Amount). If payment of an amount is delayed as a result of this Section 9(a), such amount shall be increased with interest from the date on which such amount would otherwise have been paid to Executive but for this Section 9(a) to the day prior to the date the Catch-Up Amount is paid. The rate of interest shall be the applicable short-term federal rate applicable under Section 7872(f)(2)(A) of the Code for the month in which the date of Executives termination or resignation occurs. Such interest shall be paid at the same time that the Catch-Up Amount is paid. If Executive dies on or after the date of Executives termination or resignation and prior to the Short-Term Deferral Date, any amount delayed pursuant to this Section 9(a) shall be paid to Executives estate or beneficiary, as applicable, together with interest, within 30 days following the date of Executives death.
(b) Specified Employee has the meaning set forth in Section 409A(a)(2)(B)(i) of the Code. The determination of whether Executive constitutes a Specified Employee on the date of his termination or resignation shall be made in accordance with the Companys established methodology for determining Specified Employees.
(c) Separation from Service means a separation from service from the Company within the meaning of the default rules under the final regulations issued pursuant to Section 409A of the Code. For purposes of this Agreement, the terms terminate, terminated, termination and resignation mean a termination of Executives employment that constitutes a Separation from Service.
(d) Separate Payments and Reimbursements. For purposes of applying the provisions of Section 409A of the Code to this Agreement, each separately identifiable amount to which Executive is entitled under this Agreement shall be treated as a separate payment. To the extent any reimbursements or in-kind benefit payments under this Agreement are subject to Section 409A, such reimbursements and in-kind benefit payments shall be made in accordance with Section 409A, and payments of such reimbursements or in-kind benefits shall be made on or before the last day of the calendar year following the calendar year in which the relevant expense is incurred.
10. Notice. For purposes of this Agreement, all notices and other communications will be in writing and will be deemed to have been duly given when delivered or when mailed by United States registered or certified mail, return receipt requested, first-class postage prepaid, addressed as follows:
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|If to Executive:||If to the Company:|
|Frank C. Wilcox,||1110 West Commercial Boulevard|
|to Executives most recent||Fort Lauderdale, Florida 33309|
|address on file with the Company||Attn: Beth Wallace|
or to such other address as any party may have furnished to the other in writing in accordance with this Section 10, except that notices of any change of address is effective only upon actual receipt.
11. Stock Ownership Guidelines. Executive will comply with all stock ownership and stock retention guidelines or policies established by the Board and the Committee, as in effect from time to time.
12. Claw Back Policy. All compensation granted to Executive hereunder shall be subject to any and all claw back policies of the Company, as in effect from time to time.
13. Entire Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto.
14. Waiver and Amendments. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms and conditions hereof may be waived, only by a written instrument signed by the parties or, in the case of a waiver, by the party waiving compliance. No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any right, power or privilege hereunder, nor any single or partial exercise of any right, power or privilege hereunder, preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
15. Governing Law. This Agreement and the implementation of it shall be subject to and governed by the laws of the State of Florida applicable to contracts fully performed and executed in such State.
16. Venue. The parties agree that the exclusive venue for any litigation relating to this Agreement will be the state courts located in Broward County, Florida and the United States District Court, Southern District of Florida, Fort Lauderdale Division in Broward County, Florida. The parties waive any rights to object to venue as set forth herein, including any argument of inconvenience for any reason.
17. Assignability by the Company and Executive. The Company may assign this Agreement, and the rights and obligations hereunder, at any time. Other than to the extent provided in Section 5(c), Executive may not assign this Agreement or the rights and obligations hereunder.
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18. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument.
19. Headings. The headings in this Agreement are for convenience of reference only and will not limit or otherwise affect the meaning of terms contained herein.
20. Severability. If any term, provision, covenant or restriction of this Agreement, or any part thereof, is held by a court of competent jurisdiction of any foreign, federal, state, county or local government or any other governmental, regulatory or administrative agency or authority to be invalid, void, unenforceable or against public policy for any reason, the remainder of the terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect and will in no way be affected or impaired or invalidated. If any court determines that any of such covenants, or any part thereof, is invalid or unenforceable because of the geographic or temporal scope of such provision, such court will reduce such scope to the minimum extent necessary to make such covenants valid and enforceable. Executive acknowledges that the restrictive covenants contained in Section 6 are a condition of this Agreement and are reasonable and valid in temporal scope and in all other respects.
21. Tax Withholding. The Company or other payor is authorized to withhold from any benefit provided or payment due hereunder, the amount of withholding taxes due any federal, state or local authority in respect of such benefit or payment and to take such other action as may be necessary in the Companys opinion to satisfy all obligations for the payment of such withholding taxes.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have executed this Agreement as of the day and year first above mentioned.
|/s/ Frank C. Wilcox|
|Frank C. Wilcox|
|UNIVERSAL INSURANCE HOLDINGS, INC.|
|/s/ Sean P. Downes|
President and Chief Executive Officer