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EXHIBIT 10.85
EMPLOYMENT AGREEMENT
AGREEMENT made effective this 22nd day of September, 1998 between INSURANCE
MANAGEMENT SOLUTIONS GROUP, INC., a Florida corporation, which corporation,
together with its subsidiary companies, shall hereinafter be referred to as
"Company" and Xxxxx Xxxxxx, of ______________, Florida, hereinafter referred to
as "Employee".
R E C I T A L S :
1. 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.
2. 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.
3. 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 as described in Section 1 hereof, 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 Senior Vice President.
SECTION 2. EMPLOYEE'S BEST EFFORTS. Employee hereby accepts employment by
Company, and agrees to devote his or her entire time and 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 or her from time to time by
Company.
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SECTION 3. TERMS OF EMPLOYMENT.
(a) Company and Employee understand and agree that the term of employment
of this Agreement shall be for a period of three years from the date hereof and
thereafter shall continue indefinitely until terminated by either party pursuant
to the terms herein.
(b) Said employment may be terminated 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) In the event this Agreement is terminated without cause, then the
Employee shall be entitled to any payments payable under Section 4 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 equal to twelve (12) months
(the "Severance Payment"). In the event that Employee is entitled to a Severance
Payment pursuant to this Section 3(c) and Employee secures employment at any
time during the twelve (12) months following termination (the "Severance
Period"), then the Company shall be entitled to a credit against its obligations
to make the Severance Payment in the amount up to seventy-five percent (75%) of
Employee's base salary during the Severance Period paid to him by his new
employer.
(d) 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
base salary of One Hundred Twenty Thousand dollars ($120,000) per annum paid on
a bi-weekly basis.
(b) In addition to the base salary, some employees shall be entitled to
earn additional compensation pursuant to a bonus plan, and an employee stock
option plan. If Employee is eligible for either a bonus plan or the stock option
plan, copies of the plan will be provided to Employee.
(c) 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 and health insurance.
(d) Employee's salary, bonuses and allowances may be modified, as agreed
upon between Employee and Company, from time to time, and any such modifications
made during the term of this Agreement shall be incorporated as part of the
Agreement.
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(e) 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.
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 or her
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 or she 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 prospective customers are defined as those 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 reasons whatsoever, or those prospective
customers as listed by Employee or by Employee's staff as active
potential prospects on Employee's weekly or monthly
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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;
(4) nor upon termination of Employee's employment from Company, whether by
resignation, discharge, or otherwise, and for a period of two (2)
years from the date of termination, shall 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 the specified time
period 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. In the event of any legal action in connection with this
agreement, the prevailing party shall be entitled to recover all of
its legal expenses, including reasonable attorney's fees and costs,
whether the same are incurred in connection with trial or during an
appeal and to have the same awarded as part of the judgment in the
proceeding in which such legal expenses and attorney's fees were
incurred.
(b) Nondisclosure. 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 or her 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,
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computer programs, or written procedures in the possession of Employee. Nothing
herein shall be construed as prohibiting the Company from pursuing any other
remedies available to it for such breach or threatened breach, including the
recovery of damages from the Employee. The existence of any claim or cause of
action of Employee against the Company shall not constitute a defense to the
enforcement by the Company of this covenant. No failure of the Company to
exercise any right given hereunder 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 7. SEVERABILITY OF RESTRICTIVE COVENANTS. Company and Employee agree
that the restrictive covenants contained in Section 6, or any of its
sub-paragraphs, 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. 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. In the event any
Court of competent jurisdiction should determine that the territorial
restrictions set forth in Sections 6 hereof, and/or their durations, are
unreasonable in their scope, then, and in that event, the territorial
restrictions, and/or their duration, shall be limited to such territory and/or
duration as may be determined reasonable by a Court of competent jurisdiction.
SECTION 8. ATTORNEY'S FEES. The parties hereto agree that, in the event of any
legal action in connection with this Agreement, the prevailing party shall be
entitled to recover all of its legal expenses, including reasonable attorney's
fees and costs, whether the same are incurred in connection with trial or
appeal, and to have the same awarded as part of the judgment in the proceeding
in which such legal expenses and attorney's fees were incurred.
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.
Venue to resolve any dispute under this Agreement shall be Pinellas County,
Florida.
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.
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
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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.
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.
By: /s/ Xxxxx X. Xxxxxx
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As Its: Chairman
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Date: 9/22/98
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WITNESSES: "EMPLOYEE"
/s/ Xxxxxxxx X. Xxxxxx
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Date: 9/22/98
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