UNIVERSAL INSURANCE HOLDINGS, INC.
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as of October 11,
2006, by and between Universal Insurance Holdings, Inc., a Delaware corporation,
(the "COMPANY"), and Xxxxx X. Xxxxx, an individual currently residing at 00
Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the "EXECUTIVE").
WHEREAS, the Company has employed the Executive as its Chief Financial
Officer and the Company and the Executive desire to enter into this Agreement to
set forth the rights, duties, benefits and obligations with respect to the
employment of the Executive by the Company under the terms and conditions herein
provided.
NOW, THEREFORE, in consideration of the Executive's continued employment,
and the mutual and respective covenants and agreements of the parties herein
contained, and other good and valuable consideration present but not
specifically set forth, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby agrees to employ the Executive, and
the Executive hereby agrees to be employed by the Company, on the terms and
conditions set forth herein. The term of Executive's employment under this
Agreement shall commence as of October 11, 2006 and shall end on December 31,
2009, unless sooner terminated in accordance with the provisions of Section 6
hereof (the "TERM"). The parties acknowledge that the Company's offices and
headquarters are currently located in Fort Lauderdale, Florida.
2. POSITION AND DUTIES. During the Term, the Executive shall serve as
Chief Financial Officer of the Company and shall be responsible for those duties
customarily performed by a chief financial officer. The Executive shall devote
substantially all of his working time and efforts to the business and affairs of
the Company, shall perform his duties hereunder diligently and in a prudent and
businesslike manner, and shall act in the best interests of the Company.
3. COMPENSATION AND RELATED MATTERS.
(a) BASE SALARY. The Executive shall receive an annual base
salary of Three Hundred Thousand Dollars ($300,000) ("BASE SALARY"). During the
Term, the then-current Base Salary shall be subject to a twenty percent (20%)
annual increase on each anniversary of the date hereof (i.e., $360,000 in 2007,
$432,000 in 2008 and $518,400 in 2009).
(b) BONUS. During the Term, in addition to the Base Salary, the
Executive shall receive an annual bonus in an amount to be determined at the
discretion of the Board of Directors of the Company; PROVIDED, HOWEVER, that
such amount shall be no less than $50,000 annually. The bonus payments due and
owing under this Section 3(b) shall be paid to the Executive within fifteen (15)
calendar days after the Company's year-end financial statements have been
calculated for the applicable bonus year. The "bonus year" shall be based on
the calendar year. The Executive shall be entitled to payment for any earned
bonus even if he is not employed by the Company on the payment date.
Additionally, notwithstanding anything herein to the contrary, if the
Executive's employment is terminated by his death, by the Company without Cause,
or if the Executive terminates his employment for Good Reason, the Company shall
pay the Executive (or his legal representatives in the case of his death) a
prorated share (January 1 to Executive's last day of employment) of his
annualized bonus.
(c) BENEFITS. Executive shall be entitled to all rights and
benefits for which he is eligible under the terms and conditions of the
Company's standard benefits and compensation practices that may be in effect
from time to time and provided by the Company to its employees generally. In
addition to, and not in limitation of, the foregoing, during the Term, the
Executive shall receive: (i) medical, dental and disability insurance with a
coverage limit in amount comparable to that provided to similarly situated
executives of the Company; (ii) a life insurance policy in the amount of $1
million; (iii) a monthly car allowance of Five Hundred Dollars ($500); and (iv)
paid vacation of twenty-one (21) business days per year, subject to the
Company's standard vacation policies. Any unused vacation shall be paid to the
Executive upon the Company's termination of the Executive's employment without
Cause or the Executive's termination of his employment from the Company for Good
Reason.
(e) EXPENSE REIMBURSEMENT. The Company will provide the Executive
with an expense account, including corporate American Express and Visa cards,
and will reimburse the Executive for reasonable business expenses in accordance
with the Company's standard expense account and reimbursement policies.
4. REPRESENTATIONS AND WARRANTIES OF EXECUTIVE. In order to induce the
Company to employ the Executive, the Executive hereby represents and warrants to
the Company as follows:
(a) BINDING AGREEMENT. This Agreement has been duly executed and
delivered by the Executive and constitutes a legal, valid and binding obligation
of the Executive and is enforceable against the Executive in accordance with its
terms.
(b) NO VIOLATIONS OF LAW. The execution and delivery of this
Agreement and the other agreements contemplated hereby by the Executive do not,
and the performance by the Executive of his obligations under this Agreement and
the other agreements contemplated hereby will not, violate any term or provision
of any law, or any writ, judgment, decree, injunction, or similar order
applicable to the Executive.
(c) LITIGATION. The Executive is not involved in any proceeding,
claim, lawsuit, or investigation alleging wrongdoing by the Executive before any
court or public or private arbitration board or panel or governmental
department, commission, board, bureau, agency or instrumentality.
5. CONFIDENTIALITY.
(a) CONFIDENTIALITY CRITICAL. The parties agree that the business
in which the Company is engaged is highly sales-oriented and the goodwill
established between the Executive and the Company's customers and potential
customers is a valuable and legitimate business interest worthy of protection
under this Agreement. The Executive acknowledges and agrees that developing and
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maintaining business relationships is an important and essential business
interest of the Company. The Executive further recognizes that, by virtue of
his employment by the Company, he will be granted otherwise prohibited access to
confidential and proprietary data of the Company which is not known to its
competitors and which has independent economic value to the Company and that he
will gain an intimate knowledge of the Company's business and its policies,
customers, employees and trade secrets, and of other confidential, proprietary,
privileged, or secret information of the Company and its clients ("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 Company's marketing and servicing programs, procedures and
techniques; business, management and personnel strategies; the criteria and
formulae used by the Company in pricing its insurance products and claims
management, loss control and information management services; the Company's
computer system, insurance marketing program and the skill of marketing and
selling products; the structure and pricing of special reinsurance 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 accounts of Clients; the composition and organization of Clients'
business; the peculiar risks inherent in the Client's operations; highly
sensitive details concerning the structure, conditions and extent of the
Client's existing insurance and reinsurance coverages; policy expiration dates
and premium amounts; commission rates; risk management service arrangements;
loss histories; and other data showing the particularized insurance requirements
and preferences of the Clients. The Executive recognizes and admits that this
Confidential Information constitutes valuable property of the Company, developed
over a long period of time and at substantial expense, and worthy of protection.
Executive acknowledges and agrees that only through his employment with the
Company could he have the opportunity to learn this Confidential Information.
(b) COVENANTS. Based on the matters described in Section 5(a)
above, and in further consideration of this Agreement, the Executive covenants
and agrees with the Company that:
(i) CONFIDENTIAL INFORMATION. The Executive shall not (for
any reason), directly or indirectly, for himself or on behalf of any other
person or entity, (A) disclose to any person or entity (except to
employees or other representatives of the Company who need to know such
Confidential Information to the extent reasonably necessary for the
Executive to perform his duties under this Agreement or such employees or
representatives to perform their duties on behalf of the Company, and
except as required by law) any Confidential Information that the Executive
may have acquired in the course of or as an incident to his employment or
prior dealings with the Company or any Clients, including, without
limitation, business or trade secrets of, or products or methods or
techniques used by, the Company, or any Confidential Information
whatsoever concerning the Clients, (B) use, directly or indirectly, for
his own benefit or for the benefit of another (other than a Client) any of
such Confidential Information, or (C) assist any other person or entity in
connection with any action described in either of the foregoing clauses
(A) and (B);
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(ii) NONINTERFERENCE WITH EXECUTIVES. The Executive further
agrees that the Company has expended considerable time, energy and
resources into training its other employees and agents ("Co-Workers"). As
a result, during the Term, and for a period of two (2) years following the
Term, the Executive shall not, for any reason, directly or indirectly, for
himself or on behalf of any other person or entity, (A) induce or attempt
to induce any Co-Worker to terminate employment with the Company, (B)
interfere with or disrupt the Company's relationship with any of the Co-
Workers, (C) solicit, entice, hire, cause to hire, or take away any
person employed by the Company during the 12-month period preceding the
termination of the Term, or (D) assist any other person or entity in
connection with any action described in any of the foregoing clauses (A)
through (C).
(iii) NON-DISPARAGEMENT. At any time during or after the
Term, the Executive shall not disparage the Company or any shareholders,
directors, officers, employees, or agents of the Company.
(c) NON-COMPETE. The Executive further agrees with the Company to
the following provisions, all of which Executive acknowledges and agrees are
necessary to protect the Company's legitimate business interests. The Executive
covenants and agrees with the Company that:
(i) The Executive shall not, during the Term, either
directly or indirectly, render service or other assistance or sell
products or provide resources of any kind, whether as an owner, partner,
officer, director, employee, or in any other capacity, whether or not for
consideration, to any person, corporation, or any entity, whatsoever, that
owns, operates or conducts a business that competes, in any way, with the
Company or that sells any products that are similar to or competitive with
those sold by the Company.
(ii) During the Term, the Executive shall not, directly or
indirectly, engage in any business enterprise or activity competitive with
the business of the Company as an employee, consultant, partner,
shareholder, or in any other capacity. For the purposes of this covenant
not to compete, a competing business enterprise will be deemed competitive
only if such business enterprise conducts insurance activities similar to
the activities of the Company. Further, the Executive agrees that he
shall not, during the Term (A) call on or contact any Client or prospect
of the Company for the purpose or with the effect of offering any products
or services of any kind offered by the Company during the Term, (B)
request or advise any present or future vendors, insurance carriers
agencies and companies affiliated with the Company to cancel any
contracts, or curtail their dealings, with the Company, (C) request or
advise any present or future service or financial resource of the Company
to withdraw, curtail or cancel the furnishing of such service or resource
to the Company or (D) assist any other person or entity in connection with
any action described in any of the foregoing clauses (A) through (C).
(iii) During the Term, the Executive shall not own, or permit
ownership by the Executive's spouse or any minor children under the
parental control of the Executive, directly or indirectly, of, an amount
in excess of five percent (5%) of the outstanding shares of stock of a
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corporation, or five percent (5%) of any business venture of any kind,
which operates or conducts a business that competes, in any way, with the
Company, or which sells products that are similar to or competitive in any
way with the products sold by the Company. In general, the Executive
shall, in no way, engage in any business or sell any product competing
with the Company.
(iv) In consideration of the Company employing the Executive
in a position whereby he may gain or be exposed to knowledge or training,
or receive experience and establish relationships with the Company's
customers, potential customers, affiliates, insurers and employees, and
receive exposure to the Company's Confidential Information, the Executive
agrees to the following:
a. During the Term, the Executive shall not (1)
render service or assistance or resources to any individual or
business entity of any kind that solicits or calls upon the existing
or potential customers of Company, divulge the names of existing or
potential policyholders of the Company, or encourage replacement or
induce discontinuance of existing policies of the Company or (2) do
any act which may be detrimental to the Company or its business,
including but not limited to, interference with business or
contractual relationships or renewals, either directly or indirectly
through a co-worker, customer service representative or other third
party.
b. The Executive agrees that the non-competition
provision contained in this Section 5 shall extend throughout the
state of Florida and all other areas where the Company currently
maintains marketing or customer/policyholder relationships, or where
the Company may eventually establish customer/policyholder
relationships during the Executive's employment.
c. The Executive agrees that during the Term and for
the two (2) year period following the end of the Term, the Executive
shall not disclose or divulge any Confidential Information to any
third party. The Executive further hereby acknowledges and agrees
that the names of customers, policyholders, or resources developed,
used or in any way serviced by the Executive during his employment
are confidential and proprietary and he agrees that he shall never
disclose, disseminate, or in any way release or use such
information.
(v) The provisions of this Section 5 shall be construed as
an agreement independent of any other claim. The existence of any claim
or cause of action of the Executive against the Company, whether
predicated on the Executive's employment or otherwise, shall not
constitute a defense to the enforcement by the Company of the terms of
Section 5(c) of this Agreement. In any action brought by either party
under Section 5(c) of this Agreement, the prevailing party in such action
shall be entitled to recover its attorneys' fees and costs from the other
party, both on trial and appellate levels. The Executive waives any right
to a jury trial in any such litigation, and waives any right to jury trial
that he may have in any litigation relating to the Executive's employment
including but not limited to any claims arising under Title VII of the
Civil Rights Act of 1964 (and any similar civil rights provision of state
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law, including but not limited to the Florida Civil Rights Act), the Age
Discrimination in Employment Act, the Americans with Disabilities Act, the
Family and Medical Leave Act, the Fair Labor Standards Act, and the
National Labor Relations Act.
(vi) The Executive agrees that the business interests
described in this Agreement are legitimate and that the Company need not
introduce any further evidence to establish that these interests are
legitimate business interests in the event the Company files an action to
enforce this Agreement.
(vii) The Executive understands that this Agreement may be
enforced against him by the Company's assignee(s) or successor(s) in
interest.
(d) INJUNCTIVE RELIEF. The Executive acknowledges and agrees that
any breach by him of any of the covenants or agreements contained in this
Section 5 would give rise to irreparable injury and would not be adequately
compensable in damages. Accordingly, the Executive agrees that any beneficiary
of the provisions of this Agreement may seek and obtain injunctive relief
against the breach or threatened breach of any of the provisions of this
Agreement in addition to any other legal remedies available. The Executive
further acknowledges and agrees that the covenants and agreements contained
herein are necessary for the protection of the Company's legitimate business
interests and are reasonable in scope and content.
(e) REFORMATION AND SURVIVAL. The Company and the Executive agree
and stipulate that the agreements and covenants contained in this Agreement are
fair and reasonable in light of all of the facts and circumstances of the
relationship between them. The Company and the Executive acknowledge their
awareness, however, that in certain circumstances courts have refused to enforce
certain agreements not to compete. Therefore, in furtherance of, and not in
derogation of, the provisions of this Section 5, the Company and the Executive
agree that, in the event a court should decline to enforce one or more of the
provisions of this Section 5 or decide to limit the temporal or geographic scope
of any restriction, then this Section 5 shall be deemed to be modified or
reformed to restrict the Executive's conduct to the maximum extent (in terms of
time, geography, and business scope) that the court shall determine to be
enforceable. The provisions of this Section 5 shall survive the termination of
this Agreement for the respective periods set forth in this Section 5.
6. TERMINATION.
(a) TERMINATION UPON DEATH. If the Executive dies of natural
causes during the Term, this Employment Agreement shall terminate, except that
the Executive's legal representatives shall be entitled to receive (i) the Base
Salary earned up to the date of the Executive's death, and (ii) the prorated
share of the Executive's annualized bonus pursuant to Section 3(b) hereof.
(b) TERMINATION WITH CAUSE. The Company has the right, at any
time during the Term, to terminate the Executive's employment with the Company
for Cause (as defined below) by giving written notice to the Executive as
described in this Section 6(b) below. Prior to the effectiveness of termination
for Cause under subclause (i), (ii), (iii) or (v) below, the Executive shall be
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given thirty (30) calendar days' prior written notice from the Company,
specifically identifying the reasons which are alleged to constitute Cause for
any termination pursuant to the aforementioned subclauses, and an opportunity to
be heard by the Company in the event the Executive disputes such allegations;
PROVIDED, HOWEVER, that the Company shall have no obligation to continue to
employ the Executive following such thirty (30) calendar day notice period.
Prior to the effectiveness of termination for Cause under subclause (iv) below,
the Executive shall be given thirty (30) calendar days' prior written notice
from the Company, specifically identifying the reasons which are alleged to
constitute Cause for any termination under such subclause, and, in the event the
Executive disputes such allegations, an opportunity to be heard by the Company
and to cure the actions, events or circumstances giving rise to such
allegations; PROVIDED, HOWEVER, that the Company shall have no obligation to
continue to employ the Executive following such thirty (30) calendar day notice
period unless the Executive's cure meets the Company's reasonable satisfaction.
The Company's termination of the Executive's employment for Cause under
subclause (vi) below shall be effective immediately upon the Company's written
notice to the Executive. If the Company terminates Executive's employment for
Cause, the Company's obligation to the Executive shall be limited solely to the
payment of unpaid Base Salary accrued up to the effective date of termination.
As used in this Section 6(b), the term "CAUSE" shall mean and include (i)
the Executive's abuse of alcohol or any controlled substance; (ii) a willful act
of fraud, dishonesty or breach of fiduciary duty on the part of the Executive
with respect to the business or affairs of the Company; (iii) knowing and
material failure by the Executive to comply with material applicable laws and
regulations or professional standards relating to the business of the Company;
(iv) the Executive's documented and continuing grossly unsatisfactory
performance of his duties hereunder (as documented in at least one performance
improvement plan to Executive) or a material breach by the Executive of this
Agreement except, in each case, where such failure or breach is caused by the
illness or other similar incapacity or disability of the Executive; (v) the
Executive being subject to an inquiry or investigation by a governmental
authority or self-regulatory organization such that the existence of such
inquiry or investigation may result in damage to the Company's business
interests, licenses, reputation or prospects; or (vi) conviction of a
misdemeanor involving moral turpitude or any felony.
(c) TERMINATION WITHOUT CAUSE. The Company shall have the right,
at any time during the Term, to terminate the Executive's employment with the
Company without Cause by giving written notice to the Executive, which
termination shall be effective thirty (30) calendar days from the date of such
written notice. If the Company terminates the Executive's employment without
Cause, the Company's obligation to the Executive shall be limited solely to (i)
unpaid Base Salary accrued up to the effective date of termination, (ii) payment
for the prorated share of the Executive's annualized bonus pursuant to Section
3(b) hereof, (iii) a lump sum payment equal to the Executive's then-current Base
Salary for a period of twelve (12) months, to be paid within fifteen (15)
calendar days following Executive's last day of employment, and (iv) payment of
Executive's COBRA premiums for twelve (12) months.
(d) SUSPENSION UPON DISABILITY. If during the term hereof the
Executive becomes physically or mentally disabled, whether totally or partially,
as evidenced by the written statement of a competent physician licensed to
practice medicine in the United States who is mutually acceptable to the Company
and the Executive (or acceptable to the Executive's closest relative if the
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Executive is not then able to make such a choice), so that the Executive is
unable substantially to perform the essential functions of his services
hereunder, with or without reasonable accommodation, for (i) a period of three
(3) consecutive months, or (ii) for shorter periods aggregating ninety (90)
calendar days during any twelve-month period, the Company may at any time after
the last day of the three (3) consecutive months of disability or the day on
which the shorter periods of disability equal an aggregate of ninety days, by
written notice to the Executive, suspend the term of the Executive's employment
hereunder and discontinue payments of the Base Salary for the duration of the
disability. The Executive shall be entitled to the full compensation payable to
him hereunder for periods of disability shorter than the periods specified in
clauses (i) and (ii) of the previous sentence. Nothing contained in this
Section 6(d) shall be deemed to extend the term hereof or to constitute a breach
of this Agreement.
(e) TERMINATION FOR GOOD REASON. The Executive has the right, at
any time during the Term, to terminate his employment with the Company for Good
Reason (as defined below) by giving written notice to the Company as described
in this Section 6(e) below. Prior to the effectiveness of termination for Good
Reason, the Company shall be given thirty (30) calendar days' prior written
notice from the Executive, specifically identifying the reasons which are
alleged to constitute Good Reason for termination hereunder, and an opportunity
to be heard by the Executive in the event the Company disputes such allegations
and to cure such allegations; PROVIDED, HOWEVER, that the Executive shall have
no obligation to remain employed by the Company following such thirty (30)
calendar day notice period unless such allegations are cured to the Executive's
reasonable satisfaction. As used in this Section 6(e), the term "GOOD REASON"
shall mean and include any of the following without the Executive's prior
written consent (i) assignment to the Executive of duties materially
inconsistent with the Executive's position hereunder; (ii) failure to pay the
Executive's Base Salary in accordance with Section 3(a) hereof; (iii) failure to
pay the Executive's bonus pursuant to Section 3(b) hereof; (iv) requiring the
Executive to move his situs of employment more than fifty (50) miles from his
situs of employment prior to such move; or (v) the Company's material breach of
this Agreement. If the Executive terminates his employment for Good Reason, the
Company's obligation to the Executive shall be limited solely to (1) unpaid Base
Salary accrued up to the effective date of termination, (2) payment for the
prorated share of the Executive's annualized bonus pursuant to Section 3(b)
hereof, (3) a lump sum payment equal to the Executive's then-current Base Salary
for a period of twelve (12) months, to be paid within fifteen (15) calendar days
following Executive's last day of employment, and (4) payment of Executive's
COBRA premiums for twelve (12) months.
(f) VOLUNTARY TERMINATION WITHOUT GOOD REASON. The Executive may
voluntarily terminate his employment with the Company without Good Reason at any
time by giving written notice to the Company, which termination shall be
effective thirty (30) days from the date of such written notice. If the
Executive voluntarily terminates his employment without Good Reason, the
Company's obligation to the Executive shall be limited solely to the payment of
unpaid Base Salary accrued up to the effective date of termination.
(g) EFFECT OF TERMINATION. Except as provided herein, from and
after the effective date of termination of the Executive's employment hereunder,
the Company shall have no obligation (whether financial or otherwise) under this
Agreement, and the Executive shall have no right to receive any Base Salary or
any other payment or benefit under this Agreement from the Company. If the
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Executive ceases to render services to the Company, the Company may terminate
the Executive for Cause, or the Company may adjust the Base Salary accordingly.
The foregoing notwithstanding, nothing in this Section 6 shall affect the
Executive's obligations under Section 5 above or shall affect the Executive's
rights to receive payments or benefits that are accrued and vested before, but
remain unpaid on, the date of termination, or to receive payments or benefits
that are required to be made or provided to him pursuant to the terms of any
employee benefit plans insofar as such rights relate to the Executive's
participation in the respective plan before the date of termination.
Notwithstanding anything to the contrary set forth herein, the Company reserves
the right to require that the Executive not perform any services or report to
work during the thirty (30) calendar day notice periods set forth in Sections
6(b), 6(c), 6(e) and 6(f) hereof, as applicable.
7. CHANGE OF CONTROL.
(a) If, within one year of a Change of Control (as defined below),
(a) the Company or a succeeding entity terminates the Executive's employment
with the Company without Cause (as defined above) or (b) the Executive
terminates his employment for Good Reason (as defined above), the Company or the
succeeding entity's obligation to the Executive shall be (1) unpaid Base Salary
accrued up to the effective date of termination, (2) payment for the prorated
share of the Executive's annualized bonus pursuant to Section 3(b) hereof, (3) a
lump sum payment equal to the greater of (i) the Executive's then-current Base
Salary through December 31, 2009 or (ii) the Executive's then-current Base
Salary for a period of twelve (12) months, to be paid within fifteen (15)
calendar days following Executive's last day of employment, and (4) payment of
Executive's COBRA premiums for a period equal to the applicable period under
Section 7(a)(3) but not to exceed eighteen (18) months.
(b) A "Change of Control" shall be deemed to have occurred if (i)
there shall be consummated (A) any consolidation or merger in which the Company
is not the continuing or surviving corporation or pursuant to which shares of
the Company's common stock would be converted into cash, securities or other
property, other than a consolidation or a merger having the same proportionate
ownership of common stock of the surviving corporation immediately after the
consolidation or merger or (B) any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions other than in the ordinary
course of business of the Company) of all, or substantially all, of the assets
of the Company to any corporation, person or other entity which is not a direct
or indirect wholly-owned subsidiary of the Company, or (ii) any person, group,
corporation or other entity (collectively, "Persons") shall acquire beneficial
ownership (as determined pursuant to Section 13(d) of the Securities Exchange
Act of 1934, as amended, and rules and regulations promulgated hereunder) of 50%
or more of the Company's outstanding common stock. In all cases, the
determination of whether a Change of Control has occurred shall be made in
accordance with Section 409A of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations, notices and other guidance of general
applicability issued thereunder.
8. CODE SECTION 409A. Notwithstanding anything herein to the contrary,
if any payments to be made to the Executive hereunder are subject to the
requirements of Code Section 409A: (i) if the Company determines that the
Executive is not a "specified employee" as defined in Code Section 409A as of
the date of the termination, no payment described in Sections 6(c)(3), 6(c)(4),
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6(e)(3), 6(e)(4), 7(a)(3) or 7(a)(4) shall be paid or commence earlier than the
date on which Executive incurs a separation from service (as that term is
defined in Code Section 409A), or (ii) if the Company determines that Executive
is a "specified employee" as of the date of the termination, no payment
described in Sections 6(c)(3), 6(c)(4), 6(e)(3), 6(e)(4), 7(a)(3) or 7(a)(4)
shall be paid earlier than the date that is six months after the date on which
Executive incurs a separation from service, but shall be paid or commence during
the calendar year following the year in which the termination occurs and within
thirty (30) calendar days of the earliest possible date permitted under Code
Section 409A.
9. SUCCESSORS; ASSIGNMENT, ETC.; THIRD PARTY BENEFICIARIES.
(a) The Executive consents to and the Company shall have the right
to assign this Agreement to its successors or assigns. All covenants or
agreements hereunder shall inure to the benefit of and be enforceable by or
against its successors or assigns. The terms "successors" and "assigns" shall
include, but not be limited to, any succeeding entity upon a Change in Control.
(b) Neither this Agreement nor any of the rights or obligations of
the Executive under this Agreement may be assigned or delegated except as
provided in the last sentence of this Section 9(b). This Agreement and all
rights of the Executive hereunder shall inure to the benefit of and be
enforceable by, and shall be binding upon, the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees, and legatees. If the Executive should die while any amounts would
still be payable to him hereunder had he continued to live, then all such
amounts (unless otherwise provided herein) shall be paid in accordance with the
terms of this Agreement to the devisee, legatee, or other designee under the
Executive's testamentary will or, if there be no such will, to the Executive's
estate.
10. NOTICE. For purposes of this Agreement, all notices and other
communications provided for in this Agreement shall be in writing and shall 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:
If to the Executive : If to the Company :
00 Xxxxxxxxx Xxxx 0000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000 Suite 100
Facsimile: (000) 000-0000 Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx
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
shall be effective only upon actual receipt.
11. MISCELLANEOUS. No provision of this Agreement may be modified,
waived, or discharged unless such waiver, modification, or discharge is agreed
to in writing signed by the Executive and such officers as may be specifically
designated by the board of directors of the Company. No waiver by either party
hereto of, or compliance with, any condition or provision of this Agreement to
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be performed by such other party shall be deemed a waiver of any similar or
dissimilar condition or provision at the same or any other time. No agreements
or representations (whether oral or otherwise, express or implied) with respect
to the subject matter of this Agreement have been made by either party which are
not set forth expressly in this Agreement or which are not specifically referred
to in this Agreement. The validity, interpretation, construction, and
performance of this Agreement shall be governed by the laws of the State of
Florida. Unless the context otherwise requires, words using the singular or
plural number shall respectively include the plural or singular number, and
pronouns of any gender shall include each other gender.
12. VALIDITY. If any provision of this Agreement is held to be illegal,
invalid, or unenforceable under any present or future law or court decision, and
if the rights or obligations of the Company and the Executive will not be
materially and adversely affected thereby, (a) such provision shall be fully
severable from this Agreement, (b) this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom, and (d) in
lieu of such illegal, invalid, or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid, and enforceable
provision as similar to the terms and intent of such illegal, invalid, or
unenforceable provision as may be possible.
13. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
14. LITIGATION. The parties agree that the exclusive venue for any
litigation commenced by the Company or the Executive relating to this Agreement
shall 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.
15. ENTIRE AGREEMENT. This Agreement, together with EXHIBITS A hereto,
constitutes (i) the binding agreement between the parties and (ii) represents
the entire agreement between the parties and supersedes all prior agreements
relating to the subject matter contained herein. All prior negotiations
concerning Executive's employment with the Company have been merged into this
Agreement and are reflected in the terms herein.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
EXECUTIVE:
Date: 10/11/06 By: /s/ Xxxxx X. Xxxxx
------------------------ ---------------------------------------
Name: Xxxxx X. Xxxxx
COMPANY:
Date: 10/11/06 UNIVERSAL INSURANCE HOLDINGS, INC.
------------------------
By:/s/ Xxxx X. Xxxxxx
------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President and Chief
Operating Officer
EMPLOYMENT AGREEMENT
SIGNATURE PAGE
