Exhibit 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of JUNE 1, 2002 by and
between XXXXXXX INSURANCE AGENCY, INC., a Pennsylvania corporation ("Employer"),
and XXXXX X. XXXXXXX XX. ("Employee") for the purposes herein stated.
Background of Agreement
Employee desires to continue in the employ of the Employer, and desires
certain protections and benefits; and
Employee and the Employer deem it to be in their respective best
interests to enter into an agreement providing for compensation and benefits for
Employee pursuant to the terms stated in this Agreement; and
The Employer desires to place reasonable restraints upon Employee's
ability to compete with the Employer during a specified period immediately
following Employee's termination from employment;
Accordingly, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree to the following:
1. EMPLOYMENT. The Employer agrees to continue Employee in its employ,
and Employee agrees to remain in the employ of the Employer, for the Term of
this Agreement, subject to Sections 6 and below.
2. DEFINITIONS. The following terms when used herein shall have the
meanings given below:
(a) "AFFILIATE" means any party controlled by, under the
control of, or under common control with, Employer or PCHC.
(b) "AGREEMENT AND GENERAL RELEASE" means a general release of
claims against the Employer in a form acceptable to the Employer.
(c) "BASE COMPENSATION" means the annual base salary of
Employee, exclusive of any bonus, insurance, or other fringe benefits and
perquisites.
(d) "BOARD" means the Board of Directors of PCHC.
(e) "CAUSE" means commission of any of the following listed
conduct by Employee: a felony or any crime involving moral turpitude (whether or
not related to Employee's employment), incompetence or gross negligence,
unsatisfactory performance of a substantial nature, drug or alcohol use which
interferes with Employee's job performance, insubordination, willful misconduct,
violation of any express directive or regulation established by the Employer
from time to time regarding the conduct of its business, misrepresentations by
Employee related to this Agreement, any violation by Employee of the terms and
conditions of this Agreement not cured within ten days after written notice
thereof is given by the Employer to Employee, acceptance of employment with
another company (other than employment with a Successor or a purchaser of assets
from the Employer), and/or performing work for another company, as an employee,
consultant or in any other capacity, while still an employee of the Employer and
any other act, omission or circumstance which, under applicable law, would
result in a termination by the Employer of Employee's employment hereunder to be
deemed to be a termination for cause.
(f) "EFFECTIVE DATE" means the date upon which this Agreement
becomes effective, as set forth in Section 4 below.
(g) "GOOD REASON" means either of the following:
(i) A change in Employee's position of authority in a
manner that materially reduces the responsibility of Employee's current position
of (i), provided, however, the fact that there may be additional executives in
the reporting structure above Employee will not be deemed to materially reduce
the responsibility of Employee's position.
(ii) A reduction in Employee's Base Compensation.
(h) "HOSTILE CHANGE IN CONTROL" mean individuals who are
Continuing Directors cease to constitute a majority of the members of the Board
("Continuing Directors" for this purpose being the members of the Board on the
date of this Agreement, provided that any person becoming a member of the Board
subsequent to such date whose election or nomination for election was supported
by two-thirds of those directors who were Continuing Directors at that time of
the election or nomination shall be deemed to be c Continuing Director).
(i) "PCHC" means Philadelphia Consolidated Holding
Corp., a Pennsylvania corporation.
(j) "SUCCESSORS" means any entity that acquires at least fifty
(50) percent of the shares of outstanding stock, and/or fifty percent (50%) of
the assets, of the Employer or PCHC (whether direct or indirect, by purchase,
merger, consolidation or otherwise).
(k) "TERM" shall have the meaning set forth in Section 4
below.
3. POSITION AND RESPONSIBILITIES.
(a) During the Term of this Agreement, Employee agrees to
serve the Employer as PRESIDENT, COO AND CEO. This in no way inhibits him from
being promoted to another position during the Term of this Agreement, or
assigned different duties, consistent with Employee's status and responsibility,
which changes are in the sole discretion of the Employer.
(b) Throughout the Term of this Agreement, Employee shall
devote his entire working time, energy, attention, skill and best efforts to the
affairs of the Employer and its Affiliates and to the performance of his duties
hereunder in a manner which will faithfully and diligently further the business
and interests of the Employer.
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4. TERM. This Agreement shall be effective on JUNE 1, 2002 (the
"Effective Date") and shall expire in the absence of a Hostile Change in Control
on the fifth anniversary of such date, unless extended by agreement of Employee
and the Employer. In the event of a Hostile Change in Control, this Agreement
shall be automatically extended for a period of three years, commencing upon the
expiration date set forth in the immediately preceding sentence. Notwithstanding
the foregoing, Employee and the Employer agree that the provisions of Section 7
shall remain in effect and enforceable in accordance with its terms following
the expiration of this Agreement, except as otherwise provided in such Section
7. The applicable period referred to above is referred to herein as the "Term"
of this Agreement.
5. COMPENSATION AND BENEFITS. During the Term of this Agreement,
Employee shall be eligible for the following, in return for all services
rendered by Employee to the Employer during the period of employment, subject to
the provisions of Section 6, as applicable:
(a) BASE COMPENSATION. Upon the effective date of this
Agreement, Employee shall receive Base Compensation at the annual rate of THREE
HUNDRED TWENTY FIVE THOUSAND Dollars ($325,000), subject to periodic reviews and
possible increases in the sole discretion of the Employer. Employee's Base
Compensation shall be payable in accordance with the Employer's regular payroll
practices in effect from time to time.
(b) BENEFITS. Employee shall be entitled to all group health,
disability, life insurance and pension benefits as are made available to
employees of the Company generally as such benefit programs may be amended from
time to time. Benefits due under any Bonus Plan or Stock Option Plan will be
paid based upon the Agreements signed specific to those plans.
(c) BUSINESS EXPENSES. Employee shall be reimbursed reasonable
and necessary expenses related to Employee's employment by the Employer in
accordance with, and subject to, the Employer's regular policies from time to
time in effect regarding reimbursement of expenses and the documentation
required.
6. TERMINATION OF EMPLOYMENT. The following provisions shall govern in
the event that Employee's employment is terminated by the Employer or by
Employee during the term of this Agreement, except as provided in Section 8, if
applicable:
(a) Discharge Without Cause or Resignation for Good Reason.
Employee shall receive from the Employer, provided (unless waived by the
Employer) Employee executes (without subsequent revocation) a General Release
(except that Employee shall not be obligated to do so following a Hostile Change
in Control), in the event that Employee either: (A) is discharged without Cause
and for reasons unrelated to his disability or death; or (B) resigns from the
Employer for Good Reason within twelve (12) weeks of the occurrence of the event
upon which Employee relies for claiming that his resignation is for Good Reason:
His Base Compensation for the lesser of (A) 36 months or (B)
the remainder of the Terms of this Agreement, but in no event less than 6
months, paid in accordance with the Employer's regular payroll practices then in
effect.
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(b) Discharge With Cause, Resignation Without Good Reason,
Discharge in Connection With Disability or Death.
(i) Employee shall not be eligible for any
payments or benefits for the period
subsequent to his separation in any of the
following circumstances: (A) he is
discharged with Cause; (B) he resigns
without Good Reason, or more than twelve
(12) weeks following the occurrence of the
event upon which Employee relies for
claiming that his resignation was for Good
Reason; (C) he is discharged due to his
inability or failure to perform
satisfactorily the essential functions of
his position for six (6) months due to
disability; or (D) his death.
(ii) Employee shall receive all Base Compensation
for work performed and benefits applicable
to the period prior to his separation from
the Employer (including any earned and not
paid bonus for the prior year and any Base
Compensation and/or benefits for which he is
entitled in accordance with the Employer's
compensation and disability policies, if
applicable, then in effect). In the event of
his disability or death, Employee shall be
eligible, in addition, for any disability or
life insurance payments to which he or his
estate or beneficiaries may be entitled
pursuant to the applicable insurance
documents relating to any group disability
or life insurance plans in which he
participated prior to his separation.
(c) Notice of Termination. Any termination by the Employer or
by Employee shall be communicated by written Notice of Termination to the other
party given in accordance with Section 16 below. Such Notice of Termination
shall indicate the specific termination provision(s) in this Agreement relied
upon and specify the effective date of the termination if other than the date
such Notice of Termination is given (which effective date shall be not more than
thirty (30) calendar days thereafter).
7. RESTRICTIVE COVENANTS AND CONFIDENTIALITY.
(a) During Employee's employment with the Employer and for two
(2) years following Employee's separation from the Employer for any reason
(whether initiated by the Employer or Employee), Employee shall not directly or
indirectly either: (A) with respect to a Competitive Business (defined above),
solicit, divert or appropriate, or attempt to solicit, divert or appropriate,
any customer, distributor or supplier, or any potential customer, or supplier of
the Employer; or (B) solicit or entice, or attempt to solicit or entice, any of
the Employer's employees, consultants, directors or officers to terminate
her/his employment with the Employer, or join with any individual who is or was
within the prior six (6) months an employee, consultant, director or officer of
the Employer, in any direct or indirect capacity, or to hire, or commit to hire,
as an employee or consultant any individual who is or was within the prior six
(6) months an employee, consultant, officer or director of the Employer.
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(b) During Employee's employment with the Employer and at all
times thereafter, Employee shall not use for his personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of, any
person, firm, association or company other than the Employer, any confidential
information of the Employer which Employee acquires in the course of his
employment, which is not otherwise lawfully known by and readily available to
the general public. This confidential information includes, but is not limited
to: business, development, marketing, legal and accounting methods, policies,
plans, procedures, strategies and techniques; research and development projects
and results; trade secrets or other knowledge or processes of or developed by
the Employer; names and addresses of employees, suppliers and customers; and any
data on or relating to past, present or prospective customers, including
customer lists. Employee agrees that such information is confidential and
constitutes the exclusive property of the Employer, and Employee agrees that,
immediately upon Employee's termination, whether by Employee, or by the
Employer, Employee will deliver to the Employer, all correspondence, documents,
books, records, lists and other writings relating to the Employer's business,
retaining no copies.
(c) The term "Employer", as used in this Section 7 and in
Section 11, shall include as well all Affiliates of Employer and PCHC.
(d) Employee acknowledges and agrees that the provisions of
this Section 7 are reasonable with respect to their duration, scope and
geographical area. In particular, Employee acknowledges that the geographic
scope of the Employer's business makes reasonable the geographic restrictions of
this Agreement. Employee agrees that his general executive skills and abilities
are applicable outside of the Competitive Business and that he will therefore
not be unduly restricted by this Agreement. If, at the time of enforcement of
any of the provisions of this Section 7, a court holds that the restrictions
therein exceed those allowed by applicable law, then such court will be
requested by the Employer, Employee and all other relevant parties to enforce
the provisions in this Section 7 to the broadest extent possible under
applicable law and this Section 7 shall be deemed to have been so modified.
(e) In the event of a breach or threatened breach of the
provisions of this Section 7, the Employer shall be entitled to an injunction
restraining such breach, but nothing herein shall be construed as prohibiting
the Employer from pursuing any other remedy available to them for such breach or
threatened breach, including, without limitation, an action at law for damages.
(f) Notwithstanding anything to the contrary contained in this
Section 7 or any other provisions of the Agreement, Employee shall not be bound
by any of the provisions of Section 7(a) following a Hostile Change in Control.
8. HOSTILE CHANGE IN CONTROL. In the event of a Hostile Change in
Control:
(a) Section 6 shall apply, except as set forth in Section 8(b)
below.
(b) Enhanced Severance Package in the Event of Hostile Change
in Control. In the event that Employee, at any time after a Hostile Change in
Control, is discharged without Cause and for reasons unrelated to his disability
or death, or resigns for Good Reason within
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twelve (12) weeks of the occurrence of the event upon which Employee relies for
claiming that his resignation is for Good Reason:
(i) The period specified in Section 6(a)(i) above
during which Employee shall receive his Base Compensation shall be increased to
48 months from 36 months.
(ii) The maximum period during which Employee and his
eligible, previously enrolled dependents shall be eligible for Employer-paid
group medical and dental insurance under Section 6(a)(iii) above shall be
increased to 36 months from twelve (12) months.
9. INELIGIBILITY FOR PARTICIPATION IN OTHER EMPLOYER SEVERANCE PLANS.
In the event that Employee becomes entitled to the severance benefits set forth
in Section 6 above, Employee shall be ineligible for (and deemed to have waived
his right to receive) payments under any other severance plan, program or
arrangement maintained by the Employer.
10. ARBITRATION. Except as set forth in Section 10(f), all disputes
arising under this Agreement or relating to Employee's employment or termination
of employment, including but not limited to statutory claims for violation of
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the
Americans with Disabilities Act, the Family Medical Leave Act and ERISA as well
as state laws governing discrimination shall be exclusively resolved in
arbitration in accordance with the following:
(a) The Rules for the Resolution of Employment Disputes
("Rules"), then in effect, of the American Arbitration Association ("AAA") shall
govern, except that Employee and the Employer may mutually agree to utilize
another process for selection of the Arbitrator.
(b) The Arbitrator, in cooperation with Employee and the
Employer, shall set the date, time and place of the hearing in Philadelphia,
Pennsylvania.
(c) The Arbitrator shall have all of the power of a court of
competent jurisdiction for hearing the particular claim, including the power to
order discovery, as set forth in the AAA's rules, and to grant such remedies as
a court would have authority to grant.
(d) The decision of the Arbitrator shall be in writing and
shall set forth the findings and conclusions upon which the decision is based.
It shall be final and binding, and may be enforced under the terms of the
Federal Arbitration Act (9 U.S.C. Section 1 et seq), but may be set aside or
modified by a reviewing court in the event of a material error of law.
(e) The Employer and Employee shall share the cost of the
Arbitrator's fees but each shall bear his or its, as applicable, attorneys'
fees, expenses and costs and its respective filing fees charged by the AAA;
provided, however, that the Arbitrator shall have the power to award such fees,
expenses and costs to the prevailing party in accordance with the law and to
require the Employer at the beginning of the proceedings to fully or partially
reimburse to employee the filing fee in the event Employee can demonstrate that
the amount of the fee is an unreasonable impediment to adjudication of his
claims in arbitration.
(f) This Section 10 shall not apply to any action by the
Employer to enforce Section 7 of this Agreement.
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11. EMPLOYER PROPERTY. All Employer information, including without
limitation, data processing reports, analyses, invoices, and/or any other
materials or data of any kind furnished to Employee by the Employer or developed
by Employee on behalf of the Employer, or at the Employer's direction or for the
Employer's use, or otherwise in connection with Employee's employment hereunder,
are and shall remain the sole and confidential property of the Employer, except
to the extent such information has been publicly disclosed voluntarily by the
Employer. If the Employer requests the return of such materials, Employee shall
immediately deliver them, retaining no copies.
12. INCOME TAX WITHHOLDING. The Employer may withhold from any payments
made under this Agreement all Federal, State, City or other taxes and
withholdings as shall be required pursuant to any law or governmental regulation
or ruling.
13. NO RESTRICTIONS ON EMPLOYEE'S EMPLOYMENT BY EMPLOYER. Employee
represents to Employer that: (i) there are no restrictions, agreements or
understandings whatsoever to which Employee is a party and no laws or
regulations of which he is aware which would or may prevent or make unlawful his
employment by the Employer; (ii) his execution of this Agreement and his
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound;
and (iii) he is free and able to execute this Agreement and to enter into
employment with the Employer.
14. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding between the Employer, and Employee superceding all others with
respect to the subject matter hereof, and there are no other agreements,
understandings, representations or warranties among the parties.
15. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
16. NOTICES. All notices hereunder shall be sufficient upon receipt for
all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy, telefax or other documented transmission service to the appropriate
address or number as set forth below:
(a) If to the Employee:
Xxxxx X. Xxxxxxx Xx.
000 Xxxxxxxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
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or at such other address as Employee may designate by written notice to the
Employer as specified below.
(b) If to the Employer:
Philadelphia Consolidated Holding Corp.
Xxx Xxxx Xxxxx
Xxxx Xxxxxx, XX
Attention: Xxxxx X. Xxxxxxx, Xx.
or at such other address and to the attention of such other person as the
Employer may designate by written notice to Employee as specified above.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of Employee, Employee's heirs and legal representatives,
and to the Employer, and its Successors and assigns. PCHC and its Affiliates are
third party beneficiaries of this Agreement.
18. NO ASSIGNMENT BY EMPLOYEE. This Agreement is personal to Employee,
and Employee may not assign or delegate any of Employee's rights or obligations
hereunder without first obtaining the express written consent of the Employer.
19. COUNTERPARTS AND PREREQUISITES TO BINDING EFFECT OF AGREEMENT. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall be effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party.
20. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any modification or amendment is sought. A party
hereto may, only by an instrument in writing, waive compliance by the other
party hereto with any term or provision of the Agreement on the part of such
other party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision of the Agreement shall not be
construed as a waiver of any subsequent breach.
21. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without reference
to the choice of law principles thereof.
22. JURISDICTION AND VENUE. The courts of Xxxxxxxxxx County,
Pennsylvania and the United States District Court for the Eastern District of
Pennsylvania shall have exclusive jurisdiction and venue with respect to any
action to enforce this Agreement which is not subject to arbitration.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have duly executed and delivered, in Pennsylvania, this Agreement.
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XXXXXXX INSURANCE AGENCY, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Title: CEO
I UNDERSTAND AND AGREE TO BE BOUND
/s/ Xxxxx X. Xxxxxxx, Xx. 7/10/02
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Employee DATE
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