FPIC INSURANCE GROUP, INC. EMPLOYMENT AGREEMENT
Exhibit
10.5
FPIC
INSURANCE GROUP, INC.
This
Employment Agreement is made and entered into as of the 1st day of January 2008
by and between FPIC Insurance Group, Inc., a Florida corporation, with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “Employer”), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as “Employee”).
WITNESSETH:
WHEREAS,
Employer and Employee are parties to that certain Employment Agreement dated as
of November 1, 2002, as amended from time to time (the “Prior Agreement”),
pursuant to which Employer retained the services of Employee as the President of
First Professionals Insurance Company, Inc. (“First
Professionals”), a subsidiary of Employer; and
WHEREAS,
Employee and Employer desire to terminate the Prior Agreement and to enter into
this Employment Agreement in replacement thereof; and
WHEREAS,
Employee represents and Employer acknowledges that Employee is fully qualified,
without the benefit of any further training or experience, to perform the
responsibilities and duties, with commensurate authorities, of the position of
President of First Professionals; and
WHEREAS,
Employee agrees to devote Employee’s full time and business effort, attention
and energies to the diligent performance of Employee’s duties
hereunder.
NOW,
THEREFORE, Employer and Employee, intending to be legally bound, covenant and
agree as follows:
1. Termination of Prior
Agreement; Term of Employment.
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(a)
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Effective
at 12:00 midnight on December 31, 2007, the Prior Agreement is hereby
terminated and of no further force or
effect.
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(b)
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Employee's
employment hereunder shall be for an initial term beginning January 1,
2008 and ending December 31, 2009, which term shall be automatically
extended for an additional twelve months at the end of each twelve month
period, commencing with the twelve month period ending December 31, 2008,
unless Employer's Board of Directors, or a committee thereof (from time to
time herein referred to as the "Board”), gives
notice to Employee prior to the end of such twelve month period that
Employer does
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not
wish to extend the term of employment for an additional twelve-month
period.
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(c)
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In
the event Employer gives notice to Employee prior to the end of any
twelve-month period, commencing with the twelve-month period ending
December 31, 2008, that it does not wish to extend the term of employment
as specified in subparagraph 1(b) above, Employee may voluntarily
terminate Employee’s employment under this Employment Agreement by
thereafter giving at least ninety (90) days written notice to
Employer. Following the effective date of such voluntary
termination, Employee shall continue to receive Employee’s annual salary,
payable as immediately prior to termination, plus all “benefits” (as
defined below) to which Employee is then entitled under
subparagraph 2(e) below for the balance of the period ending on the last
day of the term of employment as in effect immediately prior to
termination; provided, that if
Employer is unable to continue to provide any such benefits to Employee at
substantially the same cost it would incur were Employee still employed by
Employer (the “Benefit Cost”),
Employer shall have the right to pay Employee the Benefit Cost of such
benefits in lieu of continuing to provide such benefits to
Employee.
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(d)
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The
duties of Employee shall be those of President of First Professionals as
determined by the Board in accordance with this Employment Agreement and
the Bylaws of Employer in effect from time to time. Employee
shall report to the President and Chief Executive Officer of
Employer. Employee agrees to
devote Employee’s full time business efforts, attention and energies to
the diligent performance of Employee’s duties hereunder and will not,
during the term hereof, accept employment, full or part-time, from any
other Person (as defined below) or governmental agency that, in the
reasonable opinion of the Board, would conflict with or detract from
Employee’s capable performance of such duties, provided, however, Employee
may devote reasonable amounts of time to activities of a public service,
civic, or not-for-profit nature.
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2. Compensation and
Expenses. Employer shall pay, or provide, and Employee shall
accept as full consideration for the services to be rendered hereunder, and as a
reimbursement or provision for expenses incurred by Employee, the
following:
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(a)
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An
annual salary of $436,800 payable at least monthly in equal payments
during each annual period of the term of employment; provided, however, that
effective January 1 of each year beginning in 2009, Employee’s annual
compensation shall be increased in accordance with the provision for
salary increases set forth in paragraph (b)
below.
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(b)
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Annual
performance reviews will determine annual salary increases to which
Employee may become entitled, effective January 1, 2009, based upon
Employer's then current compensation
program.
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(c)
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Incentive
compensation payable with respect to each year beginning with the year
2008 based on Employee's individual performance or the performance of
Employer, or both, for such year pursuant to Employer's then current
Executive Incentive Compensation Program, Senior Executive Annual
Incentive Plan or other annual bonus or incentive
plan.
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(d)
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Any
additional compensation that the Board may determine in its discretion to
pay for outstanding performance or
otherwise.
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(e)
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Such
“benefits” as may be made available from time to time to senior management
employees of Employer generally. “Benefits” as
used herein shall include, but not be limited to: (i) an automobile lease
or allowance of at least $750 per month; (ii) health and dental benefits;
(iii) life, short term disability and long term disability insurance; (iv)
initiation fees, dues and assessments of membership in a club of
Employee’s choice, as reasonably approved by the Board; and (v)
participation in Employer’s retirement, savings and deferred compensation
plans (including without limitation the FPIC Insurance Group, Inc. Defined
Benefit Pension Plan; the Florida Physicians Insurance Company Excess
Benefit Plan (or alternatively, if determined by the Board, Employer’s
Supplemental Executive Retirement Plan) or any plan or arrangement adopted
in lieu thereof; the FPIC Insurance Group, Inc. Defined Contribution (and
Profit Sharing) Plan; and the FPIC Insurance Group, Inc. Deferred
Compensation Plan, to the extent and in the form they remain in effect
from time to time). Employee’s entitlement to such “benefits”
shall be in accordance with Employer’s employee benefit plans and other
applicable programs, policies, and practices then in effect, to be
interpreted so that payment of such “benefits” does not violate Section
409A of the Internal Revenue Code, as amended (the "Code").
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(f)
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Awards
of long-term incentive compensation (under Employer’s Omnibus Incentive
Plan or otherwise) as determined from time to time by the Board and
participation in any employee stock purchase plan adopted and maintained
by Employer from time to time.
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(g)
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Nothing
in this Employment Agreement shall prevent or limit Employee's continuing
or future participation in any plan, program, policy or practice provided
by Employer or any of its affiliated companies and for which Employee may
qualify, nor shall anything herein limit or otherwise affect such rights
as Employee may have under any contract or agreement with Employer or any
of its affiliated companies.
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3. Expenses. Employer
agrees to reimburse Employee for ordinary and necessary expenses incurred by
Employee in performing services for Employer pursuant to the terms of this
Employment Agreement, in accordance with established corporate policies and
legal requirements.
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4. Termination. Unless
the employment of Employee previously has been terminated pursuant to
subparagraph 1(c), this Employment Agreement may be terminated in the manner set
forth in subparagraphs (a) through (f) below.
(a) Voluntary Termination by
Employee.
Employee
may terminate his employment under this Employment Agreement at any time by
giving at least ninety (90) days written notice to Employer. In any
such event (other than a termination pursuant to subparagraph 1(c) above),
Employer shall not, subject to the other provisions of this Employment
Agreement, be obligated to make any further payments or provide any further
benefits under this Employment Agreement other than amounts accrued at the time
of such termination.
(b) Termination by Employer
Without Cause.
Employer
may terminate Employee’s employment under this Employment Agreement at any time
for any reason sufficient to it, by act of the Board. Such
termination shall be immediately effective or as otherwise determined by the
Board. Following any such termination without Cause (as defined
below), Employee shall continue to receive Employee’s annual salary, payable as
immediately prior to termination, together with any benefits accrued to the date
of termination, plus all benefits to which Employee is then entitled under
subparagraph 2(e) above, for the balance of the period ending on the last day of
the term of employment as in effect immediately prior to termination; provided, that if Employer is
unable to continue to provide any such benefits to Employee at substantially the
Benefit Cost, Employer shall have the right to pay Employee the Benefit Cost of
such benefits in lieu of continuing to provide such benefits to Employee; and
provided further,
that nothing in this subparagraph shall be deemed to affect the (including
without limitation provisions relating to the effect of termination of
employment on exercisability, vesting and expiration) of any incentive awards
described in subparagraph 2(f) above.
(c) Disability of
Employee.
(i) During any period when
Employee shall be unable to perform Employee’s responsibilities and duties and
to exercise Employee’s authorities in a satisfactory manner due to mental or
physical disability, but when Employee’s employment has not been terminated,
Employee shall continue to receive all of the compensation provided for in
paragraph 2 above, less any amount received by Employee under any
Employer-provided short- or long-term disability coverage and/or
program.
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(ii) If Employee has been,
for substantially all the normal working days during ninety (90) consecutive
days, unable to perform Employee’s responsibilities and duties and to exercise
Employee’s authorities in a satisfactory manner due to mental or physical
disability, then Employee may be deemed “permanently disabled,” and Employee's
employment may be terminated at the election of the Board. Any
determination of permanent disability made by Employer shall be final and
conclusive. In the event that Employer terminates Employee’s
employment due to a finding that Employee is “permanently disabled,” Employee
shall continue to receive Employee’s annual salary, together with other accrued
benefits pursuant to subparagraph 2(e) above, payable as immediately prior to
termination, for the balance of the period ending on the last day of the term of
employment as in effect immediately prior to termination, less any amount
received by Employee under any Employer-provided long term disability coverage
and/or program; provided, that if Employer is
unable to continue to provide any such benefits to Employee at substantially the
Benefit Cost, Employer shall have the right to pay Employee the Benefit Cost of
such benefits in lieu of continuing to provide such benefits to
Employee.
(d) Death of
Employee.
Employee’s
employment under this Employment Agreement shall terminate on the date of
Employee's death, and Employer shall, within sixty (60) days of the date
Employer receives notice of such death, pay, in a lump sum, to the estate or
personal representative of Employee the unpaid balance of Employee’s salary,
together with other accrued benefits under subparagraph 2(e) above, in each case
to the date of death.
(e) Termination for
Cause.
The
Board may terminate Employee’s employment under this Employment Agreement for
Cause (as defined below), but only after a written notice specifying the Cause
has been submitted to Employee and Employee shall have been granted a reasonable
opportunity to respond to the notice, in writing, and in an appearance, with
counsel, before the Board. A determination by the Board to terminate
Employee’s employment under this Employment Agreement for Cause may be made at a
meeting of the Board at which a quorum is present and by a vote of at least a
majority of the entire then current membership of the Board. If
Employer terminates Employee’s employment under this Employment Agreement for
Cause under this subparagraph, Employer shall not, subject to the other
provisions of this Employment Agreement, be obligated to make any further
payments or provide any further benefits under this Employment Agreement other
than amounts accrued at the time of such termination. For purposes of
this Employment Agreement, "Cause" shall
mean:
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(i) the willful and
continued failure of Employee to perform substantially Employee's duties with
Employer (other than any such failure resulting from incapacity due to physical
or mental illness, and specifically excluding any failure by Employee, after
reasonable efforts, to meet performance expectations), after a written demand
for substantial performance is delivered to Employee by the Chief Executive
Officer or President of Employer or the Board that specifically identifies the
manner in which such person or the Board believes that Employee has not
substantially performed Employee's duties, or
(ii) the willful engaging by
Employee in illegal conduct, fraud, misappropriation, or embezzlement that is
injurious to Employer.
For
purposes of this provision, no act or failure to act, on the part of Employee,
shall be considered "willful" unless it is done, or omitted to be done, by
Employee in bad faith or without reasonable belief that Employee's action or
omission was in the best interests of Employer. Any act, or failure
to act, based upon authority given pursuant to a resolution duly adopted by the
Board or based upon the advice of counsel for Employer shall be conclusively
presumed to be done, or omitted to be done, by Employee in good faith and in the
best interests of Employer.
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(f)
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Constructive
Discharge. Employee may terminate his employment under
this Employment Agreement in the event of Constructive Discharge (as
defined below) by providing written notice to Employer within ninety (90)
days after the occurrence of such event, specifying the event relied upon
for a Constructive Discharge. "Constructive
Discharge" shall mean any (i) material change by Employer of
Employee's position to an inferior position from that in effect on the
date of this Employment Agreement, (ii) assignment, reassignment, or
relocation by Employer of Employee without Employee's consent to another
place of employment more than 50 miles from Employee's current place of
employment, or (iii) reduction in Employee's base salary or percentage
target bonus opportunity. Following termination of Employee's
employment in the event of a Constructive Discharge, Employee shall
continue to receive Employee’s annual salary, payable as immediately prior
to termination, plus all benefits to which Employee is then entitled under
subparagraph 2(e) above, for the balance of the period ending on the last
day of the term of employment as in effect immediately prior to
termination; provided, that if
Employer is unable to continue to provide any such benefits to Employee at
substantially the Benefit Cost, Employer shall have the right to pay
Employee the Benefit Cost of such benefits in lieu of continuing to
provide such benefits to Employee. Employer and Employee, upon
mutual agreement, may waive any of the foregoing provisions that would
otherwise constitute a Constructive Discharge. Within ten days
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receiving
such written notice from Employee, Employer may cure the event that constitutes
a Constructive Discharge, in which event the termination of employment shall be
of no force or effect.
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(g)
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Return of
Property. Upon any termination of employment under this
Employment Agreement, Employee shall immediately turn over to Employer all
of Employer's property, both tangible and intangible. To the
extent that such Employer's property shall constitute a benefit to
Employee under this Employment Agreement, Employee shall receive from
Employer the value of that benefit for the remaining term of this
Employment Agreement.
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(h)
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Additional
Agreements.
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(i) Inducing Employees of
Employer to Leave. Any attempt on the part of Employee to
induce others to leave Employer's or any of its affiliates’ employ, or any
efforts by Employee to interfere with Employer's or any of its affiliates’
relationships with other employees, would be harmful and damaging to
Employer. Employee expressly agrees that during the term of this
employment and for a period of two (2) years after termination of employment,
regardless of the reason for termination of employment, Employee will not, in
any way, directly or indirectly: (A) induce or attempt to induce any
employee to terminate his employment with Employer or any affiliate of Employer;
(B) interfere with or disrupt Employer's or any of its affiliates’ relationship
with other employees; or (C) solicit for employment, other than by means of
general advertising, any person employed by Employer or any affiliate of
Employer.
(ii) Confidentiality. Employee
agrees, whether before or after termination of employment, not to, without prior
written consent of Employer, divulge to others, or use, for Employee’s own
benefit or for the benefit of others, any intellectual property, trade secrets
or confidential or proprietary information or data of or regarding Employer or
any of its affiliates, including without limitation, the contents of
advertising, customer lists, information regarding customers or their customers,
programming methods, business plans, strategies, financial statements,
copyrights, correspondence or other records of or regarding Employer or any of
its affiliates, except to the extent to which such information is required by
law to be disclosed to others.
(iii) Noncompetition with
Employer. During the term of employment and during any period
during which Employee is receiving benefits or payments after termination of
employment under subparagraph 1(c) above (related to termination by Employee
after non-extension of the term of employment), subparagraph 4(b) above
(Termination by Employer Without Cause), subparagraph 4(c) above (Permanent
Disability of
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Employee),
or subparagraph 4(f) above (Constructive Discharge), Employee, unless acting in
accordance with Employer’s prior written consent, will not directly provide any
Competitive Services (as defined below) to, and will not, directly or
indirectly, (i) own, manage, operate, join, control, finance or participate in
the ownership, management, operation, control or financing of, or (ii) be
connected as a principal, owner, partner, shareholder, joint venturer, investor,
member, trustee, director, officer, manager, employee, agent, representative or
consultant or otherwise with, or (iii) permit Employee's name to be used by or
in connection with, any Person (as defined below) engaged in
providing Competitive Services to any Person, conducting business activities
within the territory in which Employer or any of its affiliates is engaged in
the provision of the Competitive Services on the date of termination of
employment; provided, however, that this subparagraph shall not be deemed to
prohibit the ownership by Employee of any securities of Employer or its
affiliated entities or not more than five percent (5%) of any class of
securities of any corporation whose equity securities are traded on a national
securities exchange. As used herein, “Competitive Services”
means any services, including, but not limited to the underwriting and marketing
of medical professional liability insurance to medical professionals and
facilities, risk retention groups, or captives, or the providing of risk
management, managerial or other services related thereto, provided by Employer
or any of its affiliated entities at the earlier to occur of the date of
termination of employment or the date immediately prior to any Change in Control
(as defined in the Severance Agreement described below).
(iv) Remedy. Employee
acknowledges that Employee will be conversant with Employer's affairs,
operations, trade secrets, customers, customers' customers and other proprietary
information and data; that Employee’s compliance with the provisions of this
subparagraph (h) is necessary to protect the goodwill and other proprietary
rights of Employer; and that Employee’s failure to comply with the provisions of
this subparagraph (h) will result in irreparable and continuing damage to
Employer for which there will be no adequate remedy at law. If
Employee shall fail to comply with the provisions of this subparagraph (h),
Employer (and its respective successors and assigns) shall be entitled to (A)
cease making any further payments or providing any further benefits to Employee
and, in addition, (B) injunctive relief and such other and further relief as may
be proper and necessary to ensure such compliance.
(v) Mitigation. In
no event shall Employee be obligated to seek other employment or to take other
action by way of mitigation of the amounts payable to Employee under any of the
provisions of this Employment Agreement, and there shall be no offset against
amounts due Employee under this Employment Agreement on account of any
remuneration attributable to any subsequent employment.
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5. Employment
Security. If Employer suffers from any natural or manmade
disaster, work stoppage, civil disobedience, act of war, or any other emergency
condition beyond Employee's control that prevents Employee from being able to
perform his duties hereunder, Employer’s obligations under the terms of this
Employment Agreement shall remain in full force and effect as if such event had
not taken place.
6. Mediation and
Arbitration. Any dispute or controversy arising out of or in
relation to this Employment Agreement shall first be submitted to mediation in
the City of Jacksonville, Florida in accordance with the Commercial Mediation
Rules of the American Arbitration Association. If mediation fails to
resolve such dispute or controversy, then such dispute or controversy shall be
determined and settled by arbitration in the City of Jacksonville, Florida, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect, and judgment upon the award rendered by the
arbitrator may be entered in any court of competent jurisdiction. The
parties hereto agree to use good faith efforts to select a mediator and, if
mediation fails to resolve such dispute or controversy, an
arbitrator. If the parties cannot agree upon a mediator or
arbitrator, such mediator or arbitrator shall be selected in accordance with the
relevant Commercial Rules of the American Arbitration Association then in
effect. Employer's mediation and arbitration expenses, as well as any
litigation costs, including legal counsel and experts reasonably engaged, shall
be paid by Employer. Employee's reasonable mediation and arbitration
costs, as well as any reasonable litigation costs, including without limitation
fees and expenses of legal counsel and reasonable experts, shall be paid by
Employer no later than 2 ½ months after the end of the calendar year in which
such costs and expenses were incurred, provided, however, in the
event the trier of fact determines Employee's claims thereunder are made
frivolously or in bad faith, Employee shall immediately repay such litigation
costs to Employer. Any payments that would otherwise become due under
this Employment Agreement that are the subject of a dispute may be delayed to
the extent permitted under Section 409A of the Code. Whenever any
action is required to be taken under this Employment Agreement within a
specified period of time and the taking of such action is materially affected by
a matter submitted to mediation or arbitration, such period shall automatically
be extended by the number of days plus ten that are taken for the determination
of that matter by the parties through mediation or otherwise by the
arbitrator.
7. Miscellaneous.
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(a)
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Entire
Understanding. Except for the provisions of that certain
change in control severance agreement dated as of January 1, 2008 (the
“Severance
Agreement”) between Employer and Employee and any compensation,
incentive, indemnification, welfare benefit, retirement, or other
arrangement, agreement or program (“Company
Programs”) in effect from time to time, this Employment Agreement
contains the entire understanding between Employer and Employee with
respect to the subject matter
hereof.
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In
the event of a Termination of Employment within the meaning of the
Severance Agreement with respect to which Employer is obligated to make
the severance payments provided by paragraph 3 of the
Severance
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Agreement,
(i) this Employment Agreement (other than subparagraph 4(h) and paragraphs 6, 7
and 8 hereof) shall cease and be of no further force or effect and (ii) Employee’s
obligations under subparagraph 4(h) of this Employment Agreement (dealing with
Confidentiality, Non-Competition, etc.) shall continue until the earlier to
occur of the material breach by the Company (as the term “Company” is defined in
the Severance Agreement) of its obligations under the Severance Agreement or the
date one year after the date of the Termination of Employment under the
Severance Agreement.
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Employer’s
obligation to make payments provided for in this Employment Agreement and
otherwise to perform its obligations hereunder shall not (other than as
expressly stated herein) affect or operate to reduce any benefit or
compensation inuring to Employee of any kind elsewhere provided and not
expressly provided for in this Employment Agreement, including without
limitation, any benefit or compensation provided under any of the Company
Programs.
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(b)
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If,
for any reason, any one or more of the provisions or part of a provision
contained in this Employment Agreement shall be held by a court of
competent jurisdiction to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect
any other provision or part of a provision of this Employment Agreement
not held so invalid, illegal or unenforceable, and each other provision or
part of a provision shall to the full extent consistent with law continue
in full force and effect.
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(c)
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If
Employer consolidates or merges into or with, or transfers all or
substantially all of its assets to, another corporation, or if Employee
ceases employment with Employer to become an employee of a Person of
which Employer is a Subsidiary (or an employee of a Person of
which a former Subsidiary of Employer is a Subsidiary) or an employee of a
Subsidiary of Employer, the term "Employer" as
used herein shall mean such other corporation and this Employment
Agreement shall continue in full force and effect. For purposes
of this Employment Agreement, (i) "Person" shall
be construed as broadly as possible and shall include an individual or
natural person, a partnership (including a limited liability partnership),
a corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, a
business, and any other entity, and (ii) "Subsidiary"
means any Person (i) whose securities having a majority of the general
voting power in electing the board of directors or equivalent governing
body of such Person (excluding securities entitled to vote only upon the
failure to pay dividends thereon or the occurrence of other contingencies)
are or were, as of the time as of which any determination is
being made, owned by Employer either directly or indirectly through one or
more other entities constituting Subsidiaries, or (ii) a fifty percent
(50%)
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interest
in the profits or capital of whom is, at the time as of which any determination
is being made, owned by Employer either directly or indirectly through one or
more other entities constituting Subsidiaries.
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(d)
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All
notices, requests, demands and other communications required or permitted
hereunder shall be given in writing and shall be deemed to have been duly
given if hand delivered or mailed, postage prepaid, certified or
registered, first class as follows:
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a. to
Employer:
FPIC
Insurance Group, Inc.
Attention: Chief
Executive Officer
▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇,
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b.
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to
Employee:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
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▇. ▇▇▇▇ ▇▇▇▇▇
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or
to such other address as either party shall have previously specified in
writing to the other.
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(e)
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Except
as required by law, no right to receive payments under this Employment
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and
any attempt, voluntary or involuntary, to effect any such action shall be
null, void and of no effect.
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(f)
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This
Employment Agreement shall be binding upon and inure to the benefit of
Employer (including any Person that shall be deemed to be “Employer” as
provided in subparagraph (c) above) and Employee. Employer
shall require any Person that shall become deemed to be “Employer” as
provided in subparagraph (c) above (other than those that become so by
operation of law) to expressly assume, in writing, all of Employer’s
obligations to Employee hereunder. Except as provided in the
preceding sentences, this Employment Agreement and the rights and
obligations of the parties hereunder are personal, and neither this
Employment Agreement nor any right, benefit or obligation of either party
hereto shall be subject to voluntary or involuntary assignment, alienation
or transfer, whether by operation of law or otherwise, without the prior
written consent of the other party. In the event that Employee dies before
all amounts payable under this Employment
Agreement
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have
been paid, all remaining amounts shall be paid to the beneficiary specifically
designated by Employee in writing prior to his death, or, if no such beneficiary
was designated (or Employer is unable in good faith to determine the beneficiary
designated), to Employee’s personal representative or estate.
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(g)
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This
Employment Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto. No term or
condition of this Employment Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any
provision of this Employment Agreement except by written instrument signed
by the party charged with such waiver or estoppel. No such
written waiver shall be deemed a continuing waiver unless specifically
stated therein, and each such waiver shall operate only as to the specific
term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
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(h)
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The
paragraph headings contained in this Employment Agreement are included
solely for convenience of reference and shall not in any way affect the
meaning or interpretation of any of the provisions of this Employment
Agreement.
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(i)
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This
Employment Agreement and its validity, interpretation, performance, and
enforcement shall be governed by the laws of the State of Florida without
giving effect to the choice of law provisions in effect in such
State.
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(j)
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Employer
hereby agrees that no request, demand or requirement shall be made to or
of Employee that would violate any federal or state law or
regulations.
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(k)
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Should
any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction affect any
provision of this Employment Agreement, the provision so affected shall be
automatically conformed to the law or determination; otherwise, this
Employment Agreement shall continue in full force and
effect.
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8. Effect of Section
409A. It is expressly contemplated by the parties that this
Employment Agreement will conform to, and be interpreted to comply with, Section
409A of the Code. Notwithstanding any other provision of this Employment
Agreement, if Employee is a "specified employee" as defined in Section
409A(a)(2)(B)(i) of the Code at the time of his separation from
service, then the payment of any amount under or pursuant to this Employment
Agreement that is considered deferred compensation subject to Section
409A of the Code shall be deferred for six (6) months after his "separation from
service" or, if earlier, his death as required by Section 409A(a)(2)(B)(i) of
the Code (the "409A
Deferral Period").
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In the event payments are otherwise due
to be made in installments or periodically during the 409A Deferral Period, the
payments that would otherwise have been made in the 409A Deferral Period shall
be accumulated and paid in a lump sum as soon as the 409A Deferral Period ends,
and the balance of the payments shall be made as otherwise
scheduled. If Employee incurs any interest or additional tax under
Section 409A(a)(1)(B) of the Code with respect to amounts payable under this
Employment Agreement, Employer promptly at that time will pay Employee an
additional amount so that, after all taxes on such additional amount, he has an
amount remaining equal to such interest or additional tax. Such
gross-up payment, however, shall be made in any event no later than the end of
Employee's taxable year next following his taxable year in which the related
taxes, interest or penalties are remitted.
For purposes of this Employment
Agreement, Employee shall not be deemed to have terminated employment unless he
has a "separation from service" within the meaning of Section 409A of the Code
(generally, where it is reasonably anticipated that the level of services he
will perform after that date, whether as an employee or independent contractor,
will permanently decrease to no more than 20 percent of the average level of
services performed by him over the immediately preceding 36-month
period).
All rights to payments and benefits
under this Employment Agreement shall be treated as rights to receive a series
of separate payments and benefits to the fullest extent allowed by Section 409A
of the Code. All reimbursements and in kind benefits provided under this
Employment Agreement shall be made or provided in accordance with the
requirements of Section 409A of the Code, including, where applicable, the
requirements that (i) any reimbursement is for expenses incurred during
Employee’s lifetime (or during a shorter period of time specified in this
Employment Agreement); (ii) the amount of expenses eligible for reimbursement,
or in kind benefits provided, during a calendar year may not affect the expenses
eligible for reimbursement, or in kind benefits to be provided, in any other
calendar year; (iii) the reimbursement of an eligible expense will be made no
later than 2 ½ months after the end of the calendar year in which the expense is
incurred; and (iv) the right to reimbursement or in kind benefits is not subject
to liquidation or exchange for another benefit.
9. “Parachute
Payments.” If Independent Tax Counsel (as defined below) shall
reasonably determine that the aggregate payments made to Employee pursuant to
this Employment Agreement and any other payments to Employee from Employer that
constitute "parachute payments" as defined in Section 280G of the Code (or any
successor provision thereto) ("Parachute Payments")
would be subject to the excise tax imposed by Section 4999 of the Code (the
"Excise Tax"), then payments under this Employment Agreement shall be reduced to
the maximum amount Independent Tax Counsel reasonably determines would not
trigger such excise tax. Employee shall be permitted to select the
benefits to be reduced. "Independent Tax
Counsel" shall mean an attorney, a certified public accountant with a
nationally recognized accounting firm, or a compensation consultant with a
nationally recognized actuarial and benefits consulting firm, with expertise in
the area of executive compensation tax law, who shall be selected by Employer
and shall be reasonably acceptable to Employee, and whose fees and disbursements
shall be paid by Employer.
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IN WITNESS
WHEREOF, the parties hereto have executed this Employment Agreement as of the
day and date first set forth above.
| Employee: |
FPIC
Insurance Group, Inc.
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/s/
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By
/s/ ▇▇▇▇ ▇.
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▇. ▇▇▇▇▇, ▇▇.
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President
and Chief Executive Officer
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