Exhibit 10.14
FORM OF EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of ________ by and between AMCOMP
INCORPORATED, a Delaware corporation with its principal office at ▇▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"), and
__________________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Company desires to employ the Employee for the period provided
in this Agreement and the Employee is willing to accept such employment with the
Company on a full-time basis, all in accordance with the terms and conditions
set forth below.
NOW, THEREFORE, for and in consideration of the premises hereof and the
mutual covenants contained herein, the parties hereto covenant and agree as
follows:
1. EMPLOYMENT. (a) The Company hereby employs the Employee, and the
Employee hereby accepts such employment with the Company, for the period set
forth in Section 2 hereof, all upon the terms and conditions hereinafter set
forth.
(b) The Employee affirms and represents that he is under no obligation
to any former employer or other party that is in any way inconsistent with, or
that imposes any restriction upon, the Employee's acceptance of employment
hereunder with the Company, the employment of the Employee by the Company, or
the Employee's undertakings under this Agreement.
2. TERM OF EMPLOYMENT. (a) Unless earlier terminated as provided in this
Agreement, the term of the Employee's employment under this Agreement shall be
for a period beginning on the date hereof and ending on ______________ (the
"Initial Term").
(b) The term of the Employee's employment under this Agreement shall
be automatically renewed for additional one-year terms (each a "Renewal Term")
upon the expiration of the Initial Term or any Renewal Term unless the Company
or the Employee delivers to the other, at least 90 days prior to the expiration
of the Initial Term or the then current Renewal Term, as the case may be, a
written notice (a "Non-Renewal Notice") specifying that the term of the
Employee's employment will not be renewed at the end of the Initial Term or such
Renewal Term, as the case may be. The period from __________ until __________
or, in the event that the Employee's employment hereunder is earlier terminated
as provided herein or renewed as provided in this Section 2(b), such shorter or
longer period, as the case may be, is hereinafter called the "Employment Term."
3. DUTIES. The Employee shall be employed as __________ of ____________,
shall faithfully and competently perform such duties as are inherent in such
position and shall also perform and discharge such other executive employment
duties as the Board of Directors of the Company shall from time to time
reasonably determine. The Employee shall perform his duties principally at
________________, with such travel to such other locations from time to time as
the Board of Directors of the Company may reasonably prescribe. Except as may
otherwise be approved in advance by the Board of Directors of the Company, and
except during vacation
periods and reasonable periods of absence due to sickness, personal injury or
other disability or non-profit public service activities, the Employee shall
devote his full time throughout the Employment Term to the services required of
him hereunder. The Employee shall render his business services exclusively to
the Company and its present and future subsidiaries (collectively, the "AmCOMP
Companies") during the Employment Term and shall use his best efforts, judgment
and energy to improve and advance the business and interests of the AmCOMP
Companies in a manner consistent with the duties of his position.
4. COMPENSATION. As compensation for the complete and satisfactory
performance by the Employee of the services to be performed by him hereunder
during the Employment Term,
(a) the Company shall pay the Employee a base salary at the annual
rate of $_________ (such amount, together with any increases thereto as may be
determined from time to time by the Board of Directors of the Company in its
sole discretion, being hereinafter referred to as "Salary"). Any Salary payable
hereunder shall be paid in regular intervals in accordance with the Company's
payroll practices from time to time in effect.
(b) the Company shall pay to the Employee such incentive compensation
and bonuses, if any, (i) as the Board of Directors in its absolute discretion
may determine to award the Employee, and (ii) to which the Employee may become
entitled pursuant to the terms of any incentive compensation on bonus program,
plan or agreement from time to time in effect and applicable to the Employee.
5. OTHER BENEFITS. During the Employment Term, the Employee shall:
(a) be eligible to participate in employee fringe benefits and
pension and/or profit sharing plans that may be provided by the Company for its
executive employees in accordance with the provisions of any such plans, as the
same may be in effect from time to time;
(b) be eligible to participate in any medical and health plans or
other employee welfare benefit plans that may be provided by the Company for its
executive employees in accordance with the provisions of any such plans, as the
same may be in effect from time to time;
(c) be entitled to _____ weeks' paid time off in respect of each
12-month period during the term of his employment hereunder. The Employee shall
also be entitled to all paid holidays given by the Company to its executive
employees;
(d) be eligible for consideration by the Board of Directors of the
Company for awards of stock options under any stock option plan that may be
established by the Company for key employees of the AmCOMP Companies, the amount
of shares, if any, with respect to which options may be granted to Employee to
be in the sole discretion of the Board of Directors of the Company or the Stock
Option and Compensation Committee thereof;
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(e) be entitled to sick leave, sick pay and disability benefits in
accordance with any Company policy that may be applicable to executive employees
from time to time; and
(f) be entitled to reimbursement for all reasonable and necessary
out-of-pocket business expenses incurred by the Employee in the performance of
his duties hereunder in accordance with the Employee's existing arrangements
with the Company.
6. CONFIDENTIAL INFORMATION. The Employee hereby covenants, agrees and
acknowledges as follows:
(a) The Employee has and will have access to and will participate in
the development of or be acquainted with confidential or proprietary information
and trade secrets related to the business of the AmCOMP Companies, including but
not limited to (i) customer lists; claims histories, adjustments and settlements
and related records and compilations of information; the identity, lists or
descriptions of any new customers, referral sources or organizations; financial
statements; cost reports or other financial information; contract proposals or
bidding information; business plans; training and operations methods and
manuals; personnel records; software programs; reports and correspondence;
premium structures; and management systems policies or procedures, including
related forms and manuals; (ii) information pertaining to future developments
such as future marketing or acquisition plans or ideas, and potential new
business locations and (iii) all other tangible and intangible property that are
used in the business and operations of the AmCOMP Companies but not made public.
The information and trade secrets relating to the business of the AmCOMP
Companies described hereinabove in this paragraph (a), whether acquired while
Employee was employed on an "at will" basis or pursuant to this Agreement, are
hereinafter referred to collectively as the "Confidential Information," provided
that the term Confidential Information shall not include any information (x)
that is or becomes generally publicly available (other than as a result of
violation of this Agreement by the Employee or the violation of an agreement of
like tenor by any other person or entity) or (y) that the Employee receives on a
nonconfidential basis from a source (other than the AmCOMP Companies or their
representatives) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the AmCOMP Companies.
(b) The Employee shall not disclose, use or make known for his or
another's benefit any Confidential Information or use such Confidential
Information in any way, except as is in the best interests of the AmCOMP
Companies in the performance of the Employee's duties under this Agreement. The
Employee may disclose Confidential Information when required by a third party
and applicable law or judicial process, but only after providing (i) immediate
notice to the Company at any third party's request for such information, which
notice shall include the Employee's intent with respect to such request, and
(ii) sufficient opportunity for the Company to challenge or limit the scope of
the disclosure on behalf of the AmCOMP Companies, the Employee or both.
(c) Upon termination of his employment with the Company for any
reason, the Employee shall forthwith return to the Company all Confidential
Information in whatever form maintained (including, without limitation, computer
discs and other electronic media).
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(d) Without limiting the generality of Section 11 hereof, the
foregoing provisions of this Section 6 shall survive the expiration or
termination of this Agreement and shall be binding upon the Employee's heirs,
successors and legal representatives.
7. TERMINATION.
(a) The Employee's employment hereunder shall be terminated upon the
occurrence of any of the following:
(i) the death of the Employee;
(ii) the Employee's inability to perform his duties on account
of disability or incapacity for a period of 180 or more days, whether or not
consecutive, within any period of 12 consecutive months;
(iii) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated for "cause" (as
defined below); or
(iv) the Company giving written notice, at any time, to the
Employee that the Employee's employment is being terminated other than pursuant
to clause (i), (ii) or (iii) above.
The following actions, failures and events by or affecting the Employee
shall constitute "cause" for termination within the meaning of clause (iii)
above: (A) an indictment for or conviction of the Employee of, or the entering
of a plea of NOLO CONTENDERE by the Employee with respect to, having committed a
felony, (B) use of controlled substances or alcohol in the workplace or outside
of the workplace in such a manner as impairs or prevents the performance of the
Employee's duties hereunder or endangers the Employee or any other employee of
the Company, (C) acts of dishonesty or moral turpitude by the Employee that are
detrimental to one or more of the AmCOMP Companies, (D) acts or omissions by the
Employee that the Employee knew were likely to damage the business of one or
more of the AmCOMP Companies, (E) willful and repeated failure of the Employee
to perform any material duties hereunder or gross negligence of the Employee in
the performance of such duties, or (F) failure by the Employee to obey the
reasonable and lawful orders and policies of the Board of Directors that are
consistent with the provisions of this Agreement (provided that, in the case of
an indictment described in clause (A) above, and in the case of clause (B), (C),
(D) or (E) above, the Employee shall have received written notice of such
proposed termination and a reasonable opportunity to discuss the matter with the
Board of Directors of the Company, followed by written notice that the Board of
Directors of the Company adheres to its position.
(b) Notwithstanding anything to the contrary expressed or implied
herein, except as required by applicable law, the AmCOMP Companies (and their
affiliates) shall not be obligated to make any payments to the Employee or on
his behalf of whatever kind or nature by reason of the termination of the
Employment Term (i) by the Employee (except in the case of the breach of this
Agreement by the Company) or (ii) pursuant to clause (i), (ii) or (iii) of
Section 7(a) above, other than (x) such amounts, if any, of his Salary and
additional compensation paid pursuant to Section 4(b) as shall have accrued and
remain unpaid as of the date of said
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termination and (y) such other amounts, if any, that may be then otherwise
payable to the Employee pursuant to the terms of the Company's benefits plans or
pursuant to Section 5(f) above.
(c) If (i) the Company terminates the Employee's employment hereunder
pursuant to clause (iv) of Section 7(a), whether during the Employment Term or
during any continuation of employment pursuant to Section 2(b) above, or (ii)
the Company determines not to renew the employment of the Employee at the end of
the Initial Term or any Renewal Term as contemplated by Section 2(b) above, the
Company shall pay to the Employee in 12 equal monthly installments commencing in
the month after the month in which employment terminates, as severance pay, an
amount equal to the sum of (x) the Employee's annual Salary in effect
immediately prior to such termination, and (y) the amount of incentive
compensation, bonuses and additional compensation paid pursuant to Section 4(b)
paid to the Employee in respect of the most recent full fiscal year of the
Company preceding such termination, provided that in no event shall the amount
paid pursuant to this clause (y) exceed 30% of the amount paid pursuant to
clause (x) above.
(d) No interest shall accrue on or be paid with respect to any
portion of any payments hereunder.
(e) The Company acknowledges that it would be very difficult and
generally impracticable to determine the Employee's ability to, or the extent to
which he may, mitigate any damages or injuries that he may incur by reason of
termination of employment under the circumstances described in Section 7(c). The
Company has taken this into account in entering into this Agreement and,
accordingly, the Company acknowledges and agrees that the Employee shall have no
duty to mitigate any such damages and that he shall be entitled to receive the
amount provided in Section 7(c) regardless of any income that he may receive
from other sources following the date he becomes entitled to receive such
amount.
8. ASSIGNABILITY.
(a) Neither this Agreement nor any right or interest hereunder shall
be assignable by the Employee or his beneficiaries or legal representatives
without the Company's prior written consent; PROVIDED, HOWEVER, that nothing in
this Section 8(a) shall preclude the Employee from designating a beneficiary to
receive any benefit payable hereunder upon his death or incapacity.
(b) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation or to exclusion,
attachment, levy or similar process or to assignment by operation of law, and
any attempt, voluntary or involuntary, to effect any such action shall be null,
void and of no effect.
9. RESTRICTIVE COVENANTS.
(a) During the Employment Term and, in the event that the Employee's
employment is terminated for any reason (including the non-renewal of this
Agreement in
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accordance with Section 2(b) above), during the 12-month period following such
termination, the Employee will not directly or indirectly (as a director,
officer, executive employee, manager, consultant, independent contractor,
advisor or otherwise) engage in competition with, or own any interest in,
perform any services for, participate in or be connected with any business or
organization that engages in competition with any of the AmCOMP Companies within
the meaning of Section 9(d), PROVIDED, HOWEVER, that the provisions of this
Section 9(a) shall not be deemed to prohibit the Employee's ownership of not
more than 2% of the total shares of all classes of stock outstanding of any
publicly held company.
(b) In the event that the Employee's employment is terminated for any
reason (including the non-renewal of this Agreement in accordance with Section
2(b) above), during the 12-month period following such termination, the Employee
will not directly or indirectly hire, solicit, retain, compensate or otherwise
induce or attempt to induce any employee of any of the AmCOMP Companies during
the six months prior to the Employee's termination, to leave the employ of the
AmCOMP Companies or in any way interfere with the relationship between any of
the AmCOMP Companies and any employee thereof.
(c) During the Employment Term and, in the event that the Employee's
employment is terminated for any reason (including the non-renewal of this
Agreement in accordance with Section 2(b) above), during the 12-month period
following such termination, the Employee will not directly or indirectly hire,
engage, send any work to, place orders with, or in any manner be associated with
any supplier, contractor, subcontractor or other business relation of any of the
AmCOMP Companies if such action by him would have a material adverse effect on
the business, assets or financial condition of any of the AmCOMP Companies, or
materially interfere with the relationship between any such person or entity and
any of the AmCOMP Companies.
(d) (i) For purposes of this Section 9, a person or entity
(including, without limitation, the Employee) shall be deemed to be a competitor
of one or more of the AmCOMP Companies, or a person or entity (including,
without limitation, the Employee) shall be deemed to be engaging in competition
with one or more of the AmCOMP Companies, if such person or entity (A) is a
stock or mutual insurance company or an insurance fund engaged in writing
workers' compensation insurance or any other form of insurance that is provided
or proposed to be provided by any of the AmCOMP Companies at the time of
termination of the Employee's employment with the Company (any such form of
insurance being hereinafter referred to as the "Specified Insurance"), (B) is an
agency or broker for a stock or mutual insurance company or an insurance fund
engaged in writing any Specified Insurance, or (C) in any way conducts,
operates, carries out or engages in the business of managing any entity
described in clause (A) or (B), in any of the foregoing cases in the State of
Florida or any other state of the United States of America in which any of the
AmCOMP Companies conduct, or are actively investigating the possibility of
conducting, their businesses at the time of termination of the Employee's
employment with the Company. The provisions of this Section 9 shall cease to be
applicable to any state in which the AmCOMP Companies are actively investigating
the possibility of conducting their businesses at the time of termination of
Employee's employment with the Company, unless within three months after such
termination, the AmCOMP Companies, or any of them, have commenced soliciting
prospective policyholders in such state, and have effectuated any one of the
following: (x) the opening of an office in such state; (y) the hiring of
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one or more employees to be employed in such state; or (z) the engagement of one
or more agents in such state.
(ii) For purposes of this Section 9, no corporation or entity
that may be deemed to be an affiliate of the AmCOMP Companies solely by reason
of its being controlled by, or under common control with, ▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Welsh, Carson, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ VII, L.P. or Sprout Growth II, L.P. or any of
their respective affiliates other than the AmCOMP Companies, will be deemed to
be an affiliate of the AmCOMP Companies.
(e) In connection with the foregoing provisions of this Section 9,
the Employee represents that his experience, capabilities and circumstances are
such that such provisions will not prevent him from earning a livelihood. The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, time and territorial limitations) are reasonable
and properly required for the adequate protection of the current and future
businesses of the AmCOMP Companies. It is understood that the covenants made by
the Employee in this Section 9 (and in Section 6 hereof) shall survive the
expiration or termination of this Agreement.
10. LEGITIMATE BUSINESS INTERESTS OF THE AMCOMP COMPANIES.
(a) The parties hereto acknowledge and agree that the matters set
forth above in Sections 6 and 9 constitute the "legitimate business interests"
of the AmCOMP Companies within the meaning of Florida Statutes 542.335 and are
hereby conclusively agreed to be legally sufficient to support such covenants.
Such "legitimate business interests" include but are not necessarily limited to
trade secrets; valuable confidential business or professional information that
does not legally qualify as trade secrets; substantial relationships with
specific prospective or existing customers or clients; customer or client good
will associated with an ongoing business in a specific geographic location and a
specific marketing area; and extraordinary or specialized training. It is
further acknowledged and agreed that all such restrictive covenants set forth
above are reasonably necessary to protect the legitimate business interests of
the AmCOMP Companies and are not overbroad or unreasonable. It is acknowledged
and agreed that the Company is specifically relying upon the foregoing
statements in entering into this Agreement.
(b) The Employee acknowledges that a remedy at law for any breach or
threatened breach of the provisions of Sections 6 and 9 would be inadequate,
that the AmCOMP Companies would be irreparably injured by such breach and that,
therefore, the AmCOMP Companies shall be entitled to injunctive relief in
addition to any other available rights and remedies in case of any such breach
or threatened breach
11. BINDING EFFECT. Without limiting or diminishing the effect of
Section 8 hereof, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.
12. NOTICES. All notices that are required or may be given pursuant to the
terms of this Agreement shall be in writing and shall be sufficient in all
respects if given in writing and (i) delivered personally, (ii) mailed by
certified or registered mail, return receipt requested and postage prepaid, or
(iii) sent via a nationally recognized overnight courier, to the parties at
their
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respective addresses set forth above, or to such other address or addresses as
either party shall have designated in writing to the other party hereto. The
date of the giving of such notices delivered personally or by carrier shall be
the date of their delivery and the date of giving of such notices by certified
or registered mail shall be the date five days after the posting of the mail.
13. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida, except that body of law
relating to choice of laws.
14. SEVERABILITY. In the event that any court of competent jurisdiction
shall finally hold that any provision of Section 6 or 9 hereof is void or
constitutes an unreasonable restriction against the Employee, Section 6 or 9, as
the case may be, shall not be rendered void, but shall apply with respect to
such extent as such court may judicially determine constitutes a reasonable
restriction under the circumstances, and, in such connection, the parties hereto
authorize any such court to modify or sever any such provision, including
without limitation, any such provision relating to duration and geographical
area, to the extent deemed necessary or appropriate by such court. If any part
of this Agreement other than Section 6 or 9 is held by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part by reason of any rule of law or public policy, such part shall be deemed
to be severed from the remainder of this Agreement for the purpose only of the
particular legal proceedings in question and all other covenants and provisions
of this Agreement shall in every other respect continue in full force and effect
and no covenant or provision shall be deemed dependent upon any other covenant
or provision.
15. WAIVER. Failure to insist upon strict compliance with any of the
terms, covenants or conditions hereof shall not be deemed a waiver of such term,
covenant or condition, nor shall any waiver or relinquishment of any right or
power hereunder at any one or more times be deemed a waiver or relinquishment of
such right or power at any other time or times.
16. ENTIRE AGREEMENT; MODIFICATIONS. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and supersede
all prior agreements, oral and written, between the parties hereto with respect
to the subject matter hereof. This Agreement may be modified or amended only by
an instrument in writing signed by both parties hereto.
17. SURVIVAL OF PROVISIONS. Neither the termination of this Agreement, nor
of Executive's employment hereunder, shall terminate or affect in any manner any
provision of this Agreement that is intended by its terms to survive such
termination, including without limitation, the provisions of Sections 4 to 7
inclusive and Sections 9 and 11 hereof.
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Employee have duly executed and
delivered this Agreement as of the day and year first above written.
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AMCOMP INCORPORATED
By:
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▇▇▇▇ ▇. ▇▇▇▇, President
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[EMPLOYEE]
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