Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 1st day
of December, 2000, by and between NCRIC Group, Inc. ("Group"), NCRIC, Inc.
("NCRIC") and Stephen S. Fargis ("Executive").
Recitals:
A. Group desires to retain Executive as its Senior Vice President and
Chief Operating Officer, and NCRIC desires to retain Executive as President of
NCRIC MSO, Inc. ("MSO"), on the terms and conditions hereinafter set forth; and
B. Executive desires to continue such employment, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants set forth herein, the parties hereto agree as follows:
1. Employment. NCRIC and Group each hereby agree that Executive shall
continue to be employed for a term of three (3) years from the date of this
Agreement as: Senior Vice President and Chief Operating Officer of Group, and as
President of MSO, under the conditions hereinafter specified. During said
period, Executive also agrees to serve, if elected, as an officer and director
of any subsidiary or affiliate of Group. Failure to reelect Executive as
President and Chief Operating Officer of Group and as President of MSO without
the consent of the Executive during the term of this Agreement shall constitute
a Termination Without Cause. Executive accepts this employment under the
conditions hereinafter specified and agrees to devote his best efforts, energies
and abilities to the service of NCRIC and Group on a full-time basis.
2. Duties.
(a) Executive shall serve as President and Chief Operating Officer of
Group and as President of MSO and in such other commensurate executive
capacities with NCRIC and Group, and/or any one or more affiliates of Group or
NCRIC (collectively, the "Affiliated Companies) as he may from time to time be
assigned by the Board of Directors. Executive shall perform all of his duties
diligently and faithfully. However, it is understood and agreed that Executive
shall not receive compensation beyond that specified herein for services
provided to the Affiliated Companies.
(b) Executive shall at all times devote his entire working time,
attention, energies, efforts and skills to the business of Group and MSO, and
shall not, directly or indirectly, engage in any other business activity,
whether or not for profit, gain or other
pecuniary advantages, without the express written permission of Group.
Notwithstanding the foregoing, Executive may serve on the board of directors of
any non-competing company and receive compensation therefore provided he obtains
the advance written approval of Group, which shall not be unreasonably withheld,
and provided that any such service does not adversely affect his performance of
his duties for NCRIC or Group (it being understood that membership in social,
religious, charitable or similar organizations does not require Board approval
pursuant to this Section 2(b)). Group acknowledges that Executive is serving on
the boards of directors of the companies listed on Exhibit 2B attached hereto
and hereby grants its approval to such service. Executive will not be required
to account to NCRIC or Group for any compensation he may receive for such
approved service on the board of directors of a non-competing company, and such
compensation shall not diminish in any way the compensation or benefits to which
he is entitled under this Agreement.
3. Compensation. NCRIC shall pay Executive basic compensation of One
Hundred Seventy Thousand Dollars ($170,000) per year ("Base Salary"). Such Base
Salary shall be payable biweekly (or in such other frequency as employees are
paid). During the period of this Agreement, Executive's Base Salary shall be
reviewed at least annually; the first such review will be made no later than
January 31, 2002. The Board may increase, but not decrease, Executive's Base
Salary (any increase in Base Salary shall become the "Base Salary" for purposes
of this Agreement). Any incentive compensation that may be paid to Executive
from time to time shall have no impact upon the Base Salary.
4. Benefits.
a. Retirement and/or Pension Plan(s). Executive shall be entitled to
participate in any retirement and/or pension plan(s) offered to NCRIC's or
Group's senior executives and/or key management employees as a group in
accordance with the terms of such plan(s), as they may be modified at NCRIC's or
Group's discretion from time to time.
b. Automobile Allowance. Executive shall be entitled to an automobile
of the Executive's reasonable selection to be used by Executive in rendering
services to the NCRIC and Group, together with reimbursement for all gas, oil,
maintenance, insurance and repairs required by reason of the business use of
such vehicle. Executive also shall comply with all reporting requirements
established by NCRIC regarding the use of such automobile.
c. Health and Medical Insurance. Executive shall be entitled to
participate in any health and medical insurance plan(s) offered to NCRIC's
senior executives and/or key management employees as a group in accordance with
the terms of such plan(s), as they may be modified in their application to all
employees at NCRIC's discretion from time to time.
d. Paid Sick Leave. Executive shall accrue one (1) day of paid sick
leave per month, up to a maximum of sixty (60) days (or such other number of
days as provided in the standard sick leave policy of NCRIC) of paid sick leave
at any given time. All accrued, but unused, paid sick leave shall be forfeited
upon termination of employment.
e. Paid Vacation. Executive shall accrue four weeks of paid vacation
during each calendar year; however, in no event shall Executive use more than
three weeks at any one time. Accrued, but unused, paid vacation in excess of ten
days shall expire on December 31st of the year in which it accrues. Accrued, but
unused, paid vacation may be carried over from one year to the next in
accordance with the policy in effect for NCRIC employees in general. All
accrued, but unused, paid vacation is forfeited upon termination of employment
by either party; provided, however, that if Executive provides advance notice of
his intent to terminate his employment in accordance with paragraph 7 of this
Agreement, NCRIC shall pay him for all of his accrued, but unused, paid
vacation, less standard withholdings and deductions.
f. Life Insurance. NCRIC shall procure a term life insurance policy in
a face amount of no less than twice the amount of Executive's Base Salary (as in
effect on the date hereof) provided that Executive is insurable at standard
rates. Executive shall be entitled to designate the beneficiary or beneficiaries
of such policy in his sole discretion. In the event that Executive is not
insurable at standard rates, and desires to be insured, Executive shall be
responsible for payment of any premiums or amounts charged in excess of the
standard rates for such insurance.
g. Disability Insurance. Executive shall be entitled to participate in
any disability income insurance policy (both long and short term) offered to
NCRIC's senior executives and/or key management employees as a group in
accordance with the terms of such policies(s), as they may be modified at
NCRIC's discretion from time to time. NCRIC's disability income insurance policy
provides for payments to covered employees commencing after an "elimination
period" of ninety (90) days. If, and when, Executive should begin to receive
monthly disability payments under the terms of NCRIC's disability income
insurance policy then in force NCRIC agrees to supplement said monthly
disability payments by paying to Executive the difference between such sums paid
by the disability insurer and Executive's Base Salary for a maximum period of
twelve (12) consecutive months. Following expiration of said twelve (12) months,
the coverage and provisions of NCRIC's disability income insurance policy shall
constitute the entire wage continuation plan provided in this Agreement and,
except for the payment of the premiums on such policy, NCRIC shall have no
further liability to Executive for wage continuation. It is further understood
that Executive's employment with NCRIC and Group shall be terminated following
twelve (12) consecutive months of disability (being unable to carry out the
normal functions and requirements of his position with NCRIC) regardless of how
and when the aforementioned disability income payments from NCRIC's disability
income insurance policy may be paid or due to Executive.
5. Expenses.
a. Business Expenses. NCRIC and/or Group shall reimburse Executive for
ordinary, necessary and reasonable business expenses incurred by him in the
discharge of his duties hereunder, including but not limited to travel, lodging
and entertainment expenses, provided Executive furnishes appropriate
documentation for such expenses and that said expenses are in accordance with
the company's then prevailing policies and procedures regarding said
expenditures.
b. Continuing Education Expenses. NCRIC shall pay the ordinary and
necessary costs associated with continuing education classes or continuing
education programs Executive participates in which are related to the company's
business interests, provided Executive furnishes appropriate documentation to
NCRIC for such costs and gives the Chief Executive Officer of NCRIC reasonable
notice of any expenditures for continuing education. All such expenses in excess
of One Thousand Dollars ($1,000) must be approved by the Chief Executive Officer
in advance.
c. Country Club Dues. NCRIC shall pay up to Twenty Five Thousand
Dollars ($25,000) in initiation fees and up to $3,300 in annual membership dues
as reimbursement for Executive's membership in one country club. NCRIC shall not
pay or reimburse Executive for any non-mandatory costs associated with such
membership, including but not limited to food, beverage and entertainment costs,
greens fees, and court fees, unless Executive is otherwise entitled to
reimbursement of such costs pursuant to paragraph 5(a) of this Agreement.
d. Professional Dues. NCRIC agrees to pay the Executive's annual dues
to the American College of Healthcare Executives (the "ACHE") and the
President's Circle of ACHE.
e. Effect of Termination of Employment. All payment or reimbursement of
expenses authorized by Section 5 hereof shall cease upon Executive's termination
of employment regardless of cause for said termination, provided that any
expenses incurred by Executive prior to termination shall be reimbursed.
6. Termination of Employment by NCRIC.
a. Termination for Cause. The employment of Executive under this
Agreement, may be terminated for "cause" by NCRIC and Group at any time by
action of the Board upon the occurrence of any one or more of the following
events:
(i) Executive's fraud, dishonesty, gross negligence or willful
misconduct in the performance of his duties hereunder,
including willful failure to perform such duties as may
properly be assigned him hereunder; or
(ii) Executive's material breach of any provision of this
Agreement,
and Executive shall be notified in writing of such termination, which
notification shall specify the grounds cited by the Board for such termination
for cause. Any termination by reason of the foregoing shall not be in limitation
of any right or remedy which NCRIC or Group may have under this Agreement or
otherwise.
Should Executive dispute whether "cause" existed for his termination,
he shall notify NCRIC and Group of his dispute in writing within fourteen days
of the receipt of the notice of termination, and the parties shall promptly
proceed to arbitration in accordance with paragraph 16 of this Agreement. NCRIC
shall continue to pay the Executive his Base Salary, and other compensation and
benefits in effect immediately prior to the termination. If it is determined
that termination was for cause, Executive shall return all cash amounts to NCRIC
promptly following the date of resolution by arbitration, with interest
commencing as of the date of the resolution of the dispute by arbitration (at
the prime rate as published in the Wall Street Journal from time to time). Any
cash amounts paid to Executive pending the resolution of the dispute by
arbitration shall offset any amounts due Executive under paragraph (b) below.
b. Termination Without Cause.
(i) NCRIC and Group may terminate Executive's employment without cause
and at any time. Executive shall be notified in writing of such termination on
or prior to the effective date of such termination.
(ii) If Executive's employment is terminated without cause, and
Executive waives all claims against Group, NCRIC and the Affiliated Companies
relating to or arising out of his employment or the termination of his
employment by executing a general release of such claims in the form attached to
the Agreement, Executive shall
receive, as severance pay, an amount equal to two times the Base Salary, plus
accrued vacation. Such amount shall represent agreed-upon liquidated damages for
any loss, cost, expense or damages suffered as a result of such termination, as
well as consideration for Executive's execution of a General Release of all
claims against NCRIC and the Affiliated Companies. NCRIC shall pay such amount
to Executive in a lump sum on the effective date of termination.
(iii) If a "Change of Control" of Group's or NCRIC's business occurs,
Executive may elect, in writing within three months of the effectiveness of the
Change in Control, to deem his employment terminated without cause for the
purposes of this paragraph. Executive shall notify Group, NCRIC or their
successor of his election. "Change of Control" shall be deemed to have occurred
if: (1) Group or NCRIC merges with or consolidates with, or sells, leases, or
otherwise transfers all or substantially all of its assets to another entity
(which for the purpose of this agreement shall include the sale or transfer of
fifty percent or more of the ownership of NCRIC or Group, but only if such sale
shall be made to an entity not affiliated with Group). However, in no event
shall it be deemed a "change of control" solely because NCRIC, A Mutual Holding
Company, changes its business form by converting to a stock company.
7. Termination of Employment By Executive.
Executive may voluntarily terminate his employment with NCRIC and Group
provided that he gives NCRIC and Group sixty days prior notice of such
termination or pays NCRIC liquidated damages equal to the amount of two months
of Base Salary (Base Salary divided by twelve, times two). It is agreed that
such liquidated damages are to compensate NCRIC and Group for injury by reason
of Executive's termination of his employment and not as a penalty, it being
impossible to ascertain or estimate the entire or exact cost, damages or injury
that NCRIC and Group may sustain by reason of such termination. Executive shall
have the right to terminate his employment hereunder without paying NCRIC and
Group liquidated damages and without in any way affecting his right to
compensation or reimbursement (including, but not limited to, the right to
receive severance payments set forth in this Agreement), or any other right
under this Agreement, if NCRIC or Group commits a material breach of the terms
and conditions of this Agreement and such breach is not cured within thirty (30)
days of NCRIC or Group receiving written notice of such breach from Executive.
Such termination shall be deemed a termination without cause under Section 6 of
this Agreement.
8. Protection of Group and NCRIC
a. Confidential Information. Executive shall not at any time during or
after his employment with NCRIC and Group directly or indirectly disclose,
discuss, divulge, copy or otherwise suffer confidential information of Group,
NCRIC or the Affiliated Companies to be used, except as required by the
performance of his duties hereunder. For the purposes of this Agreement,
"confidential information" shall mean all information disclosed to Executive by
Group, NCRIC or the Affiliated Companies, or known by him as a consequence of or
through his employment with Group and NCRIC, where such information is not
generally known in the trade or industry, and where such information refers or
relates in any manner whatsoever to the business activities, processes, services
or products of Group, NCRIC or the Affiliated Companies. Such information
includes, but is not limited to, business and development plans (whether
contemplated, initiated or completed), development sites, business contacts,
customer lists, actuarial tables, loss data, marketing information, policy
forms, contracts, research of any kind, methods of operation, results of
analysis, business forecasts, financial data, costs, revenues, and similar
information. Upon termination of this Agreement, Executive shall immediately
return to Group and NCRIC all of its property, and all copies thereof, including
without limitation all confidential information which has been reduced to
tangible form, in his possession, custody or control.
b. Covenant Not to Compete. Executive agrees that he shall not, during
his employment and for a period of one (1) year after the date on which the
termination of Executive's employment (other than following a change in control)
is effective or the dispute relating thereto is resolved (whichever is later),
directly or indirectly, either as an officer, director, employee, agent,
adviser, consultant, principal, stockholder, partner, owner or in an other
capacity, on his own behalf or otherwise, in any way engage in, represent, be
connected with or have a financial interest in, any other insurance company, or
any corporation, firm, association, or other business entity which is, or to the
best of Executive's knowledge, is about to become, engaged in the same or
similar business as Group, NCRIC or any of their affiliates or which otherwise
competes with or is about to compete with Group, NCRIC or any of its affiliates
in the District of Columbia of any states where Group, NCRIC or any of its
Affiliated Companies may operate or are licensed to operate. Executive's
ownership of not more than one percent (1%) of the stock of any publicly traded
corporation shall not be deemed a violation of this covenant. Executive agrees
that the restrictions imposed upon him by the provisions of this paragraph are
fair and reasonable considering the nature of Group's and NCRIC's business, and
are
reasonably required for the protection of Group and NCRIC. For a period of
twelve months from the effective date of the termination Executive's employment
hereunder, Executive will not solicit the employment of any of then current
officers or employees of Group or any affiliate. The term "solicit to employ"
shall not be deemed to include general solicitations of employment not
specifically directed towards employees of either of the parties.
c. Remedies and Acknowledgment of Reasonableness. Executive
acknowledges that compliance with this paragraph is necessary for the protection
of the goodwill and other proprietary interests of NCRIC and Group, and that,
after carefully considering the extent of the restrictions upon him and the
rights and remedies conferred upon NCRIC under this paragraph, the same are
reasonable in time and territory, are designed to eliminate competition which
otherwise would be unfair to NCRIC, do not stifle the inherent skill and
experience of Executive, would not operate as a bar to Executive's sole means of
support, are fully required to protect the legitimate interests of NCRIC, and do
not confer a benefit upon NCRIC disproportionate to the detriment to Executive.
Executive further acknowledges and agrees that in the event of a breach
of this paragraph, neither Group nor NCRIC would not have an adequate remedy at
law because the damages flowing from such breach would not be readily
susceptible of measurement in monetary terms and that Group and NCRIC shall be
entitled to injunctive relief and may obtain a temporary order restraining any
threatened breach or future breach in addition to any other remedies which may
be available at law or equity. Nothing in this paragraph shall be deemed to
limit Group's or NCRIC's remedies at law or in equity for breach of this or any
other paragraph of this Agreement.
9. Death or Incapacitation. In the event that Executive dies or, due to
a physical or mental impairment, becomes unable to perform the essential
functions of his position with or without reasonable accommodation, this
Agreement shall be deemed terminated and Executive or his estate, as the case
may be, shall be entitled to no further salary, compensation or benefits
hereunder, except (i) any unpaid salary, incentive payments and vacation accrued
and earned by Executive up to and including the date of such termination, and
(ii) any disability, life insurance or other benefits to which Executive or-his
estate may be entitled on the date of such termination in accordance with the
terms and conditions of any applicable benefit plan(s) as set forth in official
plan documents.
10. Assignment. This Agreement is a personal service agreement and
neither party shall have the right to assign this Agreement or any rights or
obligations hereunder without the prior written consent of the other party.
11. Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested. If
mailed to Group or NCRIC, such notices shall be sent to their principal place of
business, attention: Chief Executive Officer, or at such other address as NCRIC
or Group may hereafter designate in writing to Executive. If mailed to
Executive, such notices shall be addressed to him at his home address last known
on the records of Group and NCRIC, or at such other address as Executive may
hereafter designate in writing to Group and NCRIC.
12. Successors Bound. This Agreement shall bind and inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, estates and permitted successors and assigns.
13. Waiver. No provision hereof may be waived, except by a written
instrument signed by the party against whom such waiver is sought to be
enforced. The failure or waiver of either party hereto at any time, or from time
to time, to require performance by the other party of such other party's
obligation hereunder, shall not deprive that party of the right to insist upon
strict adherence to such obligation at any subsequent time. Each party hereto
agrees that any waiver of its rights arising out of any breach of this Agreement
by the other party shall not be construed as a waiver of any subsequent breach.
14. Amendment. No provision hereof may be altered or amended, except by
a written instrument signed by the party against whom such alteration or
amendment is to be enforced.
15. Governing Law. The parties agree that this Agreement shall in all
respects be construed, interpreted and enforced in accordance with and governed
by the laws of the District of Columbia, without regard to the principles of
conflict of laws thereof.
16. Arbitration. Whenever a "dispute" arises between the parties
concerning this Agreement (other than a dispute arising under paragraph 8
hereof) or their employment relationship, including without limitation the
termination thereof,
the parties shall use their best efforts to resolve the "dispute" by mutual
agreement. If such a "dispute" cannot be so resolved, it shall be submitted to
final and binding arbitration to the exclusion of all other avenues of relief.
For the purposes of this paragraph, the term "dispute" means all controversies
or claims relating to terms, conditions or privileges of employment, including
without limitation claims for breach of contract, discrimination, harassment,
wrongful discharge, misrepresentation, defamation, emotional distress or any
other personal injury, but excluding claims for unemployment compensation or
worker's compensation. The dispute shall be submitted to the Washington, D.C.
office of the American Arbitration Association ("AAA") and adjudicated in
accordance with AAA's Rules for Commercial Arbitration then in effect. The
decision of the Arbitrator must be in writing and shall be final-and binding on
the parties, and judgment may be entered on the arbitrator's award in any court
having jurisdiction thereof. The expenses of the arbitration shall be borne
equally by the parties, and each party shall be responsible for his or its own
costs and attorneys' fees; provided, that the Executive shall not be responsible
for the cost of arbitration if he is successful in whole or part in
arbitration.. The Arbitrator shall be deemed to possess the powers to issue
mandatory orders and restraining orders in connection with such arbitration;
provided, however, that nothing in this paragraph shall be construed so as to
deny NCRIC or Group the right and power to seek and obtain injunctive relief in
a court of equity for any breach or threatened breach by Executive of any of the
provisions contained in paragraph 8 of this Agreement. This paragraph shall
survive the termination of this Agreement.
17. Severability. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed, or if any
such provision is held invalid or unenforceable by a court of competent
jurisdiction or an arbitrator, such provision shall be deleted from this
Agreement and the Agreement shall be construed to give full effect to the
remaining provisions thereof.
18. Headings and Captions. The paragraph headings and captions
contained in this Agreement are for convenience only and shall not be construed
to define, limit or affect the scope or meaning of the provisions hereof.
19. Entire Agreement. This Agreement contains and represents the entire
agreement of the parties and supersedes all prior agreements, representations or
understandings, oral or written, express or implied with respect to the subject
matter hereof. This Agreement may not be modified or amended in any way unless
in a writing signed by both Executive and the Chief Executive Officer of NCRIC
and Group. No representation, promise or inducement has been made by either
party
hereto that is not embodied in this Agreement, and neither party shall be bound
or liable for any alleged representation, promise or inducement not specifically
set forth herein.
IN WITNESS WHEREOF, the parties have executed this Employment Agreement
on the date and year first written above.
NCRIC, Inc.
By: /s/ R. Ray Pate, Jr.
-------------------------------------
R. Ray Pate, Jr.
President and Chief Executive Officer
NCRIC Group, Inc.
By: /s/ R. Ray Pate, Jr.
-------------------------------------
R. Ray Pate, Jr.
President and Chief Executive Officer
Executive
/s/ Stephen S. Fargis
---------------------------
Stephen S. Fargis