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EXHIBIT 10(5)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT entered into as of the 20th day of February, 1995
by and between Capsure Holdings Corp. ("Capsure"), a Delaware corporation,
United Capitol Insurance Company, a Wisconsin corporation, and Mary Jane
Robertson (the "Employee"), an individual.
W I T N E S S E T H:
WHEREAS, Capsure or various of its current subsidiaries have employed
the Employee since July 14, 1986, and since February 20, 1990, pursuant to an
Employment Agreement dated as of February 20, 1990 (the "Prior Agreement");
WHEREAS, Capsure wishes to continue to employ the Employee for the
period provided in this Employment Agreement (the "Agreement") and the Employee
is willing to continue to serve in the employ of Capsure and of any direct or
indirect subsidiary of it (collectively the "Companies");
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants herein contained, the parties agree as follows:
Article One: Employment
A. Capsure will continue to employ the Employee for the period (the
"Employment Period") commencing on February 20, 1995 and ending February 19,
1997. The Employee accepts such employment and agrees to serve in the
capacities set forth in this Agreement and to perform such services of a senior
vice president nature commensurate with her position and offices and agrees
diligently and competently to devote her entire business time and attention to
such services, excepting disabilities, illness, vacation, paid holidays given
by the Companies, and reasonable activities having a charitable, educational or
other public interest purpose.
B. During the Employment Period, the Employee shall serve as Senior
Vice President and Chief Financial Officer of Capsure, and Executive Vice
President and Chief Financial Officer of United Capitol Holding Company
("UCHC") and United Capitol Insurance Company ("UCIC"). In that capacity the
Employee shall perform such duties as are commensurate with such office and as
are consistent with past practice.
C. In connection with her employment, the Employee shall not be
required to relocate or transfer her principal residence from its present
location in Atlanta, Georgia, and the Employee shall not be required to perform
services which would make the continuance of either her normal homelife or her
principal residence in its existing location unreasonably difficult or
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inconvenient for her. A violation of any of these conditions shall be
construed as an attempt by Capsure to terminate the Employee's service without
cause.
D. Capsure and the Employee mutually agree that the Prior Agreement
has expired in accordance with its terms.
Article Two: Compensation During the Employment Period
A. The Companies will make available to the Employee, to the extent
she satisfies the eligibility requirements thereof and to the extent permitted
by law, any fringe or employee benefit program introduced generally to senior
corporate officers. These benefits include, but are not limited to, pension,
profit sharing, stock purchase, stock option, stock appreciation, savings
deferred compensation, bonus, life insurance, disability insurance, health
insurance, major medical and hospitalization insurance, and other plans and
policies authorized now or in the future which in any event shall provide
benefits to the Employee at a level that, in the aggregate, are not
significantly less than those currently in effect with respect to the Employee.
B. During the Employment Period, Capsure shall pay to the Employee
and the Employee shall accept for her services a minimum annual aggregate
salary of $225,000, payable in accordance with the Companies' customary payroll
policy as in effect from time to time. At Capsure's option, the salary
described herein may be paid through one of the Companies. The Companies
reserve the right at any time and from time to time to increase the minimum
annual salary of the Employee and shall review at least each year such minimum
annual salary in relationship to the goals and performance of the Companies and
prevailing competitive conditions. To the extent that the Employee's minimum
annual salary is increased, the new amount will become known as her new minimum
annual salary and such new minimum annual salary shall not thereafter be
reduced.
The minimum or new minimum annual salary due the Employee excludes any
bonus or any other employee benefit or perquisite to which the Employee is
entitled and, when adjusting the Employee's salary, the Board of Directors or
any other body or group of persons responsible for setting the Employee's
salary shall not take into consideration any bonuses, employee benefits or
perquisites due the Employee.
C. The Employee shall be entitled to, but not obligated to take, the
number of paid vacation days in each calendar year determined by the Companies
from time to time for its senior executive officers, but not less than three
weeks in any calendar year. At the Employee's fifth anniversary with Capsure,
the Employee shall then be entitled to four weeks vacation in that calendar
year and each ensuing year. The Employee shall also be entitled to all paid
holidays given by the Companies to its senior executive officers.
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D. The Companies' obligation to pay the Employee the minimum annual
salary during the Employment Period may be extinguished only upon a termination
of the Employee's employment pursuant to the provisions of Articles Five and
Six.
E. The Employee shall be entitled to an annual bonus. The amount of
such bonus shall be determined and paid in December of each year, and the
amount of such bonus shall be determined by the Chief Executive Officer of
Capsure, but subject to the final approval of the Compensation Committee of
Capsure.
F. The Companies shall reimburse the Employee for all out-of-pocket
expenses incurred by her in connection with the performance of her duties
hereunder, including professional activities, upon the presentation of
appropriate documentation therefore in accordance with the then customary
procedures of the Companies.
Article Three: Deleted.
Article Four: Notice of Breach
Capsure and the Employee agree that, prior to the termination of the
Employment Period by reason of any breach of any provisions of this Agreement,
the injured party will give the party or parties in breach written notice
specifying such breach and permitting the party in breach to cure such breach
within the period of thirty (30) days after receipt of such notice.
Article Five: Inability to Perform
If, during the Employment Period, the Employee shall be unable to
substantially perform the duties required of her pursuant to her employment due
to any disability preventing her from performing such services for a period of
six (6) cumulative months in a twelve consecutive month period, Capsure shall
have the right to terminate the Employee's employment pursuant to this
Agreement on thirty (30) days written notice, at the end of which time the
Employee's employment shall be terminated. As used in this Agreement, the term
"disability" shall mean the substantial inability of the Employee to perform
her essential duties under this Agreement as determined by an independent
physician selected by Capsure with the approval of the Employee. Any
disability of less than six consecutive months duration shall not be cause for
interruption, suspension or withholding of the salary due the Employee by
Capsure.
Article Six: Termination
This New Agreement:
(i) may be terminated at any time by mutual agreement between the
Employee and Capsure;
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(ii) shall terminate immediately upon the death of the Employee, but
the Employee's estate shall be entitled to receive the salary due the
Employee for a period of three (3) months following the day the death of the
Employee occurred. As a condition for the aforesaid payments, Capsure
shall have the right to require submission of proof of the Employee's
death;
(iii) may be terminated due to the disability of the Employee pursuant
to Article Five;
(iv) may be terminated upon a good faith determination by a majority
vote of the Board members of Capsure that the termination of this
Agreement is necessary by reason of a determination by any insurance
department of a state having jurisdiction over Capsure or any subsidiary or
affiliate, that the Employee must be removed or disqualified from acting as
an officer of Capsure or any of its subsidiaries; or
(v) may be terminated by Capsure at any time for "cause" upon the
giving of thirty (30) days prior written notice to the Employee,
setting forth the basis of such termination. For the purpose of this
Agreement, the term "cause" shall be limited to:
(a) the willful engaging of the Employee in conduct materially
injurious to the Companies;
(b) continued and willful inattention and neglect by the Employee
of the material duties to be performed by her, which inattention and
neglect is not the result of illness or disability by the Employee and
which inattention and neglect, after compliance with the provisions of
Article Four hereof, does not cease within thirty (30) days after
written notice thereof specifying the details of such conduct is given
to the Employee; and
(c) the conviction of the Employee of a felony under state or
federal law, unless in any such case the Employee performed
such act in good faith and in a manner Capsure reasonably believed to
be in or not opposed to the best interests of the Companies.
Article Seven: Effective Termination
A. The Employee's obligation to render services hereunder may be
terminated by the Employee without any reduction of the amounts payable to her
hereunder if the Employee's circumstances of employment shall have changed (as
hereinafter defined). In such event the Employee shall specify by written
notice to Capsure the event relied on for such termination, and if such event
shall not have been cured within 30 days thereafter, the Employee's employment
hereunder shall be deemed terminated. In the event of any termination by the
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Employee pursuant to this Article Seven, or in the event Capsure shall
terminate the Employee's employment, this Agreement or the Employment Period,
other than pursuant to Articles Five or Six, the Employee shall continue to be
entitled to receive all payments and other benefits provided for in this
Agreement.
B. The Employee's "circumstances of employment shall have changed"
shall mean and include any of the following:
(i) notice by Capsure to the Employee of termination of her
employment, this Agreement or the Employment Period for any
reason whatsoever, other than pursuant to Articles Five or Six;
(ii) reduction in the minimum annual salary then being paid to the
Employee by Capsure, or reduction in her minimum or new minimum
annual salary, or withdrawal from her of substantial fringe benefits
(including participation in current or future stock option or stock
appreciation plans) available to other senior corporate officers of
the Companies:
(iii) a change in the Employee's place of employment without her
written consent, other than to UCHC's or UCIC's executive offices
at a location in Atlanta, Georgia, or requirements or demands of the
Employee to perform services which would make the continuance of her
principal; residence and home life in Atlanta, Georgia unreasonably
difficult or inconvenient for her; or
(iv) other substantial, material and adverse changes in the
Employee's conditions of employment imposed on her by the
Companies or any material breach by Capsure of the provisions of this
Agreement, after compliance with the provisions of Article Seven
hereof.
Article Eight: Indemnification
Capsure will indemnify the Employee (and her legal representatives or
other successors) to the fullest extent permitted by the laws of their
respective states of their existing certificates of incorporation and by-laws,
and the Employee shall be entitled to the protection of any insurance policies
the Companies may elect to maintain generally for the benefit of their
directors and officers, against all costs, charges and expenses whatsoever
incurred or sustained by the Employee or her legal representatives in
connection with any action, suit or proceeding to which he (or her legal
representatives or other successors) may be made a party by reason of her being
or having been a director or officer of any of the Companies. If the existing
certificates of incorporation and by-laws of the Companies do not provide for
indemnity of the Employee to the fullest extent permitted by the laws of their
respective states of domicile, the Companies will use their diligent best
efforts to cause the amendment of such certificates of incorporation and/or
by-laws so as to provide maximum indemnification.
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Article Nine: Duty to Mitigate
Notwithstanding anything above to the contrary, after the termination
of Employee's employment hereunder to the extent Employee is otherwise
employed, any amounts received in consideration thereof shall be used to reduce
amounts payable hereunder on a dollar for dollar basis.
Article Ten: Non-Solicitation
A. The Employee shall not at any time during the period of her
employment by the Companies or within five years after termination of her
employment by the Companies (regardless of the reason for termination),
directly or indirectly, solicit any employee of the Companies to leave its
employ or join the employ of another, then or at a later time, or solicit the
employment of, or permit any business of which he is an owner, partner,
substantial shareholder or principal executive to solicit the employment of,
any person who was employed by the Companies, within one year prior to the time
of such solicitation.
B. The Employee acknowledges that the provisions of this Article are
reasonable and necessary for the protection of the Companies, and that the
Companies will be materially damaged if such covenants are not specifically
enforced. Accordingly, the Employee agrees that the Companies will be entitled
to injunctive relief for the purpose of restraining the Employee from violating
such covenants in addition to any other relief to which the Companies may be
entitled under this Agreement.
Article Eleven: Jurisdiction and Venue
The parties hereby irrevocably consent to the personal jurisdiction of
and the propriety of venue in the courts of the State of Georgia and of any
federal court located in such state in connection with any action or proceeding
arising out of or relating to this Agreement, any document or instrument
delivered pursuant to, in connection with, or simultaneously with this
Agreement, or a breach of this Agreement or any such document or instrument.
Article Twelve: Law
This New Agreement shall be governed by and construed in accordance
with the laws of the State of Georgia.
Article Thirteen: Notices
All notices hereunder shall be in writing and shall be, (1) sent by
registered or certified mail, return receipt requested, or (2) served by
personal service. If intended for Capsure, such notices shall be addressed to
it, attention of its Chairman of the Board at Capsure's most
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current address for its executive offices, or at such other address of which
Capsure shall have given notice to the Employee in the manner herein provided;
and if intended for the Employee, shall be addressed to her at 60 Standish
Avenue NW, Atlanta, GA 30309, or such other address of which the Employee
shall have given notice to Capsure in the manner herein provided. Personal
service of notices may be substituted for mailing provided a written receipt
of such service is provided by the recipient party. For purposes of this
section, notice shall be deemed received upon actual receipt.
Article Fourteen: Entire Agreement
This Agreement constitutes the entire understanding among the parties
with respect to the matters referred to herein and no waiver or modification to
the terms hereof shall be valid unless in writing signed by the party to be
charged and only to the extent therein set forth. All prior and
contemporaneous agreements and understandings between the parties with respect
to the subject matter of this Agreement are superseded by this New Agreement.
Article Fifteen: Counterparts
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and each of which shall be
deemed an original.
Article Sixteen: Severability
If any provision in this Agreement is invalid, illegal or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Article Seventeen: Binding Effect
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and any successor of Capsure whether by merger, liquidation,
sale of assets, reorganization or otherwise and to the heirs, administrators
and personal representative of the Employee excepting, however, the elective
rights of the Employee pursuant to Article Seven.
Article Eighteen: Withholding
The Companies shall be entitled to withhold from amounts payable to the
Employee hereunder such amounts as may be required by applicable law.
Article Nineteen: Assignment
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be
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assigned by either of the parties hereto, other than in accordance with the
provisions hereof, without the prior written consent of the other party.
Article Twenty: Effect of Waiver
The waiver by either party of a breach of any provisions of this
Agreement shall not operate as or be construed as a waiver of any subsequent
breach thereof.
Article Twenty-One: Headings
The headings contained in this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
IN WITNESS WHEREOF, the parties have executed this New Agreement
effective February 20, 1995.
"Capsure" "The Employee"
Capsure Holdings Corp. Mary Jane Robertson
By: /s/ Arthur A. Greenberg By: Mary Jane Robertson
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Its: Vice President Mary Jane Robertson
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