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EXHIBIT 10(6)
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT entered into as of the 20th day of February, 1995
by and between Capsure Holdings Corp. ("Capsure"), a Delaware corporation, and
Steven S. Zeitman (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 an
executive vice president nature commensurate with his position and offices and
agrees diligently and competently to devote his 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
Executive Vice President of United Capitol Holding Company ("UCHC") and United
Capitol Insurance Company ("UCIC"). In that capacity the Employee shall have
such duties and responsibilities as may be assigned to him by the President and
Chief Executive Officer of UCHC and UCIC, commensurate with the position of
Executive Vice President. It is contemplated that the Employee's primary
responsibility shall be to maintain and to further develop efficient
underwriting operations for the UCHC and UCIC.
C. In connection with his employment, the Employee shall not be
required to relocate or transfer his principal residence from its present
location in Marietta, Georgia, and the Employee shall not be required to
perform services which would make the continuance of either
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his normal homelife or his principal residence in its existing location
unreasonably difficult or inconvenient for him. 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 he
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 his services a minimum annual aggregate
salary of $167,000, 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 his 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 UCIC, 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 him in connection with the performance of his 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 him pursuant to his employment due
to any disability preventing him 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
his 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 him,
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 him
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
Employee pursuant to this Article Seven, or in the event Capsure shall
terminate the Employee's
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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 his
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 his minimum or new minimum
annual salary, or withdrawal from him 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
his written consent, other than to UCIC's or UCHC'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 his
principal; residence and home life in Marietta, Georgia unreasonably
difficult or inconvenient for him; or
(iv) other substantial, material and adverse changes in the
Employee's conditions of employment imposed on him 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 his 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 his legal representatives in
connection with any action, suit or proceeding to which he (or his legal
representatives or other successors) may be made a party by reason of his 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.
Article Nine: Duty to Mitigate
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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 his
employment by the Companies or within five years after termination of his
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 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 him at 1783 Charles Lake Dr., Masisha, GA.
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30068, 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 assigned by either of the parties hereto, other than in
accordance with the provisions hereof, without the prior written consent of the
other party.
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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. Steven S. Zeitman
By: Arthur A. Greenberg By: Stevan S. Zeitman
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Its: Vice-President Steven S. Zeitman
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