Exhibit 10.19
EMPLOYMENT AGREEMENT
AGREEMENT dated as of January 1, 1999, between Arthur J. Gallagher &
Co., a Delaware corporation (the "Corporation"), and James J. Braniff, III, (the
"Executive").
RECITALS
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WHEREAS, the Executive is an officer and employee of the Corporation;
WHEREAS, the parties acknowledge that the Corporation has a legitimate
interest in retaining the services of the Executive and the taking of the
covenants herein; and
WHEREAS, the Executive desires to enter into this Agreement and to
commit to the provision of the services to the Corporation as provided
hereunder.
AGREEMENT
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NOW, THEREFORE, in consideration of the above recitals and the mutual
covenants and agreements set forth below, the parties agree:
Section 1. Employment, Term and Geographic Location.
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The Corporation employs the Executive and the Executive agrees to
serve as the President and Chief Operating Officer of the Brokerage Services
Division of the Corporation with the duties set forth in Section 2 for a term
(the "Term of Employment") beginning on January 1, 1999 and ending on December
31, 2003, unless earlier terminated under Section 4 or 5. The Executive shall
have such responsibilities, duties and authority reasonably accorded to and
expected of a President and Chief Operating Officer of the Brokerage Services
Division of the Corporation throughout the term of Employment. Employment of
Executive shall not necessarily cease as of the expiration of the Term of
Employment; however, employment thereafter shall be on an at will basis.
The Executive shall be principally employed at the corporate headquarters of the
Corporation in Illinois during the Term of Employment. If the Corporation
attempts to relocate the Executive to any location other than Houston, Texas,
without his written consent, it will be considered a termination of the
Executive without cause and the Executive will be entitled to all the benefits
of this Agreement to which he would be entitled in the event of a termination
without cause. Corporation also agrees that at any time after December 31, 2001,
Executive may choose to relocate his principal place of employment with
Corporation to Houston, Texas, in which event this Agreement will remain in full
force and effect, a mere relocation of Executive's principal place of employment
having occurred. If Executive elects to relocate to Houston, Texas after
December 31, 2001, he will be willing to surrender the position of "President
and Chief Operating Officer" of the Brokerage Services Division of Corporation.
Section 2. Duties.
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(a) The Executive agrees during the Term of Employment to manage and
direct the operations of the Brokerage Services Division of the Corporation and
to function as its President and Chief Operating Officer. Additionally, the
Executive shall solicit, handle business for, sell insurance and render services
related to insurance on behalf of the Corporation and to perform such other
duties and assignments relating to the business of the Corporation, consistent
with his position and experience, as the management of the Corporation
reasonably directs.
(b) During the Term of Employment the Executive shall, except during
customary vacation periods and periods of illness, devote his entire business
time and attention to the performance of the duties hereunder and to promoting
the best interests of the Corporation. The
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Executive shall not, either during or outside of normal business hours, directly
or indirectly, sell, solicit, service or engage in any aspect of the insurance
business for or on behalf of any entity other than the Corporation, nor engage
in any activity inimical to the best interests of the Corporation.
(c) During the Term of Employment it shall not be a violation of this
Agreement for the Executive to serve on corporate, civic or charitable boards or
committees and manage personal investments, so long as the Chief Executive
Officer of the Brokerage Services Division has approved such activities in
advance, and such activities do not interfere with the performance of the
Executive's responsibilities hereunder and as directed by management of the
Corporation.
Section 3. Compensation During Term of Employment.
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(a) Salary. Unless the Corporation fixes a higher rate for the
Executive during the Term of Employment, the Corporation shall pay Executive a
salary at the rate of Six Hundred Thousand Dollars ($600,000) per year (the
"Base Salary") payable in semi-monthly installments. The Executive shall be
entitled to receive annual increases in his Base Salary consistent with those
increases in compensation received by executive level management employees of
Corporation.
(b) Additional Compensation. In addition to the Base Salary, the
Corporation shall pay to the Executive additional compensation as set forth in
this Section 3(b).
(i) Debt Forgiveness. The Executive has borrowed One Million,
Two Hundred Fifty-Five Thousand Dollars ($1,255,000) from the Corporation
evidenced by two promissory notes, copies of which are attached hereto as
Exhibits A and B. The Corporation shall forgive One Hundred Twenty-Five
Thousand, Five Hundred Dollars ($125,500) of the principal amount, together with
accrued interest, beginning January 1, 2000 and on each January 1 thereafter;
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so long as the Executive remains an employee of the Corporation. If the
Executive ceases to be an employee of the Corporation for any of the reasons
specified in Section 4.(a) or (b), or if the Executive is terminated by the
Corporation other than a termination for cause as provided in Section 4; then
the outstanding balance owed to the Corporation by the Executive and all accrued
interest shall immediately be forgiven in full. If the Executive resigns, is
terminated for cause or for breaching this Agreement, then the full amount
outstanding and all accrued interest shall immediately become due and payable.
(ii) Personal Residence. The Executive agrees to rent the personal
residence located at 1866 Clover Drive, Inverness, Illinois, from the
Corporation for Two Thousand, Five Hundred Dollars ($2,500) per month
commencing April 1, 1999 and ending upon ninety (90) days written notice by
either party, as provided in the lease attached hereto as Exhibit C.
(iii) Stock Options. The Corporation shall grant to the Executive
options to purchase Fifty Thousand (50,000) shares of the Corporation's stock as
of July 7, 1999. Such options shall vest twenty percent (20%) per year on the
anniversary of the grant. In addition, the Executive shall be reviewed annually
for additional option grants. All such options shall be granted pursuant to the
Corporations Nonqualified Stock Option Plan. Executive shall receive annual
stock option grants in an amount consistent with stock option grants to
executive level management employees of Corporation.
(iv) Death Benefit. In the event the Executive dies during the Term of
Employment, the Corporation shall pay a death benefit of One Million Dollars
($1,000,000) to the designee of the Executive in ten equal installments of One
Hundred Thousand Dollars ($100,000)
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each. The installments shall be paid commencing on the January 1 following the
death of the Executive, and on each January 1 of the following nine years.
(v) The Executive shall participate in the Brokerage Services
Division Management Bonus Plan and any other bonus or deferred compensation plan
offered to executive level management employees of Corporation.
(c) Employee Benefits. During the Term of Employment, the Executive
shall enjoy the customary benefits afforded to executive management level
employees of the Corporation. The Executive also shall be entitled to
participate in employee benefit plans now or hereafter provided or made
available to the Corporation's employees generally, such as group
hospitalization, medical, life and disability insurance, and pension plan.
Nothing in this Agreement shall require the Corporation to establish, maintain
or continue any of the employee benefits already in existence for employees of
the Corporation and nothing in this Agreement shall restrict the right of the
Corporation to amend, modify or terminate such employee benefit programs.
(d) Vacations. The Executive shall be entitled each year to vacations
in accordance with the policies of the Corporation. The Corporation shall not
pay the Executive any additional compensation for any vacation time not used by
the Executive.
Section 4. Early Termination by Corporation.
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Corporation shall have the right to terminate the employment of
Executive prior to the end of the Term of Employment and with no liability on
the part of Corporation:
(a) Upon the death of Executive;
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(b) At any time after Executive commences to receive disability
benefits pursuant to the disability plan applicable to employees of Corporation
and upon notice to Executive;
(c) Upon the proven material breach of this Agreement by Executive
after having given Executive notice of such breach and a reasonable opportunity
to cure such breach; or
(d) Upon notice to Executive specifying that a "termination for cause"
has occurred. As used herein, the phrase "termination for cause" shall mean a
termination of employment based upon the good faith determination of Corporation
that one or more of the following events have occurred:
(i) The Executive has committed any proven dishonest or
fraudulent act to the detriment of Corporation, its subsidiary and affiliated
corporations;
(ii) The Executive has been convicted for any crime involving
moral turpitude or for any felony;
(iii) Material and persistent insubordination on the part of
Executive after notice of such insubordination to Executive and reasonable
opportunity for Executive to cease such behavior;
(iv) The loss, for any reason, by Executive of any licenses or
professional registrations which are required for the performance of Executive's
duties hereunder; or
(v) Conduct on the part of Executive materially inconsistent with
the covenants set forth in Section 8 hereof as if such covenants applied during
Executive's employment.
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Section 5. Early Termination by Executive.
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The Executive may terminate his employment at any time during the term
hereof without liability to the Corporation solely in consideration of the
cessation of the Corporation's prospective obligations to the Executive which
would otherwise be due pursuant to this Agreement were the Executive to have
continued in the employ of the Corporation, and the repayment of all outstanding
balances under the promissory notes identified in Exhibits A and B hereto.
Section 6. Corporation's Right to Injunctive Relief; Attorneys' Fees.
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The Executive acknowledges that the Executive's services to the
Corporation are of a unique character which gives them a special value to the
Corporation, the loss of which cannot reasonably or adequately be compensated in
damages in an action at law, and that a breach of this Agreement will result in
irreparable and continuing harm to the Corporation and that therefore, in
addition to any other remedy which the Corporation may have at law or in equity,
the Corporation shall be entitled to injunctive relief for a breach of this
Agreement by the Executive. The nonprevailing party agrees to pay any expenses
and reasonable attorneys' fees incurred by the prevailing party in any dispute
hereunder.
Section 7. Trade Secrets and Confidential Information.
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(a) The Executive acknowledges that the Corporation's business depends
to a significant degree upon the possession of information, which is not
generally known to others, and that the profitability of the Corporation's
business requires that this information remain proprietary to the Corporation.
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(b) The Executive recognizes that by virtue of his employment by the
Corporation, he will be granted otherwise prohibited access to confidential and
proprietary data of the Corporation which is not known either to its competitors
or within the insurance agency and brokerage business generally. This
information (hereinafter referred to as "Confidential Information") includes,
but is not limited to, data relating to the Corporation's unique marketing and
servicing programs, procedures and techniques; the criteria and formulae used by
the Corporation in pricing its insurance and employee benefits products and
claims management, loss control and information management services; the
structure and pricing of special insurance packages that the Corporation has
negotiated with various underwriters; lists of prospects compiled by the
Corporation's management and research staff; the identity, authority and
responsibilities of key contacts at Corporation accounts, including accounts of
the Acquired Business; the composition and organization of accounts' businesses;
the peculiar risks inherent in their operations; highly sensitive details
concerning the structure, conditions and extent of their existing insurance
coverages; policy expiration dates; premium amounts; commission rates; risk
management service arrangements; loss histories; and other data showing the
particularized insurance requirements and preferences of the accounts. The
Executive recognizes that this Confidential Information constitutes a valuable
property of the Corporation, developed over a long period of time and at
substantial expense. Accordingly, the Executive agrees that he will not, at any
time during his employment by the Corporation, divulge such Confidential
Information or make use of it for his own purposes or the purposes of another.
(c) The Executive recognizes the highly sensitive nature of the
Confidential Information to which he will have access during his employment, and
acknowledges the
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Corporation's legitimate interest in safeguarding same from disclosure.
Accordingly, the Executive agrees that, for a period of two (2) years following
the termination of his employment for any reason whatsoever, he will not divulge
the Corporation's Confidential Information or make use of it for his own purpose
or the purpose of another.
(d) The Executive agrees that all intellectual property such as
computer programs, systems or software developed during his employment or as a
result of his employment is work for hire performed by the Executive in the
scope of his employment. The Corporation shall retain all proprietary rights to
any and all such intellectual property. Executive agrees to execute any
documents necessary to perfect Corporation's interest in such intellectual
property upon Corporation's request.
Section 8. Protection of Corporation's Business.
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The Executive recognizes the Corporation's legitimate interest in
protecting, for a reasonable period of time following the termination of the
Executive's employment, those Corporation accounts with which the Executive will
be associated during his employment. Accordingly, the Executive understands and
agrees that for a period of two (2) years following the termination of his
employment except if terminated without cause, he will not, directly or
indirectly, solicit, place, market, accept, aid, counsel or consult in the
renewal, discontinuance or replacement of any insurance (including self-
insurance) by, or handle self-insurance programs, insurance claims, risk
management services or other insurance administrative or service functions for,
any Corporation account for which he performed any of the foregoing functions
during the two-year period immediately preceding such termination.
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Section 9. Assignment.
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Except as provided in Section 10 hereof, this Agreement shall not be
affected by any merger or consolidation or other reorganization of the
Corporation and this Agreement shall be binding upon and shall inure to the
benefit of the continuing entity or to any successor in interest to the
Corporation. In addition, Corporation may assign this Agreement to any
subsidiary corporation of Corporation, in which event: (i) such subsidiary shall
be the employer of Executive for all purposes; and (ii) except for purposes of
Section 10 hereof, all references to "Corporation" and all rights of Corporation
shall include and inure to the benefit of such employing subsidiary.
This Agreement may not be assigned nor obligations hereunder delegated
by the Executive.
Section 10. Release of Certain Obligations.
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Notwithstanding anything contained herein to the contrary, the
obligations of the Executive contained in Sections 7 and 8 shall become null and
void and have no further effect immediately upon a Hostile Change in Control of
the Corporation as defined herein. The Corporation shall send written notice to
the Executive within ten (10) days of a Hostile Change in Control of the
Corporation, notifying the Executive that such event has taken place. Failure of
the Corporation to send such notice shall not preclude the release of the
Executive from the obligations contained in Sections 7 and 8. For the purposes
of this Section 10, the following definitions apply:
(a) The term "Hostile Change in Control" means a transaction, event or
election constituting a Change in Control, which was not approved by, or, in an
election, the directors elected were not nominated by, at least two-thirds of
the members of the Board of Directors of the
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Corporation in office immediately prior to the Change in Control who have not
died or become permanently disabled.
(b) The term "Change in Control" of the Corporation means and
includes each and all of the following occurrences:
A. A Business Combination, unless:
(1) The Business Combination is approved or authorized by
the affirmative vote of the holders of not less than 80% of the outstanding
shares of voting stock of the Corporation and the affirmative vote of the
holders of not less than 67% of the outstanding shares of the voting stock held
by shareholders other than Related Persons; or
(2) the Continuing Directors of the Corporation by a two-
thirds vote (i) have expressly approved in advance the acquisition of
outstanding shares of voting stock of the corporation that caused the Related
Person to become a Related Person, or (ii) have approved the Business
Combination prior to the Related Person involved in the Business Combination
having become a Related Person; or
(3) The Business Combination is solely between this
corporation and another corporation, 50% or more of the voting stock of which is
owned by the Corporation and none of which is owned by the Related Person; or
(4) All of the following conditions are satisfied:
(i) The cash or fair market value of the property,
securities or "other consideration to be received" per share by holders of
common stock in the Corporation in the Business Combination is not less than the
higher of:
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(A) The highest per share price (including brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by the Related Person in
acquiring any of its holdings of the Corporation's common stock, or
(B) An amount that bears that same percentage relationship to the
market price of the Corporation's common stock immediately prior to the
announcement of such Business Combination as the highest per share price
determined in (A) above bears to the market price of the Corporation's common
stock immediately prior to the commencement of the acquisition of the
Corporation's voting stock that caused such Related Person to become a Related
Person, or
(C) An amount calculated by multiplying the earnings per share of the
Corporation's common stock for the four fiscal quarters immediately preceding
the record date for determination of stockholders entitled to vote on such
Business Combination by the price/earnings multiple of the Related Person as of
the record date as customarily computed and reported in the financial press.
Appropriate adjustments shall be made with respect to (A), (B) and
(C) above for recapitalizations and for stock splits, stock dividends, and like
distributions; and
(ii) A timely mailing shall have been made to the stockholders of the
Corporation containing in a prominent place (x) any recommendations as to the
advisability (or inadvisability) of the Business Combination that the Continuing
Directors or Outside Directors may choose to state, if there are at the time any
such directors, and (y) the opinion of a reputable
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nationally recognized investment banking or financial services firm as to the
fairness from the financial point of view of the terms of the Business
Combination to the stockholders of the Corporation other than the Related Person
(such firm to be engaged solely on behalf of such other stockholders, to be paid
a reasonable fee for its services by the Corporation upon receipt of such
opinion, to be a firm that has not previously been significantly associated with
the Related Person and, if there are at the time any such directors, to be
selected by a majority of the Continuing Directors and Outside Directors).
B. The acquisition of outstanding shares of the Corporation's voting
stock that causes an individual, a corporation, partnership or other person or
entity to become a Related Person.
C. Individuals who at the beginning of any period of three consecutive
years constitute the entire Board of Directors of the Corporation shall for any
reason other than death or permanent disability during such period cease to
constitute a majority thereof.
D. A change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Act of 1934, as amended.
(c) The term "Business Combination" shall mean (i) any merger or
consolidation of the Corporation or a subsidiary of the Corporation with or into
a Related Person, (ii) any sale, lease, exchange, transfer or other disposition,
including without limitation a mortgage or any other security device, of all or
any Substantial Part of the assets either of the Corporation (including without
limitation any voting securities of a subsidiary) or of a subsidiary, to a
Related Person, (iii)
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any merger or consolidation of a Related Person with or into the Corporation or
a subsidiary of the Corporation, (iv) any sale, lease, exchange, transfer or
other disposition of all or any Substantial Part of the assets of a Related
Person to the Corporation or a subsidiary of the Corporation, (v) the issuance
of any securities of the Corporation or a subsidiary of the Corporation to a
Related person, (vi) the acquisition by the Corporation or a subsidiary of the
Corporation of any securities issued by a Related Person, (vii) any
reclassification of securities, recapitalization or other transaction designed
to decrease the number of holders of the Corporation's voting securities
remaining, if there is a Related Person, and (viii) any agreement, contract or
other arrangement providing for any of the transactions described in this
definition of Business Combination.
(d) The term "Related Person" shall mean and include any individual,
corporation, partnership or other person or entity which, together with their
"Affiliates" and "Associates" (as defined as of November 1, 1983, in Rule 12b-2
under the Securities Exchange Act of 1934), "Beneficially Owns" (as defined as
of November 1, 1983, in Rule 13d-3 under the Securities Exchange Act of 1934) in
the aggregate 20% or more of the outstanding shares of the voting stock of the
Corporation, and any Affiliate or Associate of any such individual, corporation,
partnership or other person or entity; provided that Related Person shall not
include any person who beneficially owned 20% or more of the outstanding shares
of the voting stock of the Corporation on November 1, 1983. Without limitation,
any shares of voting stock of the Corporation that any Related Person has the
right to acquire pursuant to any agreement, or upon exercise of conversion
rights, warrants or options, or otherwise, shall be deemed beneficially owned by
the Related Person.
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(e) The term "Substantial Part" shall mean more than 30% of the
fair market value of the total assets of the corporation in question, as of the
end of its most recent fiscal year ending prior to the time the determination is
being made.
(f) The term "other consideration to be received" shall include,
without limitation, capital stock of the Corporation retained by its existing
public stockholders in the event of a Business Combination in which the
Corporation is the surviving corporation.
(g) The term "Continuing Director" shall mean a director who was a
member of the board of directors of the Corporation immediately prior to the
time that the Related Person involved in a Business Combination became a Related
Person, and the term "Outside Director" shall mean a director who is not (a) an
officer or employee of the Corporation or any relative of an officer or employee
or (b) a Related Person or an officer, director, employee, Associate or
Affiliate of a Related Person, or a relative of any of the foregoing.
Section 11. General.
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(a) The captions in this Agreement are not part of its provisions, are
merely for reference and have no force or effect. If any caption is inconsistent
with any provision of this Agreement, such provision shall govern.
(b) This Agreement is made in and shall be governed by and construed
in accordance with the laws of the State of Illinois, without giving effect to
conflict of law principles.
(c) This instrument contains the entire agreement of the parties and
supersedes all other prior agreements and understandings relating to the
employment of the Executive by the Corporation.
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(d) To the extent that the terms set forth in this Agreement or any
word, phrase, clause or sentence is found to be illegal or unenforceable for any
reason, such word, phrase, clause or sentence shall be modified or deleted in
such manner so as to afford the Corporation the fullest protection commensurate
with making this Agreement, as modified, legal and enforceable under applicable
laws, and the balance of this Agreement shall not be affected thereby, the
balance being construed as severable and independent.
(e) All notices given hereunder shall be in writing and shall be sent
by registered or certified mail or delivered by hand and, if intended for the
Corporation, shall be addressed to it or delivered to it at its principal office
for the attention of the Secretary of the Corporation. If intended for the
Executive, notices shall be delivered personally or shall be addressed (if sent
by mail) to the Executive's then current residence address as shown on the
Corporation's records, or to such other address as the Executive directs in a
notice to the Corporation, with a copy of all such notices to Winfield M.
Campbell, Campbell & Riggs, P.C., 1980 Post Oak Boulevard, Suite 2300, Houston,
Texas 77056-3810. All notices shall be deemed to be given on the date received
at the address of the addressee or, if delivered personally, on the date
delivered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ARTHUR J. GALLAGHER & CO.
a Delaware Corporation
By: /s/ Michael J. Cloherty
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/s/ James J. Braniff, III Executive
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James J. Braniff, III
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