This Consulting
Agreement (the “ Agreement” ) is entered
into effective as of January 1, 2010 (the
“Effective Date” ), by and between HCCS
Corporation dba HCC Service Company, a Delaware corporation (the
“Company” ), and Edward H. Ellis, Jr.
(the “Consultant” ). The Company and the
Consultant are each a “party” and
together are the “parties” to this
Agreement.
WHEREAS, the
Company desires to engage the Consultant to provide certain
Services (as hereinafter defined) on the terms provided herein;
and
WHEREAS, the
Consultant desires to provide such Services to the
Company.
NOW, THEREFORE, in
consideration of the mutual covenants contained herein, and other
valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
Article I.
Services to be
Provided .
The Company hereby
retains the Consultant to provide, and the Consultant hereby agrees
to provide to the Company, for the Term (as defined below), or any
extension thereof, certain services (the “ Services
” ) as set forth on Exhibit A to this
Agreement.
Article II.
Consultant
Compensation .
For and in
consideration for the Consultant’s performance of the
Services and subject to the terms and conditions of this Agreement,
the Company shall pay the Consultant the compensation as set forth
on Exhibit A (the
“Compensation” ).
Article III.
Reimbursable Expenses
.
Notwithstanding
any provision herein, the Company shall remain directly and
primarily responsible for all reasonable expenses incurred in
connection with the Consultant’s discharging the Services in
accordance with the Company’s expense reimbursement policies.
The Consultant shall be entitled to reimbursement, in cash at the
time incurred, for reasonable expenses incurred by or on behalf of
the Consultant for the benefit of the Company and attributable to
the business of the Company.
Article IV.
Effective Date, Term and
Termination .
This Agreement
shall take effect on the 1 st day of January, 2010, and shall continue in
effect for one (1) year (the “ Term
” ); provided, however , that (a) this
Agreement may be terminated at any time by the Company or the
Consultant upon sixty (60) days prior written notice and
(b) this Agreement will be automatically and immediately
terminated upon Consultant’s breach of the restrictive
covenants described in Article X and
Article XI .
Article V.
Independent Contractor
Relationship .
The Company
retains the Consultant only for the purposes and to the extent set
forth in this Agreement. The Consultant’s relationship to the
Company during the term of this Agreement shall be that of an
independent contractor. This Agreement shall not be construed to
create any employment relationship, partnership, trust, joint
venture or other cooperative agreement between the Parties. Except
as otherwise agreed by the Company, the Consultant will have no
authority or power to bind the Company with respect to third
parties or to represent to third parties that the Consultant has
authority or power to bind the Company. It is not the intention of
the parties to this Agreement to make them legal representatives or
agents of each other or to create any fiduciary relationship or
additional contractual relationship between them. As an independent
contractor, the Consultant is not eligible for any Company-provided
benefits, including, without limitation, short term disability and
long term disability, except as provided for in Exhibit A.
Additionally, the Consultant understands and agrees that the
Employment Agreement executed on March 1, 2007, between the
Consultant and HCC Insurance Holdings, Inc. (the “Employment
Agreement”), expired as of the Effective Date.
Article VI.
Tax Responsibility
.
It is understood
and agreed by the parties that each party shall be responsible for
the payment of its or his own taxes, licenses and fees (the
“ Taxes ” ) in connection with this
Agreement. Neither party shall be responsible or liable for the
other party’s Taxes in connection with this
Agreement.
Article VII.
Confidential
Information .
Section 7.01 As used herein, “ Confidential
Information ” means all technical and business
information (including financial statements and related books and
records, personnel records, customer lists, identities of customers
and prospective customers, arrangements with customers and
suppliers, databases, computer programs and software, computer
software methods and documentation, graphic designs, hardware,
analytical information, manuals, communications and reports,
internal policies, procedures, identity or other information about
insurance claims, contract terms, marketing data, premiums, costing
data or other information, the Company’s or its
Affiliates’ methods of operation, the procedures, forms and
techniques used in servicing accounts, the Company’s long
range plans and other information or documents that
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the Company
requires to be maintained in confidence for the Company’s
continued business success) of the Company whether patentable or
not, which is of a confidential, trade secret and/or proprietary
character and includes information which is either developed by the
Consultant (alone or with others) or to which the Consultant has
had access during his provision of the Services. Confidential
Information shall include, but is not limited to, all of the
Company’s information of a technical or business nature such
as ideas, discoveries, inventions, improvements, trade secrets,
know-how, manufacturing processes, specifications, writings and
other works of authorship, computer programs, financial figures and
reports, marketing plans, customer lists and data, and/or business
plans or data which relate to the actual or anticipated business of
the Company or its actual or anticipated areas of research and
development or any actual or possible litigation or administrative
or governmental matter to which the Company is or may be a party,
or in which the Company may be engaged. Confidential Information
shall also include but is not limited to confidential evaluations
of, and the confidential use or non-use by the Company or the
Consultant of technical or business information whether or not in
the public domain. Confidential Information shall not include
information which is: (1) publicly known or becomes publicly
known through no unauthorized act of the Consultant;
(2) lawfully received from a third party without restriction
on use or disclosure where such third party had the legal right to
disclose such information; (3) pre-approved in writing by the
Company for disclosure; or (4) disclosed as required by law,
governmental agency or rule, or court order, so long as the
Consultant provides the Company with timely prior notice of such
requirement and the ability to contest on a timely basis such
requirement.
Section 7.02 The Consultant acknowledges and agrees
that all Confidential Information about Company that was previously
provided in the course of employment with Company and Confidential
Information that will be provided to him in the course of the Term
of this Agreement are and will continue to be the exclusive
property of Company. The Consultant shall, both during and after
his Services are completed with the Company, protect and maintain
the confidential, trade secret and/or proprietary character of all
Confidential Information. The Consultant shall not, during or after
termination of his Services, directly or indirectly, use (for
itself or another) or disclose any Confidential Information, for so
long as it shall remain proprietary or protectible as confidential
or trade secret information, except as may be necessary for the
performance of Consultant’s duties under this
Agreement.
Section 7.03 All writings, records, and other documents
and things comprising, containing, describing, discussing,
explaining, or evidencing any Confidential Information, and all
equipment, components, parts, tools, and the like in the
Consultant’s custody or possession that have been obtained or
prepared in the course of Executive’s Services with the
Company shall be the exclusive property of the Company and shall be
delivered to the Company, without the Consultant’s retaining
any copies, upon notification of the termination of the
Consultant’s employment or at any other time requested by the
Company.
Section 7.04 Each of the Consultant’s obligations
in this Article VII shall also apply to the
confidential, trade secret and proprietary information learned or
acquired by it during his Services with the Company from others
with whom the Company or the Consultant has a business
relationship.
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Section 7.05 The obligations set forth in this
Article VII do not affect nor limit any other
confidentiality obligations by the Consultant set forth in any
other agreement, and such obligations are herein ratified and
affirmed.
Article VIII.
Indemnification
.
Section 8.01 Except as provided in Section 8.02,
the Company, including its transferees, successors and assigns,
agrees to defend, indemnify and hold the Consultant harmless from
and against any and all losses, liabilities, damages, demands,
claims, litigation, defenses, suits, proceedings, obligations,
actions, judgments, causes of action, assessments, penalties,
payments, costs, reimbursements and expenses of any kind or nature
whatsoever ( “ Indemnified Losses ” ),
arising in connection with or out of the Services performed by the
Consultant whether or not occasioned by the negligence,
carelessness or want of skill of the Consultant.
Section 8.02 By entering into this Agreement and
receiving the Services provided by Consultant under this Agreement,
but subject to the other terms of this Agreement, neither the
Company nor its Affiliates shall be liable for any Damages
(hereinafter defined) caused by the intentional dishonesty, willful
misconduct or gross negligence of Consultant or Consultant’s
bre
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