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:
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.
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” ).
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.
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 .
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.
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.
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
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.
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.
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