Exhibit 10.1
THIRD AMENDED AND
RESTATED
DCP HOLDING COMPANY
EMPLOYMENT AGREEMENT
This Agreement entered into as of
the 1st day of January, 2008 (the “Effective Date”), by
and between DCP Holding Company, an Ohio corporation, with its
principal offices at 100 Crowne Point Place, Cincinnati, Ohio 45241
(“Company”), and Anthony A. Cook
(“Employee”).
In consideration of the mutual
obligations and promises contained herein, and intending to be
legally bound, the parties hereto agree as follows:
1. EMPLOYMENT. Company hereby
employs Employee as an employee of Company and Employee hereby
accepts such exclusive employment, under the terms and conditions
of this Agreement.
2. TERM. Subject to the provisions
in Section 7 hereof, the term of employment shall continue
after the Effective Date for a period of one (1) year ending
on December 31, 2008, and shall be automatically extended for
successive one (1) year periods on the same terms and
conditions as stated herein, unless on or prior to
November 15th of any year either party provides written notice
to the other party of termination of this Agreement effective upon
the expiration of the current one-year term.
3. OFFICE AND DUTIES. During the
term of his employment hereunder, Employee shall serve in the
capacity of President and Chief Executive Officer of the Company.
In such capacity, Employee shall do all things necessary and
incident to this position, and otherwise shall perform such
functions as the Board of Directors of the Company may establish
from time to time commensurate with Employee’s skill,
position and background as reasonably determined by the Board. The
performance of the duties hereunder shall be performed at such
reasonable time and places as shall be determined by the Board. The
Employee shall report directly to the Board of Directors. A
description of the current duties is attached hereto as Exhibit
A.
4. COMPENSATION AND BENEFITS. In
consideration for Employee’s performance of services and the
non-competition provisions as described below, and subject to
modifications as may be approved from time to time by Company and
Employee, Employee shall receive during the term of this Agreement
compensation and benefits as follows:
(A) Base Salary. Employee shall be
paid a base annual salary in accordance with the regular payroll
practices of the Company and Exhibit B of this agreement.
Employee’s base annual salary for 2008 and all subsequent
years of the term of this Agreement shall not be less than $283,000
or such higher amount as is reflected on subsequent agreed
revisions of Exhibit B.
(B) Bonus. Employee will be eligible
to receive an annual bonus equal to 30% of annual base salary
pursuant to the Annual Incentive Plan and a stock and cash award
pursuant to the Long Term Incentive Plan in accordance with Exhibit
B of this agreement, as revised on an annual basis.
(C) Employee Benefits. Employee will
be eligible to participate in all health, welfare, insurance and
other benefits available to all other employees of the
Company
(D) Vacations. Employee shall be
entitled to vacation and personal time in accordance with the
Company’s PTO policy as it exists from time to
time.
(E) Automobile Allowance. The
Company will pay up to Five Hundred ($500.00) Dollars per month for
the lease of an automobile of Employee’s choice and will
reimburse Employee for all documented fuel, insurance, maintenance
and other operational costs.
(F) Payroll Withholdings. Employee
authorizes the Company to deduct from any payment made pursuant to
Section 4 hereof all amounts required to be withheld by
federal, state and/or local taxing authorities.
(G) Club Membership. The Company
will pay up to Seven Thousand Two Hundred ($7,200) Dollars for 2008
for fees and expenses for a club membership at Four Bridges Country
Club.
(H) Annual Performance Review. The
Employee’s performance of his duties under this Agreement
shall be reviewed by the Board of Directors or a committee of the
Board of Directors at least annually, and finalized within thirty
(30) days of the receipt of the annual audited financial
statements. The Board of Directors or a committee of the Board of
Directors shall additionally review the base salary, bonus and
benefits provided to the Employee under this Agreement and may, in
their discretion, adjust the same, as outlined in Addendum B of
this agreement, provided, however, that Employee’s annual
base salary shall not be less than the base salary set forth in
Section 4(A) hereof.
5. EXPENSES. Company shall pay or
reimburse Employee for all travel and out of pocket expense
reasonably incurred or paid by Employee in connection with the
performance of his duties, upon presentation of expense statements
or receipts or such other supporting documentation as the Company
may reasonably require.
6. OUTSIDE EMPLOYMENT. Employee
shall devote his full time and attention to the performance of the
duties incident to his position with the Company, and shall not
have any other employment with any other enterprise or substantial
responsibility for any enterprise which would be inconsistent with
Employee’s duty to devote his full time and attention to
Company matters without the prior consent of the Board of
Directors.
7. TERMINATION AND SEVERANCE
PAY.
(A) Death. This Agreement shall be
terminated on the death of Employee, effective as of the end of the
month in which his death occurs.
(B) Disability. This Agreement may
be terminated, at the option of the Company, if, because of a
disability Employee is unable to perform his job responsibilities
after reasonable accommodations. This section will be applied
consistent with the Company’s obligations under applicable
federal and state law, including the Americans with Disabilities
Act.
(C) Termination - Good Cause.
Nothing in this Agreement shall be construed to prevent the Company
from terminating Employee’s employment hereunder for Good
Cause at any time. For this purpose, “Good Cause” shall
include the following: alcohol or other drug dependence or
addiction; conviction for any crime involving moral turpitude,
fraud or misrepresentation, material neglect of duty;
misappropriation, embezzlement or theft of Company funds or
property; conduct which is materially injurious to the reputation,
business or business relationships of the Company; or material
violation of Company policy or any of the provisions of this
Agreement. The effective date of such termination for Good Cause
shall be the date of receipt by Employee or his legal
representative of written notice of the termination stating the
full basis for such cause or such later date as may be specified in
such notice. Termination of Employee’s employment for Good
Cause shall not constitute a breach of this Agreement and Employee
shall not be entitled to any compensation arising on or after the
effective date of
such termination. In the event the
Company is sold, transferred and/or merged with or to another
entity, it shall not be deemed an event of good cause to terminate
Employee. if the new entity elects to retain Employee, Employee
shall be terminated only in accordance with Section 7 of this
Agreement.
(D) Severance Pay. The Company may,
by action of the Board, terminate this Agreement without Good Cause
upon the payment of the amounts described in this subparagraph. If,
and only if, the Company terminates this Agreement either
(i) in accordance with the notice provision of Section 2,
or (ii) at any time during the term of this Agreement without
Good Cause, then the Employee shall be entitled to severance pay as
determined herein. Employee shall receive the greater of
(i) eight (8) months of severance pay or (ii) one
(I) month of severance pay for each month remaining under the
initial or any renewal term of the Agreement. One month of
severance pay shall equal one month of the Employee’s base
salary as in effect on the date of termination. The Company shall
pay such severance pay consistent with the Company’s
severance policy and practice, as it exists from time to time. If
the Employee secures other employment during the time in which
severance pay is to be paid pursuant hereto, the commencing with
the date of such subsequent employment Employer shall reduce the
remaining severance pay to be paid hereunder by one half. Employee
hereby agrees to notify the Company of any and all changes in his
employment status and of the amount of all salary, wages,
commission or other income received from another Employer during
the period he is entitled to severance pay. All bonuses to which
Employee would otherwise be eligible during the year in which an
employment is terminated shall be pro-rated through the date of
termination. Moreover, during stated severance pay period, Employee
shall continue to receive the stated benefits as described in
Section 4(C), but not any other benefits described in
Section 4(E) or 4(G).
(E) Change of Control. In the event
that, at any time during the Employee’s employment under this
Agreement, the Company experiences a Change of Control (as
hereinafter defined), then, provided that Employee shall have
executed a release in the form and substance acceptable to the
Company and subject to the other terms and conditions contained in
this Agreement, the Employee may terminate his employment hereunder
and shall be entitled to receive the following benefits in lieu of
the severance benefits provided in accordance with
Section 7(D). In the event that payment under this Change of
Control provision is triggered, Employee shall be entitled to the
amount of severance specified above in Section 7(D), as
described in and subject to the conditions set forth in
Section 7(D), and this amount shall constitute
Employee’s sole payments of severance. “Change of
Control” means: (i) a change in [the majority] of
members of the Board of Directors, unless pursuant to the
recommendation of the Nominating Committee of the Board; and
(ii) Employee’s compensation is materially reduced or
employee is assigned duties that are materially inconsistent with
his skill, position, and background as described in Section 3
of this Agreement.
8. CONFIDENTIAL
INFORMATION. Employee recognizes and acknowledges that information
gained by Employee while employed by the Company, including without
limitation that concerning the Company’s customers, suppliers
and participating providers, and the methods, techniques, devices
and operations of the Company, as they may exist from time to time,
are of a confidential nature and are valuable, special and unique
assets of the Company’s business. Employee shall not during
the term of, or after the termination of employment, disclose in
any way any such confidential information to any person, firm,
corporation or any other operation or entity, or use the same on
the Employee ’ s own behalf, for any reason or
purpose. Upon termination of employment, the Employee shall deliver
up to the Company all lists of the Company’s customers,
suppliers and participating providers, and all copies thereof, and
all notes, records, memoranda, complete correspondence files and
other papers, and all copies thereof, relating to the methods,
techniques, devices and operations of the Company, and the Employee
does not have nor can Employee acquire any property right therein
or claim thereto or in the underlying confidential information. The
parties acknowledge that the Employee has substantial skills and
experience as an executive which have been enhanced during the
period of his employment by the Company. The intent of this
Section 8 is not to preclude Employee from using such skills
and experience in other permitted employment, but only to preclude
the use of those methods, techniques, devices and operations which
are unique or proprietary to the Company.
9. DIVERSION OF BUSINESS. The
Employee shall not, during the period of employment by the Company
and for a period ending six months following termination of
employment (for any reason), either for the Employee or on behalf
of any person, firm, corporation or any other operation or entity,
directly or indirectly:
(A) Divert or attempt to divert from
the Company any business whatsoever by influencing or attempting to
influence, or soliciting or attempting to solicit any of the
customers or participating providers of the Company with whom
Employee may have dealt at any time or who were customers or
participating providers of the Company on the date of termination
of the Employee’s employment or had been customers or
participating providers of the Company prior thereto; or
(B) Divert or attempt to divert from
the Company any person employed by the Company by influencing or
attempting to influence such person to leave the Company’s
employ.
10. NON-COMPETITION AGREEMENT. For a
period ending six (6) months from the termination of
Employee’s employment with the Company for any reason,
Employee hereby agrees that he will not, directly or indirectly
render any services as an officer, director, employee, agent,
consultant or in any other capacity to, or own any interest (other
than an interest of less than five percent (5%) of the stock
or a publicly held company), as an individual owner, stockholder,
partner or in any other manner in any person, firm, corporation,
partnership or other entity which is a Competitive Business
in
