Exhibit 10.11


 


AMENDED
AND RESTATED

EMPLOYMENT AGREEMENT


AMENDED AND RESTATED
EMPLOYMENT AGREEMENT dated as of August 22, 2005 by and between AMCOMP
INCORPORATED, a Delaware corporation with its principal office at 701 U.S.
Highway One, North Palm Beach, Florida 33408 (the “Company”), and FRED R. LOWE,
residing at 236 River Drive, Tequesta, Florida 33469 (the “Employee”).


W I
T  N  E  S  S  E  T  H:


WHEREAS, the Company and
the Employee are parties to that certain Employment Agreement dated as of April
1, 2004 (the “Prior Agreement”);


WHEREAS, the Company and
the Employee desire that this Agreement supersede the Prior Agreement; and


WHEREAS, the Company
desires to employ the Employee for the period provided in this Agreement and
the Employee is willing to accept such employment with the Company on a
full-time basis, all in accordance with the terms and conditions set forth
below.


NOW, THEREFORE, for and
in consideration of the premises hereof and the mutual covenants contained
herein, the parties hereto hereby covenant and agree as follows:


1.             Employment.


(a)           The Company hereby employs the
Employee, and the Employee hereby accepts such employment with the Company, for
the period set forth in Section 2 below, all upon the terms and conditions
hereinafter set forth.


(b)           The Employee affirms and represents
that he is under no obligation to any former employer or other party that is in
any way inconsistent with, or that imposes any restriction upon, the Employee’s
acceptance of employment hereunder with the Company, the employment of the
Employee by the Company, or the Employee’s undertakings under this Agreement.


2.             Term of Employment.


(a)           Unless earlier terminated as provided
in this Agreement, the term of the Employee’s employment under this Agreement
shall be for a period beginning on the date hereof and ending on December 31,
2008 (the “Initial Term”).


(b)           The term of the Employee’s employment
under this Agreement shall be automatically renewed for additional one-year
terms (each a “Renewal Term”) upon the expiration of the Initial Term or any
Renewal Term unless the Company or the Employee delivers to the other, at least
120 days prior to the expiration of the Initial Term or the then current
Renewal Term, as the case may be, a written notice specifying that the term of
the Employee’s employment will not be renewed at the end of the Initial Term or
such Renewal Term, as the case may be. 
The period from the date hereof until December 31, 2008 or, in the 


 


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event that the Employee’s
employment hereunder is earlier terminated as provided herein or renewed as
provided in this Section 2(b), such shorter or longer period, as the case may
be, is hereinafter called the “Employment Term.”


3.             Duties. 
The Employee shall be employed as President and Chief Executive Officer
of the Company, shall faithfully and competently perform such duties as are
inherent in such positions and as are specified in the By-laws of the Company
and shall also perform and discharge such other senior executive employment
duties and responsibilities as the Board of Directors of the Company shall from
time to time reasonably determine.  The
Employee shall perform his duties principally at the offices of the Company in
North Palm Beach, Florida, with such travel to such other locations from time
to time as the Board of Directors of the Company may reasonably prescribe.  Except as may otherwise be approved in
advance by the Board of Directors of the Company, and except during vacation
periods and reasonable periods of absence due to sickness, personal injury or
other disability or non-profit public service activities, the Employee shall
devote his full time throughout the Employment Term to the services required of
him hereunder.  The Employee shall render
his business services exclusively to the Company and its subsidiaries during
the Employment Term and shall use his best efforts, judgment and energy to
improve and advance the business and interests of the Company and its
subsidiaries in a manner consistent with the duties of his position.


4.             Salary and Bonus.


(a)           As compensation for the complete and
satisfactory performance by the Employee of the services to be performed by the
Employee hereunder during the Employment Term, the Company shall pay the
Employee a base salary at the annual rate of $325,000 (such amount, together
with any increases thereto as may be determined from time to time by the Board
of Directors of the Company in its sole discretion, being hereinafter referred
to as “Salary”).  Any Salary payable
hereunder shall be paid in regular intervals in accordance with the Company’s
payroll practices from time to time in effect.


(b)           The Company shall pay to the Employee
annually incentive compensation in such amount as is determined by the
Company’s Board of Directors (or the Compensation Committee thereof), based
upon the achievement by the Company and its subsidiaries, both present and
future (collectively, the “AmCOMP Companies”) of the Performance Objectives (as
hereinafter defined).  For the purposes
of this Agreement, Performance Objectives shall mean those objectives relating
to the operations of the AmCOMP Companies for each 12-month period during the
term hereof (each a “Measuring Period”) mutually determined by the Board of
Directors of the Company and the Employee. 
The Board of Directors of the Company and the Employee shall use their
best efforts and negotiate in good faith to determine the Performance
Objectives for each Measuring Period. 
All compensation paid to the Employee shall be subject to withholding
and other employment taxes imposed by applicable law. The Employee’s Salary and
incentive compensation shall be reviewed by the Employee and the Board of
Directors for any Renewal Term.


5.             Other Benefits. 
During the Employment Term, the Employee shall:


 


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(a)           be eligible to participate in
employee fringe benefits and pension and/or profit sharing plans that may be
provided by the Company for its senior executive employees in accordance with
the provisions of any such plans, as the same may be in effect from time to
time;


(b)           be eligible to participate in any
medical and health plans or other employee welfare benefit plans that may be
provided by the Company for its senior executive employees in accordance with
the provisions of any such plans, as the same may be in effect from time to
time;


(c)           be entitled to five weeks’ paid time
off in each calendar year.  The Employee
shall also be entitled to all paid holidays given by the Company to its senior
executive employees;


(d)           be eligible for consideration by the
Board of Directors of the Company for awards of stock options under any stock
option plan that may be established by the Company for its and its
subsidiaries’ key employees, the amount, if any, of shares with respect to
which options may be granted to Employee to be in the sole discretion of the
Board of Directors of the Company;


(e)           be entitled to sick leave, sick pay
and disability benefits in accordance with any Company policy that may be
applicable to senior executive employees from time to time; and


(f)            be entitled to reimbursement for all
reasonable and necessary out-of-pocket business expenses incurred by the
Employee in the performance of his duties hereunder in accordance with the Employee’s
existing arrangements with the Company.


6.             Confidential Information.  The Employee hereby covenants, agrees and
acknowledges as follows:


(a)           The Employee has and will have access
to and will participate in the development of or be acquainted with
confidential or proprietary information and trade secrets related to the
business of the AmCOMP Companies, including but not limited to (i) customer
lists; claims histories, adjustments and settlements and related records and
compilations of information; the identity, lists or descriptions of any new
customers, referral sources or organizations; financial statements; cost
reports or other financial information; contract proposals or bidding
information; business plans; training and operations methods and manuals;
personnel records; software programs; reports and correspondence; premium
structures; and management systems policies or procedures, including related
forms and manuals; (ii) information pertaining to future developments such as
future marketing or acquisition plans or ideas, and potential new business
locations and (iii) all other tangible and intangible property that is used in
the business and operations of the AmCOMP Companies but not made public.  The information and trade secrets relating to
the business of the AmCOMP Companies described hereinabove in this Section
6(a), whether acquired while Employee was previously employed by the Company or
while employed pursuant to this Agreement, are hereinafter referred to
collectively as the “Confidential Information,” provided that the term
Confidential Information shall not include 


 


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any information (x) that
is or becomes generally publicly available (other than as a result of violation
of this Agreement by the Employee or violation of an agreement of like tenor by
any other person or entity) or (y) that the Employee receives on a
nonconfidential basis from a source (other than the AmCOMP Companies or their
representatives) that is not known by him to be bound by an obligation of
secrecy or confidentiality to any of the AmCOMP Companies.


(b)           The Employee shall not disclose, use
or make known for his or another’s benefit any Confidential Information or use
such Confidential Information in any way except as is in the best interests of
the AmCOMP Companies in the performance of the Employee’s duties under this
Agreement.  The Employee may disclose
Confidential Information when required by a third party and applicable law or
judicial process, but only after providing (i) immediate notice to the Company
at any third party’s request for such information, which notice shall include
the Employee’s intent with respect to such request, and (ii) sufficient
opportunity for the Company to challenge or limit the scope of the disclosure
on behalf of the AmCOMP Companies, the Employee or both.


(c)           Upon termination of his employment
with the Company for any reason, the Employee shall forthwith return to the
Company all Confidential Information in whatever form maintained (including,
without limitation, computer discs and other electronic media).


(d)           Without limiting the generality of
Section 11 below, the foregoing provisions of this Section 6 shall be binding
upon the Employee’s heirs, successors and legal representatives.


7.             Termination.


(a)           The Employee’s employment hereunder
shall be terminated upon the occurrence of any of the following:


(i)            the death of the Employee;


(ii)           the Employee’s inability to perform
his duties on account of disability or incapacity for a period of 180 or more
days, whether or not consecutive, within any period of 12 consecutive months;


(iii)          the Company giving written notice, at
any time, to the Employee that the Employee’s employment is being terminated
for “cause” (as defined below); or


(iv)          the Company giving written notice, at
any time, to the Employee that the Employee’s employment is being terminated
other than pursuant to clause (i), (ii) or (iii) above.


The following actions,
failures and events by or affecting the Employee shall constitute “cause” for
termination within the meaning of clause (iii) above: (A) an indictment for or
conviction of the Employee of, or the entry of a plea of nolo contendere by the
Employee with respect to, having committed a felony, (B) use of controlled
substances or


 


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alcohol in the workplace or outside of the workplace in such a manner
as impairs or prevents the performance of the Employee’s duties hereunder or
endangers the Employee or any other employee of the Company, (C) acts of
dishonesty or moral turpitude by the Employee that are detrimental to one or
more of the AmCOMP Companies, (D) acts or omissions by the Employee that the
Employee knew were likely to damage the business of one or more of the AmCOMP Companies,
(E) willful and repeated failure of the Employee to perform any material duties
hereunder or gross negligence of the Employee in the performance of such
duties, or (F) failure by the Employee to obey the reasonable and lawful orders
and policies of the Board of Directors that are consistent with the provisions
of this Agreement (provided that, in the case of an indictment described in
clause (A) above, and in the case of clause (B), (C), (D) or (E) above, the
Employee shall have received written notice of such proposed termination and a
reasonable opportunity to discuss the matter with the Board of Directors of the
Company, followed by written notice that the Board of Directors of the Company
adheres to its position.


 


(b)           Notwithstanding anything to the
contrary expressed or implied herein, except as required by applicable law, the
Company (and its affiliates) shall not be obligated to make any payments to the
Employee or on his behalf of whatever kind or nature by reason of (i) the
termination of the Employment Term by the Employee (except in the case of the
breach of this Agreement by the Company or its termination of the Employment
Term) or (ii) the termination of the Employment Term pursuant to clause (i),
(ii) or (iii) of Section 7(a) above, other than (x) such amounts, if any, of
his Salary as shall have accrued and remained unpaid as of the date of said
termination, (y) such amounts as are payable to the Employee pursuant to
Section 7(d) below and (z) such other amounts, if any, that may be then otherwise
payable to the Employee pursuant to the terms of the Company’s benefit plans or
pursuant to Section 5(f) above.


(c)           If (i) the Company terminates
Employee’s employment hereunder pursuant to clause (iv) of Section 7(a),
whether during the Employment Term or during any continuation of employment
pursuant to Section 2(b) above, or (ii) the Company determines not to renew the
employment of the Employee at the end of the Initial Term or any Renewal Term
as contemplated by Section 2(b) above, the Company (A) shall pay to the
Employee in equal monthly installments commencing in the month after the month
in which employment terminates, as severance pay, an amount equal to the
product of (1) the sum of (w) 1/12 of the Employee’s annual Salary in effect immediately
prior to such termination, and (x) 1/12 of the amount of incentive compensation
and bonuses paid to the Employee pursuant to Section 4(b) above in respect of
the most recent full fiscal year of the Company preceding such termination; and
(2) the greater of (y) 18 months or (z) the number of whole months then
remaining in the Employment Term (in either case, the “Severance Period”); (B)
shall provide the Employee at the Company’s expense with the benefits
referenced in Section 5(b) through the Severance Period; and (C) shall pay to
the Employee such other amounts, if any, that may then be otherwise payable to
the Employee pursuant to the terms of the Company’s benefit plans or
arrangements or pursuant to Section 5(f) above.


(d)           If (i) the Employee’s employment by
the Company is terminated for any reason, or (ii) the Company determines not to
renew the employment of the Employee at the end of the Initial Term or any
Renewal Term as contemplated by Section 2(b) above, the Company shall pay to
the Employee in three equal annual installments, the first such installment


 


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payment to be made within
15 days after such termination and the second and third such installment
payments to be made, respectively, on the first and second anniversaries of the
first such installment payment, as a termination benefit, the aggregate sum of
$600,000.


(e)           In the event of death of the Employee
at any time when compensation remains payable to him under the provisions of
this Agreement, such remaining compensation shall instead be paid to such
person or persons as the Employee shall have designated from time to time in a
notice given to the Company in accordance with Section 12 below, each such
notice being deemed to have revoked all previous notices, and failing any such
designation, to the estate of the Employee.


(f)            No interest shall accrue on or be
paid with respect to any portion of any payments hereunder.


(g)           The Company acknowledges that it
would be very difficult and generally impracticable to determine the Employee’s
ability to, or the extent to which he may, mitigate any damages or injuries
that he may incur by reason of termination of employment under the
circumstances described in Section 7(c). 
The Company has taken this into account in entering into this Agreement
and, accordingly, the Company acknowledges and agrees that the Employee shall
have no duty to mitigate any such damages and that he shall be entitled to
receive the amount provided in Sections 7(c) and (d) regardless of any income
that he may receive from other sources following the date he becomes entitled
to receive such amount.


8.             Non-Assignability.


(a)           Neither this Agreement nor any right
or interest hereunder shall be assignable by the Employee or his beneficiaries
or legal representatives without the Company’s prior written consent; provided,
however, that nothing in this Section 8(a) shall preclude the Employee from
designating a beneficiary to receive any benefit payable hereunder upon his
death or incapacity.


(b)           Except as required by law, no right
to receive payments under this Agreement shall be subject to anticipation,
commutation, alienation, sale, assignment, encumbrance, charge, pledge, or
hypothecation or to exclusion, attachment, levy or similar process or to
assignment by operation of law, and any attempt, voluntary or involuntary, to
effect any such action shall be null, void and of no effect.


9.             Restrictive Covenants.


(a)           During the Employment Term and, in
the event that the Employee’s employment is terminated for any reason
(including the non-renewal of this Agreement in accordance with Section 2(b)
above), during the Severance Period, the Employee shall not directly or
indirectly (as a director, officer, executive employee, manager, consultant,
independent contractor, advisor or otherwise) engage in competition with, or
own any interest in, perform any services for, participate in or be connected
with any business or organization that engages in competition with any of the
AmCOMP Companies within the meaning of Section 9(d), provided, however, that
the provisions of this Section 9(a) shall not be deemed to prohibit


 


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the Employee’s ownership
of not more than 2% of the total shares of all classes of stock outstanding of
any publicly held company.


(b)           In the event that the Employee’s
employment is terminated for any reason (including the non-renewal of this
Agreement in accordance with Section 2(b) above), during the Severance Period,
the Employee shall not directly or indirectly hire, solicit, retain, compensate
or otherwise induce or attempt to induce any person who is or was an employee
of any of the AmCOMP Companies during the six months prior to the Employee’s
termination, to leave the employ of the AmCOMP Companies, or in any way
interfere with the relationship between any of the AmCOMP Companies and any
employee thereof.


(c)           During the Employment Term and, in
the event that the Employee’s employment is terminated for any reason
(including the non-renewal of this Agreement in accordance with Section 2(b)
above), during the Severance Period, the Employee shall not directly or
indirectly hire, engage, send any work to, place orders with, or in any manner
be associated with any supplier, contractor, subcontractor or other business
relation of any of the AmCOMP Companies if such action by him would have a
material adverse effect on the business, assets or financial condition of any
of the AmCOMP Companies, or materially interfere with the relationship between
any such person or entity and any of the AmCOMP Companies.


(d)           (i)            For
purposes of this Section 9, a person or entity (including, without limitation,
the Employee) shall be deemed to be a competitor of one or more of the AmCOMP
Companies, or a person or entity (including, without limitation, the Employee)
shall be deemed to be engaging in competition with one or more of the AmCOMP
Companies, if such person or entity (A) is a stock or mutual insurance company
or an insurance fund engaged in writing workers’ compensation insurance or any
other form of insurance that is provided or proposed to be provided by any of
the AmCOMP Companies at the time of termination of the Employee’s employment
with the Company (any such form of insurance being hereinafter referred to as
the “Specified Insurance”), (B) is an agency or broker for a stock or mutual
insurance company or an insurance fund engaged in writing any Specified
Insurance, or (C) in any way conducts, operates, carries out or engages in the
business of managing any entity described in clause (A) or (B), in any of the
foregoing cases in any state of the United States of America in which any of
the AmCOMP Companies conducts, or is actively investigating the possibility of
conducting, their businesses at the time of termination of the Employee’s
employment with the Company.  The
provisions of this Section 9 shall cease to be applicable to any state in which
the AmCOMP Companies are actively investigating the possibility of conducting
their businesses at the time of termination of Employee’s employment with the
Company, unless within three months after such termination, the AmCOMP
Companies, or any of them, have commenced soliciting prospective policyholders
in such state, and have effectuated any one of the following:  (x) the opening of an office in such state;
(y) the hiring of one or more employees to be employed in such state; or
(z) the engagement of one or more agents in such state.


(ii)           For purposes of this Section 9, no
corporation or entity that may be deemed to be an affiliate of the AmCOMP
Companies solely by reason of its being controlled by, or under common control
with, Sam A. Stephens, Welsh, Carson, Anderson &


 


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Stowe VII, L.P. or Sprout Growth II, L.P. or any of
their respective affiliates other than the AmCOMP Companies, will be deemed to
be an affiliate of the AmCOMP Companies.


(e)           In connection with the foregoing
provisions of this Section 9, the Employee represents that his experience,
capabilities and circumstances are such that such provisions will not prevent
him from earning a livelihood.  The
Employee further agrees that the limitations set forth in this Section 9
(including, without limitation, time and territorial limitations) are reasonable
and properly required for the adequate protection of the current and future
businesses of the AmCOMP Companies.  It
is understood that the covenants made by the Employee in this Section 9 (and in
Section 6 above) shall survive the expiration or termination of this Agreement.


10.           Legitimate Business Interests of
the AmCOMP Companies.


(a)           The parties hereto acknowledge and
agree that the matters set forth above in Sections 6 and 9 constitute the
“legitimate business interests” of the AmCOMP Companies within the meaning of
Florida Statutes 542.335 and are hereby conclusively agreed to be legally
sufficient to support such covenants. 
Such “legitimate business interests” include but are not necessarily
limited to trade secrets; valuable confidential business or professional
information that does not legally qualify as trade secrets; substantial
relationships with specific prospective or existing customers or clients;
customer or client good will associated with an ongoing business in a specific
geographic location and a specific marketing area; and extraordinary or
specialized training.  It is further
acknowledged and agreed that all such restrictive covenants set forth above are
reasonably necessary to protect the legitimate business interests of the AmCOMP
Companies and are not overbroad or unreasonable.  It is acknowledged and agreed that the
Company is specifically relying upon the foregoing statements in entering into
this Agreement.


(b)           The Employee acknowledges that a
remedy at law for any breach or threatened breach of the provisions of Sections
6 and 9 would be inadequate, that the AmCOMP Companies would be irreparably
injured by such breach and that, therefore, the AmCOMP Companies shall be
entitled to injunctive relief; provided, that nothing herein shall be construed
as prohibiting the AmCOMP Companies from pursuing any other rights and remedies
available for any such breach or threatened breach.


11.           Binding Effect.  Without limiting or diminishing the effect of
Section 8 above, this Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, successors, legal
representatives and assigns.


12.           Notices.  All notices that are required or may be given
pursuant to the terms of this Agreement shall be in writing and shall be
sufficient in all respects if given in writing and (i) delivered personally,
(ii) mailed by certified or registered mail, return receipt requested and
postage prepaid, or (iii) sent via a responsible overnight courier, to the
parties at their respective addresses set forth above, or to such other address
or addresses as either party shall have designated in writing to the other
party hereto.  The date of the giving of
such notices delivered personally or by carrier shall be the date of their delivery
and the date of giving of such notices by certified or registered mail shall be
the date five days after the posting of the mail.


 


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13.           Law Governing.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, except that body
of law relating to choice of laws.


14.           Severability.  In the event that any court of competent
jurisdiction shall finally hold that any provision of Section 6 or 9 above is
void or constitutes an unreasonable restriction against the Employee, Section 6
or 9, as the case may be, shall not be rendered void, but shall apply with
respect to such extent as such court may judicially determine constitutes a
reasonable restriction under the circumstances and, in such connection, the
parties hereto authorize any such court to modify or sever any provision,
including without limitation, any such provision relating to duration and
geographical area, to the extent deemed necessary or appropriate by such
court.  If any part of this Agreement
other than Section 6 or 9 is held by a court of competent jurisdiction to be
invalid, illegible or incapable of being enforced in whole or in part by reason
of any rule of law or public policy, such part shall be deemed to be severed
from the remainder of this Agreement for the purpose only of the particular
legal proceedings in question and all other covenants and provisions of this
Agreement shall in every other respect continue in full force and effect and no
covenant or provision shall be deemed dependent upon any other covenant or
provision.


15.           Waiver.  Failure to insist upon strict compliance with
any of the terms, covenants or conditions hereof shall not be deemed a waiver
of such term, covenant or condition, nor shall any waiver or relinquishment of
any right or power hereunder at any one or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.


16.           Entire Agreement; Modifications.  This Agreement constitutes the entire and
final expression of the agreement of the parties with respect to the subject
matter hereof and supersedes all prior agreements, oral and written, between
the parties hereto with respect to the subject matter hereof.  This Agreement may be modified or amended
only by an instrument in writing signed by both parties hereto.


17.           Survival of Provisions.  Neither the termination of this Agreement,
nor of Executive’s employment hereunder, shall terminate or affect in any
manner any provision of this Agreement that is intended by its terms to survive
such termination, including without limitation, the provisions of Sections 4 to
7 inclusive and Section 9 hereof.


18.           Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument,


 


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IN WITNESS WHEREOF, the
Company and the Employee have duly executed and delivered this Agreement as of
the day and year first above written.


	
   

  	
  AMCOMP INCORPORATED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Debra Cerre-Ruedisili

  
	
   

  	
   

  	
  Name:

  	
  Debra Cerre-Ruedisili

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Operating Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Fred R. Lowe

  
	
   

  	
   

  	
  FRED R. LOWE

  



 


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