Exhibit 10.4(J)
RETENTION PLAN
RELEASE AND SEVERANCE COMPENSATION AGREEMENT
THIS RELEASE AND SEVERANCE COMPENSATION AGREEMENT (the "Agreement") is
between ProAssurance Corporation, a Delaware corporation ("ProAssurance"),
ProNational Insurance Company, a Michigan insurance company ("ProNational"),
Professionals Group, Inc., a Michigan corporation ("Professionals Group") and
Xxxxxx X. Xxxxxx, an individual (the "Executive"). ProAssurance, ProNational,
and Professionals Group and their respective majority-owned subsidiaries are
hereinafter collectively referred to as the "Companies."
RECITALS:
The Executive is currently rendering valuable services to Professionals
Group and/or its wholly-owned subsidiary of ProNational. ProAssurance has
acquired, or will acquire, control of Professionals Group and ProNational in a
transaction (the "Consolidation") that will result in a "change of control" (the
"Change of Control") under the terms and conditions of the 1996 Key Employee
Retention Plan of ProNational as assumed by Professionals Group (the "Change of
Control Agreement"). The Companies have offered to employ the Executive in an at
will employment relationship after the Consolidation and to expand protection to
the Executive in the form of severance benefits payable on termination of
employment under certain circumstances after the Consolidation on the condition
that the Executive releases the Companies from any past or future liability
under the Change of Control Agreement. The Executive desires to continue
employment with the Companies under such terms and conditions, and with the
protection afforded to the Executive by this Agreement.
AGREEMENT
NOW, THEREFORE, These Premises Considered, and in consideration of the
mutual covenants and promises in this Agreement, the sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Term of Agreement. This Agreement is subject to, and conditioned upon,
the closing (the "Closing") of the transactions (the "Consolidation")
contemplated by the Agreement to Consolidate by and between Medical Assurance,
Inc. and Professionals Group, Inc. dated June 22, 2000, as amended November 1,
2000. This Agreement is effective on the date of Closing which is scheduled to
occur on June 27, 2001, and shall continue in effect for a period of two years
from the date of Closing (the "Initial Term"). Thereafter, this Agreement shall
automatically be extended for successive terms of one year (a "Renewal Term"),
except this Agreement may be terminated after the first Renewal Term upon
delivery of written notice of the termination of this Agreement by any of the
Companies at least six months prior to the expiration of any Renewal Term. If
the Executive's employment is terminated during the term of the Agreement, the
date on which the Executive's employment terminates shall be referred to as the
"Date of Termination."
2. Severance Benefits. If during the term of this Agreement the Executive
leaves the employment of the Companies for Good Reason, as explained in Section
4 of this Agreement, and the Executive signs the release (the "Release") that is
attached to and incorporated in this Agreement, the Executive shall receive the
following benefits (the "Severance Benefits"):
(a) An amount equal to either of whichever the following is
applicable: (i) if the Date of Termination occurs during the Initial Term,
two (2) times the Executive's annual base salary; or (ii) if the Date of
Termination occurs during a
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Renewal Term, one (1) times the Executive's annual base salary. The "annual
base salary" of the Executive shall be defined as the Executive's base rate
of compensation in effect as of the Date of Termination, but in no event
less than the Executive's base rate of compensation in effect as of the end
of the last calendar quarter preceding the Date of Termination;
(b) An amount equal to either of whichever of the following is
applicable: (i) if the Date of Termination occurs during the Initial Term,
two (2) times the average total annual incentive award(s) or bonus(es); or
(ii) if the Date of Termination occurs during a Renewal Term, one (1) times
the average total annual incentive award(s) or bonus(es). The "average
total annual incentive award(s) or bonus(es)" shall mean the average of the
sum of (i) cash awards or bonuses earned with the Companies by the
Executive, plus (ii) the value of stock awarded to the Executive by the
Companies for each complete fiscal year during the last three years
(whether or not deferred) or, if shorter, over the Executive's entire
period of employment with the Companies. The value of stock awarded to the
Executive shall be calculated based on the value of the stock as of the
date the stock was awarded to the Executive as annual incentive
compensation. Notwithstanding the foregoing, the Executive's actual total
annual incentive awards or bonuses shall be calculated excluding the value
of options to purchase stock which may have been awarded to the Executive;
(c) Payment of the Executive's monthly COBRA premiums for continued
health and dental insurance coverage for the shorter of the following: (i)
18 months if the Date of Termination occurs in the Initial Term; (ii) 12
months if the Date of Termination occurs in the Renewal Term; (iii) until
the Executive no longer has coverage
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under COBRA; or (iv) until the Executive becomes eligible for substantially
similar coverage under a subsequent employer's group health plan; and
(d) Outplacement services that are customary to Executive's position.
The cash severance benefits described in subparagraphs (a) and (b) above
shall be paid in equal monthly installments during the period that the covenants
set forth in Section 7 shall be in effect commencing upon the Date of
Termination; provided that the obligation of the Companies to pay such cash
severance benefits to the Executive shall be subject to termination under the
provisions of Section 7 hereof in the event the Executive should violate the
covenants set forth therein; and provided further that the payment of such cash
severance benefits shall be accelerated and payable in lump sum by the Companies
upon a breach of this Agreement as a result of the failure of a successor
(herein defined) to assume this Agreement as required in Section 10 of this
Agreement. The Companies shall withhold from any amounts payable under this
Agreement all federal, state, city or other income and employment taxes that
shall be required.
The Companies shall fund the obligation to pay cash Severance Benefits by
depositing in escrow an amount equal to the sum of the amounts payable to the
Executive under subparagraphs (a) and (b) hereof (the "Escrow Funds") with
SouthTrust Bank (or another financial institution with total assets of more than
$1,000,000,000) as escrow agent (the "Escrow Agent"). The Escrow Funds shall be
the property of the Companies and shall be held, invested and distributed by
Escrow Agent in accordance with the following provisions. At the time of
delivery of the Escrow Funds, the Escrow Agent shall acknowledge receipt of the
Escrow Funds and agree to be bound by the provisions of this Agreement in a
separate written document. The Escrow Agent shall invest the Escrow Funds in a
money market account for the benefit of the Companies and
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shall distribute the earnings not more frequently than monthly. Unless and until
the Escrow Agent receives notice from ProAssurance that the Executive has
breached this Agreement, the Escrow Agent shall distribute the Escrow Funds to
the Executive in the same number of equal monthly installments as the number of
whole calendar months in the Restricted Period (as defined in Section 7 hereof).
The monthly installments shall be distributed to the Executive on the first day
of each calendar month in the Restricted Period together with accrued and
undistributed earnings on the Escrow Funds. If the Company delivers written
notice to the Escrow Agent and Executive that the cash Severance Benefits
payable to Executive are subject to termination under Section 7 of this
Agreement, the Escrow Agent shall distribute the balance of the Escrow Funds and
accrued and undistributed earnings thereon to ProAssurance unless the Escrow
Agent receives a written notice of objection from the Executive within 15 days
after delivery of ProAssurance's notice. If Executive provides a timely notice
of objection, the Escrow Agent shall hold the Escrow Funds until it receives a
written notice of distribution from the arbitrator appointed pursuant to Section
13 hereof or a joint written notice of distribution from the Executive and
ProAssurance. The failure of the Executive or the Company to deliver notice to
the Escrow Agent as herein provided shall not be a waiver of any of their
respective rights under this Agreement.
The Executive shall be entitled to the following in addition to and not in
limitation of the Severance Benefits: (i) accrued and unpaid base salary as of
the Date of Termination; (ii) accrued vacation and sick leave, if any, on Date
of Termination in accordance with the then current policy of the Companies with
respect to terminated employees generally; and (iii) vested benefits under the
Companies' employee benefit plans in which the Executive was a participant on
Date of Termination, which vested benefits shall be paid or provided for in
accordance with
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the terms of said employee benefit plans. If the Executive has regular use of a
vehicle provided by the Companies for business and personal use on Date of
Termination, the Companies shall offer for sale to the Executive the vehicle at
a purchase price equal to either of the following: (x) if owned by any of the
Companies, the then current book value of the vehicle (cost less accumulated
depreciation), or (y) if leased by any of the Companies, the purchase price upon
the exercise of the purchase option, if any, under the lease.
The Executive shall not be entitled to receive Severance Benefits if
employment with the Companies is terminated by reason of death of Executive,
retirement of Executive pursuant to the Company's retirement plan as then in
effect, the Executive having reached the age of mandatory retirement (if such
requirement then exists for bona fide executives); or Disability of Executive
(herein defined); or by reason of termination of employment by the Executive
without Good Reason (herein defined); or by reason of termination of employment
by the Companies with Cause (herein defined).
The Executive shall be under no duty or obligation to seek or accept other
employment and shall not be required to mitigate the amount of the Severance
Benefits provided under the Agreement by seeking employment or otherwise;
provided, however, that the Executive shall be required to notify the Companies
if the Executive becomes covered by a health or dental care program providing
substantially similar coverage, at which time health or dental care continuation
coverage provided under this Agreement shall cease.
3. Parachute Payments. Subject to Section 280G of the Internal Revenue Code
of 1986, as amended ("Code"), if the board of directors of ProAssurance
determines that an excise tax under Section 4999 ("Excise Tax") would be due,
the Executive's Severance Benefits under this Agreement shall be limited to the
amount necessary to avoid the Excise Tax only if applying
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such a limit results in a greater net benefit to the Executive than would have
resulted had the benefits not been limited and an Excise Tax paid. For purposes
of making such computation:
(a) Any other payments or benefits received or to be received by the
Executive in connection with the Change of Control or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement, or agreement with the Companies, or with any person
whose actions result in the Change of Control) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless, in the opinion of tax counsel
selected by ProAssurance's independent auditors, such other payments or benefits
(in whole or in part) do not constitute parachute payments, or such other
payments or benefits (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of Section 280G(b)(3) of the
Code, or such other payments or benefits (in whole or in part) are otherwise not
subject to the Excise Tax. In the event an Excise Tax is due, because of
payments made under this Agreement, the Executive shall be responsible for
paying said Excise Tax.
(b) The amount of the Severance Benefits that will be treated as
subject to the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Severance Benefits; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(l) (after applying subparagraph (a)
above).
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by ProAssurance's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
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(d) The Executive shall be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in a calendar year in which the
Severance Benefits are to be paid, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the Executive's
residence on the Date of Termination, net of the maximum reduction in federal
income taxes that could be obtained from deduction of such state and local
taxes.
In the event the Internal Revenue Service adjusts the computation in
subparagraphs (a) through (d) above, so that the Executive did not receive the
greatest net benefit, the Companies shall reimburse the Executive for the amount
necessary to make the payment of Severance Benefits to the Executive to the
extent permitted hereunder, plus a market rate of interest as determined by the
Board of Directors of ProAssurance.
4. Good Reason for Termination. In the event that the Executive's
employment relationship with the Companies is terminated for any of the reasons
described in this Section 4, the Executive shall be entitled to Severance
Benefits, subject to and described in Section 2 of this Agreement. "Good Reason"
shall constitute any of the following circumstances if they occur without the
Executive's express written consent during the term of this Agreement:
(a) The Executive no longer holds an executive level position with
executive level responsibilities with the Companies consistent with the
Executive's training and experience (Executive and Company acknowledge that the
initial position and responsibilities of Executive will be as set forth in the
terms of employment ("Terms of Employment") attached to, and incorporated in,
this Agreement);
(b) The Companies require that the Executive's primary location of
employment be more than 50 miles from the location of the Executive's primary
location of
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employment on June 27, 2001; provided, however, that it is agreed that the
relocation of Executive's principal office to Birmingham, Alabama will not
violate this subparagraph and that after the relocation to Birmingham, the fifty
(50) mile radius will apply with respect to the Birmingham location;
(c) The failure of the Companies to provide the Executive, at a level
in 2001 as set forth in the Terms of Employment and thereafter at a level
commensurate with the Executive's position, the incentive compensation
opportunities and employee benefits that are provided to other executives of
comparable rank with the Companies;
(d) A breach by the Companies of any provision of this Agreement,
including without limitation, the failure of a successor to assume this
Agreement as required in Section 10 hereof;
(e) The termination of the Executive's employment by the Companies for
a reason other than: (i) death; (ii) retirement pursuant to the Companies'
retirement plan as then in effect; (iii) Disability as explained in Section 5 of
this Agreement; (iv) the Executive has reached the age of mandatory retirement
(if such requirement then exists for bona fide executives); (v) for Cause, as
explained in Section 7 of this Agreement;
(f) A reduction by the Companies in the Executive's base salary as set
forth in the Terms of Employment; or
(g) The termination or non-renewal of this Agreement by the Companies.
The Executive must provide the Companies with written notice no later than
45 calendar days after the Executive knows or should have known that Good Reason
has occurred. Following the Executive's Notice, the Companies shall have 45
calendar days to rectify the
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circumstances causing the Good Reason. If the Company fails to rectify the
event(s) causing the Good Reason within the 45 day period after the Executive's
Notice, or if any of the Companies delivers to the Executive written notice
stating that the circumstances cannot or shall not be rectified, the Executive
shall be entitled to assert Good Reason and terminate employment on or before 90
days after the delivery of the Executive's Notice. Should Executive fail to
provide the required Notice in a timely manner, Good Reason shall not be deemed
to have occurred as a result of that event. The Initial Term or a Renewal Term
shall not be deemed to have expired during the Notice period, however, as long
as the Executive has provided Notice within the Term.
5. Disability. For purposes of this Agreement, Disability means a serious
injury or illness that requires the Executive to be under the regular care of a
licensed medical physician and renders the Executive incapable of performing the
essential functions of the Executive's position for 12 months as determined by
the Board of Directors of the Companies in good faith and upon receipt of and in
reliance on competent medical advice from one or more individuals selected by
the Board of Directors, who are qualified to give professional medical advice.
6. Cause. If the Executive's employment relationship with the Companies is
terminated for Cause by the Companies, as described below in this Section, the
Executive shall not be eligible for Severance Benefits and all rights of the
Executive and obligations of the Companies under this Agreement shall expire.
Cause means:
(a) The Executive has been convicted in a federal or state court of a
crime classified as a felony;
(b) Action or inaction by the Executive (i) that constitutes
embezzlement, theft, misappropriation or conversion of assets of the Companies
which alone or together with related
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actions or inactions involve assets of more than a de minimis amount, or that
constitutes fraud, gross malfeasance of duty, or conduct grossly inappropriate
to Executive's office; and (ii) such action or inaction has adversely affected
or is likely to adversely affect the business of the Companies or has resulted
or is intended to result in direct or indirect gain or personal enrichment of
the Executive to the detriment of the Companies;
(c) The Executive has been grossly inattentive to, or in a grossly
negligent manner failed to competently perform, Executive's job duties and the
failure was not cured within 45 days after written notice from the Companies.
Any termination of the Executive's employment by the Companies for Cause
shall be communicated by a notice of termination (the "Notice of Termination")
to the Executive. The Notice of Termination shall be a written notice indicating
the specific termination provision of this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under this provision.
7. Non-Competition.
(a) In the event the Date of Termination occurs during the Initial
Term, the Executive (i) will be bound by and subject to any covenant not to
compete or noncompetition agreement with the Companies (or any of them) to which
the Executive was subject as of the Date of Termination (other than the
noncompetition agreement set forth in Section 7(b) hereof), or (ii) in the
alternative if the Executive is not subject to a covenant not to compete or
noncompetition agreement with the Companies (or any of them) as of the Date of
Termination (other than a covenant not to compete or noncompetition agreement
contained in an employee handbook or otherwise applicable to employees
generally) the Executive will be bound by and subject to the noncompetition
agreement set forth in subparagraph 7(b) of this Agreement. Upon
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the expiration of the Initial Term, any and all covenants not to compete or
noncompetition agreements between the Executive and the Companies (or any of
them) then in effect shall be superseded by the noncompetition agreement set
forth in Section 7(b) hereof and the Executive and the Companies shall not be
bound by the provisions of any covenant not to compete or noncompetition
agreement other than the provisions of Section 7(b) hereof unless specifically
agreed to in a written document executed by the Executive and the Companies (or
any of them) after the Closing.
(b) In the event that either (i) the Date of Termination occurs during
the Initial Term and the provisions of Section 7(a)(ii) hereof are binding on
the Executive, or (ii) the Date of Termination occurs during a Renewal Term, the
Executive will not during the Restricted Period (herein defined):
(i) become employed by a competitor company at any location and
directly solicit or sell medical professional liability insurance to any
person or entity that was insured by any of the Companies within one year
prior to the Date or Termination, or directly provide services related to
medical professional liability insurance to any such person or entity; or
(ii) receive or earn compensation of any type directly arising
out of the purchase of medical professional liability insurance by any
person or entity that was insured by the Companies at any time within one
year prior to the Date of Termination;
or
(iii) solicit or induce any other employees of the Companies to
leave such employment or accept employment with any other person or entity,
or solicit or
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induce any insurance agent of the Companies to offer, sell or market
medical professional liability insurance for a competitor company in the
primary market of the Companies.
"Competitor company" means an insurance company, insurance
agency, business, for profit or not for profit organization (other
than the Companies) that provides, or offers to provide medical
professional liability insurance to health care providers.
"Health care providers" means physicians, dentists, podiatrists,
physician assistants, nurse practitioners, other individual health
care providers and hospital and other institutional health care
providers.
"Medical professional liability insurance" means medical
malpractice insurance and reinsurance, and equivalent self-insured
services such as administration of self-insured trusts, claims
management services and risk management services for health care
providers. "Medical professional liability insurance" does not include
services provided as an employee of a health care provider if such
services are rendered solely for the purpose of servicing medical
professional liability risk of the employer or that of its employees.
"Primary market area" means any state in which the Companies
derived more than $5 million in direct written premiums from the sale
of medical professional liability insurance to health care providers
in the most recent complete fiscal year prior to the Date of
Termination.
"Restricted Period" means as applicable either (i) if the Date of
Termination occurs within the Initial Term, a period of 24 months from
such Date
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of Termination; or (ii) if the Date of Termination occurs within a
Renewal Term, a period of 12 months from such Date of Termination.
"Employed" includes activities as an owner, proprietor, employee,
agent, solicitor, partner, member, manager, principal, shareholder
(owning more than 1% of the outstanding stock), consultant, officer,
director or independent contractor.
"Companies" means any company that is a subsidiary of
ProAssurance, now or in the future, and any other company that has
succeeded to the business of any of the Companies.
If the Executive is deemed to have materially breached the non-competition
covenants set forth in Section 7 of this Agreement, the Companies may, in
addition to seeking an injunction or any other remedy they may have, withhold or
cancel any remaining payments or benefits due to the Executive pursuant to
Section 2 of this Agreement. The Companies shall give prior or contemporaneous
written notice of such withholding or cancellation of payments in accordance
with Section 2 hereof. If the Executive violates any of these restrictions, the
Companies shall be further entitled to an immediate preliminary and permanent
injunctive relief, without bond, in addition to any other remedy which may be
available to the Companies.
Both parties agree that the restrictions in this Agreement are fair and
reasonable in all respects, including the geographic and temporal restrictions,
and that the benefits described in this Agreement, to the extent any separate or
special consideration is necessary, are fully sufficient consideration for the
Executive's obligations under this Agreement.
8. Confidentiality. Executive will remain obligated under any
confidentiality or nondisclosure agreement with the Companies (or any of them)
that is currently in effect or to
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which the Executive may in the future be bound. In the event that the Executive
is at any time not the subject of a separate confidentiality or nondisclosure
agreement with the Companies (or any of them), Executive expressly agrees that
Executive shall not use for the Executive's personal benefit, or disclose,
communicate or divulge to, or use for the direct or indirect benefit of any
person, firm, association or company any confidential or competitive material or
information of the Companies or their subsidiaries, including without
limitation, any information regarding insureds or other customers, actual or
prospective, and the contents of their files; marketing, underwriting or
financial plans or analyses which is not a matter of public record; claims
practices or analyses which are not matters of public record; pending or past
litigation in which the Companies have been involved and which is not a matter
of public record; and all other strategic plans, analyses of operations,
computer programs, personnel information and other proprietary information with
respect to the Companies which are not matters of public record. Executive shall
return to the Companies promptly, and in no event later than the Date of
Termination, all items, documents, lists and other materials belonging to the
Companies or their subsidiaries, including but not limited to, credit, debit or
service cards, all documents, computer tapes, or other business records or
information, keys and all other items in the Executive's possession or control.
9. Release of Change of Control Agreement. In consideration of the
continued employment of the Executive by the Companies after the Change of
Control and the obligation of the Companies to pay the Executive Severance
Benefits as herein provided, the Executive hereby waives, releases and forever
discharges the Companies and each of their direct or indirect parents,
subsidiaries, affiliates and related entities, and all present or former
employees, officers, agents, directors or representatives of any of them, from
any and all claims, charges, suits, causes
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of action, demands, expenses and compensation whatsoever, known or unknown,
direct or indirect, on account of or growing out of the Executive's Change of
Control Agreement, including, without limitation, the payment of severance
benefits as provided thereunder. Executive hereby further agrees that he will
not institute any suit or action at law, in equity or otherwise against the
Companies or any of their direct or indirect parents, subsidiaries, affiliates
and related entities, or the present or former employees, officers, agents,
directors, or representatives of any of them and their respective successors and
assigns, nor will the Executive ever institute, prosecute, or in any way aid in
the institutional prosecution of any claim, demand, action or cause of action
for damages, costs, expenses, penalties, fines, compensation or equitable
relief, for or on account of any damage, loss or injury to either person or
property or both, whether developed or undeveloped, resulting or to result,
known or unknown, which Executive ever had, now has, or which Executive or his
successors and assigns may in the future have against any of said persons in
connection with the Change of Control Agreement of the Executive.
The Executive acknowledges and agrees that Executive has been advised in
writing by this Agreement, and otherwise, to CONSULT WITH AN ATTORNEY before
Executive enters into this Agreement. The Executive agrees that the Executive
received and read a copy of this Agreement prior to executing the same.
10. Successors of ProAssurance. ProAssurance will require any successor
(herein defined) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Companies would be required to
perform this Agreement if no such succession had taken place. Failure of
ProAssurance to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the
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Executive to terminate employment for Good Reason and receive Severance Benefits
as provided in Section 2 hereof. Reference to the Companies in this Agreement
shall include any successor which assumes and agrees to perform this Agreement
by operation of law or otherwise.
The term "successor" means any Person, as defined by Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") other than a
Person in control of the Companies immediately after completion of the Change of
Control, that either (i) becomes the Beneficial Owner, as defined by Rule 13d-3
of the General Rules and Regulations under the Exchange Act, directly or
indirectly, of the securities of ProAssurance representing more than 50.1% of
the combined voting power of the then outstanding securities of ProAssurance;
(ii) purchases or otherwise acquires substantially all of the assets of the
Companies such that the Companies cease to function on a going forward basis as
an insurance holding company system that provides medical professional liability
insurance; or (iii) survives a merger, consolidation or reorganization that
results in less than 50.1% of the combined voting power of ProAssurance or such
surviving entity being owned by stockholders of ProAssurance immediately
preceding such merger, consolidation or reorganization.
11. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or commercial courier or
mailed by certified or registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses as set forth below or to such
other address as one party may have furnished to the other in writing in
accordance herewith.
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Notice to the Executive:
Xxxxxx X. Xxxxxx or such more recent address as
ProNational Insurance Company may appear in the Companies'
0000 Xxxxxxxxxxxxx Xxxxx employment records
Xxx 000
Xxxxxx, XX 00000-0000
Notice to the Companies:
ProAssurance Corporation
Mailing Address:
X.X. Xxx 000000
Xxxxxxxxxx, Xxxxxxx 35259-0009
Street Address:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
12. Claims Procedure.
(a) The administrator for purposes of this Agreement shall be
ProAssurance ("Administrator"), whose address is 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000; Telephone: (000) 000-0000. The "Named Fiduciary" as
defined in Section 402(a)(2) or ERISA, also shall be ProAssurance. ProAssurance
shall have the right to designate one or more employees of the Companies as the
Administrator and the Named Fiduciary at any time, and to change the address and
telephone number of the same. ProAssurance shall give the Executive written
notice of any change in the Administrator and Named Fiduciary, or in the address
or telephone number of the same.
(b) The Administrator shall make all determinations as to the right of
any person to receive benefits under the Agreement. Any denial by the
Administrator of a claim for benefits by the Executive ("the claimant") shall be
stated in writing by the Administrator and delivered or mailed to the claimant
within ten (10) days after receipt of the claim, unless special circumstances
require an extension of time for processing the claim. If such an extension is
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required, written notice of the extension shall be furnished to the claimant
prior to the termination of the initial 10-day period. In no event shall such
extension exceed a period of ten (10) days from the end of the initial period.
Any notice of denial shall set forth the specific reasons for the denial,
specific reference to pertinent provisions of this Agreement upon which the
denial is based, a description of any additional material or information
necessary for the claimant to perfect the claim, with an explanation of why such
material or information is necessary, and any explanation of claim review
procedures, written to the best of the Administrator's ability in a manner that
may be understood without legal or actuarial counsel.
(c) A claimant whose claim for benefits has been wholly or partially
denied by the Administrator may request, within ten (10) days following the
receipt of such denial, in a writing addressed to the Administrator, a review of
such denial. The claimant shall be entitled to submit such issues or comments in
writing or otherwise, as the claimant shall consider relevant to a determination
of the claim, and the claimant may include a request for a hearing in person
before the Administrator. Prior to submitting the request, the claimant shall be
entitled to review such documents as the Administrator shall agree are pertinent
to the claim. The claimant may, at all stages of review, be represented by
counsel, legal or otherwise, of the claimant's choice. All requests for review
shall be promptly resolved. The Administrator's decision with respect to any
such review shall be set forth in writing and shall be mailed to the claimant
not later than ten (10) days following receipt by the Administrator of the
claimant's request unless special circumstances, such as the need to hold a
hearing, require an extension of time for processing, in which case the
Administrator's decision shall be so mailed not later than twenty (20) days
after receipt of such request.
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13. Arbitration. The parties to this Agreement agree that final and binding
arbitration shall be the sole recourse to settle any claim or controversy
arising out of or relating to a breach or the interpretation of this Agreement,
except as either party may be seeking injunctive relief. Either party may file
for arbitration. A claimant seeking relief on a claim for benefits, however,
must first follow the procedure in Section 12 hereof and may file for
arbitration within sixty (60) days following claimant's receipt of the
Administrator's written decision on review under Section 12(c) hereof, or if the
Administrator fails to provide any written decision under Section 12 hereof,
within 60 days of the date on which such written decision was required to be
delivered to the claimant as therein provided. The arbitration shall be held at
a mutually agreeable location, and shall be subject to and in accordance with
the arbitration rules then in effect of the American Arbitration Association;
provided that if the location cannot be agreed upon the arbitration shall be
held in either Atlanta, Georgia, or Chicago, Illinois, whichever location is
closer to the principal office where the Executive was employed on the Date of
Termination. The arbitrator may award any and all remedies allowable by the
cause of action subject to the arbitration, but the arbitrator's sole authority
shall be to interpret and apply the provisions of this Agreement. In reaching
its decision the arbitrator shall have no authority to change or modify any
provision of this Agreement or other written agreement between the parties. The
arbitrator shall have the power to compel the attendance of witnesses at the
hearing. Any court having jurisdiction may enter a judgment based upon such
arbitration. All decisions of the arbitrator shall be final and binding on the
parties without appeal to any court. Upon execution of this Agreement, the
Executive shall be deemed to have waived any right to commence litigation
proceedings regarding this Agreement outside of arbitration or injunctive relief
without the express consent of ProAssurance. The Companies shall pay all
arbitration fees and the
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arbitrator's compensation. If the Executive prevails in the arbitration
proceeding, the Companies shall reimburse to the Executive the reasonable fees
and expenses of Executive's personal counsel for his or her professional
services rendered to the Executive in connection with the enforcement of this
Agreement.
14. Miscellaneous.
(a) Except insofar as this provision may be contrary to applicable
law, no sale, transfer, alienation, assignment, pledge, collateralization or
attachment of any benefits under this Agreement shall be valid or recognized by
the Companies.
(b) This Agreement is an unfunded deferred compensation arrangement
for a member of a select group of the Companies' management and any exemptions
under ERISA, as applicable to such arrangement, shall be applicable to this
Agreement. Nothing in this Agreement shall require or be deemed to require the
Companies or any of them to segregate, earmark or otherwise set aside any funds
or other assets to provide for any payments made or required to be made
hereunder.
(c) Nothing in this Agreement shall be deemed to create an employment
agreement between the Executive and the Companies or any of them providing for
Executive's employment for any fixed duration, nor shall it be deemed to modify
or undercut the Executive's at will employment status with the Companies.
(d) Neither the provisions of this Agreement nor the severance
benefits provided hereunder shall reduce any amounts otherwise payable, or in
any way diminish the Executive's rights as an employee of the Companies, whether
existing now or hereafter, under
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any benefit, incentive, retirement, stock option, stock bonus or stock purchase
plan, or any employment agreement or other plan or arrangement.
(e) This Agreement sets forth the entire agreement between the parties
with respect to the matters set forth herein. This Agreement may not be modified
or amended except by written agreement intended as such and signed by all
parties.
(f) This Agreement shall benefit and be binding upon the parties and
their respective directors, officers, employees, representatives, agents, heirs,
successors, assigns, devisees, and legal or personal representatives.
(g) The Companies, from time to time, shall provide government
agencies with such reports concerning this Agreement as may be required by law,
and shall provide Executive with such disclosure concerning this Agreement as
may be required by law or as the Companies may deem appropriate.
(h) Executive and the Companies respectively acknowledge that each of
them has read and understand this Agreement, that they have each had adequate
time to consider this Agreement and discuss it with each of their attorneys and
advisors, that each of them understands the consequences of entering into this
Agreement, that each of them is knowingly and voluntarily entering into this
Agreement, and that they are each competent to enter into this Agreement.
(i) If any provision of this Agreement is determined to be
unenforceable, at the discretion of ProAssurance the remainder of this Agreement
shall not be affected but each remaining provision shall continue to be valid
and effective and shall be modified so that it is enforceable to the fullest
extent permitted by law. Moreover, in the event this Agreement is
22
determined to be unenforceable against any of the Companies, it shall continue
to be valid and enforceable against the other Companies.
(j) This Agreement will be interpreted as a whole according to its
fair terms. It will not be construed strictly for or against either party.
(k) Except to the extent that federal law controls, this Agreement is
to be construed according to Michigan law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of this 27TH day of JUNE, 2001.
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
PROASSURANCE CORPORATION
By: /s/ A Xxxxxxx Xxxxx
------------------------------------
Its: Chairman
PRONATIONAL INSURANCE COMPANY
By: /s/ Xxxxxx X Xxxxx
------------------------------------
Its: President
PROFESSIONALS GROUP, INC.
By: /s/ Xxxxxx X Xxxxx
------------------------------------
Its: President
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RELEASE IN CONJUNCTION WITH SEVERANCE COMPENSATION
This Release of Claims ("Release") is between ProAssurance Corporation
("ProAssurance"), ProNational Insurance Company, Professionals Group, Inc., and
any successor company that has assumed the Agreement to which this Release was
an attachment (all such organizations being referred to in this Release as the
"Companies") and Xxxxxx X. Xxxxxx ("Executive").
The Companies and Executive have agreed to terminate their employment
relationship. To effect an orderly termination, the Executive, and the Companies
are entering into this Release.
1. For the purposes of this Release, "Date of Termination" is the effective
date of Executive's termination of employment from Companies. Executive hereby
waives any and all rights Executive may otherwise have to continued employment
with or re-employment by the Companies or any parent, subsidiary or affiliate of
Companies.
2. Effective with the Date of Termination, Executive is relieved of all
duties and obligations to the Companies, except as provided in this Release or
any applicable provisions of the Change of Control Agreement between Companies
and Executive, effective as of June 27, 2001 ("Agreement"), which survive
termination of the employment relationship.
3. Executive agrees that this Release and its terms are confidential and
shall not be disclosed or published directly or indirectly to third persons,
except as necessary to enforce its terms, by Executive or to Executive's
immediate family upon their agreement not to disclose the fact or terms of this
Release, or to Executive's attorney, financial consultant or accountant, except
that Executive may disclose, as necessary, the fact that Executive has
terminated Executive's employment with the Companies.
4. Any fringe benefits that Executive has received or currently is
receiving from the Companies or its affiliates shall cease effective with the
Date of Termination, except as otherwise provided for in this Release, in the
Agreement or by law.
5. The parties agree that the terms contained and payments provided for in
the Agreement are compensation for and in full consideration of Employee's
release of claims under this Release, and Executive's confidentiality,
non-compete, non-solicitation and non-disclosure agreements contained in the
Agreement.
6. The Executive shall be under no duty or obligation to seek or accept
other employment and shall not be required to mitigate the amount of the
Severance Benefits (as defined and provided under the Agreement) by seeking
employment or otherwise, provided, however, that the Executive shall be required
to notify the Companies if the Executive becomes covered by a health or dental
care program providing substantially similar coverage, at which time health or
dental care continuation coverage provided under the Agreement shall cease.
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7. Executive waives, releases, and forever discharges the Companies and
each of their direct or indirect parents, subsidiaries, affiliates, and any
partnerships, joint ventures or other entities involving or related to any of
the Companies, their parents, subsidiaries or affiliates, and all present or
former employees, officers, agents, directors, successors, assigns and attorneys
of any of these corporations, persons or entities (all collectively referred to
in this Release as the "Released") from any and all claims, charges, suits,
causes of action, demands, expenses and compensation whatsoever, known or
unknown, direct or indirect, on account of or growing out of Executive's
employment with and termination from the Companies, or relationship or
termination of such relationship with any of the Released, or arising out of
related events occurring through the date on which this Release is executed.
This includes, but is not limited to, claims for breach of any employment
contract; handbook or manual; any express or implied contract; any tort;
continued employment; loss of wages or benefits; attorney fees; employment
discrimination arising under any federal, state, or local civil rights or
anti-discrimination statute, including specifically any claims Executive may
have under the federal Age Discrimination in Employment Act, as amended, 29 USC
Sections 621, et seq.; emotional distress; harassment; defamation; slander; and
all other types of claims or causes of action whatsoever arising under any other
state or federal statute or common law of the United States.
8. The Executive does not waive or release any rights or claims that may
arise under the federal Age Discrimination in Employment Act, as amended, after
the date on which this Release is executed by the Executive.
9. The Executive acknowledges and agrees that Executive has been advised in
writing by this Release, and otherwise, to CONSULT WITH AN ATTORNEY before
Executive executes this Release.
10. The Executive agrees that Executive received a copy of this Release
prior to executing the Agreement, that this Release incorporates the Companies'
FINAL OFFER; that Executive has been given a period of at least twenty-two (22)
calendar days within which to consider this Release and its terms and to consult
with an attorney should Executive so elect.
11. The Executive shall have seven (7) calendar days following Executive's
execution of this Release to revoke this Release. Any revocation of this Release
shall be made in writing by the Executive and shall be received on or before the
time of close of business on the seventh calendar day following the date of the
Employee's execution of this Release at ProAssurance's address at 000 Xxxxxxxxx
Xxxxx, P. O. Box 590009, Birmingham, Alabama 35259-0009, Attention: Chairman, or
such other place as the Companies may notify Executive in writing. This Release
shall not become effective or enforceable until the eighth (8th) calendar day
following the Executive's execution of this Release.
12. Executive and the Companies acknowledge that they have read and
understand this Release, that they have had adequate time to consider this
Release and discuss it with their attorneys and advisors, that they understand
the consequences of entering into this Release, that they are knowingly and
voluntarily entering into this Release, and that they are competent to enter
into this Release.
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13. This Release shall benefit and be binding upon the parties and their
respective directors, officers, employees, agents, heirs, successors, assigns,
devisees and legal or personal representatives.
14. This Release, along with the attached Agreement, sets forth the entire
agreement between the parties at the time and date these documents are executed,
and fully supersedes any and all prior agreements or understandings between them
pertaining to the subject matter in this Release. This Release may not be
modified or amended except by a written agreement intended as such, and signed
by all parties.
15. Except to the extent that federal law controls, this Release is to be
construed according to the law of the state of Michigan.
16. If any provision of this Release is determined to be unenforceable, at
the discretion of ProAssurance the remainder of this Release shall not be
affected but each remaining provision or portion shall continue to be valid and
effective and shall be modified so that it is enforceable to the fullest extent
permitted by law.
17. To signify their agreement to the terms of this Release, the parties
have executed it on the date set forth opposite their signatures, or those of
their authorized agents, which follow.
EXECUTIVE
Dated:
------------------- ----------------------------------------
Xxxxxx X. Xxxxxx
PROASSURANCE CORPORATION
Dated: By:
------------------- ------------------------------------
Its:
-----------------------------------
PROFESSIONALS GROUP, INC.
Dated: By:
------------------- ------------------------------------
Its:
-----------------------------------
PRONATIONAL INSURANCE COMPANY
Dated: By:
------------------- ------------------------------------
Its:
-----------------------------------
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