EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AGREEMENT (“Agreement”), made as of the 14th day of October, 2004, effective on the Effective Date (as defined herein), between Penn-America Group, Inc. and its insurance subsidiaries (the “Company” or “Penn-America”), a Pennsylvania corporation, having its principal place of business at 000 Xxxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx, and (the “Executive”).
W I T N E S S E T H:
WHEREAS, the importance of Executive’s contributions to the Company is hereby acknowledged;
WHEREAS, the Company desires to secure the continuing services of Executive beyond the date on which a merger agreement between the Company and United National Group, Ltd. and its affiliates (“UNGL”) (such agreement, the “Merger Agreement”) is signed, and Executive is willing to continue in the employment of the Company, upon the terms and subject to the conditions set forth in this Agreement;
WHEREAS, Executive possesses knowledge and skills that will contribute to the continued success of the Company’s business;
WHEREAS, the Company believes that Executive’s knowledge and skills will prove to be crucial in both effectuating a successful merger and integrating the operations of UNGL and the operations of the Company;
WHEREAS, the Company is prepared to enhance the terms and conditions of employment currently applicable to Executive; and
WHEREAS, the recitals set forth above are hereby incorporated into and made a part of this Agreement.
NOW, THEREFORE, intending to be legally bound, the Company agrees to employ Executive, and Executive hereby agrees to be employed by the Company, upon the following terms and conditions:
ARTICLE I
EMPLOYMENT
1.01. Position and Duties. Executive is hereby employed as the of the Company, and will use his/her best energies and abilities in the performance of his/her duties, related to and consistent with his/her position, as may be assigned to his/her from time to time by the Board of Directors of the Company (the “Board”), or by the Chief Executive Officer of the Company. Executive’s duties shall include managing the legal affairs for the Company and duties of comparable status and responsibility that the Board determines are necessary to conduct the business of the Company.
1.02. Location. Executive’s place of work shall be in Hatboro, Pennsylvania, provided that Executive shall be obligated to travel as business needs require.
1.03. Term. This Agreement shall be effective as of the “Closing” (as defined below) (the date on which the Closing occurs, the “Effective Date”); provided that in the event the Closing does not occur on or before , 2005 (or , 2005, as may be required by applicable regulatory bodies) (the “Deadline Date”), the Company may elect to terminate this Agreement. The initial term of this Agreement shall commence on the Effective Date and shall continue for an initial term (the “Initial Term”) of three years from the Effective Date. The Initial Term will extend automatically for one three year period and then for consecutive one year periods thereafter (each such extension, an “Extension Term”) unless either Executive or the Company provides at least 90 days’ advance written notice prior to the expiration of the Initial Term or an Extension Term, as applicable, to the other stating that the term will not be extended.
1.04. Compensation.
1.04.1. Salary. Executive shall receive an annual base salary in the gross amount of $ , subject to applicable tax and payroll withholding, which may be adjusted upward or downward from time to time at the Company’s sole discretion, subject to the provisions of Section 2.06(iii). The base salary shall be payable in accordance with the Company’s generally applicable payroll practices and policies.
1.04.2. Bonus Opportunity. Executive shall be eligible to participate in the Company’s 2004 KEIC Bonus Plan, a copy of which is attached as Exhibit A, which Plan was established for 2004 performance and payable in 2005. The Company may not amend such Plan as respects any 2004 bonus compensation to which Executive is entitled. Commencing in 2005, Executive shall be eligible to participate in a key employee cash bonus incentive plan to be adopted by the Company and similar to the 2004 KEIC Bonus Plan, pursuant to the terms of which Executive shall be eligible to receive 30% of her then annual base salary as a cash bonus for each calendar year during which Executive is employed by the Company.
The Company and its affiliates reserve the right to amend or substitute the plan referenced in Section 1.04.2 for any fiscal years after fiscal year 2004, and except as provided below, to make any other adjustments deemed necessary by the Chairman of the Board, as approved by the Compensation Committee, to account for the consummation of the Merger Agreement and business activities after the Effective Date. In any case, the Board, in its reasonable discretion, shall determine that such adjustments shall (x) not impose any burden or reduce any benefits, bonuses or awards that otherwise would be provided or paid to Executive as a result of any costs or expenses incurred by the Company and its affiliates in connection with (i) any out-of-pocket expenses directly incurred in 2004 by Penn-America or its affiliates in any registration or sale of securities related to (I) the Closing (as defined below) or (II) the withdrawal or cessation of registrations or sales that were a direct result of the Merger Agreement, (ii) any out-of-pocket expenses directly incurred by Penn-America and/or the Company or their respective affiliates related to the Merger Agreement, the transactions provided for in the Merger Agreement, or the closing and consummation of the transactions provided for in the Merger Agreement (“Closing”), or (iii) payment of the Annual Integration Bonuses, the Signing Bonuses, and any
other expenses or extraordinary charges incurred in connection with the Merger Transaction (the expenses and payments set forth in subclauses (i)-(iii) collectively referred to as the “Excluded Expenses”), and (y) exclude the Excluded Expenses from the actual performance results associated with any performance cycles underlying any applicable bonus arrangements or awards.
1.04.3. Equity Compensation. Executive shall be eligible to participate in the Company’s Performance Based Long-Term Equity Compensation Plan (the “Restricted Share Plan”), a copy of which is attached as Exhibit B, which Plan was established and adopted for 2004 performance and provides for awards of restricted stock under certain circumstances in 2005. The Company may not amend such Restricted Share Plan with respect to any 2004 bonus award to which Executive is entitled; provided however that grants of shares under the Restricted Share Plan shall be grants of Class A common shares of UNGL (“UNGL Shares”), and the number of UNGL Shares to be awarded shall be based on the number of Penn-America shares that would otherwise be due to Executive, with an adjustment based on the price of UNGL Shares, as provided for in the Merger Agreement ($15.375 per share) (such price, the “Merger Price”). Commencing in 2005, Executive shall be eligible to participate in a performance-based restricted share plan to be adopted by the Company prior to or at the time of the Closing that is similar to the Restricted Share Plan, and which shall provide that the achievement of mid-point performance objectives (as such objectives are specified in Exhibit B) shall result in a target opportunity of 30% of Executive’s then current base salary, payable in UNGL Shares, valued at the closing price of UNGL Shares on the date of grant.
The Company and its affiliates reserve the right to amend or substitute the Restricted Share Plan for any fiscal years after fiscal year 2004, and except as provided below, to make any other adjustments deemed necessary by the Chairman of the Board, as approved by the Compensation Committee, to account for the consummation of the Merger Agreement and business activities after the Effective Date. In any case, the Board, in its reasonable discretion, shall determine that such adjustments shall (x) not impose any burden or reduce any benefits, bonuses or awards that otherwise would be provided or paid to Executive as a result of any out-of-pocket costs or expenses incurred by the Company and its affiliates in connection with any Excluded Expenses, and (y) exclude the Excluded Expenses from the actual performance results associated with any performance cycles underlying any applicable awards under the Restricted Share Plan and any successor thereto.
1.04.4. Car Allowance. Executive shall receive a car allowance of $ per month. The car allowance shall be payable, or credited to, Executive in accordance with the Company’s applicable practices and policies.
1.04.5. Signing Bonus. Upon Closing, Executive shall receive a cash payment in the amount of $ (the “Signing Bonus”) subject to applicable tax and payroll withholding.
1.04.6. Successful Integration Bonus. Upon the completion of each of the Company’s 2005 and 2006 fiscal years, Executive shall, to the extent then actively employed, be paid a total (over two years) of $ (the “Target Integration Bonus”), but only upon the satisfaction of those integration milestones set forth in Exhibit C hereto, as determined in good faith by the Chairman of the Board of Directors of UNGL and approved by UNGL’s
Compensation Committee (such resulting figure, the “Annual Integration Bonus”). If Executive is not actively employed at the time such Annual Integration Bonus would be payable, Executive nonetheless shall be entitled to receive the Annual Integration Bonus, if any, that is payable to her under the provisions of Section 3.05. The Target Integration Bonus shall be payable in UNGL Shares as provided for below. The UNGL Shares comprising the Annual Integration Bonus shall be subject to a shareholder-approved plan, which plan shall have been approved prior to or at the time of the approval of the Merger Transaction, and available for resale under an S-8 filed with the Securities and Exchange Commission. Payment of such UNGL Shares shall be made in two installments, the first installment on or before April 1, 2006, and the second installment on or before April 1, 2007; or with respect to each such year at such later date as the financial statements for such years have been completed and certified by the Company’s outside auditors. The UNGL Shares comprising the Annual Integration Bonus shall be subject to Stock Ownership Guidelines, in the form attached hereto as Exhibit D, and shall otherwise be free of any and all restrictions on sale or resale, except as such sale or resale may be restricted under applicable securities laws and regulations. The conversion of the Target Integration Bonus into UNGL Shares shall be based on the Merger Price. Notwithstanding any other provision of this Agreement to the contrary, UNGL Shares paid in satisfaction of the Annual Integration Bonus shall not be sold, transferred or otherwise disposed of by Executive for a period of eighteen (18) months following the payment of such shares, except to the extent necessary to satisfy any tax liability associated with such payment.
1.04.7. Equity Rollover.
(i) Any options (whether vested or unvested) held by Executive in Penn-America prior to the Effective Date (“Old Options”) shall be cancelled as of the Effective Date and Executive shall be issued and fully vested in an aggregate number of options in UNGL Shares with the same aggregate value as the Old Options, as determined in accordance with the Merger Agreement. Executive may exercise the options to be granted under this Section 1.04.7(i) at any time after the Closing. Executive shall be solely responsible for any taxes payable by reason of such issuance and/or exercise. Executive may, prior to the Closing and consistent with the Company’s policies and applicable securities regulations, exercise any vested Old Options and/or sell securities issued thereunder prior to the Closing.
(ii) Any vested, and unvested restricted, shares held by Executive in Penn-America prior to the Effective Date (“Old Shares”) shall be converted as of the Effective Date into vested UNGL Shares and the fixed cash payment in accordance with the Merger Agreement. The shares shall be subject to the Stock Ownership Guidelines.
1.05. Benefits and Expenses.
1.05.1. Benefits. Until the first anniversary of the Effective Date, Executive will be covered by such group insurance and other benefit plans (including life insurance policies issued to the Executive for the benefit of a named beneficiary) and shall be eligible for such paid vacation and holidays, at least equal to those benefits afforded Executive through Penn-America. A list of the current benefits to be provided to Executive is attached to this Agreement as Exhibit E. Such benefits may be amended from time to time by the Company to increase or add benefits during the first year following the Effective Date, and thereafter for any reason in connection
with across-the-board modifications, or to comply with any legal requirements applicable to such benefits, or necessary to maintain the deductibility for tax purposes of amounts paid by the Company to provide or maintain such benefits. During the first year following the Effective Date, the Company shall not terminate or eliminate any such benefit plans or reduce benefits provided under such plans, unless a change in the law applicable to such benefits shall cause the continued provision of such benefits to be contrary to applicable law, or shall cause the amounts paid by the Company to provide or maintain such benefits, which amounts formerly were deductible for tax purposes by the Company, to no longer be deductible for such purposes under applicable law; provided however that the Company shall continue the existing payment arrangements for supplemental life insurance policies purchased for Executive and in effect as of the date of the execution of this Agreement during the Initial Term and the Extension Terms (if any).
1.05.2. Business Expenses. The Company shall pay or reimburse Executive for all reasonable expenses incurred or paid by Executive in the performance of Executive’s duties hereunder, upon presentation of expense statements or vouchers and such other information as the Company may require in accordance with the generally applicable policies and procedures of the Company.
ARTICLE II
TERMINATION
2.01. Incapacity. If during the term of Executive’s employment, Executive is prevented from effectively performing the essential functions of his/her job, with reasonable accommodation (if such reasonable accommodation can be provided by Company), for a period of 180 days within any twelve (12) month period by reason of illness or Disability, the Company, by written notice to Executive, may terminate Executive’s employment. Upon delivery to Executive of such notice, together with payment of any salary accrued under Section 1.04.1, any awarded but unpaid bonuses applicable to any prior period, and any other amounts as may be due under Sections 1.04 and 1.05 up to the date of termination, Executive’s employment and all obligations of the Company will terminate and this Agreement shall end. For purposes of this Agreement, “Disability” is defined as Executive being eligible for disability insurance benefits under the Company’s long term disability insurance policy, or in the absence of such disability insurance coverage, “Disability” shall be defined as the inability to provide the executive level services provided for hereunder, as determined by an outside physician selected by the Company.
2.02. Retirement. This Agreement shall end, without notice to terminate being required, upon Executive’s voluntary election to retire at any time after Executive reaches age 65. Upon retirement, Executive’s employment shall terminate and Executive shall be entitled to payment of any salary accrued under Section 1.04.1, and any awarded but unpaid bonuses applicable to any prior period, together with any other amounts as may be due under Sections 1.04 and 1.05 up to the date of termination, following which all obligations of the Company will terminate.
2.03. Death. If Executive dies during the term of her employment, Executive’s employment will terminate, the Agreement shall end, and all Company’s obligations, other than any obligations with respect to the payment of accrued but unpaid salary under Section 1.04.1,
and any awarded but unpaid bonuses applicable to any prior period, together with any other amounts as may be due under Sections 1.04 and 1.05 up to the date of death, will cease.
2.04. Termination For Cause. If the Company terminates Executive for Cause, this Agreement and all obligations of the Company shall terminate effective upon notice of termination for Cause, other than (x) any obligations with respect to the payment of accrued but unpaid salary under Section 1.04.1, (y) in the case of a termination under Section 2.04(i) only, certain Limited Severance Benefits (as provided in Section 3.07), and (z) any other amounts as may be due under Section 1.05 up to the date of termination. For purposes of this Agreement, “Cause” shall mean:
(i) Executive’s failure to perform duties (other than as a result of incapacity as described in Section 2.01) in any material respect that remains uncured for 30 days after written notice thereof is given to Executive, such written notice will be provided to the extent that the Board reasonably determines such failure is curable;
(ii) Executive’s willful misconduct or gross negligence or any willful material misrepresentation to the directors or officers of the Company (including any willful material misrepresentation made in this Agreement);
(iii) Executive’s willful failure to conduct the business of the Company in accordance with the lawful directives of the Board or Company officers to whom Executive reports;
(iv) any material breach by Executive of any of the covenants, terms or conditions of this Agreement that remains uncured for 30 days after written notice thereof is given to Executive, such written notice will be provided to the extent that the Board reasonably determines such failure is curable;
(v) Executive’s engagement in conduct which is dishonest or disloyal, which has injured or would injure the business or reputation of the Company or otherwise adversely affects its interests in any material respect; or
(vi) Executive’s engagement in fraud or embezzlement, or a good faith determination by the Board that Executive’s arraignment for a felony charge or other serious crime involving moral turpitude is based on facts and actions of Executive that are likely to result in the successful criminal prosecution of Executive and that such arraignment and prosecution would be likely to adversely affect the business, operations or prospects of the Company or its affiliates, or Executive’s plea of nolo contendre to a felony. This provision shall not apply to any arraignment, conviction or plea of nolo contendre to any traffic (driving) offenses.
2.04.1. Any notice given by the Company under the subsections of Section 2.04 shall specifically state the manner in which Executive has not performed her duties, or has breached any of the covenants, terms or conditions of this Agreement, that the notice is given under this Section 2.04, and that failure to correct such breach will result in termination of
employment under this Agreement. For the purpose of the above definition of Cause, no act, or failure to act, on Executive’s part shall be deemed “willful” unless done, or omitted to be done, by Executive not in good faith and without reasonable belief that her action or omission was in the best interest of the Company. Failure of the Company, the Penn-America business or Executive to achieve or satisfy any target, milestone or other performance goal or hurdle, in and of itself, shall not be deemed Cause for termination under Sections 2.04(ii) through (vi) above.
2.04.2. Notwithstanding the foregoing, termination by the Company for Cause shall not be effective until and unless a notice to terminate for Cause has been given by the Company within (i) 180 days after the Company learns of the act, failure or event constituting “Cause” under Section 2.04(i) (which is not cured by Executive within any time period permitted for such cure) or (ii) 90 days after the Company learns of the act, failure or event constituting “Cause” under any of Sections 2.04(ii)-(vi) (which is not cured by Executive within any time period permitted for such cure), and other than in connection with any activity by Executive that has been concealed or is of a fraudulent nature. If Executive has commenced arbitration in the manner prescribed in this Agreement within 15 days after receipt of such notice of termination, disputing the Company’s right under this Agreement to terminate for Cause, and the Arbitrator shall thereafter have determined that Executive was not terminated for Cause, Executive shall be entitled, in addition to any amount otherwise due to Executive under this Agreement, to receive interest on any payments that should have otherwise been due him, commencing from the date of the Company’s notice of termination, at the Company’s then long term borrowing rate.
2.05. Termination Without Cause. Executive’s employment is at-will, and this Agreement may be terminated at any time by the Company without Cause upon 30 days’ notice to Executive. If the Company terminates Executive without Cause hereunder, the Company shall pay to Executive accrued but unpaid salary under Section 1.04.1, together with any other amounts as may have been due and payable under Sections 1.04 and 1.05 up to the date of termination, any awarded but unpaid bonuses applicable to any prior period, together with Severance Benefits in accordance with Article III, and Executive shall be entitled to retain all restricted stock awards and options that were vested as of such termination date, and unless a longer period is otherwise provided for in the underlying award or plan or under any Company policy or applicable securities laws, shall have thirty (30) days from the date of such termination to exercise and/or sell such shares or options. Executive’s right to receive Severance Benefits listed in Section 3.05 or Limited Severance Benefits under Section 3.07 is subject to Executive’s complying with the obligations set forth in Section 3.02. The Company’s provision of written notice not to extend either the Initial Term or an Extension Term of this Agreement pursuant to Section 1.03 shall be deemed to be a termination of Executive by the Company without Cause hereunder.
2.06. Executive Termination for Good Reason. If Executive terminates her employment for Good Reason, this Agreement and all obligations of the Company shall terminate effective upon Executive’s provision of notice of termination, and Executive shall receive the same salary, benefits and Severance Benefits as would be provided or payable to her in connection with a termination without Cause under Section 2.05 hereof. For purposes of this Agreement, “Good Reason” shall mean:
(i) an assignment to Executive of any duties or responsibilities that comprise a significant reduction or change by the Company (or its successor) in the nature or scope of the authority of, such duties or responsibilities assigned to or held by Executive as of the Effective Date; provided that a good faith assignment by the Board to a position within the Company or one of its affiliates with similar responsibility, title and compensation is not considered to be Good Reason;
(ii) any removal of Executive from the officer positions with the Company (or its successor) and its affiliates held by her as of the Effective Date; provided that a good faith assignment by the Board to a position within the Company or one of its affiliates with similar responsibility, title and compensation is not considered to be Good Reason;
(iii) a reduction by the Company (or its successor) and its subsidiaries in Executive’s base salary as of the Effective Date or, if greater, at any time thereafter;
(iv) a transfer or relocation of the site of employment of Executive, without her express written consent, to a location more than 35 miles from the location of her principal place of business immediately preceding the Effective Date; or
(v) any failure of the Company to comply with and satisfy its material obligations under this Agreement (other than those specified in clauses (i) through (iv) above, as to which no notice and opportunity to cure shall be provided) that remains uncured for 30 days after written notice thereof is given to the Company.
ARTICLE III
SEVERANCE BENEFITS
3.01 Benefits Payable Upon Termination without Cause, Non-Renewal or Termination for Good Reason. If, during the Initial Term or any Extension Term, (i) the Company terminates Executive without Cause, (ii) in connection with the expiration of the Initial Term or any Extension Term, the Company gives notice of non-renewal of this Agreement, or (iii) Executive terminates her employment for Good Reason, Executive shall be paid Severance Benefits, as hereafter defined, in addition to all other amounts payable to Executive as referenced in Section 2.05.
3.02 Release/Compliance with Obligations. Notwithstanding the foregoing provisions, payment of Severance Benefits or Limited Severance Benefits is conditioned upon Executive’s execution of the form of release in Exhibit F-2.
3.03 Limitation on Payments. Notwithstanding anything to the contrary in this Agreement, in no event shall Severance Benefits be paid more than once to Executive under this Agreement.
3.04 Timing of Payments. Severance Benefits shall be paid or provided in monthly installments, with the first monthly installment payable within 10 days after the release referenced in Section 3.02 becomes irrevocable; provided, however, that the portion of any Severance Benefits representing the pro-rated amount of any cash bonus or performance-based
long-term equity compensation award shall not be paid until such amounts are otherwise normally payable pursuant to the plan or arrangement under which such amounts are paid.
3.05 Severance Benefits. “Severance Benefits” means amounts and/or benefits as follows:
(i) Executive’s annual base salary set forth in Section 1.04.1 or, if greater, the annual base salary as in effect immediately prior to Executive’s termination of employment, to be paid in equal monthly installments over a 12-month period;
(ii) the pro-rated amount of any cash bonus which Executive otherwise would have received under the Company’s KEIC bonus plan, or its successor, as set forth in Section 1.04.2, for each whole or partial calendar quarter of employment during the partial year in which Executive’s employment is terminated, provided that any Company performance goals under such plan are achieved for the year in which termination of employment occurs;
(iii) the pro-rated amount of any performance based long-term equity compensation award which Executive would have otherwise received, as set forth in Section 1.04.3, for each whole or partial calendar quarter of employment during the partial year in which Executive’s employment is terminated, provided that any Company performance goals under such plan are achieved for the year in which termination of employment occurs;
(iv) vesting of any awarded but unvested restricted stock and non-qualified stock options in accordance with the vesting schedule established in the applicable plan or agreement, which vesting will continue in accordance with its terms following termination of employment until fully vested;
(v) provision of twelve (12) months of Executive’s then current medical and dental benefits, or the cash equivalent payment thereof, as set forth in Section 1.05.1;
(vi) provision of twelve (12) months of Executive’s life insurance premiums on any policy of life insurance issued to Executive on Executive’s life for the benefit of a named beneficiary, as set forth in Section 1.05.1;
(vii) any earned but unpaid Annual Integration Bonus (the Annual Integration Bonus shall be deemed earned if Executive is employed with the Company or its affiliates on the last day of the fiscal year for which such Annual Integration Bonus is payable), which shall be payable within 90 days after the close of the Company’s fiscal year to which it relates, provided that any Company performance goals listed under Exhibit C have been achieved for the year for which such bonus relates.
3.06. No Severance Payable. Notwithstanding any contrary provision herein, no Severance Benefits or Limited Severance Benefits (as defined below) shall be payable (except as otherwise specifically provided in Sections 2.01, 2.02 and 2.03) if:
3.06.1 Executive voluntarily resigns from her position for any reason other than for Good Reason in accordance with Section 2.06;
3.06.2 Executive’s employment is terminated for reasons described in Section 2.01 (“Incapacity”), Section 2.02 (“Retirement”), or Section 2.03 (“Death”);
3.06.3. Executive violates the applicable provisions of Sections 4.02, 4.03, 4.04 and 4.05 in any material respect after the date of termination of Executive’s employment under this Agreement. If Executive violates the applicable provisions of Sections 4.02, 4.03, 4.04 and 4.05 in any material respect after any Severance Benefits or Limited Severance Benefits have been paid, no further payments will be due to Executive and Executive shall be required to reimburse the Company for any and all such payments previously made; or
3.06.4. Executive’s employment is terminated for Cause, other than under Section 2.04(i).
3.07. Limited Severance Benefits. If Executive’s employment is terminated for Cause under Section 2.04(i), Executive shall be entitled to receive months of Executive’s then current annual base salary and medical and dental benefits (such salary and benefits, “Limited Severance Benefits”). Executive shall not be entitled to any other Severance Benefits listed in Section 3.05.
3.08. Preservation of Vested Equity Awards. Upon Executive’s termination of employment for any reason hereunder, Executive shall (i) retain all restricted stock awards and options that were vested as of such termination date; and (ii) have (or her estate or legal representative shall have) thirty (30) days from the date of such termination to exercise such options; provided that such time period may be extended by provisions in the underlying award or plan or under any Company policy or applicable securities laws.
3.09. Damage Limitation. Executive understands and agrees that he/she is entitled exclusively to the compensation and benefits as stated in Article II and Article III (as applicable) in the event of a termination and that any claim for damages by Executive arising out of this Agreement and her employment by Employer will be limited exclusively to the compensation and benefits as set forth in Article II and Article III (as applicable) in the event of termination; provided that this Section 3.09 shall not limit Executive’s entitlement, if any, to attorneys’ fees under Section 5.011.
ARTICLE IV
EXECUTIVE’S REPRESENTATIONS AND WARRANTIES
4.01. Duties. Executive agrees that, in addition to all other obligations commensurate with her employment with the Company, he/she shall devote his/her full business time, energies and talents to the business of the Company, and comply with each of the Company’s corporate governance and ethics guidelines, conflict of interests policies and code of conduct applicable to all Company employees or senior Executives as adopted by the Board and by the UNGL Board from time-to-time. Executive first shall obtain the consent of the Board in writing before engaging in any other business or commercial activities, duties or pursuits. Notwithstanding the foregoing, nothing shall preclude Executive from (i) engaging in charitable activities and
community affairs, (ii) acting as a member, director or officer of any industry trade association or group, (iii) serving as a trustee, director or advisor to any family companies or trusts, and (iv) managing his/her personal investments and affairs, provided such activities do not, in the reasonable judgment of the Board, materially interfere with the proper performance of his/her duties and responsibilities hereunder. Executive also agrees that he/she will advise the Board of any corporate opportunities and not usurp such opportunities.
4.02. Noncompetition. Executive acknowledges and agrees that the insurance business and operations of the Company are national in scope, and that the Company operates in multiple locations and business segments in the course of conducting its business. In consideration of this Agreement and the equity interests being made available to Executive hereunder, Executive covenants and agrees that during his/her employment with the Company, and for a period of months following the termination of such employment for any reason, unless if the termination entitles the Executive to receive Severance Benefits from the Company under Section 3.01, in which case such period shall be months (such period, the “Restrictive Period”), Executive shall not (i) engage, whether as owner, manager, operator or otherwise, directly or indirectly, in any property and/or casualty insurance company (or holding company which controls such company) that is based in the United States or does a substantial amount of its business in the United States and that writes more than 15% of its written premium by issuing commercial insurance policies for businesses through a network of wholesale general agents on a binding authority basis; provided however that the restrictions herein shall not prohibit or prevent Executive from acting as an owner, manager, operator or employee of any wholesale general agent, (ii) use any information obtained in the course of Executive’s employment by the Company for the purpose of notifying individuals of Executive’s willingness to provide services after such termination in competition with the Company or in breach of this Agreement, or (iii) otherwise solicit for competitive purposes any person who is, or at any time during the term of Executive’s employment by the Company was, a customer of the Company; provided that Executive shall not be subject to the above restrictions if the Company fails to pay (i) Severance Benefits due to Executive, if any, pursuant to Section 3.01 (other than as provided for under Section 3.06.3). Ownership of less than 5% of the securities of any publicly traded company will not violate this Section 4.02. In the event that this paragraph shall be determined by any court of competent jurisdiction to be unenforceable in part by reason of its being too great a period of time or covering too great a geographical area, it shall be in full force and in effect as to that period of time or geographical area determined to be reasonable by the court.
4.03. Executive Nonsolicitation. Executive covenants and agrees that during the Restrictive Period, Executive shall not solicit or induce, or attempt to solicit or induce, any employee of the Company or its affiliates, other than any administrative assistant, to terminate such employment for any reason whatsoever or hire any employee of the Company or its affiliates, other than any administrative assistant.
4.04. Non-Disclosure. Executive shall not, during or after his/her employment with the Company, (i) disclose, in whole or in part, any Company Confidential Information, as hereinafter defined, to any person, firm, corporation, association or other entity for any reason or purpose whatsoever unless authorized in writing to do so by the Company or required by law, order of any court or court process, or (ii) use any Company Confidential Information for Executive’s own purpose or for the benefit of any person, firm, corporation, association or other entity other
than the Company; except in the proper performance of Executive’s duties as instructed by the Company. Company Confidential Information shall not include (x) information in the public domain or generally known in the industry (unless Executive is responsible, directly or indirectly, for such Company Confidential Information entering the public domain or becoming known in the industry without the Company’s consent), (y) information and know-how derived or known by Executive from experience in the industry generally and not specific to Company, and (z) information disclosed by the Company to third parties without any duty or obligation of confidentiality or non-disclosure.
4.04.1. Confidential Information. For purposes of this Agreement, Company Confidential Information shall mean the knowledge and information acquired by Executive concerning the Company’s confidential and proprietary information regarding its business plans, software, formatting, programs, client prospects, client lists, supplier and vendor information, client contacts, client information and data, marketing plans, data processing systems and information contained therein, products, proposals to clients and potential clients, account reports, plans, studies, price lists, financial statements and records, files and other trade secrets, know-how, or other private, confidential or proprietary information of or about the Company which is not already available to the public or known generally in the industry.
4.05. Inventions. Executive shall disclose promptly in writing to the Company, all inventions, including discoveries, concepts and ideas, patentable or not, hereafter made or conceived solely or jointly by Executive during employment with the Company, or within six months after termination of Executive’s employment, if based on or related to proprietary information of the Company known by Executive, provided such invention, discovery, concepts and ideas relate in some manner to the business or activities of the Company.
4.05.1. Assignment of Invention. Executive agrees that in connection with any invention covered by Section 4.05, Executive shall, on request of the Company, promptly execute a specific assignment of title to the Company and do anything else reasonably necessary to enable the Company to secure a patent therefor in the United States and foreign countries.
4.05.2. Work For Hire. If the Company deems such execution to be necessary, Executive shall execute and deliver the Company’s standard “work for hire” agreement regarding ownership by the Company of all rights in its confidential and business materials. A copy of such “work for hire” agreement is attached hereto as Exhibit G.
4.06. Duty to Cooperate after Termination. In the event of Executive’s termination of employment during the twelve (12) month period immediately following the Effective Date, Executive agrees to be available to Company from time to time to answer questions or provide information relating to Company matters that he/she worked on during his/her employment at the Company. The Company shall make reasonable efforts to minimize any burden placed on Executive by reason of the provisions of this Section 4.06, and shall not unreasonably interfere in Executive’s obligations to any subsequent employer. In the event that Executive would reasonably be required to incur any cost or expense to communicate with the Company or travel to any location requested by the Company, Company shall advance any such travel or other costs reasonably incurred by Executive to comply with and perform his/her obligations under this Section 4.06.
4.07. Review by Counsel. Executive represents and warrants that he/she has been provided a full and otherwise fair opportunity to have legal counsel for Executive review this Agreement and to verify from counsel that the terms and provisions of this Agreement are reasonable and enforceable.
4.08. Acknowledgment. Executive acknowledges and agrees that the terms of this Article IV: (i) are reasonable in light of all of the circumstances; (ii) are sufficiently limited to protect the legitimate interests of the Company and its subsidiaries; (iii) impose no undue hardship on Executive; and (iv) are not injurious to the public. Executive further acknowledges and agrees that (x) Executive’s breach of the provisions of this Article IV will cause the Company irreparable harm, which cannot be adequately compensated by money damages, and (y) if the Company elects to prevent Executive from breaching such provisions by obtaining an injunction against Executive, there is a reasonable probability of the Company’s eventual success on the merits. Executive consents and agrees that if Executive commits any such breach or threatens to commit any breach, the Company shall (at its election and notwithstanding Section 5.011 hereof) be entitled to temporary and permanent injunctive relief from a court of competent jurisdiction, without posting any bond or other security and without the necessity of proof of actual damage, in addition to, and not in lieu of, such other remedies as may be available to the Company for such breach, including the recovery of money damages.
ARTICLE V
GENERAL PROVISIONS
5.01. Authorization to Modify Restrictions. The provisions of this Agreement will be enforceable to the fullest extent permissible under applicable law, and the unenforceability (or modification to conform to law) of any provision will not render unenforceable, or impair, the remainder of this Agreement. If any provision will be found invalid or unenforceable, in whole or in part, this Agreement will be considered amended to delete or modify, as necessary, the offending provision or provisions and to alter its bounds to render it valid and enforceable.
5.02. No Waiver. The failure of either the Company or Executive to insist upon the performance of any term in this Agreement, or the waiver of any breach of any such term, shall not waive any such term or any other term of this Agreement. Instead, this Agreement shall remain in full force and effect as if no such forbearance or waiver had occurred.
5.03. Entire Agreement. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes any prior agreement between Executive and the Company (or any of its predecessors or affiliates). Executive acknowledges that he/she has executed a letter agreement under which he/she has waived any rights to any payments and benefits under any change of control agreements with respect to the Closing that were in effect prior to the Closing, and acknowledges that upon the Closing, such change of control agreements shall be null and void, and without force and effect. This Agreement may be amended only by a writing signed by each of the parties. This Agreement may be assigned by Company, provided that Company complies with the provisions of Section 5.09. This Agreement may not be assigned by Executive.
5.04. Governing Law. This Agreement will be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania.
5.05. Consent to Jurisdiction. Executive hereby irrevocably submits to the personal jurisdiction of the United States District Court for the Eastern District of Pennsylvania or any Pennsylvania state court with jurisdiction in any action or proceeding seeking to enforce or interpret this Agreement.
5.06. Service of Process. Executive irrevocably consents to the service of any summons and complaint and any other process which may be served in any action or proceeding arising out of or related to this Agreement brought in the United States District Court for the Eastern District of Pennsylvania or any Pennsylvania state court with jurisdiction by the mailing by certified or registered mail of copies of such process to Executive at his/her address as set forth on the signature page of this Agreement, so long as said action or proceeding does not conflict with Section 5.011.
5.07. Venue. Executive irrevocably waives any objection which he/she now or hereafter may have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in the United States District Court for the Eastern District of Pennsylvania or any Pennsylvania state court and any objection on the ground that any such action or proceeding in either of such courts has been brought in an inconvenient forum. Nothing in this Section 5.07 will affect the right of the Company to bring any action or proceeding against Executive or his/her property in the courts of other jurisdictions.
5.08. Agreement Binding. The obligations of Executive under this Agreement will continue after the termination of his/her employment with the Company for any reason, to the extent provided herein, and will be binding on his/her heirs, executors, legal representatives, and assigns.
5.09. Successor Corporation. The Company shall require any successor or successors (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by agreement in form and substance satisfactory to Executive, to acknowledge expressly that this Agreement is binding upon and enforceable against the Company in accordance with the terms hereof, and to become jointly and severally obligated with the Company to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession or successions had taken place. Failure of the Company to obtain such agreement prior to the effectiveness of any such succession, and to the extent that Executive resigns as a result thereof, shall entitle Executive to all Severance Benefits referenced in Section 3.05. As used in this Agreement, the Company shall mean the Company as hereinbefore defined and any such successor or successors to its business and/or assets, jointly and severally.
5.010. Counterparts, Section Headings. This Agreement may be executed in any number of counterparts. Each will be considered an original, but all will constitute one and the same instrument. The section headings of this Agreement are for convenience of reference only and will not affect the construction or interpretation of any of its provisions.
5.011. Arbitration. In the event that any disagreement or dispute whatsoever shall arise between the parties concerning this Agreement, such disagreement or dispute shall be submitted to the Judicial Arbitration and Mediation Services, Inc (“JAMS”) for resolution in a confidential private arbitration in accordance with the comprehensive rules and procedures of JAMS, including the internal appeal process provided for in Rule 34 of the JAMS rules with respect to any initial judgment rendered in an arbitration. Any such arbitration proceeding shall take place in Philadelphia, Pennsylvania, New York, New York or Washington, D.C. (as selected by Executive) before a single arbitrator (rather than a panel of arbitrators). The parties agree that the arbitrator shall have no authority to award any punitive or exemplary damages and waive, to the full extent permitted by law, any right to recover such damages in such arbitration. Each party shall each bear their respective costs (including attorney’s fees, and there shall be no award of attorney’s fees); provided that the Company shall bear the cost of any arbitrator selected by the parties (unless such arbitrator shall determine that Executive has commenced a frivolous action, in which case arbitrator fees shall be split between the parties), except in the case of an appeal, in which case the appealing party shall bear the costs of the appeal. To the extent that Executive is the prevailing party in any final judgment by the arbitrator on any case commenced in arbitration by Executive the Company shall pay or reimburse Executive for all reasonable attorneys’ fees incurred by Executive in such matter. Nothing herein shall prevent the Company from seeking injunctive relief as provided for in Article 4 of this Agreement. Judgment upon the final award rendered by such arbitrator, after giving effect to the JAMS internal appeal process, may be entered in any court having jurisdiction thereof. If JAMS is not in business or is no longer providing arbitration services, then the American Arbitration Association shall be substituted for JAMS for the purposes of the foregoing provisions. Each party agrees that it shall maintain absolute confidentiality in respect to any dispute between them.
5.012. Notice. For the purposes of this Agreement, notices and all other communications provided for in the Agreement shall be in writing and shall be deemed to have been duly given when delivered or mailed by United States certified mail, return receipt requested, postage prepaid, addressed as follows:
| If to Executive: |
||
| If to the Company: |
Board of Directors Penn-America Group, Inc. 000 Xxxxx Xxxx Xxxx Xxxxxxx, XX 00000 | |
| With a Copy To: |
United National Group, Ltd. Xxxxxx Xxxxx 00 Xxxx Xxxxxx P.O. Box 908GT Xxxxxx Town Grand Cayman Cayman Islands Attn: General Counsel | |
or to such other address as any party may have furnished to the others in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
5.013. Condition of Effectiveness. The occurrence of the Closing on or before the Deadline Date and the execution and delivery by Executive of the Release attached hereto as Exhibit F-1 shall be a condition precedent for the effectiveness and enforceability of this Agreement.
5.014. Employee Manuals and Handbooks. Executive acknowledges that from time to time the Company or its affiliates may establish, maintain and distribute employee manuals or handbooks or personnel policy manuals, and officers or other representatives of the Company shall be expected to comply fully with the policies and procedures provided for therein, to the extent not inconsistent with the provisions of this Agreement. No policies, procedures or statements of any nature by or on behalf of the Company (whether written or oral, and whether or not contained in any employee manual or handbook, as the same may exist from time to time, or personnel policy manual), and no acts or practices of any nature, shall be construed to modify the terms of this Agreement.
5.015. Insurance and Indemnity. The Company shall, to the fullest extent permitted by law and its by-laws and charter, defend and indemnify Executive. The Company shall also provide Executive with coverage as a named insured under a directors and officers liability insurance policy to be maintained for the Company’s directors and officers. The Company shall continue to maintain directors and officers liability insurance for the benefit of Executive during the term of this Agreement and for at least six (6) years following the termination of Executive’s employment with the Company, provided that such insurance is available on commercially reasonable terms. This obligation to provide insurance and indemnify Executive shall survive expiration or termination of this Agreement with respect to proceedings or threatened proceedings based on acts or omissions of Executive occurring during Executive’s employment with the Company or with any affiliated company. Such obligations shall be binding upon the Company’s successors and assigns and shall inure to the benefit of Executive’s heirs and personal representatives.
EXECUTIVE ACKNOWLEDGES THAT HE/SHE HAS READ AND UNDERSTANDS THE FOREGOING PROVISIONS AND THOSE SUCH PROVISIONS ARE REASONABLE AND ENFORCEABLE.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of 14th day of October, 2004.
| EXECUTIVE |
PENN-AMERICA GROUP, INC. | |||||||
| By: | ||||||||
