Exhibit 99.1
RELEASE AND SEVERANCE COMPENSATION AGREEMENT
THIS RELEASE AND SEVERANCE COMPENSATION AGREEMENT (the "Agreement") is
between ProAssurance Corporation, a Delaware corporation ("ProAssurance"), and
Xxxxxx X. Xxxx, Xx., an individual (the "Executive"). ProAssurance and its
majority-owned subsidiaries are hereinafter collectively referred to as the
"Companies."
RECITALS:
The Executive has agreed to become employed by one of the Companies in an
at will employment relationship. ProAssurance has offered to grant protection to
the Executive in the form of severance benefits payable on termination of
employment under certain circumstances in consideration of Executive's agreement
to commence and continue his employment under the terms of this Agreement. The
Executive desires to commence and 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 shall continue in effect for a period
of two years from November 8, 2004 (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 Initial Term
upon delivery of written notice of the termination of this Agreement by any of
the Companies at least six months prior to the commencement 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 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 the following is applicable:
(i) if the Date of Termination occurs during the Initial Term, two (2)
times the average annual incentive award(s) or bonus(es); or (ii) if
the Date of Termination occurs during a Renewal Term, one (1) times
average annual incentive award(s) or bonus(es). The "average annual
incentive award(s) or bonus(es)" shall mean the amount equal to the
average of the annual incentive award(s) or bonus(es) paid to
Executive in each of the three complete calendar years prior to the
Date of Termination or, if shorter, in each of the complete calendar
years during the Executive's entire period of employment with the
Companies. The "annual incentive award(s) or bonus(es)" shall mean the
sum of (i) amount of cash awards or bonuses, plus (ii) the value of
stock awards, in each case accrued by the Companies for the account of
the Executive as performance based compensation (whether or not
deferred) during the applicable year. 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;
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(c) Payment of the Executive's monthly COBRA premiums for continued health
and dental insurance coverage for as applicable: (i) Eighteen (18)
months if the Date of Termination occurs in the Initial Term; (ii)
Twelve (12) months after the Date of Termination if the Date of
Termination occurs in a Renewal Term; (iii) until the Executive no
longer has coverage 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.
Subject to the delivery of the executed Release by Executive, the severance
benefits described in subparagraphs (a) and (b) above shall be paid in cash or
good funds in equal monthly installments during the period that the covenants
set forth in Section 7 shall be in effect commencing on the first day of the
calendar month that occurs thirty (30) days after the Date of Termination;
provided that the obligation of the Companies to pay such 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 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 9 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 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 the terms of said employee benefit plans.
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 at the normal retirement age or date as permitted and
defined under a retirement plan as then in effect for the Companies, 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.
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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. 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)(1) (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.
(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 maximize 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:
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(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;
(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 employment on the date of this Agreement;
(c) The failure of the Companies to provide the Executive, 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 9 hereof;
(e) The termination of the Executive's employment by the Companies for a
reason other than: (i) death; (ii) retirement pursuant to a retirement
plan as then in effect for the Companies; (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); or (v) for Cause, as explained in
Section 6 of this Agreement;
(f) A reduction by the Companies in the Executive's base salary in effect
as of the date of this Agreement; 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 circumstances causing the Good Reason.
If the Companies fail 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 by the Companies for Cause, 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;
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(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 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) 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 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, hospitals, 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 $10 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.
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"Restricted Period" means whichever of the following is applicable: (i) if
the Date of Termination occurs during the Initial Term, a period of 24 months
from the Date of Termination: or (ii) if the Date of Termination occurs during a
Renewal Term, a period of 12 months from the 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.
(b) 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.
(c) 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 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. 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 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.
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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"), 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.
10. 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.
Notice to the Executive:
-----------------------
[Home address]
Birmingham, AL [Home Zip Code]
Notice to the Companies:
-----------------------
ProAssurance Corporation, Attention: Chairman of the Board
Mailing Address: Street Address:
P. O. Xxx 000000 000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000 Xxxxxxxxxx, Xxxxxxx 00000
11. 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.
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(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 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.
12. 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 in a situation where 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 11 hereof and may
file for arbitration within sixty (60) days following claimant's receipt of the
Administrator's written decision on review under Section 11(c) hereof, or if the
Administrator fails to provide any written decision under Section 11 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 in
Birmingham, Alabama, and shall be subject to and in accordance with the
arbitration rules then in effect of the American Arbitration Association. 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
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.
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13. Miscellaneous.
(a) The Executive's rights to benefits under this Agreement are not subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, attachment, or garnishment by creditors of the Executive or the
Executive's beneficiary. No sale, transfer, alienation, assignment, pledge,
collateralization or attachment of any benefits under this Agreement shall be
valid or recognized by the Companies. This Agreement constitutes a mere promise
by ProAssurance to make benefit payments in the future.
(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 any benefit, incentive, retirement, stock
option, stock bonus or stock purchase plan, or any employment agreement or other
plan or arrangement; provided that the limit on severance benefits under Section
3 hereof as a result of benefits payable on a change of control under the
Companies' other employee benefit plans or under other employment arrangements
with the Companies shall not be deemed to be a violation of this provision.
(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 determined to be unenforceable
against any of the Companies, it shall continue to be valid and enforceable
against the other Companies.
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(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 Alabama law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement on March
31, 2005.
EXECUTIVE:
By: /s/ Xxxxxx X. Xxxx, Xx.
-----------------------
Xxxxxx X. Xxxx, Xx.
PROASSURANCE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx, President
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