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EXHIBIT 10-S
EMPLOYEE RETENTION AGREEMENT
BETWEEN
XXXXXXX X. XXXXXX
AND
MERCHANTS MUTUAL INSURANCE COMPANY
DATED: MARCH 1, 1999
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EMPLOYEE RETENTION AGREEMENT
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This AGREEMENT ("Agreement"), dated as of March 1, 1999, is by and between
XXXXXXX X. XXXXXX, residing at 00 Xxxxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 (the
"Executive") and MERCHANTS MUTUAL INSURANCE COMPANY, a New York mutual insurance
company with its principal office at 000 Xxxx Xxxxxx, Xxxxxxx, Xxx Xxxx 00000
(the "Company").
RECITALS:
WHEREAS, the Company is responsible for managing the business of Merchants
Group, Inc. ("MGI") and MGI's wholly-owned subsidiary, Merchants Insurance
Company of New Hampshire, Inc. ("MNH"), under a Management Agreement dated
September 29, 1986 by and among the Company, MGI and MNH (the "Management
Agreement"); and
WHEREAS, MGI has given notice to the Company that it will terminate the
Management Agreement no later than at the end of the required five-year notice
period; and
WHEREAS, the Executive is a key employee of the Company; and
WHEREAS, the Company believes that the Executive's continued employment
with the Company will enhance the Company's ability to continue to manage the
business of the Company, MGI and MNH throughout the period prior to the
effective date of the termination of the Management Agreement; and
WHEREAS, the Company believes that the Executive's continued employment
with the Company will be in the collective best interests of the Company, MGI
and MNH; and
WHEREAS, the Company believes that by extending certain financial
incentives to the Executive it will assist the Company in retaining the services
of the Executive throughout the period prior to the effective date of the
termination of the Management Agreement; and
WHEREAS, the Executive and the Company desire to enter into this Agreement
in order to provide for such financial incentives.
NOW, THEREFORE, in consideration of the promises and the mutual agreements
herein contained, the adequacy and sufficiency of which are hereby acknowledged,
the Company and the Executive agree as follows:
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1. SALARY CONTINUATION AND BENEFITS.
(a) The purpose of this paragraph 1 is to provide the Executive with a
continuation of salary and certain benefits in the event it is necessary or
advisable for the Company, through no fault of the Executive, to either
terminate the Executive's employment or eliminate his position. In order to give
effect to this purpose, the Executive shall receive certain payments and
benefits from the Company if there is a "Termination of Employment" during the
"Protection Period," as those terms are defined below, subject to the following
terms and conditions.
(b) The "Protection Period" shall be that period of time from the date
of this Agreement through and including December 31, 2003.
(c) "Termination of Employment" is defined to mean the termination of
the Executive's full-time employment with the Company for any reason other than
(i) the Executive's death, (ii) the Executive's "total disability" (as defined
in paragraph 2(e) below), (iii) the Executive's voluntary termination of
employment with the Company, (iv) the termination of the Executive's employment
by the Company for "good cause" (as defined in paragraph 2(b) below), or (v) the
termination of the Executive's employment by the Company as a result of the
Company's determination in its sole judgment that the Executive has either (A)
repeatedly failed to perform the duties and assignments given to him or (B)
consistently failed to perform the duties and assignments given to him in a
manner that is acceptable to the Company, based on the level and quality of
performance expected from an experienced executive at the Executive's level in
the Company.
(d) If there is a Termination of Employment during the Protection
Period, the Executive or his duly designated beneficiary will continue to
receive his gross bi-weekly salary in effect on the date of Termination of
Employment, subject to all required withholding taxes, in the form of salary
continuation ("Salary Continuation"), during the time period set forth in
Schedule I attached hereto (the "Salary Continuation Period").
(e) In addition to the Salary Continuation provided under paragraph
1(d) above, during the Salary Continuation Period the Company shall maintain in
full force for the Executive's and his family's benefit, all life insurance,
health and accident insurance, and disability and medical reimbursement plans in
which the Executive and his family were entitled to participate immediately
prior to the date of Termination of Employment, under the same terms as are made
available during the Salary Continuation Period to other executive employees of
the Company from time to time, if the continued participation of the Executive
and his family in such
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plans is possible under the general terms and provisions of such plans, programs
and arrangements. The costs of the Executive's and his family's continued
participation in such insurance and reimbursement plans shall be allocated
between the Company and the Executive in the same proportion as such costs were
allocated prior to the date of Termination of Employment. If the Executive's or
his family's continued participation is not possible, the Company shall
reimburse the Executive for his cost in obtaining comparable coverage, subject
to a maximum reimbursement during the Salary Continuation Period equal to 10% of
the Executive's base annual salary for the calendar year preceding the date of
Termination of Employment. For purposes of the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"), the qualifying event that begins the Executive's
period of coverage shall be considered to occur on the last day for which health
coverage is provided during the Salary Continuation Period and for which the
Company contributes to the costs of such coverage pursuant to this paragraph
1(e).
(f) This paragraph 1 shall not be applicable to any Termination of
Employment following a "change in control" as defined in paragraph 2(c) of this
Agreement.
(g) The salary payments and benefits continuation provided for in
paragraphs 1(d) and 1(e) shall be in lieu of any other severance payments the
Executive might otherwise be entitled to from the Company whether in this
Agreement, under any employment agreement, or under a severance plan or policy
maintained by the Company for employees of Executive's rank and seniority.
(h) The Executive shall not be considered to be an employee of the
Company during the Salary Continuation Period for purposes of accruing any
benefits under the Company's 401(k) retirement plan, or any other retirement,
pension, profit sharing, savings or incentive or bonus plan maintained,
sponsored or administered by the Company ("Retirement or Bonus Plans") or under
the Company's vacation policy. During the Salary Continuation Period the
Executive shall not be entitled to any contribution by the Company on his behalf
or to his account under any Retirement or Bonus Plans nor shall he be entitled
to accrue any benefits under the Company's vacation policy.
2. CHANGE IN CONTROL PAYMENTS.
(a) If during the Protection Period there is a "change in control" and
within two (2) years thereafter (i) the employment of the Executive is
terminated by the Company for other than "good cause" or the death or "total
disability" of the Executive or (ii) the Executive shall declare his employment
terminated for "good reason," then the Executive shall be entitled to the
following:
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A. All unpaid salary through the date of termination of employment
plus credit for any vacation earned but not taken through the date of
termination of employment (as permitted by the Company's policy on
vacations) together with reimbursement for expenses not previously
reimbursed through the date of termination, all of which will be paid
immediately subject to all required withholding taxes.
B. As a severance benefit, the Executive shall be entitled to an
amount equal to his current base annual salary ("X") plus the annual
average of all incentive compensation paid to the Executive by the Company
during the three (3) calendar years preceding the date of termination or
such portion of that period during which Executive was an employee ("Y"),
multiplied by the number set forth in Schedule II attached hereto
("Severance Benefit"). The Severance Benefit will equal (X + Y) multiplied
by the number set forth in Schedule II.
C. This Severance Benefit, less all proper payroll deductions, shall
be paid immediately to the Executive in a lump sum.
D. In addition to the Severance Benefit, the Executive shall be
entitled to continued participation for the number of months set forth in
Schedule III attached hereto following the date of the termination of his
employment, in all life insurance, health and accident insurance,
disability and medical reimbursement plans, programs and arrangements in
which the Executive and his family were entitled to participate
immediately prior to the date of a "change in control," if the continued
participation of the Executive and his family in such plans, programs and
arrangements is possible under the general terms and provisions of such
plans, programs and arrangements. The costs of the Executive's and his
family's continued participation in such plans, programs and arrangements
shall be allocated between the Company and the Executive in the same
proportion as such costs were allocated prior to the date of the
termination of his employment. If the Executive's or his family's
continued participation is not possible, the Company shall reimburse the
Executive at the end of each month during the period specified in Schedule
III for his cost in obtaining comparable coverage, subject to a maximum
reimbursement
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during each month equal to 2% of the Executive's base annual salary
for the calendar year preceding the date of the termination of his
employment. For purposes of COBRA, the qualifying event that begins
the Executive's period of coverage shall be considered to occur on
the last day for which health coverage is provided and for which the
Company contributes to the costs of such coverage pursuant to this
paragraph 2(a)D. The Company's obligations under this paragraph
2(a)D. with respect to life, health, accident and disability
coverage shall be suspended with respect to any such coverage at any
time that the Executive is eligible for comparable coverage from
another employer.
The parties agree that the payments provided for in this
paragraph 2(a) shall be liquidated damages which are in lieu of any other
severance payments that the Executive would otherwise be entitled to under this
Agreement or under any severance plan or policy that would apply to him but for
this Agreement, and the Company agrees that the Executive shall not be required
to mitigate his damages by seeking other employment or otherwise.
(b) "Good cause" shall mean (i) the Executive's dishonesty, fraud or
breach of trust, or substantial misconduct in the performance of or substantial
nonperformance of his duties as an employee of the Company, (ii) any act or
omission by the Executive that results in a felony conviction or in a regulatory
body with jurisdiction over the Company removing the Executive from office or
requesting or recommending the suspension or removal of the Executive or taking
punitive action against the Executive, or (iii) a material breach by the
Executive of paragraphs 3 or 4 of this Agreement.
(c) For purposes of this Agreement, a "change in control" shall have
occurred if, after the date of this Agreement:
A. Any person (as such term is used in Section 13(d) or
Section 14(d)(2) of the Securities Exchange Act of 1934, as amended,
and the rules and regulations thereunder and including any affiliate
or associate of such person, as defined in Rule 12b-2 under said
Act, and any person acting in concert with such person), directly or
indirectly acquires or becomes the beneficial owner of (within the
meaning of Rule 13d-3 under said Act), or otherwise becomes entitled
to vote, stock of the Company or MGI or MNH (hereinafter referred to
individually as a "Merchants Company" and collectively as the
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"Merchants Companies") with 25% or more of the voting power entitled
to be cast at elections for directors (excluding any acquisition of
stock in one Merchants Company by another Merchants Company or the
voting of stock in one Merchants Company by another Merchants
Company); or
B. There occurs any merger or consolidation of a Merchants
Company (excluding any merger or consolidation of one Merchants
Company with another) or any sale, lease or exchange of all or any
substantial part of the assets of any of the Merchants Companies and
their subsidiaries to any other person, excluding any of the
Merchants Companies, and (i) in the case of a merger or
consolidation, the holders of the outstanding stock of any of the
Merchants Companies entitled to vote in elections of directors
("voting stock") immediately before such merger or consolidation
hold less than 50% of the voting stock of the survivor of such
merger or consolidation or its parent; or (ii) in the case of any
such sale, lease or exchange, neither the Company nor either of the
other Merchants Companies or the Merchants Companies as a group owns
at least 50% of the voting stock of the other person; or
C. During any period of two (2) consecutive years, individuals
who at the beginning of such period constitute the entire Board of
Directors of any of the Merchants Companies shall cease for any
reason to constitute a majority thereof, unless the election or the
nomination for the election by that company's shareholders or
policyholders of each new Director was approved by a vote of at
least two-thirds of the Directors then still in office who were
Directors at the beginning of the period.
(d) "Good reason" shall mean any of the following subsequent to a
"change in control" (i) the requirement that the Executive relocate his
principal place of business to a location that is more than 25 miles from the
Executive's principal place of business immediately prior to the date of a
"change in control," (ii) any assignment to the Executive without his express
written consent of any material duties, functions, authority or responsibilities
with respect to any of the Merchants Companies other than those duties,
functions, authority and responsibilities assigned to the Executive by the
Company prior to the "change in control," or any material limitation or
expansion without the Executive's express written consent of the material
duties, functions, authority and responsibilities assigned to the Executive by
the Company prior to the "change in
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control," any such assignment, limitation or expansion being deemed a continuing
breach of this Agreement, (iii) a reduction in the Executive's then annual
salary paid by any of the Merchants Companies or (iv) failure by the Company to
obtain the assumption of, and the agreement to perform, this Agreement by any
successor or assign as contemplated in paragraph 8 hereof, and such relocation
described in the foregoing clause (i), such assignment, limitation or expansion
described in the foregoing clause (ii), reduction described in the foregoing
clause (iii) or failure described in the foregoing clause (iv) is not cured
within thirty (30) days after receipt by the Company of written notice from the
Executive describing such event, or (v) any removal of the Executive from, or
any failure to re-designate or re-elect the Executive to the position he held
immediately prior to the "change in control"; provided that in any event set
forth above in this subparagraph 2(d), the Executive shall have elected to
terminate his employment under this Agreement upon not less than sixty (60)
days' advance written notice to the Company, given, except in the case of a
continuing breach, within three calendar months after (A) failure to be so
elected or re-elected, or such removal, or (B) expiration of the thirty-day cure
period with respect to such event. An election by the Executive to terminate his
employment given under the provisions of this paragraph 2(d) shall not be deemed
a voluntary termination of employment by the Executive for the purpose of this
Agreement or any plan or practice of the Company.
(e) "Total disability," as used herein, shall mean total disability as
defined in any long-term disability plan sponsored by the Company in which the
Executive participates, or, if there is no such plan or it does not define such
term, then it shall mean the physical or mental incapacity of the Executive
which prevents him from substantially performing his duties as an employee of
the Company for a period of at least 180 days and the incapacity is expected to
be permanent and continues for the remainder of the Executive's life.
(f) The payments provided for in this paragraph 2 are in lieu of any
payments provided for in any severance agreement, employment agreement or
similar agreement between the Executive and the Company which is dated prior to
the date of this Agreement ("Severance Agreement"). This Employee Retention
Agreement hereby voids, terminates and supersedes any such Severance Agreement
and the Executive hereby acknowledges that any such Severance Agreement is
hereby terminated and he no longer has any rights or benefits thereunder.
3. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
The Executive will not at any time use or disclose to any third party
any confidential information or trade secrets relating to the business of any of
the Merchants Companies, including business methods and techniques, research
data,
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marketing and sales information, agent lists, underwriting and claims
procedures, investment strategies, reinsurance arrangements, agent compensation
plans, pricing data, and any other information concerning the business of any of
the Merchants Companies, their manner of operation, their plans, or other
information not disclosed to the general public or known in the insurance
industry, except for disclosure in the course of the Executive's duties
hereunder, or disclosure required by any law, rule, regulation or court order,
or disclosure which the Executive reasonably believes would subject him or any
of the Merchants Companies to liability if not made. This covenant will survive
the termination of this Agreement.
4. COVENANT NOT TO COMPETE.
(a) The Executive shall not "compete," as that term is defined in
paragraph 4(c) below, with any of the Merchants Companies while employed by the
Company.
(b) If the Executive is receiving Salary Continuation payments under
paragraph 1(d) of this Agreement, he shall not compete with any of the Merchants
Companies during the first ninety (90) days of the Salary Continuation Period,
nor shall he "solicit," as that term is defined in paragraph 4(d) below, any
employee of the Company for a period of six (6) months after his last day of
employment with the Company, unless he shall have received prior written
approval from the Company.
(c) As used in this paragraph 4, the term "compete" means the direct or
indirect ownership, management, operation or control of, or participation in the
ownership, management, operation, or control of, or the holding of the position
of an officer, employee, partner, director, consultant or similar positions, or
the holding of any financial interest in, or the giving of any aid or assistance
to anyone else in the conduct of, any business that is engaged in a
property-casualty insurance business that offers substantially any of the same
lines of insurance and coverages offered, or proposed to be offered, by any of
the Merchants Companies at the time of the Executive's withdrawal from or
termination of employment with the Company, in any of the geographic markets in
which any of the Merchants Companies is then conducting business. Ownership of
stock of MGI or of one percent (1%) or less of the voting stock of any other
publicly held corporation shall not constitute a violation of this paragraph 4.
(d) As used in paragraph 4(b) above, the term "solicit" shall mean the
solicitation of any employee of the Company for the purpose of hiring or
engaging such employee to work for or otherwise assist any person who does or
intends to compete with any of the Merchants Companies.
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(e) In addition to any other remedies that the Company may have in law
or in equity for a breach of the Executive's covenants set forth in this
paragraph 4, the Company may also cancel its obligations to pay to the Executive
any monies and other benefits otherwise due to the Executive under this
Agreement.
5. ENTIRE AGREEMENT.
The terms and provisions of this Agreement constitute the entire
agreement between the parties and supersede any previous oral or written
communications, representations, or agreements with respect to the subject
matter hereof.
6. NOTICE.
Any notices given hereunder shall be in writing and shall be given by
personal delivery or by certified or registered mail, return receipt requested,
addressed to the addressee at the address set forth at the head of this
Agreement or such other address that such addressee has duly notified the other
party to forward notices to hereunder.
7. SEVERABILITY.
The invalidity or unenforceability of any particular provision of this
Agreement shall not affect the other provisions hereof, and this Agreement shall
be construed in all respects as if the invalid or unenforceable provision had
been omitted.
8. COMPANY ASSIGNMENT.
The Company may not assign this Agreement, except that the Company's
obligations hereunder shall be binding legal obligations of any successor to all
or substantially all of the Company's business by purchase, merger,
consolidation, or otherwise. The Company shall require any successor or assign
(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 the Executive, expressly,
absolutely and unconditionally to assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession or assignment had taken place. Any failure of
the Company to obtain such agreement prior to the effectiveness of any such
succession or assignment shall be a material breach of this Agreement. As used
in this Agreement, the term "Company" shall mean the Company as hereinbefore
defined and any successor or assign to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this paragraph 8 or
which otherwise
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becomes bound by all the terms and provisions of this Agreement by operation of
law.
9. NO ASSIGNMENT BY EXECUTIVE.
No interest of the Executive or the Executive's spouse or any other
beneficiary under this Agreement, or any right to receive any payments or
distributions hereunder, shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment, or other alienation or encumbrance
of any kind, nor may such interest or right to receive a payment or distribution
be taken, voluntarily or involuntarily, for the satisfaction of the obligations
or debts of, or other claims against, the Executive or the Executive's spouse or
other beneficiary, including claims for alimony, support, separate maintenance,
and claims in bankruptcy proceedings.
10. BENEFITS UNFUNDED.
All rights of the Executive and the Executive's spouse or other
beneficiary under this Agreement shall at all times be entirely unfunded, and no
provision shall at any time be made with respect to segregating any assets of
the Company for payment of any amounts due hereunder. Neither the Executive nor
the Executive's spouse or other beneficiary shall have any interest in or rights
against any specific assets of the Company, and the Executive and the
Executive's spouse or other beneficiary shall have only the rights of a general
unsecured creditor of the Company.
11. WAIVER.
No waiver by any party at any time of any breach by another party of,
or compliance with, any condition or provision of this Agreement to be performed
by the other party shall be deemed a waiver of any other provisions or
conditions at the same time or at any prior or subsequent time.
12. PAYMENTS IN EVENT OF DEATH.
Upon the death of the Executive all amounts due and payable to the
Executive pursuant to paragraphs 1(d) and (e) and 2(a) of this Agreement shall
be paid to the person or persons designated by him as his beneficiary or
beneficiaries on the Form of Designation of Beneficiary attached hereto as
Exhibit A, or if no such person is designated then to his devisee, legatee or
other designee, or in their absence to his estate.
13. REDUCTION OF PARACHUTE PAYMENTS AND EXCESSIVE EMPLOYEE REMUNERATION.
(a) In the event that a determination is made by legal counsel for the
Company that (i) the Executive would,
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except for this paragraph 13, be subject to the excise tax provisions of Section
4999 of the Internal Revenue Code of 1986 (the "Code"), or any successor
sections thereof, as a result of a "parachute payment" (as defined in Section
280G(b)(2)(A) of the Code) made by the Company to the Executive pursuant to this
Agreement or any other agreement, plan or arrangement, or (2) a federal income
tax deduction would not be allowed to the Company for all or a part of such
payments by reason of Section 280G(a) of the Code (or any successor provision),
the payments to which the Executive would otherwise be entitled hereunder shall
be reduced, eliminated, or postponed in such amounts as are required to reduce
the aggregate "present value" (as defined in Section 280G(d)(4) of the Code) of
such payments to one dollar less than an amount equal to three times the
Executive's "base amount" (as defined in Sections 280G(b)(3)(A) and 280G(d)(1)
and (2) of the Code), to the end that the Executive is not subject to tax
pursuant to such Section 4999 and no deduction is disallowed by reason of such
Section 280G(a). To achieve such reduction in aggregate present value, the
Executive shall determine which item or items payable hereunder shall be
reduced, eliminated, or postponed, the amount of each such reduction,
elimination, or postponement, and the period of each postponement. The Company
shall direct its legal counsel to review the payments made to the Executive and
shall provide to the Executive such information as is reasonably necessary for
the Executive to make the determinations contemplated in this paragraph.
(b) In the event that a determination is made by legal counsel for the
Company that the Company would not be allowed to deduct remuneration payable to
the Executive as a result of the limits imposed by Section 162(m) of the Code,
or any successor sections thereof, the payments to which the Executive would
otherwise be entitled hereunder shall be reduced, eliminated, or postponed in
such amounts as are required to avoid the limits imposed by Section 162(m). The
procedures set forth in paragraph 13(a) to accomplish such reduction,
elimination or postponement shall apply to this paragraph 13(b).
14. APPLICABLE LAW.
This Agreement shall be construed and interpreted in accordance with
the internal substantive laws of the State of New York without taking into
account its laws on the conflict of law.
15. ARBITRATION.
The Company and the Executive shall attempt to resolve between them any
dispute which arises hereunder. If they cannot agree within ten (10) days after
either party submits a demand for arbitration to the other party, then the issue
shall be submitted to arbitration with each party having the right to appoint
one (1) arbitrator and those two (2) arbitrators mutually
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selecting a third arbitrator. The rules of the American Arbitration Association
for the arbitration of commercial disputes shall apply and the decision of 2 of
the 3 arbitrators shall be final. The arbitrators must reach a decision within
ninety (90) days after the selection of the third arbitrator. The arbitration
shall take place in Buffalo, New York. The arbitrators shall apply New York law.
16. AMENDMENT.
This Agreement shall be amended only by a written document signed by
each party hereto.
17. GENDER.
The use of the masculine gender when used to refer to the Executive in
this Agreement or in any Exhibit or Schedule hereto shall be deemed to be the
female gender if the Executive is a female.
18. EMPLOYEE-AT-WILL.
Notwithstanding any provision in this Agreement, the Executive will
remain an at-will employee of the Company, whose employment may be terminated by
the Company at any time subject to the Executive's rights to receive the
benefits specifically provided in paragraphs 1 and 2 in this Agreement, as
applicable.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first above written.
THE EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX
MERCHANTS MUTUAL INSURANCE COMPANY
By /s/ Xxxxxxxx X. Xxxxx, Xx.
------------------------------------
XXXXXXXX X. XXXXX, XX.,
CHAIRMAN OF THE
COMPENSATION COMMITTEE
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EXHIBIT A
FORM OF DESIGNATION OF BENEFICIARY
In the event of the death of the undersigned, the undersigned hereby
designates the following person or persons as his beneficiary or beneficiaries
for the receipt of any payments due to the undersigned under the Employee
Retention Agreement between the undersigned and Merchants Mutual Insurance
Company:
Primary Beneficiary
or Beneficiaries:
-----------------
-----------------------------------
-----------------------------------
Contingent Beneficiary
or Beneficiaries:
-----------------
-----------------------------------
-----------------------------------
Dated:
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XXXXXXX X. XXXXXX
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SCHEDULE I
SALARY CONTINUATION 24 months -- commencing on the day
PERIOD: after the date of Termination of
Employment.
SCHEDULE II
The number (multiplier) referred to in paragraph 2(a)B. shall be 2.
SCHEDULE III
The number of months referred to in paragraph 2(a)D. shall be 24.
