CHANGE IN CONTROL SEVERANCE AGREEMENT BETWEEN FPIC INSURANCE GROUP, INC. AND CHARLES DIVITA, III
Exhibit
10.4
BETWEEN
FPIC
INSURANCE GROUP, INC.
AND
XXXXXXX
XXXXXX, III
THIS
AGREEMENT, effective as of January 1, 2008, between FPIC Insurance Group, Inc.,
a Florida corporation (the “Company"), and
Xxxxxxx Xxxxxx, III, an individual (the "Executive")
W
I T N E S S E T H:
WHEREAS,
the Company and the Executive are parties to that certain Severance Agreement
dated as of December 8, 2006 (the “Prior Agreement”) and
wish to terminate the Prior Agreement and to enter into this Agreement in
replacement thereof; and
WHEREAS,
the Executive is a valuable employee of the Company and an integral part of its
management and a key participant in the decision making process relative to
planning and policy for the Company; and
WHEREAS,
the Company wishes to encourage the Executive to continue his career and
services with the Company for the period during and after an actual or
threatened Change in Control (as hereinafter defined).
NOW,
THEREFORE, it is hereby agreed by and between the parties hereto as
follows:
1. Certain
Definitions.
a. "Board" shall mean the
Board of Directors of the Company.
b. "Cause" shall
mean:
(i) the
willful and continued failure of the Executive to perform substantially the
Executive's duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness, and specifically excluding any
failure by the Executive, after reasonable efforts, to meet performance
expectations) after a written demand for substantial performance is delivered to
the Executive by the Chief Executive Officer or President of the Company or the
Board that specifically identifies the manner in which such person or the Board
believes that the Executive has not substantially performed the Executive's
duties, or
(ii) the
willful engaging by the Executive in illegal conduct, fraud, misappropriation,
or embezzlement that is injurious to the Company.
For
purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the
Executive in bad faith or without reasonable belief that the Executive's action
or omission was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution duly adopted
by the Board or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company.
Cause
shall not exist unless the Board shall have given Executive written notice
specifying the Cause alleged to exist, Executive shall have been granted a
reasonable opportunity to respond to the notice, in writing, and in an
appearance, with counsel, before the Board, and a determination shall thereafter
be made by the Board to terminate the Executive’s employment for Cause at a
meeting of the Board at which a quorum is present and by a vote of at least a
majority of the entire then current membership of the Board.
c. "Change in Control"
shall mean the earlier of the following events:
(i) either
(A) receipt by the Company of a report on Schedule 13D, or an amendment to such
a report, filed with the Securities and Exchange Commission (“SEC”) pursuant to
Section 13(d) of the Securities Exchange Act of 1934 (the "1934 Act"),
disclosing that any person (as such term is used in Section 13(d) of the 0000
Xxx) ("Person"), is the
beneficial owner, directly or indirectly, of twenty (20) percent or more of the
outstanding stock of the Company, or (B) actual knowledge by the Company of
facts on the basis of which any Person is required to file such a report on
Schedule 13D, or to file an amendment to such a report, with the SEC (or would
be required to file such a report or amendment upon the lapse of the applicable
period of time specified in Section 13(d) of the 0000 Xxx) disclosing that such
Person is the beneficial owner, directly or indirectly, of twenty (20) percent
or more of the outstanding stock of the Company;
(ii) purchase
by any Person, other than the Company or a wholly owned Subsidiary of the
Company, of shares pursuant to a tender or exchange offer to acquire any stock
of the Company (or securities convertible into stock) for cash, securities or
any other consideration provided that, after consummation of the offer, such
Person is the beneficial owner (as defined in Rule 13d-3 under the 1934 Act
regardless of whether the Company or such Person would otherwise be subject to
the 1934 Act), directly or indirectly, of twenty (20) percent or more of the
outstanding stock of the Company (calculated as provided in paragraph (d) of
Rule 13d-3 under the 1934 Act in the case of rights to acquire stock regardless
of whether the Company or such Person would otherwise be subject to the 1934
Act);
(iii) either
(A) the filing by any Person acquiring, directly or indirectly, twenty percent
(20%) or more of the outstanding stock of the Company of a
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statement
with the Florida Office of Insurance Regulation pursuant to § 628.461 of the
Florida Statutes or a successor statutory provision, or (B) actual knowledge by
the Company of facts on the basis of which any Person acquiring, directly or
indirectly, twenty percent (20%) or more of the outstanding stock of the Company
or a controlling company is required to file such a statement pursuant to §
628.461 or a successor provision;
(iv) approval
by the shareholders of the Company of (A) any consolidation or merger of the
Company in which the Company is not the continuing or surviving corporation or
pursuant to which shares of stock of the Company would be converted into cash,
securities or other property, other than a consolidation or merger of the
Company in which holders of its stock immediately prior to the consolidation or
merger have substantially the same proportionate ownership of common stock of
the surviving corporation immediately after the consolidation or merger as
immediately before, or (B) any consolidation or merger in which the Company is
the continuing or surviving corporation but in which the common shareholders of
the Company immediately prior to the consolidation or merger do not hold at
least a majority of the outstanding common stock of the continuing or surviving
corporation (except where such holders of common stock hold at least a majority
of the common stock of the corporation that owns all of the common stock of the
Company), or (C) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all the assets of
the Company, or (D) any merger or consolidation of the Company where, after the
merger or consolidation, one Person owns 100% of the shares of stock of the
Company (except where the holders of the Company's common stock immediately
prior to such merger or consolidation own at least 90% of the outstanding stock
of such Person immediately after such merger or consolidation); or
(v) a
change in a majority of the members of the Board within a 24-month period unless
the election or nomination for election by the Company's shareholders of each
new director was approved by the vote of at least two-thirds of the directors
then still in office who were in office at the beginning of the 24-month
period.
d. "Code" shall mean the
Internal Revenue Code of 1986, as amended.
e. "Constructive
Discharge" shall mean any (i) material change by the Company of the
Executive's position, functions, or duties to an inferior position, functions,
or duties from that in effect on the date of this Agreement, (ii) assignment or
reassignment by the Company of the Executive without the Executive's consent to
another place of employment more than 50 miles from the Executive's current
place of employment, or (iii) reduction in the Executive's base
salary or percentage target bonus opportunity. The Company and the
Executive, upon mutual written agreement, may waive any of the foregoing
provisions with respect to an event that would otherwise constitute a
Constructive Discharge.
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f. "Coverage Period"
shall mean the period beginning on the Starting Date and ending on the Ending
Date. The "Starting Date" shall
be the date on which a Change in Control occurs; provided, that if a
Termination of Employment occurs prior to a Change in Control and in
contemplation of a potential Change in Control or occurs at the request or
direction of a third party in connection with a potential Change in Control, the
“Starting
Date” shall be the
date immediately prior to such termination of employment. The "Ending Date" shall be
(i) in the case of a transaction described in subparagraph 1(c)(iv) of this
Agreement, the earlier of (A) the date on which a public announcement is made by
the Company that it has abandoned such transaction, or (B) the date
that is 36 full calendar months following the date on which the transaction is
consummated, and (ii) in all other cases, the date that is 36 full calendar
months following the date on which a Change in Control
occurs.
g. “Disability” shall
mean the Executive's absence from the Executive's duties with the Company on a
full-time basis for at least one hundred eighty (180) consecutive days as a
result of Executive's incapacity due to physical or mental illness.
h. "ERISA" shall mean the
Employee Retirement Income Security Act of 1974, as amended.
i. "Person" shall be
construed as broadly as possible and shall include an individual or natural
person, a partnership (including a limited liability partnership), a
corporation, a limited liability company, an association, a joint stock company,
a trust, a joint venture, an unincorporated organization, a business, and any
other entity.
j. "Subsidiary" means,
with respect to any Person, any other Person (i) whose securities having a
majority of the general voting power in electing the board of directors or
equivalent governing body of such Person (excluding securities entitled to vote
only upon the failure to pay dividends thereon or the occurrence of other
contingencies) are, at the time as of which any determination is being made,
owned by such Person either directly or indirectly through one or more other
entities constituting Subsidiaries, or (ii) a fifty percent (50%) interest in
the profits or capital of whom is, at the time as of which any determination is
being made, owned by such Person either directly or indirectly through one or
more other entities constituting Subsidiaries.
k. “Termination of
Employment,” or words of similar import in relation to the Executive’s
employment by the Company, means the Executive’s ceasing to be employed by the
Company or any of its Subsidiaries. The Executive's cessation of
employment to become an employee of a Person of which the Company is
a Subsidiary (or an employee of a Person of which a former Subsidiary of the
Company is a Subsidiary) or an employee of a Subsidiary of the
Company shall not be considered a Termination of Employment for purposes of this
Agreement. The subsequent cessation of the Executive's employment
with such Person or from such Subsidiary shall be considered a Termination of
Employment for purposes of this Agreement.
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2. Termination
of Prior Agreement; Term.
Effective at 12:00 midnight on December
31, 2007, the Prior Agreement is hereby terminated and of no further force or
effect. This Agreement shall be effective as of the date of this
Agreement and shall continue thereafter until (i) the date of the Termination of
Employment if such date is prior to the Coverage Period or (ii) if the
Termination of Employment shall occur during the Coverage Period,
this Agreement shall remain in effect until all of the obligations of the
parties hereunder are satisfied.
3. Severance
Benefit.
a. If
at any time during the Coverage Period a Termination of Employment is
effected by the Company for any reason other than Cause, death, or
Disability, or by the Executive in the event of a Constructive Discharge, then
the Company shall pay to the Executive severance pay in a lump sum
cash amount equal to two times the sum of Executive's (i) annual salary and (ii)
target bonus opportunity for the current calendar year (or, if greater than the
target bonus opportunity, the average of the annual bonuses for the three prior
calendar years). The Company shall also pay Executive any unpaid
salary, unreimbursed expenses or benefits accrued to the date of Termination of
Employment. Also, in such event, the Executive shall be 100% vested
in all stock options, stock appreciation rights, contingent stock, restricted
stock and other long-term incentive awards. Without limiting the
generality of the foregoing, (x) all outstanding stock options shall become
immediately exercisable, (y) all transfer restrictions on shares of restricted
stock shall lapse, and (z) all performance shares or units shall become
immediately earned, vested and payable at the level prescribed in the award
agreement in the event of a Change in Control (as defined therein), with no
transfer restrictions on any shares of stock issued on payment.
b. Pursuant
to paragraph 3(a) of this Agreement, the Executive may terminate his Employment
in the event of a Constructive Discharge by providing written notice to the
Company within ninety (90) days after the occurrence of such event, specifying
the event relied upon for a Constructive Discharge. Within ten days
of receiving such written notice from the Executive, the Company may cure the
event that constitutes a Constructive Discharge, in which event the Termination
of Employment shall be of no force or effect.
c. For
a period commencing with the month in which Termination of Employment as
described in paragraph 3(a) above shall have occurred, and ending
twenty-four months
thereafter, the Company shall continue to provide to the Executive all “benefits” as if the
Executive were still employed during such period, at the same level of benefits
that the Executive was receiving at Termination of Employment or at such higher
level and at the same dollar cost as provided by the Company to the Executive as
is available to all of the Company's senior executives generally; provided that,
if and to the extent that providing or payment of such benefits shall not be
permitted under any benefit plan, the Company shall pay or provide tax
equivalent benefits on an individual basis within 60 days of Termination of
Employment, subject to Paragraph 16 of this Agreement. The benefits
provided in accordance with this paragraph 3(c) shall be secondary to any
comparable benefits provided by another employer. As used herein,
“benefits”
shall include, but not be limited to: (i) automobile lease or allowance; (ii)
health and dental benefits; (iii) life, short term
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disability
and long term disability insurance; (iv) initiation fees, dues and assessments
of membership in a club; and (v) participation in the Company’s retirement,
savings and deferred compensation plans (including without limitation the FPIC
Insurance Group, Inc. Defined Benefit Pension Plan; the Florida Physicians
Insurance Company Excess Benefit Plan (or alternatively, if determined by the
Board, Employer’s Supplemental Executive Retirement Plan) or any plan or
arrangement adopted in lieu thereof; the FPIC Insurance Group, Inc. Defined
Contribution (and Profit Sharing) Plan; and the FPIC Insurance Group, Inc.
Deferred Compensation Plan, to the extent and
in the form they remain in effect from time to time). The Executive’s
entitlement to such “benefits” shall be in accordance with the Company’s
employee benefit plans and other applicable programs, policies, and practices
then in effect, to be interpreted so that payment of such “benefits” does not
violate Section 409A of the Code.
d. In
the event of any Termination of Employment described in paragraph 3(a), the
Executive shall be under no obligation to seek other employment, and, except as
provided in paragraph 3(c), there shall be no offset against amounts due the
Executive under this Agreement on account of any remuneration or benefits
attributable to any subsequent employment.
4. INTENTIONALLY
OMITTED
5. Mediation
and Arbitration.
Any
dispute or controversy arising out of or in relation to this Agreement shall
first be submitted to mediation in the City of Jacksonville, Florida in
accordance with the Commercial Mediation Rules of the American Arbitration
Association. If mediation fails to resolve such dispute or
controversy, then such dispute or controversy shall be determined and settled by
arbitration in the City of Jacksonville, Florida, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, and judgment upon the award rendered by the arbitrator may be entered in
any court of competent jurisdiction. The parties hereto agree to use
good faith efforts to select a mediator and, if mediation fails to resolve such
dispute or controversy, an arbitrator. If the parties cannot agree
upon a mediator or arbitrator, such mediator or arbitrator shall be selected in
accordance with the relevant Commercial Rules of the American Arbitration
Association then in effect. The Company's mediation and arbitration
expenses, as well as any litigation costs, including legal counsel and experts
reasonably engaged, shall be paid by the Company. The Executive's
mediation and arbitration costs, as well as any litigation costs, including
legal counsel and reasonable experts, shall be paid by the Company no later than
2 ½ months after the end of the calendar year in which such costs and expenses
were incurred, provided, however, in the event the trier of fact determines the
Executive's claims thereunder are made frivolously or in bad faith, the
Executive shall immediately repay such litigation costs to the
Company. Any payments that would otherwise become due under this
Agreement that are the subject of a dispute may be delayed to the extent
permitted under Section 409A of the Code. Whenever any action is
required to be taken under this Agreement within a specified period of time and
the taking of such action is materially affected by a matter submitted to
mediation or arbitration, such period shall automatically be extended by the
number of days plus ten that are taken for the determination of that matter by
the parties through mediation or otherwise by the arbitrator.
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6. Income
Tax Withholding.
The
Company may withhold from any payments made under this Agreement all federal,
state or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
7. Entire
Understanding.
Except
for the provisions of that certain employment agreement dated as of January 1,
2008 between the Executive and the Company and any compensation, incentive,
indemnification, welfare benefit, retirement, or other arrangement, agreement or
program (“Company
Programs”) in effect from time to time, this Agreement contains the
entire understanding between the Company and the Executive with respect to the
subject matter hereof. The Company's obligation to make payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not affect (other than as expressly stated herein) or operate to
reduce any benefit or compensation inuring to the Executive of any kind
elsewhere provided and not expressly provided for in this Agreement, including
without limitation, any benefit or compensation provided under any of the
Company Programs.
8. Severability.
If,
for any reason, any one or more of the provisions or part of a provision
contained in this Agreement shall be held by a court of competent jurisdiction
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision or part of a
provision of this Agreement not held so invalid, illegal or unenforceable, and
each other provision or part of a provision shall to the full extent consistent
with law continue in full force and effect.
9. Consolidation,
Merger, or Sale of Assets.
If the Company consolidates or merges
into or with, or transfers all or substantially all of its assets to, another
corporation, or if Executive ceases employment with the Company to become an
employee of a Person of which the Company is a Subsidiary (or an employee of a
Person of which a former Subsidiary of the Company is a Subsidiary) or an
employee of a Subsidiary of the Company, the term "Company" as used herein shall
mean such other corporation and this Agreement shall continue in full force and
effect.
10. Notices.
All
notices, requests, demands and other communications required or permitted
hereunder shall be given in writing and shall be deemed to have been duly given
if hand delivered or mailed, postage prepaid, certified or registered, first
class as follows:
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a. to
the Company:
FPIC
Insurance Group, Inc.
Attention: Chief
Executive Officer
000
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx,
Xxxxxxx 00000
b. to
the Executive:
Xxxxxxx
Xxxxxx, III
000
X. Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxxx,
Xxxxxxx 00000
or
to such other address as either party shall have previously specified in writing
to the other.
11. No
Attachment.
Except
as required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge or hypothecation or to execution, attachment, levy or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to effect any such action shall be null, void and of no
effect.
12. Binding
Agreement; Benefit and Assignment.
This Agreement shall be binding upon
and inure to the benefit of the Company (including any Person that shall be
deemed to be the “Company” as provided in paragraph 9 above) and the
Executive. The Company shall require any Person that shall become
deemed to be the “Company” as provided in paragraph 9 above (other than those
that become so by operation of law) to expressly assume, in writing, all of the
Company’s obligations to the Executive hereunder. Except as provided
in the preceding sentences, this Agreement and the rights and obligations of the
parties hereunder are personal, and neither this Agreement nor any right,
benefit or obligation of either party hereto shall be subject to voluntary or
involuntary assignment, alienation or transfer, whether by operation of law or
otherwise, without the prior written consent of the other party. In
the event that the Executive dies before all amounts payable under this
Agreement have been paid, all remaining amounts shall be paid to the beneficiary
specifically designated by the Executive in writing prior to his death, or, if
no such beneficiary was designated (or the Company is unable in good faith to
determine the beneficiary designated), to the Executive’s personal
representative or estate.
13. Modification
and Waiver.
This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto. No term or condition of this Agreement
shall be deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement except by written instrument
signed by the party charged with such waiver or estoppel. No such
written waiver
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shall
be deemed a continuing waiver unless specifically stated therein, and each such
waiver shall operate only as to the specific term or condition waived and shall
not constitute a waiver of such term or condition for the future or as to any
act other than that specifically waived.
14. Headings
of No Effect.
The
paragraph headings contained in this Agreement are included solely for
convenience of reference and shall not in any way affect the meaning or
interpretation of any of the provisions of this Agreement.
15. Governing
Law.
This
Agreement and its validity, interpretation, performance, and enforcement shall
be governed by the laws of the State of Florida without giving effect to the
choice of law provisions in effect in such State.
16. Effect
of Section 409A.
It is expressly contemplated by the
parties that this Agreement will conform to, and be interpreted to comply with,
Section 409A of the Code. Notwithstanding any other provision of this
Agreement, if the Executive is a "specified employee" as defined in Section
409A(a)(2)(B)(i) of the Code at the time of his separation from service, then
the payment of any amount under or pursuant to this Agreement that is considered
deferred compensation subject to Section 409A of the Code shall be deferred for
six (6) months after his "separation from service" or, if earlier, his death as
required by Section 409A(a)(2)(B)(i) of the Code (the "409A Deferral
Period").
In the event payments are otherwise due
to be made in installments or periodically during the 409A Deferral Period, the
payments that would otherwise have been made in the 409A Deferral
Period shall be accumulated and paid in a lump sum as soon as the 409A Deferral
Period ends, and the balance of the payments shall be made as otherwise
scheduled. If the Executive incurs any interest or additional tax
under Section 409A(a)(1)(B) of the Code with respect to amounts payable under
this Agreement, the Company promptly at that time will pay the Executive an
additional amount so that, after all taxes on such additional amount, he has an
amount remaining equal to such interest or additional tax. Such
gross-up payment, however, shall be made in any event no later than the end of
the Executive's taxable year next following his taxable year in which the
related taxes, interest or penalties are remitted.
For purposes of this Agreement, a
Termination of Employment shall not be deemed to exist unless the Executive has
a "separation from service" within the meaning of Section 409A of the Code
(generally, where it is reasonably anticipated that the level of services he
will perform after that date, whether as an employee or independent contractor,
will permanently decrease to no more than 20 percent of the average level
of services performed by him over the immediately preceding 36-month
period).
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All rights to payments and benefits
under this Agreement shall be treated as rights to receive a series of separate
payments and benefits to the fullest extent allowed by Section 409A of the
Code. All
reimbursements and in kind benefits provided under this Agreement shall be made
or provided in accordance with the requirements of Section 409A of the Code,
including, where applicable, the requirements that (i) any reimbursement is for
expenses incurred during the Executive’s lifetime (or during a shorter period of
time specified in this Agreement); (ii) the amount of expenses eligible for
reimbursement, or in kind benefits provided, during a calendar year may not
affect the expenses eligible for reimbursement, or in kind benefits to be
provided, in any other calendar year; (iii) the reimbursement of an eligible
expense will be made no later than 2 ½ months after the end of the calendar year
in which the expense is incurred; and (iv) the right to reimbursement or in kind
benefits is not subject to liquidation or exchange for another
benefit.
17. Parachute
Payments
If Independent Tax Counsel (as defined
below) shall reasonably determine that the aggregate payments made to the
Executive pursuant to this Agreement and any other payments to the Executive
from the Company that constitute "parachute payments" as defined in Section 280G
of the Code (or any successor provision thereto) ("Parachute Payments")
would be subject to the excise tax imposed by Section 4999 of the Code, then
payments under this Agreement shall be reduced to the maximum amount Independent
Tax Counsel reasonably determines would not trigger such excise
tax. The Executive shall be permitted to select the benefits to be
reduced. "Independent Tax
Counsel" shall mean an attorney, a certified public accountant with a
nationally recognized accounting firm, or a compensation consultant with a
nationally recognized actuarial and benefits consulting firm, with expertise in
the area of executive compensation tax law, who shall be selected by the Company
and shall be reasonably acceptable to the Executive, and whose fees and
disbursements shall be paid by the Company.
18. In
Kind Benefits.
Notwithstanding
any other terms of this Agreement, if during the Coverage Period the Executive
becomes entitled to receive benefits and the Company is unable to provide such
benefits to the Executive at substantially the same cost it would incur were the
Executive still employed by the Company (the “Benefit Cost”), the
Company shall have the rights to pay the Executive the Benefit Cost of such
benefits in lieu of providing such benefits to the Executive.
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the date first above written.
| FPIC INSURANCE GROUP, INC. | |||
|
|
By:
|
/s/ Xxxx X. Xxxxx | |
| Xxxx X. Xxxxx | |||
| President and Chief Executive Officer | |||
|
|
|
/s/ Xxxxxxx Xxxxxx III | |
| Xxxxxxx Xxxxxx III | |||
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