Exhibit 10.5
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made and entered into as of January 1, 2004 by and
between XXXXXXX INSURANCE AGENCY, INC., a Pennsylvania corporation ("Employer"),
and XXXXX X. XXXXXXX ("Employee") for the purposes herein stated.
Background of Agreement
Employee and Employer are parties to an Employment Agreement effective
June 1, 2002 ("Prior Employment Agreement"); and
Employee and Employer mutually desire to extend the term of the Prior
Employment Agreement to assure the long-term future of Employer;
Accordingly, in consideration of the mutual promises and agreements
contained herein, the parties hereto agree to the following terms of an Amended
and Restated Employment Agreement, superceding the Prior Employment Agreement.
1. EMPLOYMENT. The Employer agrees to continue Employee in its
employ, and Employee agrees to remain in the employ of the Employer, for the
Term of this Agreement, subject to Sections 6 and below.
2. DEFINITIONS. The following terms when used herein shall have
the meanings given below:
(a) "AFFILIATE" means any party controlled by, under the
control of, or under common control with, Employer or PCHC.
(b) "AGREEMENT AND GENERAL RELEASE" means a general
release of claims against the Employer in a form acceptable to the Employer.
(c) "BASE COMPENSATION" means the annual base salary of
Employee, exclusive of any bonus, insurance, or other fringe benefits and
perquisites.
(d) "BOARD" means the Board of Directors of PCHC.
(e) "CAUSE" means commission of any of the following
listed conduct by Employee: a felony or any crime involving moral turpitude
(whether or not related to Employee's employment), gross negligence, drug or
alcohol use which interferes with Employee's job performance, willful
misconduct, any material violation by Employee of the terms and conditions of
this Agreement not cured within ten days after written notice thereof is given
by the Employer to Employee, or acceptance of employment with another company
which is not an Affiliate (other than employment with a Successor or a purchaser
of assets from the Employer).
(f) "EFFECTIVE DATE" means the date upon which this
Agreement becomes effective, as set forth in Section 4 below.
(g) "GOOD REASON" means either of the following:
(i) A change in Employee's position of authority
in a manner that materially reduces the responsibility of Employee's current
position, provided, however, the fact that there may be additional executives in
the reporting structure above Employee will not be deemed to materially reduce
the responsibility of Employee's position.
(ii) A reduction in Employee's Base Compensation.
(h) "HOSTILE CHANGE IN CONTROL" mean individuals who are
Continuing Directors cease to constitute a majority of the members of the Board
("Continuing Directors" for this purpose being the members of the Board on the
date of this Agreement, provided that any person becoming a member of the Board
subsequent to such date whose election or nomination for election was supported
by two-thirds of those directors who were Continuing Directors at that time of
the election or nomination shall be deemed to be a Continuing Director).
(i) "PCHC" means Philadelphia Consolidated Holding Corp.,
a Pennsylvania corporation.
(j) "SUCCESSORS" means any entity that acquires at least
fifty (50) percent of the shares of outstanding stock, and/or fifty percent
(50%) of the assets, of the Employer or PCHC (whether direct or indirect, by
purchase, merger, consolidation or otherwise).
(k) "TERM" shall have the meaning set forth in Section 4
below.
3. POSITION AND RESPONSIBILITIES.
(a) During the Term of this Agreement, Employee agrees to
serve as Chairman of Employer and PCHC. As Chairman, Employee will be
responsible for presiding at all meetings of the Boards of Directors of Employer
and PCHC, and acting as the interface between management of PCHC and the
Employer and the following Committees of PCHC: Compensation, Nominating and
Governance, Investment and Audit. Responsibilities will include, but are not
limited to: assisting the Chief Executive Officer of Employer and PCHC with
investment banking, merger/acquisition and material capital raising functions;
work with the Chief Executive Officer and Chief Financial Officer in
forecasting, budgeting and strategic planning for current and upcoming years;
provide assistance to the Chief Executive Officer and Chief Financial Officer in
relocation of Employer's principal building/office space; and participating on
community and not-for-profit Boards to further the Employer's business
interests;
(b) Throughout the Term of this Agreement, Employee shall
devote his entire working time, energy, attention, skill and best efforts to the
affairs of the Employer and its Affiliates and to the performance of his duties
hereunder in a manner which will faithfully and diligently further the business
and interests of the Employer.
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4. TERM. This Agreement shall be effective on January 1, 2004
(the "Effective Date") and shall expire in the absence of a Hostile Change in
Control on the fifth anniversary of such date; provided, however, that, at the
option of the Company, exercisable by written notice given by Company to
Employee between January 1, 2008 and October 1, 2008, the term of this Agreement
may be extended for an additional period of up to five years, commencing January
1, 2009. Any extension of this Agreement after January 1, 2009 shall be on the
same terms except that (a) Employee's Base Compensation may be reduced by the
Company to $600,000 (or some amount between $600,000 and $1,000,000) and (b)
Employee may elect to perform his duties and responsibilities as a non-Employee
Chairman. In the event of a Hostile Change in Control occurring at any time
during the Term or extended Term, this Agreement shall be automatically extended
for a period of three years, commencing upon the then applicable expiration
date. Notwithstanding the foregoing, Employee and the Employer agree that the
provisions of Section 7 shall remain in effect and enforceable in accordance
with its terms following the expiration of this Agreement, except as otherwise
provided in such Section 7. The applicable period referred to above (including
any renewal period set forth above) is referred to herein as the "Term" of this
Agreement.
5. COMPENSATION AND BENEFITS. During the Term of this Agreement,
Employee shall be eligible for the following, in return for all services
rendered by Employee to the Employer during the period of employment, subject to
the provisions of Section 6, as applicable:
(a) BASE COMPENSATION. Upon the effective date of this
Agreement, Employee shall receive Base Compensation at the annual rate of One
Million Dollars ($1,000,000) for the term of this Agreement. Employee's Base
Compensation shall be payable in accordance with the Employer's regular payroll
practices in effect from time to time.
(b) BENEFITS. Employee and his spouse shall be entitled
to all group health, disability, life insurance and pension benefits as are made
available to employees of the Employer generally as such benefit programs may be
amended from time to time. Employee shall be entitled to three cars provided at
Employer expense and to reimbursement of his country club dues and monthly
expenses in accordance with the historical practices of the Employer.
(c) BUSINESS EXPENSES. Employee shall be reimbursed
reasonable and necessary expenses related to Employee's employment by the
Employer in accordance with, and subject to, the Employer's regular policies
from time to time in effect regarding reimbursement of expenses and the
documentation required.
(d) BONUS. Employee shall be paid a bonus of Two Million
Dollars ($2,000,000) in the event, and only in the event, that prior to the
fifth anniversary of the date of this Agreement (i) the closing price on any
five consecutive trading days prior to May 1, 2009 of PCHC's common stock on the
Nasdaq National Market System ("NASDAQ"), the New York Stock Exchange or the
American Stock Exchange is equal to or greater than $80 per share (with such
price being subject to adjustment pursuant to the provisions of the following
sentence), and at such time Employee is still an employee of Employer or any
Affiliate (unless Employee's employment is terminated subsequent to a Hostile
Change of Control, in which event Employee need not be employed by Employer or
an Affiliate when such closing price reaches such amount), or (ii) prior to May
1, 2009 there has been a Hostile Change of Control, and subsequent
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thereto PCHC's common stock is no longer traded on NASDAQ or either of the
Exchanges referred to in clause (i) of this sentence. The $80 per share price
shall be appropriately adjusted in the event of any stock splits, stock
dividends or stock combinations affecting the shares of PCHC's common stock
generally. For example, if a 2 for 1 split of PCHC's common stock is effected,
the price referred to in the immediately preceding sentence will be reduced from
$80 to $40. Such bonus shall be payable no later than 30 days after Employee's
employment with the Employer is terminated.
6. TERMINATION OF EMPLOYMENT. The following provisions shall
govern in the event that Employee's employment is terminated by the Employer or
by Employee during the term of this Agreement:
(a) Discharge Without Cause or Resignation for Good
Reason. Employee shall receive from the Employer, provided (unless waived by the
Employer) Employee executes (without subsequent revocation) a General Release
(except that Employee shall not be obligated to do so following a Hostile Change
in Control), in the event that Employee either: (A) is discharged without Cause
and for reasons unrelated to his disability or death; or (B) resigns from the
Employer for Good Reason within twelve (12) weeks of the occurrence of the event
upon which Employee relies for claiming that his resignation is for Good Reason:
His Base Compensation for the lesser of (A) 36 months
(or 48 months if a Hostile Change of Control has occurred) or (B) the remainder
of the Term of this Agreement, but in no event less than 6 months, paid in
accordance with the Employer's regular payroll practices then in effect.
(b) Discharge With Cause, Resignation Without Good
Reason, Discharge in Connection With Disability or Death.
(i) Employee shall not be eligible for any
payments or benefits for the period
subsequent to his separation in any of the
following circumstances: (A) he is
discharged with Cause; (B) he resigns
without Good Reason, or more than twelve
(12) weeks following the occurrence of the
event upon which Employee relies for
claiming that his resignation was for Good
Reason; (C) he is discharged due to his
inability or failure to perform
satisfactorily the essential functions of
his position for six (6) months due to
disability; or (D) his death.
(ii) Employee shall receive all Base Compensation
for work performed and benefits applicable
to the period prior to his separation from
the Employer (including any earned and not
paid bonus for the prior year and any Base
Compensation and/or benefits for which he is
entitled in accordance with the Employer's
compensation and disability policies, if
applicable, then in effect). In the event of
his disability or death, Employee shall be
eligible, in addition, for any disability or
life insurance payments to which he or his
estate or beneficiaries may be entitled
pursuant to the applicable insurance
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documents relating to any group disability
or life insurance plans in which he
participated prior to his separation.
(c) Notice of Termination. Any termination by the
Employer or by Employee shall be communicated by written Notice of Termination
to the other party given in accordance with Section 16 below. Such Notice of
Termination shall indicate the specific termination provision(s) in this
Agreement relied upon and specify the effective date of the termination if other
than the date such Notice of Termination is given (which effective date shall be
not more than thirty (30) calendar days thereafter).
7. RESTRICTIVE COVENANTS AND CONFIDENTIALITY.
(a) During Employee's employment with the Employer and
for two (2) years following Employee's separation from the Employer for any
reason (whether initiated by the Employer or Employee), Employee shall not
directly or indirectly either: (A) with respect to a Competitive Business
(defined above), solicit, divert or appropriate, or attempt to solicit, divert
or appropriate, any customer, distributor or supplier, or any potential
customer, or supplier of the Employer; or (B) solicit or entice, or attempt to
solicit or entice, any of the Employer's employees, consultants, directors or
officers to terminate her/his employment with the Employer, or join with any
individual who is or was within the prior six (6) months an employee,
consultant, director or officer of the Employer, in any direct or indirect
capacity, or to hire, or commit to hire, as an employee or consultant any
individual who is or was within the prior six (6) months an employee,
consultant, officer or director of the Employer.
(b) During Employee's employment with the Employer and at
all times thereafter, Employee shall not use for his personal benefit, or
disclose, communicate or divulge to, or use for the direct or indirect benefit
of, any person, firm, association or company other than the Employer, any
confidential information of the Employer which Employee acquires in the course
of his employment, which is not otherwise lawfully known by and readily
available to the general public. This confidential information includes, but is
not limited to: business, development, marketing, legal and accounting methods,
policies, plans, procedures, strategies and techniques; research and development
projects and results; trade secrets or other knowledge or processes of or
developed by the Employer; names and addresses of employees, suppliers and
customers; and any data on or relating to past, present or prospective
customers, including customer lists. Employee agrees that such information is
confidential and constitutes the exclusive property of the Employer, and
Employee agrees that, immediately upon Employee's termination, whether by
Employee, or by the Employer, Employee will deliver to the Employer, all
correspondence, documents, books, records, lists and other writings relating to
the Employer's business, retaining no copies.
(c) The term "Employer," as used in this Section 7 and in
Section 11, shall include as well all Affiliates of Employer and PCHC.
(d) Employee acknowledges and agrees that the provisions
of this Section 7 are reasonable with respect to their duration, scope and
geographical area. In particular, Employee acknowledges that the geographic
scope of the Employer's business makes reasonable the geographic restrictions of
this Agreement. Employee agrees that his general executive skills
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and abilities are applicable outside of the Competitive Business and that he
will therefore not be unduly restricted by this Agreement. If, at the time of
enforcement of any of the provisions of this Section 7, a court holds that the
restrictions therein exceed those allowed by applicable law, then such court
will be requested by the Employer, Employee and all other relevant parties to
enforce the provisions in this Section 7 to the broadest extent possible under
applicable law and this Section 7 shall be deemed to have been so modified.
(e) In the event of a breach or threatened breach of the
provisions of this Section 7, the Employer shall be entitled to an injunction
restraining such breach, but nothing herein shall be construed as prohibiting
the Employer from pursuing any other remedy available to them for such breach or
threatened breach, including, without limitation, an action at law for damages.
(f) Notwithstanding anything to the contrary contained in
this Section 7 or any other provisions of the Agreement, Employee shall not be
bound by any of the provisions of Section 7(a) following a Hostile Change in
Control.
8. INELIGIBILITY FOR PARTICIPATION IN OTHER EMPLOYER SEVERANCE
PLANS. In the event that Employee becomes entitled to the severance benefits set
forth in Section 6 above, Employee shall be ineligible for (and deemed to have
waived his right to receive) payments under any other severance plan, program or
arrangement maintained by the Employer.
9. GOLDEN PARACHUTE ADJUSTMENT. In the event any amounts payable
or otherwise benefiting Employee under this Agreement (determined on an
aggregate basis, taking into account amounts payable or otherwise benefiting
Employee under any other plan, agreement or arrangement) would constitute
"excess parachute payments," as that term is defined for purposes of Section
280G of the Internal Revenue Code of 1986, as amended (the "Code"), Employee
shall receive additional cash payments such that, after payment of federal
excise taxes under Code Section 4999 (or any successor provisions) and of all
federal, state and local income taxes attributable to the excess parachute
payments and the additional cash payments made under this Section 10, Employee's
net economic benefit will equal the economic benefit Employee would have
received under the terms of this Agreement (and/or under any other plan,
agreement or arrangement of Employer) if no portion of such payments and/or
benefits were treated as excess parachute payments for purposes of Code Section
280G. Such amounts shall be payable regardless of any termination of this
Agreement for any reason.
10. ARBITRATION. Except as set forth in Section 10(f), all
disputes arising under this Agreement or relating to Employee's employment or
termination of employment, including but not limited to statutory claims for
violation of Title VII of the Civil Rights Act, the Age Discrimination in
Employment Act, the Americans with Disabilities Act, the Family Medical Leave
Act and ERISA as well as state laws governing discrimination shall be
exclusively resolved in arbitration in accordance with the following:
(a) The Rules for the Resolution of Employment Disputes
("Rules"), then in effect, of the American Arbitration Association ("AAA") shall
govern, except that Employee and the Employer may mutually agree to utilize
another process for selection of the Arbitrator.
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(b) The Arbitrator, in cooperation with Employee and the
Employer, shall set the date, time and place of the hearing in Philadelphia,
Pennsylvania.
(c) The Arbitrator shall have all of the power of a
court of competent jurisdiction for hearing the particular claim, including the
power to order discovery, as set forth in the AAA's rules, and to grant such
remedies as a court would have authority to grant.
(d) The decision of the Arbitrator shall be in writing
and shall set forth the findings and conclusions upon which the decision is
based. It shall be final and binding, and may be enforced under the terms of the
Federal Arbitration Act (9 U.S.C. Section 1 et seq.), but may be set aside or
modified by a reviewing court in the event of a material error of law.
(e) The Employer and Employee shall share the cost of the
Arbitrator's fees but each shall bear his or its, as applicable, attorneys'
fees, expenses and costs and its respective filing fees charged by the AAA;
provided, however, that the Arbitrator shall have the power to award such fees,
expenses and costs to the prevailing party in accordance with the law and to
require the Employer at the beginning of the proceedings to fully or partially
reimburse to employee the filing fee in the event Employee can demonstrate that
the amount of the fee is an unreasonable impediment to adjudication of his
claims in arbitration.
(f) This Section 10 shall not apply to any action by the
Employer to enforce Section 7 of this Agreement.
11. EMPLOYER PROPERTY. All Employer information, including without
limitation, data processing reports, analyses, invoices, and/or any other
materials or data of any kind furnished to Employee by the Employer or developed
by Employee on behalf of the Employer, or at the Employer's direction or for the
Employer's use, or otherwise in connection with Employee's employment hereunder,
are and shall remain the sole and confidential property of the Employer, except
to the extent such information has been publicly disclosed voluntarily by the
Employer. If the Employer requests the return of such materials, Employee shall
immediately deliver them, retaining no copies.
12. INCOME TAX WITHHOLDING. The Employer may withhold from any
payments made under this Agreement all Federal, State, City or other taxes and
withholdings as shall be required pursuant to any law or governmental regulation
or ruling.
13. NO RESTRICTIONS ON EMPLOYEE'S EMPLOYMENT BY EMPLOYER. Employee
represents to Employer that: (i) there are no restrictions, agreements or
understandings whatsoever to which Employee is a party and no laws or
regulations of which he is aware which would or may prevent or make unlawful his
employment by the Employer; (ii) his execution of this Agreement and his
employment hereunder shall not constitute a breach of any contract, agreement or
understanding, oral or written, to which he is a party or by which he is bound;
and (iii) he is free and able to execute this Agreement and to enter into
employment with the Employer.
14. ENTIRE UNDERSTANDING. This Agreement contains the entire
understanding between the Employer, and Employee superceding all others with
respect to the subject matter
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hereof, and there are no other agreements, understandings, representations or
warranties among the parties.
15. SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law of law or
public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that the transactions contemplated hereby are
fulfilled to the extent possible.
16. NOTICES. All notices hereunder shall be sufficient upon
receipt for all purposes hereunder if in writing and delivered personally, sent
by documented overnight delivery service or, to the extent receipt is confirmed,
telecopy, telefax or other documented transmission service to the appropriate
address as set forth below (or to such other address as the party requesting the
change shall hereafter notify the other party hereunder pursuant to this
paragraph):
(a) If to the Employee:
Xxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
(b) If to Employer:
Xxxxxxx Insurance Agency, Inc.
Xxx Xxxx Xxxxx
Xxxx Xxxxxx, XX 00000
Attn: President
XXXXXXX INSURANCE AGENCY, INC.
By: Xxxxx X. Xxxxxx
Title: EVP
I UNDERSTAND AND AGREE TO BE BOUND
Xxxxx X. Xxxxxxx 6/22/04
Employee DATE
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