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EXHIBIT (10)(m)
CONFIDENTIALITY, NONCOMPETITION AND STOCK GRANT AGREEMENT
THIS CONFIDENTIALITY, NONCOMPETITION AND STOCK GRANT AGREEMENT
("Agreement") is made and entered into as of the first day of July, 1998 by and
between Professionals Insurance Company Management Group, Inc., a Michigan
corporation ("Professionals Group"), and Xxxxxx X. Xxxxxx (the "Executive").
W I T N E S S E T H :
WHEREAS, Executive is currently an employee of PICOM Insurance Company,
a wholly-owned subsidiary of Professionals Group ("PICOM"); and
WHEREAS, Executive acknowledges (i) that as a result of Executive's
prior employment with Physicians Protective Trust Fund ("PPTF") and Executive's
employment with PICOM, Executive has obtained and will obtain confidential and
proprietary information relating to the business of Professionals Group and its
subsidiaries and (ii) that the compensation, covenants not to compete and
confidentiality provisions in this Agreement are reasonable.
NOW, THEREFORE, in consideration of the premises, as well as for other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereby agree as follows:
1. Definitions. Capitalized terms not otherwise defined in this
Agreement shall have the meanings given to them in the First Amended and
Restated Agreement and Plan of Merger dated October 3, 1997 among Professionals
Group, PICOM and PPTF (the "Merger Agreement").
2. Confidentiality.
a Executive acknowledges (i) that as a result of Executive's
prior employment with PPTF and Executive's employment with PICOM, Executive has
and will become informed of, and has had and will have access to, valuable and
confidential information of Professionals Group and its subsidiaries including,
but not limited to, trade secrets, technical information, know-how, plans,
specifications, marketing and sales information, claims handling information,
investment information, and the identity of stockholders, policyholders and
reinsurers (collectively, "Confidential Information"), (ii) that the
Confidential Information is the exclusive property of Professionals Group and
its subsidiaries, and (iii) that the Confidential Information is to be held by
Executive in trust and solely for the benefit of Professionals Group and its
subsidiaries. Accordingly, Executive shall not at any time subsequent to the
date of this Agreement use reveal, report, publish, transfer or otherwise
disclose to any person or entity any of the Confidential Information without the
prior consent of Professionals Group, except to officers and employees of
Professionals Group or any of its subsidiaries, and other persons or entities
whom Professionals Group agrees are in a contractual or fiduciary relationship
with Professionals Group and its subsidiaries. This provision does not prohibit
Executive from
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disclosing information which legally is or becomes of general public knowledge
from authorized sources other than Executive.
b. If the Confidential Information known to Executive or in
Executive's possession is subpoenaed, is subject to a demand for production, or
is subject to any other form of legal process, by any judicial, regulatory,
administrative, legislative or governmental authority, or any other person or
entity, Executive agrees to notify Professionals Group promptly that such
subpoena, demand or other legal process has been received. Executive agrees to
use Executive's best efforts, consistent with the requirements of applicable
law, to protect the Confidential Information from disclosure and to cooperate
with Professionals Group and its subsidiaries in seeking protection from
disclosure of the Confidential Information. If Executive is required to disclose
the Confidential Information, Executive agrees, at Professionals Group's request
and expense, to use Executive's best efforts to obtain assurances that the
Confidential Information will be maintained on a confidential basis and not be
disclosed to a greater degree than legally required.
c. Upon the termination of Executive's employment with
Professionals Group or any of its subsidiaries, Executive shall promptly deliver
to Professionals Group all originals and all copies that are in Executive's
possession or control of the following: all customer lists, stockholder lists,
lists of names of beneficial owners, policyholder lists, manuals, letters,
notes, notebooks, reports and all other materials relating to the business of
Professionals Group and its subsidiaries. Executive shall represent to
Professionals Group that Executive has complied with the provisions of this
Section 2 at the time Executive ceases to be an employee of Professionals Group
or any of its subsidiaries.
3. Noncompetition and Nonsolicitation.
a. Executive agrees that during Executive's employment with
Professionals Group or any of its subsidiaries and for two years after
termination of such employment (for whatever reason), Executive shall not,
directly or indirectly, engage, participate, or assist in any business
organization by performing services related to the providing of malpractice
insurance to physicians, dentists and other persons or entities insured by
Professionals Group or any of its subsidiaries (the "Proscribed Activities") in
the states in which Professionals Group or any of its subsidiaries is then
conducting the Proscribed Activities, whether as owner, part-owner, stockholder,
partner, director, officer, trustee, employee, agent, consultant or in any other
capacity, on Executive's own behalf or on behalf of any person or entity.
Executive may make passive investments in a competitive enterprise the voting
equity interests of which are publicly traded, so long as Executive's holdings
in such enterprise, together with the holdings of any of Executive's affiliates
(as that term is defined in Rule 405 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act")), do not to exceed 3% of the outstanding voting
equity interests of such enterprise.
b. Executive agrees that during Executive's employment with
Professionals Group or any of its subsidiaries and for two years after
Executive's termination (for whatever reason), Executive shall not (i) directly
or indirectly solicit any person or entity in the states in which Professionals
Group or any of its subsidiaries is then conducting the Proscribed Activities to
purchase insurance products or services competitive with the Proscribed
Activities, (ii) directly or indirectly solicit any person or entity to purchase
or sell insurance products or
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services relating to the Proscribed Activities, or (iii) recruit or otherwise
solicit or induce any person who is at the time an employee or consultant with
Professionals Group or any of its subsidiaries to terminate such person's
employment or consulting relationship with Professionals Group or any of its
subsidiaries.
4. Restrictions Reasonable. The restrictions against competition and
solicitation set forth in this Agreement are considered by the parties to be
reasonable for the purposes of protecting the business of Professionals Group
and its subsidiaries. If any restriction is found by a court of competent
jurisdiction to be unenforceable because it extends for too long a period of
time, or over too broad a range of activities, or in too large a geographic
area, then that restriction shall be interpreted to extend only over the maximum
period of time, or range of activities, or geographic area, as to which it may
be enforceable.
5. Remedies. Executive and Professionals Group acknowledge that
Professionals Group and its subsidiaries would not have an adequate remedy at
law for money damages if the covenants contained in Sections 2 or 3 of this
Agreement were not complied with in accordance with their terms. Because the
breach or threatened breach of any of the covenants in Sections 2 or 3 of this
Agreement will result in immediate and irreparable injury to Professionals Group
and its subsidiaries, Executive agrees that Professionals Group and its
subsidiaries shall be entitled to an injunction restraining Executive from
violating Sections 2 and 3 to the fullest extent allowed by law. Nothing in this
Agreement shall prohibit Professionals Group or any of its subsidiaries from
pursuing all other legal or equitable remedies that may be available to it for a
breach or threatened breach, including the recovery of damages.
6. Stock Grant. In consideration of, among other things, Executive's
covenants regarding confidentiality and noncompetition, Professionals Group has
granted and allocated to Executive 35,224 shares of Professionals Group Common
Stock (the "Shares").
a. The grant and allocation of Shares to Executive shall be
provisional, and subject to the vesting requirements of this Agreement. Any
Shares that do not vest pursuant to the terms of this Agreement shall be
canceled and forfeited.
b. The Shares granted and allocated to Executive shall vest in
accordance with the schedule that follows: (i) one-fifth of the Shares granted
and allocated to Executive shall vest on the date of the first meeting of the
Board of Directors of Professionals Group following the XXXXX Effective Time
provided Executive is then in the employ of Professionals Group or its
subsidiaries; (ii) one-fifth of the Shares granted and allocated to Executive
shall vest on June 2, 1999 provided that certain "Employment Agreement"
effective October 1, 1996 between Executive and PPTF shall not have been
terminated prior to June 2, 1999; (iii) one-fifth of the Shares granted and
allocated to Executive shall vest on June 7, 2000 provided that certain
"Employment Agreement" effective October 1, 1996 between Executive and PPTF
shall not have been terminated prior to June 7, 2000; (iv) one-fifth of the
Shares granted and allocated to Executive shall vest on June 6, 2001 provided
that certain "Employment Agreement" effective October 1, 1996 between Executive
and PPTF shall not have been terminated prior to June 6, 2001; and (v) one-fifth
of the Shares granted and allocated to Executive shall vest on January 1, 2002
provided Executive shall have remained in the continuous employ of Professionals
Group or any of its subsidiaries from the date first above written to January 1,
2002. Notwithstanding anything to the contrary express or implied in this
Agreement or the Merger Agreement, and
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provided Executive is then in the employ of Professionals Group or any of its
subsidiaries, all Shares granted and allocated to Executive shall automatically
vest (y) upon the death of Executive while in the employ of Professionals Group
or any of its subsidiaries, or (z) upon a change of control of Professionals
Group.
c. All Shares granted and allocated to Executive that vest shall
cease to be subject to cancellation and forfeiture and, except to the extent
that Executive may have pledged or otherwise encumbered such vested Shares,
Executive shall be the full record and beneficial owner of such vested Shares.
Within 30 days of the date of vesting of any of the Shares granted and allocated
to Executive, Professionals Group shall deliver to Executive certificates
evidencing full legal and beneficial ownership of the Shares vesting on such
date. Those Shares granted and allocated to Executive that vest need not, at the
time of such vesting, be registered with the Securities and Exchange Commission
and need not be freely tradeable by Executive. Executive agrees to comply with
all securities laws in connection with the retention, sale or disposition of any
Shares of Professionals Group Common Stock received by Executive.
d. For purposes of this Agreement: A change of control shall be
deemed to have occurred if (i) any person or entity (other than a person or
entity in control of Professionals Group as of the date of this Agreement, or
other than a trustee or other fiduciary holding securities under an employee
benefit plan of Professionals Group or any of its subsidiaries, or an entity
owned directly or indirectly by the stockholders of Professionals Group in
substantially the same proportions as their ownership of stock of Professionals
Group) becomes the "beneficial owner" (defined herein as in Rule 13d-3 under the
Exchange Act) of securities of Professionals Group representing more than 24.9%
of the combined voting power of Professionals Group's then outstanding voting
securities; or (ii) during any period of two consecutive years commencing after
the date of this Agreement the stockholders of Professionals Group approve (A) a
plan of complete liquidation of Professionals Group, or (B) an agreement for the
sale or disposition of all or substantially all of Professionals Group's assets,
or (C) the sale or reinsurance of all or substantially all of the insurance
business of PICOM so as to cause PICOM to cease to function on a going forward
basis as a medical professional liability insurance company, or (D) a merger,
consolidation, or reorganization of Professionals Group with or involving any
other corporation, other than a merger, consolidation, or reorganization that
would result in the voting securities of Professionals Group outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) at least 51% of the combined voting power of the voting securities of
Professionals Group (or such surviving entity) outstanding immediately after
such merger, consolidation, or reorganization. Notwithstanding anything to the
contrary express or implied in this Agreement, in no event shall a change of
control be deemed to have occurred, with respect to Executive, if Executive is
part of a group which effects the change of control. Executive shall be deemed
"part of a group" for purposes of the preceding sentence if Executive is an
equity participant or has agreed to become an equity participant in such group
(except for passive ownership of less than 5% of the stock of such group or
ownership of equity participation in such group which is otherwise deemed not to
be significant, as determined prior to the change of control by a majority of
the nonemployee continuing directors of Professionals Group).
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e. Upon the occurrence after the date first above written of any
dividend or other distribution (whether in the form of cash, shares, other
securities, or other property), change in the capital or shares of capital
stock, recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of shares or other securities of Professionals Group, issuance of warrants or
other rights to purchase shares or other securities of Professionals Group, or
extraordinary transaction or event which affects Professionals Group Common
Stock, then the Board of Directors shall have the authority to make such
adjustment, if any, in such manner as it deems appropriate, to the number of
shares of Professionals Group Common Stock granted and allocated to Executive;
provided, however, (i) that the number of shares of Professionals Group Common
Stock granted and allocated to Executive shall always be a whole number; and
(ii) in the event that any award under the Professionals Group 1996 Long Term
Incentive Plan is adjusted by the Board of Directors of Professionals Group
pursuant to Section 4(b) thereof, then an appropriate adjustment shall be made
to the number of shares of Professionals Group Common Stock granted and
allocated to Executive.
f. It is understood and agreed that Executive is responsible
for all tax payments. If Professionals Group, in its sole discretion, shall
determine that Professionals Group or any of its subsidiaries has incurred or
will incur any liability to withhold any federal, state or local income or other
taxes by reason of the grant and allocation of shares of Professionals Group
Common Stock to Executive then Professionals Group may effect such withholding.
7. Right of Employment. It is understood and agreed (i) that except as
otherwise provided in this Agreement, no person or entity other than Executive
shall have any claim or right to be granted, or to be allocated, or to receive,
any Shares of Professionals Group Common Stock under this Agreement or
otherwise; and (ii) that neither this Agreement nor any action taken or not
taken pursuant to this Agreement shall be construed as giving Executive any
right to be retained in the employ of PICOM or Professionals Group or any of its
subsidiaries. Nothing in this Agreement shall modify, or constitute a waiver of,
either that certain "Executive Termination Following Change In Control
Agreement" dated October 1, 1996 by and between Executive and PPTF or that
certain "Employment Agreement" effective October 1, 1996 between Executive and
PPTF.
8. No Funding. This Agreement shall be unfunded. Professionals Group
shall not be required to establish any special or separate fund or to make any
other segregation of assets to assure the vesting of any of the Shares;
provided, however, that Professionals Group has reserved for issuance pursuant
to this Agreement that number of shares of Professionals Group Common Stock that
is equivalent to the number of shares of Professionals Group Common Stock
granted and allocated to Executive pursuant to this Agreement.
9. Survival. The provisions of Sections 2, 3 and 4 of this Agreement
shall survive the termination of this Agreement and shall insure to the benefit
of Professionals Group, its successors and assigns.
10. Further Assurances. Executive and Professionals Group agree to
execute, acknowledge, deliver and file, or cause to be executed, acknowledged,
delivered and filed, all further instruments, agreements or documents as may be
necessary to consummate the
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transactions provided for in this Agreement and to do all further acts necessary
to carry out the purpose and intent of this Agreement.
11. No Waiver. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there by any estoppel against the enforcement of
any provision of this Agreement, except by written instrument of the party
charged with the waiver or estoppel. No written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of the term or condition for the future or as to any act
other than that specifically waived. The waiver by any party of any other
party's breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach, and the failure of any party to
exercise any right or remedy shall not operate or be construed as a waiver or
bar to the exercise of such right or remedy upon the occurrence of any
subsequent breach. No delay on the part of a party in exercising a right, power
or privilege hereunder shall operate as a waiver thereof. No waiver on the part
of a party of a right, power or privilege, or a single or partial exercise of a
right, power or privilege, shall preclude further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies of this
Agreement are cumulative and are not exclusive of the rights or remedies that a
party may otherwise have at law or in equity.
12. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Michigan without reference to its
conflicts of law principles.
13. Notices. Notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation), mailed by registered or certified mail (return
receipt requested), or delivered by an express courier (with confirmation), to
the parties at the addresses below (or at such other address for a party as
shall be specified by like notice):
a. If to Professionals Group:
Professionals Insurance Company Management Group
0000 Xxxxxxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxx, Xxxxxxxx 00000-0000
Attention: President
Facsimile: 000-000-0000
with a copy to:
Xxxx X. Xxxxxxxx, Esq.
Miller, Canfield, Paddock and Stone, P.L.C.
Xxxxx 000
0000 Xxxxx Xxxxxxxx
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Facsimile: 000-000-0000
b. If to Executive:
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Xxxxxx X. Xxxxxx
00000 Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Facsimile: 000-000-0000
with a copy to:
Xxxxxx X. X'Xxxxx III, Esq.
Steel Xxxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxx Xxxx
000 Xxxxx Xxxxxxx Xxxxx
Xxxx Xxxx Xxxxx, Xxxxxxx 00000-0000
Facsimile: 000-000-0000
14. Assignment.
a. This Agreement and all of Executive's rights, duties and
obligations under this Agreement are personal in nature and shall not be
assignable by Executive. A purported assignment shall not be valid or binding on
Professionals Group.
b. This Agreement shall inure to the benefit of and be legally
binding upon all successors and assigns of Professionals Group. Professionals
Group will require a successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of Professionals Group, by agreement in form and substance satisfactory
to Executive, to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that Professionals Group would be required to
perform it if no such succession had taken place. For purposes of this Section
14, "Professionals Group" shall mean Professionals Group as defined above and
all successors to its business or assets that execute and deliver the agreement
provided for in this Section 14 or that otherwise become bound by the terms and
provisions of this Agreement by operation of law.
15. Attorneys' Fees. If litigation is brought concerning this
Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall upon final judgment and
the expiration of all appeals immediately pay upon demand all reasonable
attorneys' fees and expenses of the prevailing party.
16. Entire Agreement. This Agreement, that certain "Executive
Termination Following Change In Control Agreement" dated October 1, 1996 by and
between Executive and PPTF, that certain "Employment Agreement" effective
October 1, 1996 between Executive and PPTF, and that certain Assignment and
Assumption Agreement of even date herewith among Executive, Professionals Group,
PICOM and PPTF, constitute the entire understanding of the parties and
supersedes all prior discussions, negotiations, agreements and understandings,
whether oral or written, with respect to the subject matter thereof. This
Agreement may be modified only by a written instrument properly executed by
Executive and Professionals Group.
17. Severability. If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be
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unimpaired, and the invalid, illegal or unenforceable provision shall be
replaced by a mutually acceptable valid, legal and enforceable provision which
comes closest to the intent of the parties.
18. Counterparts. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
The parties have executed this Agreement effective as of the day and
year first written above.
PROFESSIONALS INSURANCE COMPANY
MANAGEMENT GROUP EXECUTIVE
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Its: President and
Chief Executive Officer
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Taxpayer identification number
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