EXHIBIT 10(A)
EMPLOYMENT CONTINUATION AGREEMENT
THIS AGREEMENT between Protective Life Corporation, a Delaware
corporation (the "Company"), and (the "Executive"), dated as of this ____ day of
, 1997.
W I T N E S S E T H :
WHEREAS, the Company has employed the Executive in a key executive
officer position and has determined that the Executive holds a position which is
of critical importance to the Company;
WHEREAS, the Company believes that, in the event it is confronted
with a situation that could result in a change in ownership or control of the
Company, continuity of management will be essential to its ability to evaluate
and respond to such situation in the best interests of shareholders;
WHEREAS, the Company understands that any such situation will
present significant concerns for the Executive with respect to his financial and
job security;
WHEREAS, the Company desires to assure itself of the Executive's
services during the period in which it is confronting such a situation, and to
provide the Executive with certain financial assurances to enable the Executive
to perform the responsibilities of his position without undue distraction and to
exercise his judgment without bias due to his personal circumstances;
WHEREAS, to achieve these objectives, the Company and the
Executive desire to enter into an agreement providing the Company and the
Executive with certain rights and obligations upon the occurrence of a Change of
Control (as defined in Section 2);
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is hereby agreed by and between the Company and
the Executive as follows:
1. OPERATION OF AGREEMENT. (a) EFFECTIVE DATE. The effective date of this
Agreement shall be the date on which a Change of Control occurs (the "Change of
Control Date"), PROVIDED THAT, if the Executive is not employed by the Company
on the Change of Control Date, this Agreement shall be void and without effect.
2. DEFINITIONS.(a) CHANGE OF CONTROL. For the purposes of this Agreement, a
"Change of Control" shall mean (I) a transaction or acquisition as identified in
the Company's Rights Agreement as in effect from time to time; (II) upon the
consummation of any merger,
consolidation, or similar transaction or a purchase of securities pursuant to
which (x) the members of the Board of Directors of the Company immediately prior
to such transaction do not, immediately after the transaction, constitute a
majority of the Board of Directors of the surviving entity or (y) the
stockholders of the Company immediately preceding the transaction do not,
immediately after the transaction, own at least 50% of the combined voting power
of the outstanding securities of the surviving entity; or (III) a sale, lease,
exchange or other transfer (in one transaction or a series of related
transactions) of all or substantially all of the assets of the Company
including, without limitation any sale, lease, exchange or other transfer (in
one transaction or a series of related transactions) of all or substantially all
of the assets of Protective Life Insurance Company.
(b) POTENTIAL CHANGE OF CONTROL. For the purposes of this
Agreement, a Potential Change of Control shall be deemed to have occurred if (I)
the Company enters into an agreement, the consummation of which would result in
the occurrence of a Change of Control; (ii) any person publicly announces an
intention to take or to consider taking actions which, if consummated, would
constitute a Change of Control; (iii) any person (other than any of the
Company's subsidiaries or any employee benefit plan of the Company or any of its
subsidiaries) hereafter becomes the beneficial owner, directly or indirectly, of
securities of the Company representing greater than 10% of the combined voting
power of the Company's then outstanding securities (determined by taking into
account as though converted or exercised any securities convertible into voting
securities or any options exercisable for voting securities, but only to the
extent such convertible securities or options are beneficially owned or held by
such person); (iv) any person files soliciting materials intended to result in a
change in the composition of the Board of Directors of the Company; or (v) the
Board of Directors of the Company adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change of Control has occurred.
3. EMPLOYMENT PERIOD. Subject to Section 6 of this Agreement, the
Company agrees to continue the Executive in its employ, and the Executive agrees
to remain in the employ of the Company, for the period (the "Employment Period")
commencing on the Change of Control Date and ending on the second anniversary of
the Change of Control Date.
4. POSITION AND DUTIES. (a) NO REDUCTION IN POSITION. During the
Employment Period, the Executive's position (including titles), authority and
responsibilities shall be at least commensurate with those held, exercised and
assigned immediately prior to the Change of Control Date. The Executive's
services shall be performed at the location where the Executive was employed
immediately preceding the Change of Control Date.
(b) BUSINESS TIME. From and after the Change of Control Date, the
Executive agrees to devote his full attention during normal business hours to
the business and affairs of the Company and to perform faithfully and
efficiently the responsibilities assigned to him hereunder, to the extent
necessary to discharge such responsibilities, except for periods of vacation,
sick leave and other leave to which he is entitled. It is expressly understood
and agreed that the Executive's continuing to serve on any boards and committees
on which he is serving or with which he is otherwise associated immediately
preceding the Change of Control
Date shall not be deemed to interfere with the performance of the Executive's
services to the Company.
5. COMPENSATION. (a) BASE SALARY. During the Employment Period,
the Executive shall receive a base salary at a monthly rate at least equal to
the monthly salary paid to the Executive by the Company immediately prior to the
Change of Control Date. The base salary shall be reviewed at least once each
year after the Change of Control Date, and may be increased (but not decreased)
at any time and from time to time by action of the Board of Directors or any
committee thereof or any individual having authority to take such action in
accordance with the Company's regular practices. The Executive's base salary, as
it may be increased from time to time, shall hereafter be referred to as "Base
Salary". Neither the Base Salary nor any increase in Base Salary after the
Change of Control Date shall serve to limit or reduce any other obligation of
the Company hereunder.
(b) ANNUAL BONUS AND INCENTIVE COMPENSATION. During the Employment
Period, in addition to the Base Salary, for each fiscal year of the Company
ending during the Employment Period, the Executive shall be entitled to receive
(I) an annual bonus which is at least equal to the greater of (1) the highest
annual bonus, including, without limitation, any bonus provided under the
Company's Annual Incentive Plan, that had been payable to the Executive in
respect of either of the last two fiscal years ended immediately prior to the
Change of Control Date or (2) the amount that would have been payable to the
Executive as a target bonus including, without limitation, under the Company's
Annual Incentive Plan, for the year in which the Change of Control occurs and
(II) long-term incentive compensation opportunities on terms and conditions no
less favorable to the Executive than those applicable to the Executive prior to
the Change of Control Date. Any amount payable hereunder as an annual bonus
shall be paid as soon as practicable following the year for which the amount is
payable, unless electively deferred by the Executive pursuant to any deferral
programs or arrangements that the Company may make available to the Executive.
(c) BENEFIT PLANS. During the Employment Period, the Executive (and, to
the extent applicable, his dependents) shall be entitled to participate in or be
covered under all pension, retirement, deferred compensation, savings, medical,
dental, health, disability, group life, accidental death and travel accident
insurance plans at a level that is commensurate with the Executive's
participation in such plans immediately prior to the Change of Control Date, or,
if more favorable to the Executive, at the level made available to the Executive
or other similarly situated officers at any time thereafter. The Executive shall
also be entitled to receive such perquisites as were generally provided to the
Executive in accordance with the Company's policies and practices immediately
prior to the Change of Control Date.
(d) EXPENSES. During the Employment Period, the Executive shall be
entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the policies and procedures of the Company as
in effect immediately prior to the Change of Control Date. Notwithstanding the
foregoing, the Company may apply the policies and procedures in effect after the
Change of Control Date to the Executive, if such
policies and procedures are more favorable to the Executive than those in effect
immediately prior to the Change of Control Date.
(e) INDEMNIFICATION. During and after the Employment Period, the
Company shall indemnify the Executive and hold the Executive harmless from and
against any claim, loss or cause of action arising from or out of the
Executive's performance as an officer, director or employee of the Company or
any of its subsidiaries or in any other capacity, including any fiduciary
capacity, in which the Executive serves at the request of the Company to the
maximum extent permitted by applicable law and the Company's Certificate of
Incorporation and By-Laws (the "Governing Documents"), PROVIDED THAT in no event
shall the protection afforded to the Executive hereunder be less than that
afforded under the Governing Documents as in effect immediately prior to the
Change of Control Date.
6. TERMINATION. (a) DEATH, DISABILITY OR RETIREMENT. This
Agreement shall terminate automatically upon the Executive's death, termination
due to "Disability" (as defined below) or voluntary retirement under any of the
Company's retirement plans as in effect from time to time. For purposes of this
Agreement, Disability shall mean the Executive's inability to perform the duties
of his position, as determined in accordance with the policies and procedures
applicable with respect to the Company's long-term disability plan, as in effect
immediately prior to the Change of Control Date.
(b) VOLUNTARY TERMINATION. Notwithstanding anything in this
Agreement to the contrary, following a Change of Control the Executive may, upon
not less than 10 days' written notice to the Company, voluntarily terminate his
employment for any reason (including early retirement under the terms of any of
the Company's retirement plans as in effect from time to time), PROVIDED THAT
any termination by the Executive pursuant to Section 6(d) on account of Good
Reason (as defined therein) shall not be treated as a voluntary termination
under this Section 6(b).
(c) CAUSE. The Company may terminate the Executive's employment
for Cause. For purposes of this Agreement, "Cause" means (I) the Executive's
conviction or plea of NOLO CONTENDERE to a felony; (II) an act or acts of
extreme dishonesty or gross misconduct on the Executive's part which result or
are intended to result in material damage to the Company's business or
reputation; or (III) repeated material violations by the Executive of his
obligations under Section 4 of this Agreement, which violations are demonstrably
willful and deliberate on the Executive's part and which result in material
damage to the Company's business or reputation.
(d) GOOD REASON. Following the occurrence of a Change of Control,
the Executive may terminate his employment for Good Reason. For purposes of this
Agreement, "Good Reason" means the occurrence of any of the following, without
the express written consent of the Executive, after the occurrence of a Change
of Control:
(i) (A) the assignment to the Executive of any duties inconsistent
in any material adverse respect with the Executive's position,
authority or responsibilities as
contemplated by Section 4 of this Agreement, or (B) any other material
adverse change in such position, including titles, authority or
responsibilities;
(ii) any failure by the Company to comply with any of the
provisions of Section 5 of this Agreement, other than an insubstantial
or inadvertent failure remedied by the Company promptly after receipt
of notice thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any
office or location more than 20 miles from that location at which he
performed his services specified under the provisions of Section 4
immediately prior to the Change of Control, except for travel
reasonably required in the performance of the Executive's
responsibilities; or
(iv) any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated by
Section 11(b).
In no event shall the mere occurrence of a Change of Control, absent any further
impact on the Executive, be deemed to constitute Good Reason.
(e) NOTICE OF TERMINATION. Any termination by the Company for
Cause or by the Executive for Good Reason shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 12(e).
For purposes of this Agreement, a "Notice of Termination" means a written notice
given, in the case of a termination for Cause, within 10 business days of the
Company's having actual knowledge of the events giving rise to such termination,
and in the case of a termination for Good Reason, within 180 days of the
Executive's having actual knowledge of the events giving rise to such
termination, and which (I) indicates the specific termination provision in this
Agreement relied upon, (II) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated, and (III) if the termination date
is other than the date of receipt of such notice, specifies the termination date
of this Agreement (which date shall be not more than 15 days after the giving of
such notice). The failure by the Executive to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason shall not waive any right of the Executive hereunder or preclude the
Executive from asserting such fact or circumstance in enforcing his rights
hereunder.
(f) DATE OF TERMINATION. For the purpose of this Agreement, the
term "Date of Termination" means (I) in the case of a termination for which a
Notice of Termination is required, the date of receipt of such Notice of
Termination or, if later, the date specified therein, as the case may be, and
(II) in all other cases, the actual date on which the Executive's employment
terminates during the Employment Period.
7. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) DEATH OR
DISABILITY. If the Executive's employment is terminated during the Employment
Period by reason of the Executive's death or Disability, this Agreement shall
terminate without further obligations to the Executive or the Executive's legal
representatives under this Agreement other than those obligations accrued
hereunder at the Date of Termination, and the Company shall pay to the
Executive (or his beneficiary or estate) (I) the Executive's full Base Salary
through the Date of Termination (the "Earned Salary"), (II) any vested amounts
or benefits owing to the Executive under the Company's otherwise applicable
employee benefit plans and programs, including any compensation previously
deferred by the Executive (together with any accrued earnings thereon) and not
yet paid by the Company and any accrued vacation pay not yet paid by the Company
(the "Accrued Obligations"), and (III) any other benefits payable due to the
Executive's death or Disability under the Company's plans, policies or programs
(the "Additional Benefits").
Any Earned Salary shall be paid in cash in a single lump sum as
soon as practicable, but in no event more than 10 business days (or at such
earlier date required by law), following the Date of Termination. Accrued
Obligations and Additional Benefits shall be paid in accordance with the terms
of the applicable plan, program or arrangement.
(b) CAUSE AND VOLUNTARY TERMINATION. If, during the Employment
Period, the Executive's employment shall be terminated for Cause or voluntarily
terminated by the Executive (other than on account of Good Reason following a
Change of Control) in accordance with Section 6(b), the Company shall pay the
Executive (I) the Earned Salary in cash in a single lump sum as soon as
practicable, but in no event more than 10 days, following the Date of
Termination, and (II) the Accrued Obligations in accordance with the terms of
the applicable plan, program or arrangement.
(c) TERMINATION BY THE COMPANY OTHER THAN FOR CAUSE AND GOOD
REASON TERMINATION BY THE EXECUTIVE.
(i) LUMP SUM PAYMENTS. If (X) the Company terminates the
Executive's employment other than for Cause during the Employment
Period or (Y) the Executive terminates his employment for Good Reason
at any time during the Employment Period then the Company shall pay to
the Executive the following amounts:
(A) the Executive's Earned Salary;
(B) a cash amount (the "Severance Amount") equal to [three] [two]
[one]1 times the sum of
(1) the Executive's annual Base Salary; and
(2) the greater of (i) the average of the bonus amount
payable (including any amounts payable under the
Annual Incentive Plan) to the Executive for the three
fiscal years of the Company immediately preceding the
Change in Control or (Y) the average of the bonus
amount payable (including any amount payable under
the Annual Incentive Plan) to the Executive for
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1 Applies to five Executives, seven Executives, and 18 Executives, respectively.
the three fiscal years of the Company ending
immediately prior to the Date of Termination; and
(C) the Accrued Obligations.
The Earned Salary and Severance Amount shall be paid in cash in a
single lump sum as soon as practicable, but in no event more than 10
business days (or at such earlier date required by law), following the
Date of Termination. Accrued Obligations shall be paid in accordance
with the terms of the applicable plan, program or arrangement.
(ii) SUPPLEMENTAL RETIREMENT BENEFIT. In the event the Executive
is entitled to receive the Severance Amount described in Section
7(c)(i), the Executive (and, to the extent applicable, his dependents)
shall be entitled to receive a supplemental retirement benefit payable
pursuant to a deferred annuity contract issued by a solvent insurer
mutually acceptable to the Company and the Executive and purchased by
the Company and delivered to the Executive within 60 days after the
Date of Termination. Such annuity contract shall provide for monthly
payments on and after the Executive's 65th birthday and 100% survivor
benefits to the Executive's spouse for such individual's lifetime in
the event of the Executive's death prior to or after age 65. The
monthly benefits to be provided by the annuity shall be determined as
follows:
(A) three years shall be added to Executive's credited service as
determined at Date of Termination under the terms of Company's
qualified defined benefit pension plan and supplemental
pension plan (collectively, the "Pension Plans") as in effect
immediately prior to the Change in Control (subject to any
applicable maximum on credited service) PROVIDED THAT, for the
purposes of this Section 7(c)(ii), Executive shall be deemed
to be a Participant in such supplemental pension plan as of
the Date of Termination;
(B) using such adjusted credited service, a new monthly benefit
for life commencing at age 65 shall be determined as of the
Date of Termination under the terms of the Pension Plans;
(C) from such monthly benefit as calculated in (B) above shall be
subtracted the monthly vested deferred benefit of Executive
due to be paid on and after attainment of age 65, if any,
pursuant to the terms of all defined benefit pension plans,
active or frozen, in which Executive is a participant at his
Date of Termination if such plans are sponsored by the
Company, its successors or affiliates thereof; and
(D) in accordance with the terms of the Pension Plans, the
difference described in (C) next above shall be converted from
a monthly lifetime benefit after age 65 to the actuarial
equivalent monthly benefit on and
after attainment of age 65 which provides the 100%
survivorship feature first above described in this Section
7(c)(ii).
For purposes of making the foregoing determinations, at the request of
Executive in the Notice of Termination given by Executive or in writing
within 3 days of Executive's receipt of Notice of Termination, but in
either event at Company expense, the independent pension consultants
most recently used by Company in connection with its qualified pension
plan prior to the Change in Control shall be engaged and shall certify
the benefits due Executive under this Section 7(c)(ii) in writing
within 30 days after the Date of Termination. If the amount to be
offset under subparagraph (C) above shall not be determined by the end
of a period of 30 days after the Date of Termination, no such offset
shall be permitted.
(iii) CONTINUATION OF BENEFITS. In the event the Executive is
entitled to receive the Severance Amount described in Section 7(c)(i),
the Executive (and, to the extent applicable, his dependents) shall be
entitled, after the Date of Termination until the earlier of (1) the
second anniversary of the Date of Termination (the "End Date") or (2)
the date the Executive becomes eligible for comparable benefits under a
similar plan, policy or program of a subsequent employer, to continue
participation in all of the Company's employee welfare benefit plans
including, without limitation, the Company's hospital, medical,
accident, disability, and life insurance plans (the "Benefit Plans") as
were generally provided to the Executive in accordance with the
Company's policies and practices immediately prior to the Change of
Control Date. To the extent any such benefits cannot be provided under
the terms of the applicable plan, policy or program, the Company shall
provide a comparable benefit under another plan or from the Company's
general assets. The Executive's participation in the Benefit Plans will
be on the same terms and conditions that would have applied had the
Executive continued to be employed by the Company through the End Date.
(d) DISCHARGE OF THE COMPANY'S OBLIGATIONS. Except as expressly
provided in the last sentence of this Section 7(d), the amounts payable to the
Executive pursuant to this Section 7 (whether or not reduced pursuant to Section
7(e)) following termination of his employment shall be in full and complete
satisfaction of the Executive's rights under this Agreement and any other claims
he may have in respect of his employment by the Company or any of its
subsidiaries. Such amounts shall constitute liquidated damages with respect to
any and all such rights and claims and, upon the Executive's receipt of such
amounts, the Company shall be released and discharged from any and all liability
to the Executive in connection with this Agreement or otherwise in connection
with the Executive's employment with the Company and its subsidiaries. Nothing
in this Section 7(d) shall be construed to release the Company from its
commitment to indemnify the Executive and hold the Executive harmless from and
against any claim, loss or cause of action arising from or out of the
Executive's performance as an officer, director or employee of the Company or
any of its subsidiaries or in any other capacity, including any fiduciary
capacity, in which the Executive served at the request of the Company to the
maximum extent permitted by applicable law and the Governing Documents.
(e) CERTAIN FURTHER PAYMENTS BY THE COMPANY.
(i) In the event that any amount or benefit paid or distributed to
the Executive pursuant to this Agreement, taken together with any
amounts or benefits otherwise paid or distributed to the Executive by
the Company or any affiliated company including, without limitation,
any distribution or payment made pursuant to the terms of the Company's
compensation plans or arrangements (collectively, the "Covered
Payments"), are or become subject to the tax (the "Excise Tax") imposed
under Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code"), or any similar tax that may hereafter be imposed, the
Company shall pay to the Executive at the time specified in Section
7(e)(v) below an additional amount (the "Tax Reimbursement Payment")
such that the net amount retained by the Executive with respect to such
Covered Payments, after deduction of any Excise Tax on the Covered
Payments and any Federal, state and local income or employment tax and
Excise Tax on the Tax Reimbursement Payment provided for by this
Section 7(e), but before deduction for any Federal, state or local
income or employment tax withholding on such Covered Payments, shall be
equal to the amount of the Covered Payments.
(ii) For purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such
Excise Tax,
(A) such Covered Payments will be treated as "parachute payments"
within the meaning of Section 280G of the Code, and all
"parachute payments" in excess of the "base amount" (as
defined under Section 280G(b)(3) of the Code) shall be treated
as subject to the Excise Tax, unless, and except to the extent
that, in the good faith judgment of the Company's independent
certified public accountants appointed prior to the Change of
Control Date or tax counsel selected by such Accountants (the
"Accountants"), the Company has a reasonable basis to conclude
that such Covered Payments (in whole or in part) either do not
constitute "parachute payments" or represent reasonable
compensation for personal services actually rendered (within
the meaning of Section 280G(b)(4)(B) of the Code) in excess of
the "base amount," or such "parachute payments" are otherwise
not subject to such Excise Tax, and
(B) the value of any non-cash benefits or any deferred payment or
benefit shall be determined by the Accountants in accordance
with the principles of Section 280G of the Code.
(iii) For purposes of determining the amount of the Tax
Reimbursement Payment, the Executive shall be deemed to pay:
(A) Federal income taxes at the highest applicable marginal rate
of Federal income taxation for the calendar year in which the
Tax Reimbursement Payment is to be made, and
(B) any applicable state and local income taxes at the highest
applicable marginal rate of taxation for the calendar year in
which the Tax Reimbursement Payment is to be made, net of the
maximum reduction in Federal income taxes which could be
obtained from the deduction of such state or local taxes if
paid in such year.
(iv) In the event that the Excise Tax is subsequently determined
by the Accountants or pursuant to any proceeding or negotiations with
the Internal Revenue Service to be less than the amount taken into
account hereunder in calculating the Tax Reimbursement Payment made,
the Executive shall repay to the Company, at the time that the amount
of such reduction in the Excise Tax is finally determined, the portion
of such prior Tax Reimbursement Payment that would not have been paid
if such Excise Tax had been applied in initially calculating such Tax
Reimbursement Payment, plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding
the foregoing, in the event any portion of the Tax Reimbursement
Payment to be refunded to the Company has been paid to any Federal,
state or local tax authority, repayment thereof shall not be required
until actual refund or credit of such portion has been made to the
Executive, and interest payable to the Company shall not exceed
interest received or credited to the Executive by such tax authority
for the period it held such portion. The Executive and the Company
shall mutually agree upon the course of action to be pursued (and the
method of allocating the expenses thereof) if the Executive's good
faith claim for refund or credit is denied.
In the event that the Excise Tax is later determined by the
Accountants or pursuant to any proceeding or negotiations with the
Internal Revenue Service to exceed the amount taken into account
hereunder at the time the Tax Reimbursement Payment is made (including,
but not limited to, by reason of any payment the existence or amount of
which cannot be determined at the time of the Tax Reimbursement
Payment), the Company shall make an additional Tax Reimbursement
Payment in respect of such excess (plus any interest or penalty payable
with respect to such excess) at the time that the amount of such excess
is finally determined.
(v) The Tax Reimbursement Payment (or portion thereof) provided
for in Section 7(e)(i) above shall be paid to the Executive not later
than 10 business days following the payment of the Covered Payments;
provided, however, that if the amount of such Tax Reimbursement Payment
(or portion thereof) cannot be finally determined on or before the date
on which payment is due, the Company shall pay to the Executive by such
date an amount estimated in good faith by the Accountants to be the
minimum amount of such Tax Reimbursement Payment and shall pay the
remainder of such Tax Reimbursement Payment (together with interest at
the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the
amount thereof can be determined, but in no event later than 45
calendar days after payment of the related Covered Payment. In the
event that the amount of the estimated Tax Reimbursement Payment
exceeds the amount subsequently determined to have been due, such
excess shall constitute a loan by the Company to the Executive, payable
on the fifth business day after written demand by
the Company for payment (together with interest at the rate provided in
Section 1274(b)(2)(B) of the Code).
8. NON-EXCLUSIVITY OF RIGHTS. Except as expressly provided herein,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company or any of its affiliated companies and for which the
Executive may qualify, nor shall anything herein limit or otherwise prejudice
such rights as the Executive may have under any other agreements with the
Company or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan or program
of the Company or any of its affiliated companies at or subsequent to the Date
of Termination shall be payable in accordance with such plan or program.
9. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others whether by reason of the
subsequent employment of the Executive or otherwise.
10. LEGAL FEES AND EXPENSES. If the Executive asserts any claim in
any contest (whether initiated by the Executive or by the Company) as to the
validity, enforceability or interpretation of any provision of this Agreement,
the Company shall pay the Executive's legal expenses (or cause such expenses to
be paid) including, without limitation, his reasonable attorney's fees, on a
quarterly basis, upon presentation of proof of such expenses, PROVIDED THAT the
Executive shall reimburse the Company for such amounts, plus simple interest
thereon at the 90-day United States Treasury Xxxx rate as in effect from time to
time, compounded annually, if the Executive shall not prevail, in whole or in
part, as to any material issue as to the validity, enforceability or
interpretation of any provision of this Agreement.
11. SUCCESSORS.
(a) This Agreement is personal to the Executive and, without the
prior written consent of the Company, shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding
upon the Company and its successors. The Company shall require any successor to
all or substantially all of the business and/or assets of the Company, whether
direct or indirect, by purchase, merger, consolidation, acquisition of stock, or
otherwise, by an agreement in form and substance satisfactory to the Executive,
expressly to assume and agree to perform this Agreement in the same manner and
to the same extent as the Company would be required to perform if no such
succession had taken place.
12. MISCELLANEOUS.
(a) APPLICABLE LAW. This Agreement shall be governed by and
construed and conferred in accordance with the laws of the State of Delaware
applied without reference to principles of conflict of laws.
(b) ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be resolved by binding arbitration. The
arbitration shall be held at a site selected by the arbitrators and except to
the extent inconsistent with this Agreement, shall be conducted in accordance
with the Expedited Employment Arbitration Rules of the American Arbitration
Association then in effect at the time of the arbitration, and otherwise in
accordance with principles which would be applied by a court of law or equity.
The arbitrator shall be acceptable to both the Company and the Executive. If the
parties cannot agree on an acceptable arbitrator, the dispute shall be heard by
a panel of three arbitrators, one appointed by each of the parties and the third
appointed by the other two arbitrators.
(c) AMENDMENTS. This Agreement may be amended or modified by the
Board of Directors at any time prior to a Change in Control PROVIDED THAT
subsequent to the occurrence of a Potential Change in Control, this Agreement
may not be amended or modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal representatives.
Notwithstanding the foregoing sentence, in the event that subsequent to the
occurrence of a Potential Change in Control (i) the Board of Directors makes a
good faith determination that the events giving rise to a Potential Change in
Control will not result in the occurrence of a Change in Control or (ii) an
actual Change in Control has not occurred after the first anniversary of the
occurrence of a Potential Change in Control (or any Potential Change in Control
events occurring after the initial Potential Change in Control), the foregoing
limitation on the amendment or modification of this Agreement shall cease to
apply unless and until it thereafter again becomes effective by reason of the
occurrence of another Potential Change in Control or any actual Change in
Control.
(d) ENTIRE AGREEMENT. Upon the Change of Control Date, this
Agreement shall constitute the entire agreement between the parties hereto with
respect to the matters referred to herein. There are no promises,
representations, inducements or statements between the parties other than those
that are expressly contained herein. In the event any provision of this
Agreement is invalid or unenforceable, the validity and enforceability of the
remaining provisions hereof shall not be affected. The Executive acknowledges
that he is entering into this Agreement of his own free will and accord, and
with no duress, that he has read this Agreement and that he understands it and
its legal consequences.
(e) NOTICES. All notices and other communications hereunder shall
be in writing and shall be given by hand-delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive: at the home address of the Executive
noted on the records of the Company
If to the Company: Protective Life Corporation
0000 Xxxxxxx 000 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn.: Xxxxxxx X. Xxxx
Senior Vice President
General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
IN WITNESS WHEREOF, the Executive has hereunto set his hand
and the Company has caused this Agreement to be executed in its name on its
behalf, and its corporate seal to be hereunto affixed and attested by its
Secretary, all as of the day and year first above written.
PROTECTIVE LIFE CORPORATION
By: ______________________________
Name: Xxxxxxx Xxxxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
By:_________________________
Name: _____________________
Title: _____________________
EXECUTIVE
Signature:_______________________
Name: _____________________
Title: _________________________
