Exhibit 10.7
AT-WILL EMPLOYMENT AND SEVERENCE AGREEMENT
THIS AT-WILL EMPLOYMENT AND SEVERANCE AGREEMENT (hereinafter referred to
as the "Agreement") is effective August 1, 2007, by and among Meadowbrook, Inc.,
Meadowbrook Insurance Group, Inc., (hereinafter referred to as the "Company"),
and Xxxxxx X. Xxxxxxxxx (hereinafter referred to as the "Executive").
WHEREAS, Executive is currently employed by the Company as its Sr. Vice
President of Insurance Company Operations; and
WHEREAS, the Company desires to provide certain security to Executive in
connection with a change in control of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. BENEFITS ON CHANGE OF CONTROL. If within two years after a Change in
Control, the Company shall terminate the Executive's employment without "Good
Cause" (as defined in Section 2) or Executive shall voluntarily terminate such
employment with "Good Reason" (as defined in Section 2), then Company shall make
the following payments to the Executive:
(a) The Company shall make a single lump sum payment to Executive
equal to one (1) times the sum of the Executive's annual base salary and the
Executive's target bonus under the Company's annual bonus plan (the
"Discretionary Bonus"), subject to repayment by the Executive upon the
Executive's breach of the Executive's covenant to not compete with the Company
or to solicit Company employees as provided in Section 4. For purposes of this
section, "base salary" shall be the greater of the base salary in effect on the
date the Executive's employment terminates and the amount of the Executive's
base salary in effect immediately prior to a Change in Control. The Company
shall make such payment within ten (10) days following the date the Executive's
employment terminates.
(b) The Executive shall also be entitled to payment of a pro rata
share of such portion of the Discretionary Bonus for the year in which
Executive's employment terminates that is based on Company performance criteria.
Such pro rata portion shall be determined by a fraction, the numerator of which
is the number of days in the year that the Executive is employed by the Company
and the denominator of which is 365. Such payment shall be made no later than
the February 28 of the calendar year immediately following the year in which
Executive's employment terminates.
(c) The Company shall also pay the Executive an amount equal to the
premiums payable by the Executive in the event the Executive elects continuation
coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985
("COBRA"). Such payments shall cease upon the earlier of eighteen (18) months of
continuation coverage or the cessation of the Executive's and the Executive's
family members rights to COBRA continuation coverage. The Company shall make
such payments directly to the party to whom premiums are payable at such times
as they are due under COBRA.
2. DEFINITIONS. For purposes of this Agreement:
(a) A "Change in Control" shall be deemed to have taken place upon:
i. The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 35% or more of either (a) the then
outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (b) the combined
voting power of the then outstanding voting securities
of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of
this subparagraph 1, the following acquisitions shall
not constitute a Change in Control: (i) any acquisition
directly from the Company, (ii) any acquisition by the
Company, (iii) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company, or
(iv) any acquisition by any corporation pursuant to a
transaction which complies with clauses (a), (b) and (c)
of subparagraph iii of this Section 2(a); or
ii. Individuals who, as of the date hereof, constitute the
Board of Directors of the Company (the "Incumbent
Board") cease for any reason to constitute at least a
majority of the Board of Directors; provided, however,
that any individual who becomes a director subsequent to
the date hereof and whose election, or nomination for
election by the Company's shareholders, was approved by
a vote of at least a majority of the directors then
comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the
Company in which such person is named as a nominee for
director, without written objection to such nomination)
shall be deemed to be a member of the Incumbent Board;
provided, further, that notwithstanding the immediately
preceding proviso, any individual whose initial
assumption of office occurs as a result of an actual or
threatened election contest with respect to the election
or removal of directors or other actual or threatened
solicitation of proxies or contests by or on behalf of a
Person, other than the Board of Directors of the
Company, shall not be deemed to be a member of the
Incumbent Board; or
iii. Consummation of a reorganization, merger, share exchange
or consolidation or sale or other disposition of all or
substantially all of the assets of the Company (a
"Business Combination"), in each case, unless, following
such Business Combination: (a) all or substantially all
of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination
beneficially own, directly or indirectly, more than 65%
of, respectively, the then outstanding shares of common
stock and the combined voting power of the then
outstanding voting securities entitled to vote
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generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination (including, without limitation, a
corporation which as a result of such transaction owns
the Company or all or substantially all of the Company's
assets either directly or through one or more
subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business
Combination, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may
be; (b) no Person (excluding any corporation resulting
from such Business Combination or any employee benefit
plan (or related trust) of the Company or such
corporation resulting from the Business Combination)
beneficially owns, directly or indirectly, 35% or more
of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business
Combination or the combined voting power of the then
outstanding voting securities of such corporation except
to the extent that such ownership existed prior to the
Business Combination; and (c) at least a majority of the
members of the board of directors of the corporation
resulting from such Business Combination were members of
the Incumbent Board immediately prior to the time of the
execution of the initial agreement, or of the action of
the Board of Directors of the Company, providing for
such Business Combination; or
iv. Approval by the stockholders of the Company of a
complete liquidation or dissolution of the Company.
(b) "Good Cause" shall mean (i) the failure by the Executive to obey
the reasonable and lawful orders of the Board of Directors of the Company or
Executive's direct supervisor; (ii) misconduct by the Executive that is
materially injurious to the Company; or (ii) the Executive engaging in dishonest
activities injurious to the Company.
(c) "Good Reason" shall exist if Executive resigns from employment
with the Company following the occurrence of any one or more of the following,
without Executive's prior written consent: (i) Executive is not reelected to or
is removed as Senior Vice President of Insurance Company Operations of the
Company; (ii) the Company fails to vest Executive with or removes from Executive
the duties, responsibilities, authority or resources that Executive reasonably
needs to competently perform Executive's duties as Senior Vice President of
Insurance Company Operations of the Company; (iii) the Company changes the
primary location of Executive's employment to a place that is more than 50 miles
the Executive's principal location of employment with the Company immediately
prior to a Change in Control of the Company; or (iv) the Company otherwise
commits a material breach of its obligations under this Agreement and fails to
cure the breach within 30 days after Executive gives the Company written notice
of the breach.
3. CONFIDENTIAL INFORMATION AGREEMENT. Executive agrees that the
Confidential Information Agreement executed by him and dated May 21, 2003 (the
"Confidential Information Agreement"), which includes, not by way of limitation,
covenants not to compete with the Company and covenants to refrain from
soliciting employees to leave the Company's employment, shall remain in full
force and effect.
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4. COVENANT NOT TO COMPETE OR SOLICIT EMPLOYEES. In the event severance
becomes payable to Executive following a Change in Control, Executive, in
addition to the restrictive covenants contained in the Confidential Information
Agreement, agrees to the restrictive covenants of this Section:
(a) Executive agrees that, for two (2) years following the
termination of Executive's employment under circumstances described in Section
1, Executive will not, without the Company's prior written consent, directly or
indirectly Compete with the Company or any of its subsidiaries. For the purposes
of Section 4:
i. "Compete" means directly or indirectly owning, managing
or operating a Competitor which solicits or obtains
business of the Company, or directly or indirectly
serving as an employee, officer or director of or a
consultant to a Competitor which solicits or obtains
business of the Company, or soliciting or inducing any
employee or agent of the Company to terminate employment
with the Company or any of its subsidiaries and become
employed by a Competitor.
ii. "Competitor" means any person, firm, partnership,
corporation, trust or other entity that owns, controls
or is an insurance company or a similar financial
services company (a "Financial Services Company").
(b) In the event that a successor to the Company succeeds to or
assumes the Company's rights and obligations under this Agreement, Section 4(a)
will apply only to the Company as it existed immediately before the succession
or assumption occurred and will not apply to any of the successor's other
offices.
(c) Section 4(a) will not prohibit Executive from directly or
indirectly owning or acquiring any capital stock or similar securities that are
listed on a securities exchange or quoted on the Nasdaq or NYSE and do not
represent more than 5% of the outstanding capital stock of any Financial
Services Company.
(d) Executive agrees that a violation of this Section 4 would result
in direct, immediate and irreparable harm to the Company, and in such event,
agrees that the Company, in addition to their other rights and remedies, would
be entitled to injunctive relief enforcing the terms and provisions of this
Section 4 and a return of any severance payments under Section 1 to the Company.
The terms of this Section are intended to be in addition to any restrictions
contained in the Confidential Information Agreement.
5. LITIGATION EXPENSES. The Company shall pay to Executive all
out-of-pocket expenses, including attorneys' fees, incurred by Executive in
connection with the successful enforcement by Executive of this Agreement, and
shall pay prejudgment interest on any money judgment obtained by Executive,
calculated at the prime interest rate as reported in The Wall Street Journal,
Midwest Edition, compounded daily from the date that payment(s) to Executive
should have been made under this Agreement.
6. SUCCESSORS. The obligations of the Company provided for in this
Agreement shall be the binding legal obligations of any successor to the Company
by purchase, merger, consolidation, or otherwise. This Agreement may not be
assigned by Executive during
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Executive's life, and upon Executive's death will inure to the benefit of
Executive's heirs, legatees and the legal representatives of Executive's estate.
7. INTERPRETATION. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
8. EFFECT ON EMPLOYMENT STATUS. This Agreement establishes the terms and
conditions pursuant to which severance payments shall be made to Executive upon
termination of employment. Nothing in this Agreement changes the at-will status
of the Executive's employment. The Company retains the right to terminate
Executive's employment with the Company for any reason and at any time and the
Executive retains the same right.
9. WITHHOLDING. The Company may withhold from any payment that it is
required to make under this Agreement amounts sufficient to satisfy applicable
withholding requirements under any federal, state or local law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first written above.
MEADOWBROOK INSURANCE GROUP, INC.
/s/ Xxxxxx X. Xxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxx
Its: President & CEO
MEADOWBROOK, INC.
/s/ Xxxxxx X. Xxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxx
Its: President & CEO
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
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