Exhibit 10.2
RELEASE AND SEVERANCE COMPENSATION AGREEMENT
THIS RELEASE AND SEVERANCE COMPENSATION AGREEMENT (the "Agreement") is
between ProAssurance Corporation, a Delaware corporation ("ProAssurance"),
MEEMIC Insurance Company, a Michigan insurance company ("MEEMIC Insurance"),
MEEMIC Holdings, Inc., a Michigan corporation ("MEEMIC Holdings") and Xxxxxxx X.
Xxxxxxx, an individual (the "Executive"). ProAssurance, MEEMIC Insurance, and
MEEMIC Holdings and their respective majority-owned subsidiaries are hereinafter
collectively referred to as the "Companies."
RECITALS:
The Executive is currently rendering valuable services to MEEMIC Insurance,
which is a wholly-owned subsidiary of MEEMIC Holdings. ProAssurance has
acquired, or will acquire, control of MEEMIC Holdings and MEEMIC Insurance in a
transaction (the "Consolidation") that will result in a "change of control" (the
"Change of Control") under the terms and conditions of the Change of Control
Agreement among MEEMIC Insurance, MEEMIC Holdings and the Executive effective as
of July 1, 2000 (the "Change of Control Agreement"). The Companies have offered
to employ the Executive in an at will employment relationship after the
Consolidation and to expand protection to the Executive in the form of severance
benefits payable on termination of employment under certain circumstances after
the Consolidation on the condition that the Executive releases the Companies
from any past or future liability under the Change of Control Agreement. The
Executive desires to continue employment with the Companies under such terms and
conditions, and with the protection afforded to the Executive by this Agreement.
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AGREEMENT
NOW, THEREFORE, These Premises Considered, and in consideration of the
mutual covenants and promises in this Agreement, the sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Term of Agreement. This Agreement is subject to, and conditioned upon,
the closing (the "Closing") of the transactions (the "Consolidation")
contemplated by the Agreement to Consolidate by and between Medical Assurance,
Inc. and Professionals Group, Inc. dated June 22, 2000, as amended November 1,
2000. This Agreement is effective on the date of Closing which is scheduled to
occur on June 27, 2001, and shall continue in effect for a period of two years
from the date of Closing (the "Initial Term"). Thereafter, this Agreement shall
automatically be extended for successive terms of one year (a "Renewal Term"),
except this Agreement may be terminated after the first Renewal Term upon
delivery of written notice of the termination of this Agreement by any of the
Companies at least six months prior to the expiration of any Renewal Term. If
the Executive's employment is terminated during the term of the Agreement, the
date on which the Executive's employment terminates shall be referred to as the
"Date of Termination."
2. Severance Benefits. If during the term of this Agreement the Executive
leaves the employment of the Companies for Good Reason, as explained in Section
4 of this Agreement, and the Executive signs the release (the "Release") that is
attached to and incorporated in this Agreement, the Executive shall receive the
following benefits (the "Severance Benefits"):
(a) An amount equal to either of whichever the following is
applicable: (i) if the Date of Termination occurs during the Initial Term, two
(2) times the Executive's annual base salary; or (ii) if the Date of Termination
occurs during a Renewal Term, one (1) times the
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Executive's annual base salary. The "annual base salary" of the Executive shall
be defined as the Executive's base rate of compensation in effect as of the Date
of Termination, but in no event less than the Executive's base rate of
compensation in effect as of the end of the last calendar quarter preceding the
Date of Termination;
(b) An amount equal to either of whichever of the following is
applicable: (i) if the Date of Termination occurs during the Initial Term, two
(2) times the average total annual incentive award(s) or bonus(es); or (ii) if
the Date of Termination occurs during a Renewal Term, one (1) times the average
total annual incentive award(s) or bonus(es). The "average total annual
incentive award(s) or bonus(es)" shall mean the average of the sum of (i) cash
awards or bonuses earned with the Companies by the Executive, plus (ii) the
value of stock awarded to the Executive by the Companies for each complete
fiscal year during the last three years (whether or not deferred) or, if
shorter, over the Executive's entire period of employment with the Companies.
The value of stock awarded to the Executive shall be calculated based on the
value of the stock as of the date the stock was awarded to the Executive as
annual incentive compensation. Notwithstanding the foregoing, the Executive's
actual total annual incentive awards or bonuses shall be calculated excluding
the value of options to purchase stock which may have been awarded to the
Executive;
(c) Payment of the Executive's monthly COBRA premiums for continued
health and dental insurance coverage for the shorter of the following: (i) 18
months if the Date of Termination occurs in the Initial Term; (ii) 12 months if
the Date of Termination occurs in the Renewal Term; (iii) until the Executive no
longer has coverage under COBRA; or (iv) until the Executive becomes eligible
for substantially similar coverage under a subsequent employer's group health
plan; and
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(d) Outplacement services that are customary to Executive's position.
The cash severance benefits described in subparagraphs (a) and (b) above
shall be paid in equal monthly installments during the period that the covenants
set forth in Section 7 shall be in effect commencing upon the Date of
Termination; provided that the obligation of the Companies to pay such cash
severance benefits to the Executive shall be subject to termination under the
provisions of Section 7 hereof in the event the Executive should violate the
covenants set forth therein; and provided further that the payment of such cash
severance benefits shall be accelerated and payable in lump sum by the Companies
upon a breach of this Agreement as a result of the failure of a successor
(herein defined) to assume this Agreement as required in Section 10 of this
Agreement. The Companies shall withhold from any amounts payable under this
Agreement all federal, state, city or other income and employment taxes that
shall be required.
The Companies shall fund the obligation to pay cash Severance Benefits by
depositing in escrow an amount equal to the sum of the amounts payable to the
Executive under subparagraphs (a) and (b) hereof (the "Escrow Funds") with
SouthTrust Bank (or another financial institution with total assets of more than
$1,000,000,000) as escrow agent (the "Escrow Agent"). The Escrow Funds shall be
the property of the Companies and shall be held, invested and distributed by
Escrow Agent in accordance with the following provisions. At the time of
delivery of the Escrow Funds, the Escrow Agent shall acknowledge receipt of the
Escrow Funds and agree to be bound by the provisions of this Agreement in a
separate written document. The Escrow Agent shall invest the Escrow Funds in a
money market account for the benefit of the Companies and shall distribute the
earnings not more frequently than monthly. Unless and until the Escrow Agent
receives notice from ProAssurance that the Executive has breached this
Agreement, the
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Escrow Agent shall distribute the Escrow Funds to the Executive in the same
number of equal monthly installments as the number of whole calendar months in
the Restricted Period (as defined in Section 7 hereof). The monthly installments
shall be distributed to the Executive on the first day of each calendar month in
the Restricted Period together with accrued and undistributed earnings on the
Escrow Funds. If the Company delivers written notice to the Escrow Agent and
Executive that the cash Severance Benefits payable to Executive are subject to
termination under Section 7 of this Agreement, the Escrow Agent shall distribute
the balance of the Escrow Funds and accrued and undistributed earnings thereon
to ProAssurance unless the Escrow Agent receives a written notice of objection
from the Executive within 15 days after delivery of ProAssurance's notice. If
Executive provides a timely notice of objection, the Escrow Agent shall hold the
Escrow Funds until it receives a written notice of distribution from the
arbitrator appointed pursuant to Section 13 hereof or a joint written notice of
distribution from the Executive and ProAssurance. The failure of the Executive
or the Company to deliver notice to the Escrow Agent as herein provided shall
not be a waiver of any of their respective rights under this Agreement.
The Executive shall be entitled to the following in addition to and not in
limitation of the Severance Benefits: (i) accrued and unpaid base salary as of
the Date of Termination; (ii) accrued vacation and sick leave, if any, on Date
of Termination in accordance with the then current policy of the Companies with
respect to terminated employees generally; and (iii) vested benefits under the
Companies' employee benefit plans in which the Executive was a participant on
Date of Termination, which vested benefits shall be paid or provided for in
accordance with the terms of said employee benefit plans. If the Executive has
regular use of a vehicle provided by the Companies for business and personal use
on Date of Termination, the Companies shall
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offer for sale to the Executive the vehicle at a purchase price equal to either
of the following: (x) if owned by any of the Companies, the then current book
value of the vehicle (cost less accumulated depreciation), or (y) if leased by
any of the Companies, the purchase price upon the exercise of the purchase
option, if any, under the lease.
The Executive shall not be entitled to receive Severance Benefits if
employment with the Companies is terminated by reason of death of Executive,
retirement of Executive pursuant to the Company's retirement plan as then in
effect, the Executive having reached the age of mandatory retirement (if such
requirement then exists for bona fide executives) or Disability of Executive
(herein defined); or by reason of termination of employment by the Executive
without Good Reason (herein defined); or by reason of termination of employment
by the Companies with Cause (herein defined).
The Executive shall be under no duty or obligation to seek or accept other
employment and shall not be required to mitigate the amount of the Severance
Benefits provided under the Agreement by seeking employment or otherwise;
provided, however, that the Executive shall be required to notify the Companies
if the Executive becomes covered by a health or dental care program providing
substantially similar coverage, at which time health or dental care continuation
coverage provided under this Agreement shall cease.
3. Parachute Payments. Subject to Section 280G of the Internal Revenue
Code of 1986, as amended ("Code"), if the board of directors of ProAssurance
determines that an excise tax under Section 4999 ("Excise Tax") would be due,
the Executive's Severance Benefits under this Agreement shall be limited to the
amount necessary to avoid the Excise Tax only if applying such a limit results
in a greater net benefit to the Executive than would have resulted had the
benefits not been limited and an Excise Tax paid. For purposes of making such
computation:
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(a) Any other payments or benefits received or to be received by the
Executive in connection with the Change of Control or the Executive's
termination of employment (whether pursuant to the terms of this Agreement or
any other plan, arrangement, or agreement with the Companies, or with any person
whose actions result in the Change of Control) shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless, in the opinion of tax counsel
selected by ProAssurance's independent auditors, such other payments or benefits
(in whole or in part) do not constitute parachute payments, or such other
payments or benefits (in whole or in part) represent reasonable compensation for
services actually rendered within the meaning of Section 280G(b)(4) of the Code
in excess of the base amount within the meaning of Section 280G(b)(3) of the
Code, or such other payments or benefits (in whole or in part) are otherwise not
subject to the Excise Tax. In the event an Excise Tax is due, because of
payments made under this Agreement, the Executive shall be responsible for
paying said Excise Tax.
(b) The amount of the Severance Benefits that will be treated as
subject to the Excise Tax shall be equal to the lesser of: (i) the total amount
of the Severance Benefits; or (ii) the amount of excess parachute payments
within the meaning of Section 280G(b)(1) (after applying subparagraph (a)
above).
(c) The value of any noncash benefits or any deferred payment or
benefit shall be determined by ProAssurance's independent auditors in accordance
with the principles of Sections 280G(d)(3) and (4) of the Code.
(d) The Executive shall be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in a calendar year in which the
Severance Benefits are
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to be paid, and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Executive's residence on the Date of
Termination, net of the maximum reduction in federal income taxes that could be
obtained from deduction of such state and local taxes.
In the event the Internal Revenue Service adjusts the computation in
subparagraphs (a) through (d) above, so that the Executive did not receive the
greatest net benefit, the Companies shall reimburse the Executive for the amount
necessary to make the payment of Severance Benefits to the Executive to the
extent permitted hereunder, plus a market rate of interest as determined by the
Board of Directors of ProAssurance.
4. Good Reason for Termination. In the event that the Executive's
employment relationship with the Companies is terminated for any of the reasons
described in this Section 4, the Executive shall be entitled to Severance
Benefits, subject to and described in Section 2 of this Agreement. "Good Reason"
shall constitute any of the following circumstances if they occur without the
Executive's express written consent during the term of this Agreement:
(a) The Executive no longer holds an executive level position with
executive level responsibilities with the Companies consistent with the
Executive's training and experience;
(b) The Companies require that the Executive's primary location of
employment be more than 50 miles from the location of the Executive's primary
location of employment on June 27, 2001;
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(c) The failure of the Companies to provide the Executive, at a level
commensurate with the Executive's position, the incentive compensation
opportunities and employee benefits that are provided to other executives of
comparable rank with the Companies;
(d) A breach by the Companies of any provision of this Agreement.
including without limitation, the failure of a successor to assume this
Agreement as required in Section 10 hereof;
(e) The termination of the Executive's employment by the Companies
for a reason other than: (i) death; (ii) retirement pursuant to the Companies'
retirement plan as then in effect; (iii) Disability as explained in Section 5 of
this Agreement; (iv) the Executive has reached the age of mandatory retirement
(if such requirement then exists for bona fide executives); (v) for Cause, as
explained in Section 6 of this Agreement;
(f) A reduction by the Companies in the Executive's base salary in
effect as of the date of this Agreement; or
(g) The termination or non-renewal of this Agreement by the
Companies.
The Executive must provide the Companies with written notice no later than
45 calendar days after the Executive knows or should have known that Good Reason
has occurred. Following the Executive's Notice, the Companies shall have 45
calendar days to rectify the circumstances causing the Good Reason. If the
Company fails to rectify the event(s) causing the Good Reason within the 45 day
period after the Executive's Notice, or if any of the Companies delivers to the
Executive written notice stating that the circumstances cannot or shall not be
rectified, the Executive shall be entitled to assert Good Reason and terminate
employment on or before 90 days after the delivery of the Executive's Notice.
Should Executive fail to provide the
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required Notice in a timely manner, Good Reason shall not be deemed to have
occurred as a result of that event. The Initial Term or a Renewal Term shall not
be deemed to have expired during the Notice period, however, as long as the
Executive has provided Notice within the Term.
5. Disability. For purposes of this Agreement, Disability means a serious
injury or illness that requires the Executive to be under the regular care of a
licensed medical physician and renders the Executive incapable of performing the
essential functions of the Executive's position for 12 months as determined by
the Board of Directors of the Companies in good faith and upon receipt of and in
reliance on competent medical advice from one or more individuals selected by
the Board of Directors, who are qualified to give professional medical advice.
6. Cause. If the Executive's employment relationship with the Companies
is terminated by the Companies for Cause, as described below in this Section,
the Executive shall not be eligible for Severance Benefits and all rights of the
Executive and obligations of the Companies under this Agreement shall expire.
Cause means:
(a) The Executive has been convicted in a federal or state court of a
crime classified as a felony;
(b) Action or inaction by the Executive (i) that constitutes
embezzlement, theft, misappropriation or conversion of assets of the Companies
which alone or together with related actions or inactions involve assets of more
than a de minimis amount, or that constitutes fraud, gross malfeasance of duty,
or conduct grossly inappropriate to Executive's office; and (ii) such action or
inaction has adversely affected or is likely to adversely affect the business of
the Companies or has resulted or is intended to result in direct or indirect
gain or personal enrichment of the Executive to the detriment of the Companies;
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(c) The Executive has been grossly inattentive to, or in a grossly
negligent manner failed to competently perform, Executive's job duties and the
failure was not cured within 45 days after written notice from the Companies.
Any termination of the Executive's employment by the Companies for Cause
shall be communicated by a notice of termination (the "Notice of Termination")
to the Executive. The Notice of Termination shall be a written notice indicating
the specific termination provision of this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under this provision.
7. Non-Competition.
(a) In the event the Date of Termination occurs during the Initial
Term, the Executive (i) will be bound by and subject to any covenant not to
compete or noncompetition agreement with the Companies (or any of them) to which
the Executive was subject as of the Date of Termination (other than the
noncompetition agreement set forth in Section 7(b) hereof), or (ii) in the
alternative if the Executive is not subject to a covenant not to compete or
noncompetition agreement with the Companies (or any of them) as of the Date of
Termination (other than a covenant not to compete or noncompetition agreement
contained in an employee handbook or otherwise applicable to employees
generally), the Executive will be bound by and subject to the noncompetition
agreement set forth in subparagraph 7(b) of this Agreement. Upon the expiration
of the Initial Term, any and all covenants not to compete or noncompetition
agreements between the Executive and the Companies (or any of them) then in
effect shall be superseded by the noncompetition agreement set forth in Section
7(b) hereof and the Executive and the Companies shall not be bound by the
provisions of any covenant not to compete or noncompetition agreement other than
the provisions of Section 7(b) hereof unless specifically
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agreed to in a written document executed by the Executive and the Companies (or
any of them) after the Closing.
(b) In the event that either (i) the Date of Termination occurs
during the Initial Term and the provisions of Section 7(a)(ii) hereof are
binding on the Executive, or (ii) the Date of Termination occurs during a
Renewal Term, the Executive will not during the Restricted Period (herein
defined):
(i) become employed by a competitor company that is
underwriting, selling or marketing insurance products that target educators
in MEEMIC's primary market area; or
(ii) assist a competitor company to develop insurance products
that target educators and that will be marketed or sold in MEEMIC's primary
area; or
(iii) solicit or induce any other employees of the Companies to
leave such employment or accept employment with any other person or entity,
or solicit or induce any insurance agent of the Companies to offer, sell or
market insurance products that target educators in MEEMIC's primary market
area, other than on behalf of MEEMIC.
"Competitor company" means an insurance company, insurance
agency, business, for profit or not for profit organization (other
than the Companies) which is engaged directly or indirectly in
underwriting, selling or marketing any insurance product that targets
educators.
"Educators" means teachers, administrators and other employees of
public and private school systems (including colleges and
universities).
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"Primary market area" means the state of Michigan and any other
state in which MEEMIC Insurance derived more than $5 million in direct
written premiums from the sale of personal auto and homeowners
insurance in the most recent complete fiscal year prior to the Date of
Termination.
"Restricted Period" means as applicable either (i) if the Date of
Termination occurs within the Initial Term, a period of 24 months from
such Date of Termination; or (ii) if the Date of Termination occurs
within a Renewal Term, a period of 12 months from such Date of
Termination.
"Employed" includes activities as an owner, proprietor, employee,
agent, solicitor, partner, member, manager, principal, shareholder
(owning more than 1% of the outstanding stock), consultant, officer,
director or independent contractor.
"Companies" means any company that is a subsidiary of
ProAssurance, now or in the future, and any other company that has
succeeded to the business of any of the Companies.
If the Executive is deemed to have materially breached the non-competition
covenants set forth in Section 7 of this Agreement, the Companies may, in
addition to seeking an injunction or any other remedy they may have, withhold or
cancel any remaining payments or benefits due to the Executive pursuant to
Section 2 of this Agreement. The Companies shall give prior or contemporaneous
written notice of such withholding or cancellation of payments in accordance
with Section 2 hereof. If the Executive violates any of these restrictions, the
Companies shall be further entitled to an immediate preliminary and permanent
injunctive relief, without bond, in addition to any other remedy which may be
available to the Companies.
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Both parties agree that the restrictions in this Agreement are fair and
reasonable in all respects, including the geographic and temporal restrictions,
and that the benefits described in this Agreement, to the extent any separate or
special consideration is necessary, are fully sufficient consideration for the
Executive's obligations under this Agreement.
8. Confidentiality. Executive will remain obligated under any
confidentiality or nondisclosure agreement with the Companies (or any of them)
that is currently in effect or to which the Executive may in the future be
bound. In the event that the Executive is at any time not the subject of a
separate confidentiality or nondisclosure agreement with the Companies (or any
of them), Executive expressly agrees that Executive shall not use for the
Executive's personal benefit, or disclose, communicate or divulge to, or use for
the direct or indirect benefit of any person, firm, association or company any
confidential or competitive material or information of the Companies or their
subsidiaries, including without limitation, any information regarding insureds
or other customers, actual or prospective, and the contents of their files;
marketing, underwriting or financial plans or analyses which is not a matter of
public record; claims practices or analyses which are not matters of public
record; pending or past litigation in which the Companies have been involved and
which is not a matter of public record; and all other strategic plans, analyses
of operations, computer programs, personnel information and other proprietary
information with respect to the Companies which are not matters of public
record. Executive shall return to the Companies promptly, and in no event later
than the Date of Termination, all items, documents, lists and other materials
belonging to the Companies or their subsidiaries, including but not limited to,
credit, debit or service cards, all documents, computer tapes, or other business
records or information, keys and all other items in the Executive's possession
or control.
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9. Release of Change of Control Agreement. In consideration of the
continued employment of the Executive by the Companies after the Change of
Control and the obligation of the Companies to pay the Executive Severance
Benefits as herein provided, the Executive hereby waives, releases and forever
discharges the Companies and each of their direct or indirect parents,
subsidiaries, affiliates and related entities, and all present or former
employees, officers, agents, directors or representatives of any of them, from
any and all claims, charges, suits, causes of action, demands, expenses and
compensation whatsoever, known or unknown, direct or indirect, on account of or
growing out of the Executive's Change of Control Agreement, including, without
limitation, the payment of severance benefits as provided thereunder. Executive
hereby further agrees that he will not institute any suit or action at law, in
equity or otherwise against the Companies or any of their direct or indirect
parents, subsidiaries, affiliates and related entities, or the present or former
employees, officers, agents, directors, or representatives of any of them and
their respective successors and assigns, nor will the Executive ever institute,
prosecute, or in any way aid in the institutional prosecution of any claim,
demand, action or cause of action for damages, costs, expenses, penalties,
fines, compensation or equitable relief, for or on account of any damage, loss
or injury to either person or property or both, whether developed or
undeveloped, resulting or to result, known or unknown, which Executive ever had,
now has, or which Executive or his successors and assigns may in the future have
against any of said persons in connection with the Change of Control Agreement
of the Executive.
The Executive acknowledges and agrees that Executive has been advised in
writing by this Agreement, and otherwise, to CONSULT WITH AN ATTORNEY before
Executive enters
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into this Agreement. The Executive agrees that the Executive received and read a
copy of this Agreement prior to executing the same.
10. Successors of ProAssurance. ProAssurance will require any successor
(herein defined) to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Companies would be required to
perform this Agreement if no such succession had taken place. Failure of
ProAssurance to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Executive
to terminate employment for Good Reason and receive Severance Benefits as
provided in Section 2 hereof. Reference to the Companies in this Agreement shall
include any successor which assumes and agrees to perform this Agreement by
operation of law or otherwise.
The term "successor" means any Person, as defined by Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") other than a
Person in control of the Companies immediately after completion of the Change of
Control transaction, that either (i) becomes the Beneficial Owner, as defined by
Rule 13d-3 of the General Rules and Regulations under the Exchange Act, directly
or indirectly, of the securities of ProAssurance representing more than 50.1% of
the combined voting power of the then outstanding securities of ProAssurance;
(ii) purchases or otherwise acquires substantially all of the assets of the
Companies such that the Companies cease to function on a going forward basis as
an insurance holding company system that provides medical professional liability
insurance; or (iii) survives a merger, consolidation or reorganization that
results in less than 50.1% of the combined voting power of ProAssurance or such
surviving entity being owned by stockholders of ProAssurance immediately
preceding such merger, consolidation or reorganization.
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11. Notice. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered by hand or commercial courier or
mailed by certified or registered mail, return receipt requested, postage
prepaid, addressed to the respective addresses as set forth below or to such
other address as one party may have furnished to the other in writing in
accordance herewith.
Notice to the Executive:
Xxxxxxx X. Xxxxxxx
MEEMIC Insurance Company
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Notice to the Companies:
ProAssurance Corporation
Mailing Address:
P. X. Xxx 000000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Street Address:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Chairman of the Board
12. Claims Procedure.
(a) The administrator for purposes of this Agreement shall be
ProAssurance ("Administrator"), whose address is 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxx 00000; Telephone: (000) 000-0000. The "Named Fiduciary" as
defined in Section 402(a)(2) or ERISA, also shall be ProAssurance. ProAssurance
shall have the right to designate one or more employees of the Companies as the
Administrator and the Named Fiduciary at any time, and to change the address and
telephone number of the same. ProAssurance shall give the Executive
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written notice of any change in the Administrator and Named Fiduciary, or in the
address or telephone number of the same.
(b) The Administrator shall make all determinations as to the right
of any person to receive benefits under the Agreement. Any denial by the
Administrator of a claim for benefits by the Executive ("the claimant") shall be
stated in writing by the Administrator and delivered or mailed to the claimant
within ten (10) days after receipt of the claim, unless special circumstances
require an extension of time for processing the claim. If such an extension is
required, written notice of the extension shall be furnished to the claimant
prior to the termination of the initial 10-day period. In no event shall such
extension exceed a period of ten (10) days from the end of the initial period.
Any notice of denial shall set forth the specific reasons for the denial,
specific reference to pertinent provisions of this Agreement upon which the
denial is based, a description of any additional material or information
necessary for the claimant to perfect the claim, with an explanation of why such
material or information is necessary, and any explanation of claim review
procedures, written to the best of the Administrator's ability in a manner that
may be understood without legal or actuarial counsel.
(c) A claimant whose claim for benefits has been wholly or partially
denied by the Administrator may request, within ten (10) days following the
receipt of such denial, in a writing addressed to the Administrator, a review of
such denial. The claimant shall be entitled to submit such issues or comments in
writing or otherwise, as the claimant shall consider relevant to a determination
of the claim, and the claimant may include a request for a hearing in person
before the Administrator. Prior to submitting the request, the claimant shall be
entitled to review such documents as the Administrator shall agree are pertinent
to the claim. The claimant may, at all stages of review, be represented by
counsel, legal or otherwise, of the claimant's choice. All
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requests for review shall be promptly resolved. The Administrator's decision
with respect to any such review shall be set forth in writing and shall be
mailed to the claimant not later than ten (10) days following receipt by the
Administrator of the claimant's request unless special circumstances, such as
the need to hold a hearing, require an extension of time for processing, in
which case the Administrator's decision shall be so mailed not later than twenty
(20) days after receipt of such request.
13. Arbitration. The parties to this Agreement agree that final and
binding arbitration shall be the sole recourse to settle any claim or
controversy arising out of or relating to a breach or the interpretation of this
Agreement, except as either party may be seeking injunctive relief. Either party
may file for arbitration. A claimant seeking relief on a claim for benefits,
however, must first follow the procedure in Section 12 hereof and may file for
arbitration within sixty (60) days following claimant's receipt of the
Administrator's written decision on review under Section 12(c) hereof, or if the
Administrator fails to provide any written decision under Section 12 hereof,
within 60 days of the date on which such written decision was required to be
delivered to the claimant as therein provided. The arbitration shall be held at
a mutually agreeable location, and shall be subject to and in accordance with
the arbitration rules then in effect of the American Arbitration Association;
provided that if the location cannot be agreed upon the arbitration shall be
held in either Atlanta, Georgia, or Chicago, Illinois, whichever location is
closer to the principal office where the Executive was employed on Date of
Termination. The arbitrator may award any and all remedies allowable by the
cause of action subject to the arbitration, but the arbitrator's sole authority
shall be to interpret and apply the provisions of this Agreement. In reaching
its decision the arbitrator shall have no authority to change or modify any
provision of this Agreement or other written agreement between the parties. The
arbitrator
19
shall have the power to compel the attendance of witnesses at the hearing. Any
court having jurisdiction may enter a judgment based upon such arbitration. All
decisions of the arbitrator shall be final and binding on the parties without
appeal to any court. Upon execution of this Agreement, the Executive shall be
deemed to have waived any right to commence litigation proceedings regarding
this Agreement outside of arbitration or injunctive relief without the express
consent of ProAssurance. The Companies shall pay all arbitration fees and the
arbitrator's compensation. If the Executive prevails in the arbitration
proceeding, the Companies shall reimburse to the Executive the reasonable fees
and expenses of Executive's personal counsel for his or her professional
services rendered to the Executive in connection with the enforcement of this
Agreement.
14. Miscellaneous.
(a) Except insofar as this provision may be contrary to applicable
law, no sale, transfer, alienation, assignment, pledge, collateralization or
attachment of any benefits under this Agreement shall be valid or recognized by
the Companies.
(b) This Agreement is an unfunded deferred compensation arrangement
for a member of a select group of the Companies' management and any exemptions
under ERISA, as applicable to such arrangement, shall be applicable to this
Agreement. Nothing in this Agreement shall require or be deemed to require the
Companies or any of them to segregate, earmark or otherwise set aside any funds
or other assets to provide for any payments made or required to be made
hereunder.
(c) Nothing in this Agreement shall be deemed to create an employment
agreement between the Executive and the Companies or any of them providing for
Executive's
20
employment for any fixed duration, nor shall it be deemed to modify or undercut
the Executive's at will employment status with the Companies.
(d) Neither the provisions of this Agreement nor the severance
benefits provided hereunder shall reduce any amounts otherwise payable, or in
any way diminish the Executive's rights as an employee of the Companies, whether
existing now or hereafter, under any benefit, incentive, retirement, stock
option, stock bonus or stock purchase plan, or any employment agreement or other
plan or arrangement.
(e) This Agreement sets forth the entire agreement between the
parties with respect to the matters set forth herein. This Agreement may not be
modified or amended except by written agreement intended as such and signed by
all parties.
(f) This Agreement shall benefit and be binding upon the parties and
their respective directors, officers, employees, representatives, agents, heirs,
successors, assigns, devisees, and legal or personal representatives.
(g) The Companies, from time to time, shall provide government
agencies with such reports concerning this Agreement as may be required by law,
and shall provide Executive with such disclosure concerning this Agreement as
may be required by law or as the Companies may deem appropriate.
(h) Executive and the Companies respectively acknowledge that each of
them has read and understand this Agreement, that they have each had adequate
time to consider this Agreement and discuss it with each of their attorneys and
advisors, that each of them understands the consequences of entering into this
Agreement, that each of them is knowingly and voluntarily entering into this
Agreement, and that they are each competent to enter into this Agreement.
21
(i) If any provision of this Agreement is determined to be
unenforceable, at the discretion of ProAssurance the remainder of this Agreement
shall not be affected but each remaining provision shall continue to be valid
and effective and shall be modified so that it is enforceable to the fullest
extent permitted by law. Moreover, in the event this Agreement is determined to
be unenforceable against any of the Companies, it shall continue to be valid and
enforceable against the other Companies.
(j) This Agreement will be interpreted as a whole according to its
fair terms. It will not be construed strictly for or against either party.
(k) Except to the extent that federal law controls, this Agreement is
to be construed according to Michigan law.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
this 14th day of June, 2001.
EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
PROASSURANCE CORPORATION
By: /s/ A.D. Xxxxx
--------------------------------------
Its: Chairman
MEEMIC INSURANCE COMPANY
By: /s/ R. Xxxxx Xxxxxxx
--------------------------------------
Its: President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Its: Chairman
MEEMIC HOLDINGS, INC.
By: /s/ R. Xxxxx Xxxxxxx
--------------------------------------
Its: President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------
Its: Chairman
22
RELEASE IN CONJUNCTION WITH SEVERANCE COMPENSATION
This Release of Claims ("Release") is between ProAssurance Corporation
("ProAssurance"), MEEMIC Insurance Company, MEEMIC Holdings, Inc., and any
successor company that has assumed the Agreement to which this Release was an
attachment (all such organizations being referred to in this Release as the
"Companies") and _______ ________ ("Executive").
The Companies and Executive have agreed to terminate their employment
relationship. To effect an orderly termination, the Executive, and the Companies
are entering into this Release.
1. For the purposes of this Release, "Date of Termination" is the
effective date of Executive's termination of employment from Companies.
Executive hereby waives any and all rights Executive may otherwise have to
continued employment with or re-employment by the Companies or any parent,
subsidiary or affiliate of Companies.
2. Effective with the Date of Termination, Executive is relieved of all
duties and obligations to the Companies, except as provided in this Release or
any applicable provisions of the Release and Severance Compensation Agreement
between Companies and Executive, effective as of June 27, 2001 (the "Severance
Agreement"), which survive termination of the employment relationship.
3. Executive agrees that this Release and its terms are confidential and
shall not be disclosed or published directly or indirectly to third persons,
except as necessary to enforce its terms, by Executive or to Executive's
immediate family upon their agreement not to disclose the fact or terms of this
Release, or to Executive's attorney, financial consultant or accountant, except
that Executive may disclose, as necessary, the fact that Executive has
terminated Executive's employment with the Companies.
4. Any fringe benefits that Executive has received or currently is
receiving from the Companies or its affiliates shall cease effective with the
Date of Termination, except as otherwise provided for in this Release, in the
Severance Agreement or by law.
5. The parties agree that the terms contained and payments provided for
in the Severance Agreement are compensation for and in full consideration of
Employee's release of claims under this Release, and Executive's
confidentiality, non-compete, non-solicitation and non-disclosure agreements
contained in the Severance Agreement.
6. The Executive shall be under no duty or obligation to seek or accept
other employment and shall not be required to mitigate the amount of the
Severance Benefits (as defined and provided under the Severance Agreement) by
seeking employment or otherwise, provided, however, that the Executive shall be
required to notify the Companies if the Executive becomes covered by a health or
dental care program providing substantially similar coverage, at which time
health or dental care continuation coverage provided under the Agreement shall
cease.
23
7. Except for claims arising under the Severance Agreement, Executive
waives, releases, and forever discharges the Companies and each of their direct
or indirect parents, subsidiaries, affiliates, and any partnerships, joint
ventures or other entities involving or related to any of the Companies, their
parents, subsidiaries or affiliates, and all present or former employees,
officers, agents, directors, successors, assigns and attorneys of any of these
corporations, persons or entities (all collectively referred to in this Release
as the "Released") from any and all claims, charges, suits, causes of action,
demands, expenses and compensation whatsoever, known or unknown, direct or
indirect, on account of or growing out of Executive's employment with and
termination from the Companies, or relationship or termination of such
relationship with any of the Released, or arising out of related events
occurring through the date on which this Release is executed. This includes, but
is not limited to, claims for breach of any employment contract; handbook or
manual; any express or implied contract; any tort; continued employment; loss of
wages or benefits; attorney fees; employment discrimination arising under any
federal, state, or local civil rights or anti-discrimination statute, including
specifically any claims Executive may have under the federal Age Discrimination
in Employment Act, as amended, 29 USC xx.xx. 621, et seq.; emotional distress;
harassment; defamation; slander; and all other types of claims or causes of
action whatsoever arising under any other state or federal statute or common law
of the United States.
8. The Executive does not waive or release any rights or claims that may
arise under the federal Age Discrimination in Employment Act, as amended, after
the date on which this Release is executed by the Executive.
9. The Executive acknowledges and agrees that Executive has been advised
in writing by this Release, and otherwise, to CONSULT WITH AN ATTORNEY before
Executive executes this Release.
10. The Executive agrees that Executive received a copy of this Release
prior to executing the Agreement, that this Release incorporates the Companies'
FINAL OFFER; that Executive has been given a period of at least twenty-two (22)
calendar days within which to consider this Release and its terms and to consult
with an attorney should Executive so elect.
11. The Executive shall have seven (7) calendar days following Executive's
execution of this Release to revoke this Release. Any revocation of this Release
shall be made in writing by the Executive and shall be received on or before the
time of close of business on the seventh calendar day following the date of the
Employee's execution of this Release at ProAssurance's address at 000 Xxxxxxxxx
Xxxxx, P. O. Box 590009, Birmingham, Alabama 35259-0009, Attention: Chairman, or
such other place as the Companies may notify Executive in writing. This Release
shall not become effective or enforceable until the eighth (8th) calendar day
following the Executive's execution of this Release.
12. Executive and the Companies acknowledge that they have read and
understand this Release, that they have had adequate time to consider this
Release and discuss it with their attorneys and advisors, that they understand
the consequences of entering into this Release, that
24
they are knowingly and voluntarily entering into this Release, and that they are
competent to enter into this Release.
13. This Release shall benefit and be binding upon the parties and their
respective directors, officers, employees, agents, heirs, successors, assigns,
devisees and legal or personal representatives.
14. This Release, along with the attached Severance Agreement, sets forth
the entire agreement between the parties at the time and date these documents
are executed, and fully supersedes any and all prior agreements or
understandings between them pertaining to the subject matter in this Release.
This Release may not be modified or amended except by a written agreement
intended as such, and signed by all parties.
15. Except to the extent that federal law controls, this Release is to be
construed according to the law of the state of Michigan.
16. If any provision of this Release is determined to be unenforceable, at
the discretion of ProAssurance the remainder of this Release shall not be
affected but each remaining provision or portion shall continue to be valid and
effective and shall be modified so that it is enforceable to the fullest extent
permitted by law.
17. To signify their agreement to the terms of this Release, the parties
have executed it on the date set forth opposite their signatures, or those of
their authorized agents, which follow.
EXECUTIVE
Dated:
-------------------------- ---------------------------------
PROASSURANCE CORPORATION
Dated: By:
-------------------------- ------------------------------
Its:
-----------------------------
MEEMIC HOLDINGS, INC.
Dated: By:
-------------------------- ------------------------------
Its:
-----------------------------
MEEMIC INSURANCE COMPANY
Dated: By:
-------------------------- ------------------------------
Its:
-----------------------------
25
