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EXHIBIT 10.7
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made on October 27, 1999 (the "Effective Date"), being
the date upon which all of the stock of Xxxxxxxx-Xxxxxxxxx Management Co., Inc.
is acquired by Mutual Insurance Corporation ("MICOA"), by and between MICOA
MANAGEMENT COMPANY, INC., a Michigan corporation (the "Employer") and XXXXXXX X.
XXXXXXXXX, a Michigan resident (the "Employee"). Employer and Employee are
sometimes referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
A. Employer is a wholly owned and controlled subsidiary of Mutual
Insurance Corporation of America, a Michigan mutual insurance
corporation ("MICOA"). MICOA directly, or through subsidiary or
affiliated corporations, markets insurance and other services and
products in several states. For purposes of this Agreement, MICOA and
its subsidiary and affiliated corporations, whether presently existing
or acquired in the future, are sometimes collectively referred below
to as the "MICOA System".
B. Employer desires to employ Employee as the President and Chief
Executive Officer of MICOA. As a result of his past association with
the MICOA System and employment pursuant to this Agreement, Employee
has acquired and will continue to acquire Confidential Information
(defined below) of the MICOA System and/or Employer.
C. As a condition of employment, Employer requires Employee to enter into
this Agreement, and Employee desires to do so to induce Employer to
employ him.
IN CONSIDERATION of the Recitals, mutual covenants and promises stated
below and other valuable consideration, the receipt, adequacy and sufficiency of
which is acknowledged, Employer and Employee agree as follows:
1. EMPLOYMENT. Beginning on the Effective Date of this Agreement and for
a period of ten (10) years thereafter, Employer shall employ Employee and
Employee shall accept such employment, in accordance with all terms and
conditions of this Agreement. Compensation Arrangements shall be determined
annually as provided in Paragraph 4, below.
2. DUTIES AND RESPONSIBILITIES. Employee shall be elected by the MICOA
Board to serve as the President and Chief Executive Officer of the MICOA on a
full-time basis. Employee shall fully, faithfully and to the best of his
talents, experience and abilities, perform any and all duties, responsibilities
and other services
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necessary or appropriate to perform the functions of such position, subject to
the policy making direction of the Board of Directors of MICOA.
3. NO OUTSIDE EMPLOYMENT. During the Employment Term, Employee shall
devote his full time and efforts to this employment and shall not engage in
other employment.
4. COMPENSATION AND POTENTIAL STOCK OR INCENTIVE PLANS. Employer shall
pay and provide Employee, and Employee shall accept in full consideration for
the fulfillment of all terms and conditions of this Agreement, the base salary,
incentive plan, discretionary bonus (if any) and fringe benefits (collectively
"Compensation Arrangement") identified initially in Exhibit A (attached and
incorporated by this reference), less all applicable federal, state and local
taxes and Employee's share, if any, of the cost of fringe benefits. A
Compensation Arrangement shall remain in effect for one year beginning on the
effective date of this Agreement and shall automatically expire each following
year, or beginning and ending on such other annual periodic basis as Employer
and Employee agree in writing. Employer and Employee shall conduct their annual
compensation review beginning no later than sixty (60) days prior to expiration
of each annual Compensation Arrangement. Following expiration of the
Compensation Arrangement identified in Exhibit A, Compensation Arrangements
shall take effect only if mutually agreed upon in writing by Employer and
Employee, or as a result of arbitration as described in Paragraph 11, below.
Pending the resolution of arbitration, the Compensation Arrangement for the
preceding period shall be deemed tentatively effective for the period under
review. Base salary shall be payable in periodic installments in accordance with
Employer's normal payroll practices. Employer will grant Employee the highest
tier of allowable rights for which he may become eligible under any stock or
incentive plans instituted for the MICOA System during the Employment Term. All
such rights shall not be retroactive but shall be effective in strict accordance
with such plans.
5. TERMINATION. Notwithstanding anything in this Agreement to the
contrary, this Agreement shall terminate as follows:
(a) Upon the death of Employee.
(b) In the event that Employee is unable to perform his duties and
responsibilities to the full extent required by Employer and/or the MICOA
System by reason of total disability.
(c) Employer may immediately terminate this Agreement at any time,
without prior notice or opportunity to cure, for cause. "Cause" for
purposes of such termination by Employer is defined as:
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(i) Employee's systematic refusal to discharge the duties and
responsibilities of the President and Chief Executive
Officer of MICOA, or of a comparable or derivative office
held by Employee, in conformance with policy making
directions of the MICOA Board or its successor; or
(ii) Conviction or plea of guilty or nolo contendere to any
felony.
(d) Employer may terminate this Agreement at its discretion without
Cause upon thirty (30) days advanced written notice, provided that payments
due as specified under Paragraph 1.3.6 of the Stock Purchase Agreement
between MICOA, Xxxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxx dated August 31,
1999 are made in addition to amounts otherwise due under this Agreement.
(e) Upon the mutual written agreement of Employer and Employee.
(f) Upon Employee's voluntary cessation of employment without Cause
as defined in Paragraph 8 of this Agreement.
Upon termination of this Agreement under any circumstances, Employer shall
have no liability or obligation under this Agreement to Employee or his personal
representative, estate, heirs, beneficiaries, or any other person claiming by,
under or through him, except for unpaid compensation accrued to the date of
termination, any vested rights Employee has under employee benefit plans, the
pro rata amount of any award determined to be allowed him under any incentive
plan through date of termination, and payment due under paragraph 7, below.
6. CONFIDENTIALITY AND OWNERSHIP OF CONFIDENTIAL INFORMATION. Employee
agrees that:
(a) During the term of this Agreement and at all times following the
termination of this Agreement, regardless of the grounds of termination,
Employee shall not use or disclose, or knowingly cause or with prior
knowledge authorize any Affiliate or Employee to use or disclose, any
Confidential Information or nonpublic Intellectual Property, except as
necessary in connection with the performance of Employee's duties and
responsibilities under this Agreement (such as pursuant to Confidentiality
Agreements signed in behalf of Employer or the MICOA System from time to
time); but then, only for the sole benefit of the MICOA System and/or
Employer, and only after Employee takes reasonable and appropriate
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measures, satisfactory to the MICOA System and/or Employer, to protect the
confidential and proprietary nature of the Confidential Information or
Intellectual Property. All Confidential Information or Intellectual
Property is and will be the sole and exclusive property of the MICOA System
and/or Employer and upon the request of the MICOA System and/or Employer or
upon the termination of this Agreement, Employee shall immediately return
or cause to be returned to the MICOA System and/or Employer all
Confidential Information or Intellectual Property, including all copies.
(b) Employee agrees that all Intellectual Property is and at all times
following the termination of this Agreement, regardless of the grounds of
termination, will be the sole and exclusive property of the MICOA System
and/or Employer, and Employee will have no right, title, interest or claim
in any Intellectual Property. All Intellectual Property will be considered
a work made for hire and to the extent it may not be, Employee will
automatically assign to the MICOA System and/or Employer at the time of
creation or development by Employee, without any requirement of any further
consideration, all right, title, interest or claim in such Intellectual
Property. Employee will take such further actions, including the execution
and delivery of instruments of conveyance, as may be requested by the MICOA
System and/or Employer to give full and proper effect of such assignment.
7. COVENANT NOT TO COMPETE. During the term of this Agreement, and for a
period of two (2) years following the termination of this Agreement (regardless
of the grounds of termination other than death) within the Restricted Area as
defined below, Employee shall not, directly or indirectly:
(a) Compete with the MICOA System and/or Employer in any respect.
(b) Engage in any business or enterprise offering any products or
services identical to, similar to, or competitive with any products or
services which have been, are or may hereafter be offered by the MICOA
System and/or Employer.
(c) Contact, solicit or attempt to contact or solicit in order to
compete with MICOA any past, present or future customer, employee, or
supplier of the MICOA System and/or Employer, or otherwise interfere or
attempt to interfere with any past, present or future relationship or
arrangement, whether contractual or otherwise, between the MICOA System
and/or Employer and any agent, contractor, customer, employee or supplier
of the MICOA System and/or Employer.
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(d) Maintain directly or indirectly, any financial interest whether
through equity, debt or otherwise, other than the ownership of publicly
traded stock aggregating less than 1% ownership of the issuer, or any
compensation arrangement other than the receipt of dividends or
distributions from a publicly traded stock, with any Person which competes
with the MICOA System and/or Employer in any respect; provided that
Employee may remain an owner of stock in the entity currently or formerly
known as Xxxxxxxx, Xxxxxxxxx and Xxxxx, Inc., but only to the extent and
under those conditions permitted by a certain Stock Purchase Agreement
executed between MICOA, Xxxxxxx X. Xxxxxxxxx, and Xxxxxxx X. Xxxxxxx dated
, 1999.
(e) In further consideration for the additional two (2) years of
noncompetition following his employment, MICOA shall pay Employee at
termination two times the amount of the annual base salary and
paid to him for the year immediately preceding the year in
which termination is effective. If termination is effective during the
first year of employment, the base salary component for that year will be
used as will any discretionary amount awarded for that period.
8. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
(a) "Affiliate" of a Person means:
(i) Any agent, consultant, director, employee, manager, officer, or
stakeholder of such Person, when acting with the authority or
permission of such Person.
(ii) Any other legal entity in which such Person has an operational
or other interest, when acting with the authority or permission
of such Person.
(iii) Any other person or entity acting by, for or through such
Person.
(b) "Confidential Information" means any and all information, knowledge or
data relating in any way to the past, present or future business
affairs, condition, customers, efforts, employees, operations, plans,
practices, products, processes, properties, sales, services, suppliers
or work of or relating in any way to, the MICOA System, Employer or
any Affiliate of the MICOA System or Employer, in whatever form,
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which is not public knowledge or is not disclosable without MICOA's
consent.
(c) "Cause" for purposes of termination by Employee means: Employer's
systematic refusal to allow Employee to discharge his duties and
responsibilities as President and Chief Executive Officer of MICOA or
of a comparable or derivative office held by Employee in conformance
with policy making directions of the MICOA Board or its successor; or
extenuating personal reasons which in the opinion of at least 75% of
the MICOA Board constitute acceptable grounds for Employee's departure
or service other than on a full time basis; or as described in
Xxxxxxxxx 00, xxxxx.
(x) "Intellectual Property" means any and all, copyrights, discoveries,
formulae, patents, software, technologies, trade secrets, works of
authorship or invention or any other intellectual property of or
relating in any way to the present or future business prospects or
activities of the MICOA System and/or Employer or otherwise developed
or arising in any manner from the association between Employee and the
MICOA System and/or Employer.
(e) "Person" means an individual, partnership, limited liability company,
association, corporation or any other legal entity and includes, but
is not limited to Employee, Employer or the MICOA System.
(f) "Restricted Area" means (i) all of Michigan and (ii) any area (whether
in the United States or abroad) within a 200 mile radius of any office
maintained by MICOA or the MICOA System and/or Employer during the
Employment Term or as of the date on which this Agreement terminates.
9. ENFORCEABILITY. Employee expressly agrees and acknowledges that a loss
arising from a breach of any provision under Paragraphs 6, 7, and 8 may not be
reasonably and equitably compensated by money damages. Employee agrees that in a
case of any such breach, Employer and/or the MICOA System shall be entitled to
injunctive and/or other extraordinary relief in order to prevent Employee from
engaging in any of the foregoing prohibited activities, which relief shall be
cumulative and in addition to any and all other additional remedies to which
Employer may be entitled to at law or equity. In the event that any court of
competent jurisdiction shall determine that any part or all of the provisions of
Paragraphs 6, 7, and 8 are unenforceable or invalid due to the scope of the
activities restrained, the geographical extent of the restraints imposed, the
duration of the restraints imposed, or otherwise, Employer and Employee
expressly intend, agree
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and stipulate that under such circumstances, the provisions of Xxxxxxxxxx 0, 0,
xxx 0 xxxxx xx enforceable to the fullest extent and scope permitted by law and
that they shall be bound by any judicial modifications made to carry out the
intentions of the parties.
10. GOVERNING LAW AND ARBITRATION. All matters relating to the
interpretation or application this Agreement or Employee's employment shall be
governed by and construed in accordance with the laws of the State of Michigan,
without resort to choice of law rules. Employer and Employee shall submit and
resolve any dispute, claim or grievance arising from or relating to the
interpretation or application of this Agreement or Employee's employment
including, but not limited to, determination of Cause for termination of
employment, total disability, fairness of annual base salary, or voluntariness
of employment cessation without good cause by Employee, to binding arbitration
in accordance with the rules of the American Arbitration Association as modified
by this Agreement; provided that Employer may assert any claims for violation of
Paragraphs 6, 7, 8 and 9 of this Agreement in a civil action brought in a court
of competent jurisdiction. Three arbitrators shall be chosen: one by Employer,
one by Employee, and a third by the first two arbitrators. The initial two
arbitrators shall be named within thirty (30) days of the initiation of
proceedings, and they shall choose the third arbitrator, who must be a neutral
attorney licensed in Michigan, within thirty (30) days following the selection
of the arbitrators named by Employer and Employee. The third arbitrator shall
function as a hearing officer. Failure to choose any arbitrator timely shall
result in appointment by the American Arbitration Association. Employer or
Employee may be represented by legal counsel. Stenographic or other mutually
acceptable record of such proceedings shall be kept. Proceedings shall rely upon
the Michigan Rules of Court and Michigan Rules of Evidence, unless deemed
unreasonable in a particular application by the hearing officer. The arbitrators
shall issue their written opinion within thirty (30) days of the termination of
any hearing. The decision of the arbitrators shall be binding upon Employer and
Employee and may be enforced to the fullest extent permitted by law, by a court
of competent jurisdiction, which may enter judgment thereon.
11. LIMITATION OF ACTIONS. Each party shall notify the other in writing
within six (6) months of the termination of this Agreement of any and all known
or suspected Grievances, existing then or they shall be forever unenforceable
and time barred. Each party forever covenants not to assert in any court of law
or administrative agency any Grievance which is unenforceable and time barred
pursuant to this Agreement.
12. WAIVER OF BREACH. The waiver of breach of any provision of this
Agreement shall not operate or be construed as a waiver of any subsequent
breach. Each and every right, remedy and power hereby granted to any Party or
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allowed it by law shall be cumulative and not exclusive of any other, unless
expressly stated otherwise in this Agreement.
13. SEVERABILITY. If any provision of this Agreement or the application of
this Agreement under any circumstances is adjudicated to be invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provision of this Agreement or its application.
14. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the Parties with respect to the subject matter and supersedes all other
previous or contemporaneous communications, representations, understandings,
agreements, negotiations and discussions, either oral or written, between the
Parties. The Parties acknowledge and agree that they have executed a Stock
Purchase Agreement dated , 1999 effective with this Agreement, and
that the terms of the Stock Purchase Agreement shall prevail to the extent
necessary to effect its provisions in the event of any inconsistency with this
Agreement.
15. INTERPRETATION OF AGREEMENT. Where appropriate in this Agreement,
words used in the singular shall include the plural, and words used in the
masculine shall include the feminine and neuter. All headings which are used in
this Agreement are for the convenience of the reader only and shall not be used
to limit or construe any of the provisions hereof.
16. SURVIVAL OF PROVISIONS. The parties' obligations under this Agreement
are continuing and shall survive the termination of this Agreement, regardless
of the circumstances of termination, except for Employee's obligations under
Paragraphs 1, 2 and 3 of this Agreement.
17. AMENDMENT OF AGREEMENT. This Agreement may be altered, amended or
repealed only by the mutual written agreement of Employer and Employee.
18. ASSIGNMENT AND SUCCESSORS. Employee shall not assign or delegate any
rights or duties under this Agreement without obtaining Employer's prior written
consent. Any such assignment or delegation, or attempt to do so, by Employee in
violation of this Agreement shall be null and void. Employer may only assign its
interest in this Agreement to MICOA or as otherwise agreed by the Parties in
writing or to a successor when there is not a Change of Control as defined in
accordance with paragraph 19, below.
19. CHANGE OF CONTROL. If during the term of this Agreement there is a
loss of direct or indirect voting or equity control of MICOA (or of any
resulting organization) by MICOA's policyholders; or, a change of more than 50%
of MICOA's board of directors in any contiguous period of 24 months due to other
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than death, disability, retirement of sitting directors, or normal expiration of
director terms, a Change of Control shall have occurred. By way of clarification
but not limitation, no Change of Control shall occur from:
(a) The reorganization, consolidation, or dissolution of one or more of
MICOA's current or future subsidiaries, divisions, or affiliates;
(b) As a result of the full or partial completion of a mutual holding
company reorganization not resulting in the loss of policyholder
voting or equity control of MICOA;
(c) The full or partial demutualization of MICOA absent loss of
policyholder voting or equity control;
(d) Any other process from which Employee accepts alteration of Employee's
title, status, or duties in behalf of MICOA, or its subsidiaries,
divisions, or affiliates then in existence, or resulting from a
proposed transaction, but which does not displace policyholder voting
or equity control.
20. THIRD-PARTY BENEFICIARIES. Employee acknowledges and agrees that
Paragraphs 6, 7, 8 and 9 of this Agreement are enforceable by Employer or the
MICOA System and their respective successors and assigns permitted by this
Agreement. Except as otherwise expressly stated in this Agreement, Employer and
Employee agree that this Agreement does not, and that they have not intended to,
create any rights enforceable by any third parties.
21. NOTICES. All notices or other communications provided for or required
by this Agreement shall be directed to the Party to be notified, in writing, at
the Party's last known address, by registered or certified mail, return receipt
requested, by hand delivery or by special courier, and shall be deemed to have
been given when deposited in the U.S. mail with postage prepaid in full or when
delivered to the Party's address (if by hand delivery or special courier).
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This Agreement is effective on the Effective Date only when it is executed
and delivered by each Party.
WITNESS "EMPLOYER"
MICOA MANAGEMENT COMPANY, INC., a
Michigan corporation
/s/ Xxxxxxx Xxxxx By: /s/ Xxxxx X. Xxxxxx
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Its: CFO
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"EMPLOYEE"
/s/ Xxxxxxxx Oppenwall /s/ Xxxxxxx X. Xxxxxxxxx
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XXXXXXX X. XXXXXXXXX
CONSENTED TO INSOFAR AS ITS
INTERESTS APPEAR
MUTUAL INSURANCE CORPORATION
OF AMERICA
By: Xxxxxx X. Xxxxxxxx MD
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Its: Chair
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EXHIBIT A
XXXXXXX X. XXXXXXXXX COMPENSATION ARRANGEMENT
TWELVE MONTH PERIOD FOLLOWING , 1999
BASE SALARY. To be inserted.
DISCRETIONARY BONUS COMPENSATION. To be inserted.
FRINGE BENEFITS. To be inserted.
INCENTIVE PLAN. To be inserted.
ACCEPTED AND AGREED:
MICOA MANAGEMENT COMPANY, INC.
XXXXXXX X. XXXXXXXXX
By:
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Its: Dated: , 1999
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Dated: , 1999
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