EXHIBIT 10(AA)
SEVERANCE AGREEMENT
BETWEEN
FPIC INSURANCE GROUP, INC.
AND
XXXXXXX X. XXXX
THIS AGREEMENT, effective as of the 16th day of December 2000, is
between FPIC Insurance Group, Inc., a Florida corporation (the "Company"), and
XXXXXXX X. XXXX, an individual (the "Officer").
W I T N E S E T H:
WHEREAS, the Officer is a valuable employee of the Company and an
integral part of its management; and
WHEREAS, the Company wishes to encourage the Officer to continue her
career and services with the Company for the period during and after an actual
or threatened Change in Control (as hereinafter defined);
NOW THEREFORE, it is hereby agreed by and between the parties hereto as
follows:
1. Definitions.
a. "Board" shall mean the Board of Directors of the
Company.
b. "Cause" shall mean the Officer's fraud or dishonesty that has resulted
or is likely to result in material economic damage to the Company, or
the Officer's willful nonfeasance if such nonfeasance is not cured
within ten days of written notice from the Company, as determined in
good faith by a vote of at least two-thirds of the non-employee
directors of the Company at a meeting of the Board at which the Officer
is provided an opportunity to be heard.
c. "Change in Control" shall mean the earlier of the
following events:
(i) either (A) receipt by the Company of a report on
Schedule 13D, or an amendment to such a report, filed with the
Securities and Exchange Commission pursuant to Section 13(d)
of the Securities Exchange Act of 1934 (the "1934 Act"),
disclosing that any person (as such term is used in Section
13(d) of the 0000 Xxx) ("Person"), is the beneficial owner,
directly or indirectly, of twenty-five percent or more of the
outstanding stock of the Company, or (B) actual knowledge by
the Company of facts on the basis of which any Person is
required to file such a report on Schedule 13D, or to file an
amendment to such a report, with the SEC (or would be required
to file such a report or amendment upon the lapse of the
applicable period of time specified in Section 13(d) of the
0000 Xxx) disclosing that such Person is the beneficial owner,
directly or indirectly, of twenty-five percent or more of the
outstanding stock of the Company;
(ii) the purchase by any Person, other than the
Company or a wholly owned subsidiary of the Company, of shares
pursuant to a tender or exchange offer to acquire any stock of
the Company (or securities convertible into stock) for cash,
securities or any other consideration provided that, after
consummation of the offer, such Person is the beneficial owner
(as defined in Rule 13d-3 under the 1934 Act regardless of
whether the
Company or such Person would otherwise be subject to the 1934
Act), directly or indirectly, of twenty-five percent or more
of the outstanding stock of the Company (calculated as
provided in paragraph (d) of Rule 13d-3 under the 1934 Act in
the case of rights to acquire stock regardless of whether the
Company or such Person would otherwise be subject to the 1934
Act);
(iii) either (A) the filing by any Person acquiring,
directly or indirectly, twenty-five percent or more of the
outstanding stock of the Company of a statement with the
Florida Department of Insurance pursuant to Section 628.461 of
Florida Statutes or a successor statutory provision, or (B)
actual knowledge by the Company of facts on the basis of which
any Person acquiring, directly or indirectly, twenty-five
percent or more of the outstanding stock of the Company or a
controlling company is required to file such a statement
pursuant to Section 628.461 of Florida Statutes or a successor
provision.
(iv) (A) any consolidation or merger of the Company
in which the Company is not the continuing or surviving
corporation or pursuant to which shares of stock of the
Company would be converted into cash, securities or other
property, other than a consolidation or merger of the Company
in which holders of its stock immediately prior to the
consolidation or merger have substantially the same
proportionate ownership of common stock of the surviving
corporation immediately after the consolidation or merger as
immediately before, or (B) any consolidation or merger in
which the Company is the continuing or surviving corporation
but in which the common shareholders of the Company
immediately prior to the consolidation or merger do not hold
at least a majority of the outstanding common stock of the
continuing or surviving corporation (except where such holders
of common stock hold at least a majority of the common stock
of the corporation that owns all of the common stock of the
Company), or (C) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of
all or substantially all the assets of the Company, or (D) any
merger or consolidation of the Company where, after the merger
or consolidation, one Person owns 100% of the shares of stock
of the Company (except where the holders of the Company's
common stock immediately prior to such merger or consolidation
own at least 90% of the outstanding stock of such Person
immediately after such merger or consolidation); or
(v) a change in the majority of the members of the
Board within a 24-month period unless the election or
nomination for election by the Company's shareholders of each
new director was approved by the vote of at least two-thirds
of the directors then still in office who were in office at
the beginning of the 24-month period.
d. "Code" shall mean the Internal Revenue Code of 1986, as
amended.
e. "Constructive Discharge" shall mean any (i) material change
by the Company of the Officer's position, functions, or duties to an
inferior position, functions, or duties from that in effect on the date
of this Agreement or (ii) assignment or reassignment by the Company of
the Officer without the Officer's consent to another place of
employment more than 50 miles from the Officer's current place of
employment.
f. "Coverage Period" shall mean the period beginning December
22, 2000 and ending December 21, 2002.
2. Term.
This Agreement shall be effective during the Coverage Period and shall
terminate upon the termination thereof.
3. Severance Benefit.
a. If at any time during the Coverage Period the Officer's
employment is terminated by the Company for any reason other than Cause, death
or disability, then the Company shall thereafter continue to pay to the Officer
her then base salary for an additional twelve month period, payable in the same
manner as prior to her termination of employment. In the event that during the
Coverage Period a Constructive Discharge occurs following a Change of Control,
the Officer shall have the right for a three month period following such
Constructive Discharge to terminate her employment with the Company by providing
not less than 90 days written notice thereof (specifying the event relied upon
for the Constructive Discharge) to the Company (which notice period may be
shortened by the Company at any time in its discretion resulting in an earlier
termination date) and following such termination the Company shall thereafter
continue to pay to the Officer her then base salary for an additional twelve
month period, payable in the same manner as prior to her termination of
employment. In the event of the termination of the Officer's employment as
provided in this paragraph 3(a), the Officer shall be 100% vested in all of the
Company's stock options held by the Officer. The Officer's termination of
employment with the Company to become an employee of a corporation that owns
100% of the Company shall not be considered a termination of employment for
purposes of this Agreement. The subsequent termination of the Officer's
employment from such corporation shall be considered a termination of employment
for purposes of this Agreement.
b. The Company and the Officer, upon mutual written agreement,
may waive any of the provisions in paragraph 1(e) that would otherwise
constitute a Constructive Discharge. Within ten days of receiving such written
notice from Officer, the Company may cure the event that constitutes a
Constructive Discharge.
c. In the event of any termination of the Officer's employment
described in paragraph 3(a), the Officer shall be under no obligation to seek
other employment, and there shall be no offset against amounts due the Officer
under this Agreement on account of any remuneration attributable to any
subsequent employment.
4. Source of Payments.
All payments provided for in paragraph 3 above shall be paid in cash
from the general funds of the Company; provided, however, that such payments
shall be reduced by the amount of any payments made to the Officer or her
dependents, beneficiaries or estate from any trust or special or separate fund
established by the Company to assure such payments. The Company shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if the Company shall make any investments to aid
it in meeting its obligations hereunder, the Officer shall have no right, title
or interest whatever in or to any such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in this Agreement, and no action taken pursuant
to its provisions, shall create or be construed to create a trust of any kind,
or a fiduciary relationship between the Company and the Officer or any other
person. To the extent that any person acquires a right to receive payments from
the Company pursuant to this Agreement, such right shall be no greater than the
right of an unsecured creditor of the Company.
5. Mediation and Arbitration.
Any dispute or controversy arising out of or in relation to this
Agreement shall first be submitted to mediation in the City of Jacksonville,
Florida in accordance with the Commercial Mediation Rules of the American
Arbitration Association. If mediation fails to resolve such dispute or
controversy, then such dispute or controversy shall be determined and settled by
arbitration in the City of Jacksonville, Florida, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association then in
effect, and judgment upon the award rendered by the arbitrator may be entered in
any court of competent jurisdiction. The parties hereto agree to use good faith
efforts to select a mediator and, if mediation fails to resolve such dispute or
controversy, an arbitrator. If the parties cannot agree upon a mediator or
arbitrator, such mediator or arbitrator shall be selected in accordance with the
relevant Commercial Rules of the American Arbitration Association then in
effect. Whenever any action is required to be taken under this Agreement within
a specified period of time and the taking of such action is materially affected
by a matter
submitted to mediation or arbitration, such period shall automatically be
extended by the number of days plus ten that are taken for the determination of
that matter by the parties through mediation or otherwise by the arbitrator.
6. Income Tax Withholding.
The Company may withhold from any payments made under this Agreement
all federal, state or other taxes as shall be required pursuant to any law or
governmental regulation or ruling.
7. Entire Understanding.
This Agreement contains the entire understanding between the Company
and the Officer with respect to the subject matter hereof and supersedes any
prior agreements or understandings between the Company and the Officer with
respect thereto.
8. Severability.
If, for any reason, any one or more of the provisions or part of a
provision contained in this Agreement shall be held by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement not held so invalid, illegal or
unenforceable, and each other provision or part of a provision shall to the full
extent consistent with law continue in full force and effect.
9. Consolidation, Merger, or Sale of Assets.
If the Company consolidates or merges into or with, or
transfers all or substantially all of its assets to, another corporation, the
term "Company" as used herein shall mean such other corporation and this
Agreement shall continue in full force and effect.
10. Notices.
All notices, requests, demands and other communications required or
permitted hereunder shall be given in writing and shall be deemed to have been
duly given if hand delivered or mailed, postage prepaid, certified or
registered, first class as follows:
a. to the Company:
FPIC Insurance Group, Inc.
Attention: Chief Executive Officer
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
b. to the Officer:
Xxxxxxx X. Xxxx
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxxxx Xxxxx, XX 00000
or to such other address as either party shall have previously specified in
writing to the other.
11. No Attachment.
Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge or hypothecation or to execution,
attachment, levy or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null, void
and of no effect.
12. Binding Agreement.
This Agreement shall be binding upon, and shall inure to the benefit
of, the Officer and the Company and their respective permitted successors and
assigns.
13. Modification and Waiver.
This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto. No term or condition of this Agreement
shall be deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement except by written instrument
signed by the party charged with such waiver or estoppel. No such written waiver
shall be deemed a continuing waiver unless specifically stated therein, and each
such waiver shall operate only as to the specific term or condition waived and
shall not constitute a waiver of such term or condition for the future or as to
any act other than that specifically waived.
14. Headings of No Effect.
The paragraph headings contained in this Agreement are included solely
for convenience of reference and shall not in any way affect the meaning or
interpretation of any of the provisions of this Agreement.
15. Governing Law.
This Agreement and its validity, interpretation, performance, and
enforcement shall be governed by the laws of the State of Florida without giving
effect to the choice of law provisions in effect in such State.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
FPIC INSURANCE GROUP, INC.
By:
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Xxxx X. Xxxxx
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Xxxxxxx X. Xxxx
