Exhibit 10.5
CHANGE IN CONTROL
SEVERANCE AGREEMENT
THIS AGREEMENT, effective November 7, 2001, is made by and between SAFECO
Corporation, a Washington corporation ("SAFECO"), and Name (the "Executive").
WHEREAS, SAFECO (together with its subsidiaries, collectively, the "Company"),
considers it essential to the best interests of its stockholders to xxxxxx the
continued employment of key management personnel; and
WHEREAS, SAFECO recognizes that, as is the case with many publicly held
corporations, the possibility of a Change in Control exists and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of the Company and its stockholders; and
WHEREAS, SAFECO has determined that appropriate steps should be taken to
reinforce and encourage the continued attention and dedication of members of the
Company's management, including the Executive, to their assigned duties without
distraction in the face of potentially disturbing circumstances arising from the
possibility of a Change in Control;
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein
contained, the Company and the Executive agree as follows:
1. Defined Terms. The definitions of capitalized terms used in this Agreement
are provided in Section 15.
2. Term of Agreement. The Term of this Agreement shall commence on the date
hereof and shall continue in effect until the earlier of (i) the date it is
terminated by written agreement between the Company and the Executive and (ii)
seventh anniversary of a Change in Control.
3. Company's Covenants Summarized. In order to induce the Executive to remain in
the employ of the Company and in consideration of the Executive's covenants
stated in Section 4, the Company agrees, under the conditions described herein,
to pay the Executive the Severance Payments and the other payments and benefits
described herein. Except as provided in Section 5.1, Section 5.4, Section
6.2(A), and Section 9.1, no amount or benefit shall be payable under this
Agreement unless there shall have been a termination of the Executive's
employment with the Company following a Change in Control and during the Term.
This Agreement shall not be construed as creating an express or implied contract
of employment and, except as otherwise agreed in writing between the Executive
and the Company, the Executive shall not have any right to be retained in the
employ of the Company.
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4. The Executive's Covenants. The Executive agrees that, subject to the terms
and conditions of this Agreement, in the event of a Potential Change in Control
during the Term, the Executive will remain in the employ of the Company until
the earliest of (i) a date which is six (6) months from the date of such
Potential Change of Control, (ii) the date of a Change in Control, (iii) the
date of termination by the Executive of the Executive's employment for Good
Reason or by reason of death, Disability or Retirement, or (iv) the termination
by the Company of the Executive's employment for any reason.
5. Compensation Other Than Severance Payments.
5.1 Salary During Incapacity or Illness. Following a Change in Control
and during the Term, during any period that the Executive fails to perform the
Executive's fulltime duties with the Company as a result of incapacity due to
physical or mental illness, the Company shall pay the Executive's full salary to
the Executive at the rate in effect at the commencement of any such period,
together with all compensation and benefits payable to the Executive under the
terms of any applicable compensation or benefit plan, program or arrangement
maintained by the Company during such period, until the Executive's employment
is terminated by the Company for Disability.
5.2 Salary During Term. If the Executive's employment shall be
terminated for any reason following a Change in Control and during the Term, the
Company shall pay the Executive's full salary to the Executive through the Date
of Termination at the rate in effect at the time the Notice of Termination is
given or, if higher, the rate in effect immediately prior to the first
occurrence of an event or circumstance constituting Good Reason, together with
all compensation and benefits payable to the Executive through the Date of
Termination under the terms of the Company's compensation and benefit plans,
programs or arrangements.
5.3 Post-Termination Compensation and Benefits. If the Executive's
employment shall be terminated for any reason following a Change in Control and
during the Term, the Company shall pay to the Executive the normal
post-termination compensation and benefits as such payments become due. Such
post-termination compensation and benefits shall be determined under, and paid
in accordance with, the Company's applicable retirement, insurance and other
compensation or benefit plans, programs and arrangements as in effect
immediately prior to the Date of Termination or, if more favorable to the
Executive, as in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason.
5.4 Incentive Awards.
(A) Stock Options and SARs. Immediately prior to the Change in Control,
all awards of stock options and stock appreciation rights ("SARs") previously
granted to the Executive shall become fully vested and exercisable. The phrase
"immediately prior to the Change in Control" shall be understood to mean
sufficiently in advance of a Change in Control to permit the Executive to take
all steps reasonably necessary to exercise all options and SARs and to deal with
the shares of stock underlying the awards of stock options and SARs so that such
shares may be treated in the same manner as the shares of stock of other
shareholders in connection with the Change in Control.
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(B) Performance Stock Rights. To the extent deemed earned, each
outstanding performance stock right ("PSR") previously granted to the Executive
shall become immediately payable in cash upon a Change in Control, and the
remainder of each outstanding PSR shall be canceled for no value. All
outstanding PSRs shall be deemed to have been earned to the extent of the
greater of:
(i) the number of shares determined by the Committee based on the
extent to which the performance goals specified in the PSR award
agreement have been achieved during the portion of the
performance period ending on the last day of the last fiscal
quarter of the Company ending on or before the date of the Change
in Control, and
(ii) the number of shares equal to the product of the target shares
identified in the PSR award agreement multiplied by a fraction
with a numerator equal to the whole number of calendar months
beginning with the month in which the PSR was granted and ending
on the date of the Change in Control and a denominator equal to
the whole number of calendar months in the entire performance
period covered by the PSR award agreement and less any shares
previously issued under the PSR award agreement.
(C) Restricted Stock Rights. All restrictions with respect to restricted
stock rights ("RSRs") shall lapse upon a change in Control, and all outstanding
RSRs of the Executive shall be immediately settled by a cash payment.
(D) Leadership Performance Plan. The Executive shall be eligible to
receive an incentive award pursuant to the terms of the Leadership Performance
Plan.
(E) Other Incentive Awards. All other restrictions with respect to
outstanding incentive awards of the Executive not described in subsections (A)
through (D) of this Section 5.4 shall lapse upon a Change in Control, and such
awards shall be fully vested and nonforfeitable.
(F) Fair Market Value. For purposes of this Section 5.4, with respect to
determining the cash equivalent value of an RSR or PSR or the spread payable
upon exercise of an SAR, the fair market value of a share of the Company's stock
shall be deemed to equal the greater of (i) the fair market value of a share of
stock as of the date on which a Change in Control occurs and (ii) the highest
price of a share of stock which is paid or offered to be paid, by any person or
entity, in connection with any transaction which constitutes a Change in
Control.
5.5 Deferral Election. The Executive may elect to defer all or a portion
of the payments that are to be made to the Executive under Section 6.1(A) and
Section 6.2. The Executive may exercise such election by delivering a notice of
election (in accordance with Section 10) prior to the occurrence of the Change
in Control, which notice shall state the portion of such payments that is to be
deferred (expressed as a dollar amount or as a percentage ("the Deferred
Benefit")), the date the payment of the Deferred Benefit shall commence ("the
Deferred
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Benefit Commencement Date"), and the number of equal consecutive monthly
installments (not to exceed 120) that the Deferred Benefit is to be paid in. In
no event shall the Deferred Benefit Commencement Date be subsequent to the first
day of January of the year immediately following the Executive's sixty-fifth
birthday. In the event such an election is made:
(A) The amount that would have otherwise been paid under the provisions
of Section 6.1(A) and Section 6.2 shall be reduced by an amount equal to the
Deferred Benefit.
(B) The Deferred Benefit, together with simple interest calculated at an
annual rate of ten percent (10%) on the unpaid balance of the Deferred Benefit
from the date that payment of the Deferred Benefit would have otherwise been
made, shall be paid in the number of equal consecutive monthly installments
selected by the Executive, with the first such installment being made on the
Deferred Benefit Commencement Date and a subsequent payment being made on the
first day of each month thereafter.
(C) If the Executive dies prior to receiving the full amount of the
Deferred Benefit, the Company shall continue to pay the Deferred Benefit to the
estate of the Executive in the same manner as the Deferred Benefit would have
been paid to the Executive if the Executive had not died.
(D) The Deferred Benefit shall in no event be set aside or deposited to
a separate account or fund, and the rights of the Executive to the Deferred
Benefit shall not be greater than the rights of any other general, unsecured
creditor of the Company.
(E) The Executive, the Executive's spouse, and any other person or
entity claiming through or under the Executive shall not have any power or
authority to commute, encumber, or dispose of any right to receive payment of
the Deferred Benefit, all of which payments are expressly declared to be
non-assignable. In the event of any attempt at assignment or other disposition,
the Company shall have no further liability to pay the Deferred Benefit. The
Deferred Benefit provided for in this Agreement shall not be subject to seizure
for the payment of any debts, judgments, alimony, separate maintenance or child
support, or be reached or transferred by operation of law, or in the event of
bankruptcy, insolvency or otherwise.
6. Severance Payments.
6.1 Severance Payments Enumerated. The Company shall pay the Executive
the payments described in this Section 6.1 (the "Severance Payments") upon the
termination of the Executive's employment following a Change in Control and
during the Term, in addition to any payments and benefits to which the Executive
is then entitled under Section 5, unless such termination is (i) by the Company
for Cause, (ii) by reason of death, Disability or Retirement, or (iii) by the
Executive without Good Reason. Additionally, during the one-month period
beginning with the first day of the month immediately following the first
anniversary of the Change in Control, the Executive may voluntarily terminate
his employment for any reason and, upon such termination, the Company shall pay
the Executive the Severance Payments and the Gross-Up Payment, in addition to
any payments and benefits to which the Executive is then entitled under Section
5. For purposes of this Agreement, the Executive's employment shall be
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deemed to have been terminated following a Change in Control by the Company
without Cause or by the Executive with Good Reason, if (i) the Executive's
employment is terminated by the Company without Cause prior to a Change in
Control and such termination was at the request or direction of a Person who has
entered into an agreement with the Company the consummation of which would
constitute a Change in Control, (ii) the Executive terminates his employment
with Good Reason prior to a Change in Control and the circumstance or event
which constitutes Good Reason occurs at the request or direction of such Person,
or (iii) the Executive's employment is terminated by the Company without Cause
prior to a Change in Control and the Executive reasonably demonstrates that such
termination is otherwise in connection with or in anticipation of a Change in
Control.
(A) In lieu of any further salary payments to the Executive for periods
subsequent to the Date of Termination and in lieu of any severance benefit
otherwise payable to the Executive, the Company shall pay to the Executive a
lump sum severance payment, in cash, equal to three (or, if less, the number of
years, rounded to the nearest hundredth of a year, remaining until December 31
of the year in which the Executive attains age 65) times the higher of the
Executive's annual base salary in effect immediately prior to the occurrence of
the event or circumstance upon which the Notice of Termination is based and the
Executive's base salary in effect immediately prior to Date of Termination.
(B) For the thirty-six (36) month period immediately following the Date
of Termination or, if shorter, for the period commencing immediately following
the Date of Termination and ending on December 31 of the year in which the
Executive attains age 65 (such applicable period, the "Severance Period"), the
Company shall arrange to provide the Executive with life, disability, accident
and health insurance benefits substantially similar to those which the Executive
is receiving immediately prior to the Date of Termination; provided, however,
that, unless the Executive consents to a different method (after taking into
account the effect of such method on the calculation of "parachute payments"
pursuant to Section 6.2), such health insurance benefits shall be provided
through a third-party insurer. Benefits otherwise receivable by the Executive
pursuant to this Section 6.1 (B) shall be reduced to the extent comparable
benefits are actually received by or made available to the Executive (other than
benefits available pursuant to the Consolidated Omnibus Budget Reform Act of
1985) during the Severance Period (and any such benefits actually received by or
made available to the Executive shall be reported to the Company by the
Executive).
(C) Notwithstanding any provision of any annual or long-term incentive
plan to the contrary, the Company shall pay to the Executive a lump sum amount,
in cash, equal to the sum of (i) any incentive compensation which has been
allocated or awarded to the Executive for a completed year or other measuring
period preceding the Date of Termination under any such plan and which, as of
the Date of Termination, is contingent only upon the continued employment of the
Executive to a subsequent date, and (ii) a pro rata portion to the Date of
Termination of the aggregate value of all contingent incentive compensation
awards to the Executive for all then uncompleted periods under any such plan,
calculated as to each such award by multiplying the award that the Executive
would have earned on the last day of the performance award period, assuming the
achievement, at the level that would produce the maximum award, of the
individual and corporate performance goals established with respect to such
award, by the fraction obtained
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by dividing the number of full months and any fractional portion of a month
during such performance award period through the Date of Termination by the
total number of months contained in such performance award period.
6.2 "Gross-Up Payment."
(A) Whether or not the Executive becomes entitled to the Severance
Payments, if any of the payments or benefits received or to be received by the
Executive in connection with a Change in 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 Company, any Person whose actions result
in a Change in Control or any Person affiliated with the Company or such Person)
(such payments or benefits, excluding the Gross-Up Payment, being hereinafter
referred to as the "Total Payments") will be subject to the Excise Tax, the
Company shall pay to the Executive an additional amount (the "Gross-Up Payment")
such that the net amount retained by the Executive, after deduction of any
Excise Tax on the Total Payments and any federal, state and local income and
employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into
account the phase out of the itemized deductions attributable to the Gross-Up
Payment, shall be equal to the Total Payments.
(B) For purposes of determining whether any of the Total Payments will
be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the
Total Payments shall be treated as "parachute payments" (within the meaning of
section 280G(b)(2) of the Code) unless, in the opinion of tax counsel selected
by the accounting firm which was, immediately prior to the Change in Control,
the Company's independent accountant (the "Accountant") and which tax counsel is
reasonably acceptable to the Executive ("Tax Counsel"), such payments or
benefits (in whole or in part) do not constitute parachute payments, including
by reason of section 280G(b)(4)(A) of the Code, (ii) 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, such excess
parachute payments (in whole or in part) represent reasonable compensation for
services actually rendered (within the meaning of section 280G(b)(4)(B) of the
Code) in excess of the Base Amount allocable to such reasonable compensation, or
are otherwise not subject to the Excise Tax, and (iii) the value of any noncash
benefits or any deferred payment or benefit shall be determined by the
Accountant in accordance with the principles of sections 280G(d)(3) and (4) of
the Code. For purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income tax at the highest marginal rate
of federal income taxation in the calendar year in which the Gross-Up Payment is
to be made 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 (or if there is no Date of Termination, then the date on which the
Gross-Up Payment is calculated for purposes of this Section 6.2), net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes.
(C) In the event that the Excise Tax is finally determined to be less
than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Executive shall repay to the Company, at the time that the amount
of such reduction in Excise Tax is finally determined, the portion of the
Gross-Up Payment attributable to such reduction (plus that portion of the
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Gross-Up Payment attributable to the Excise Tax and federal, state and local
income and employment taxes imposed on the Gross-Up Payment being repaid by the
Executive to the extent that such repayment results in a reduction in Excise Tax
and/or a federal, state or local income or employment tax deduction) plus
interest on the amount of such repayment at 120% of the rate provided in section
1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder in calculating the Gross-Up
Payment (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Gross-Up Payment), the Company shall
make an additional Gross-Up Payment in respect of such excess (plus any
interest, penalties or additions payable by the Executive with respect to such
excess) at the time that the amount of such excess is finally determined. The
Executive and the Company shall each reasonably cooperate with the other in
connection with any administrative or judicial proceedings concerning the
existence or amount of liability for Excise Tax with respect to the Total
Payments.
6.3 Severance Payments Pay Date. The payments provided in subsections
(A) and (C) of Section 6.1 and in Section 6.2 shall be made not later than the
fifth day following the Date of Termination; provided, however, that if the
amounts of such payments cannot be finally determined on or before such day, the
Company shall pay to the Executive on such day an estimate, as determined in
good faith by the Executive or, in the case of payments under Section 6.2, in
accordance with Section 6.2, of the minimum amount of such payments to which the
Executive is clearly entitled and shall pay the remainder of such payments
(together with interest on the unpaid remainder (or on all such payments to the
extent the Company fails to make such payments when due) at 120% of the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can
be determined but in no event later than the thirtieth (30th) day after the Date
of Termination. In the event that the amount of the estimated payments exceeds
the amount subsequently determined to have been due, such excess shall
constitute a loan by the Company to the Executive, payable on the fifth (5th)
business day after demand by the Company (together with interest at 120% of the
rate provided in section 1274(b)(2)(B) of the Code). At the time that payments
are made under this Section, the Company shall provide the Executive with a
written statement setting forth the manner in which such payments were
calculated and the basis for such calculations including, without limitation,
any opinions or other advice the Company has received from Tax Counsel, the
Accountant or other advisors or consultants (and any such opinions or advice
which are in writing shall be attached to the statement).
6.4 Executive's Legal Fees. The Company also shall pay to the Executive
all legal fees and expenses incurred by the Executive in disputing in good faith
any issue hereunder relating to the termination of the Executive's employment,
in seeking in good faith to obtain or enforce any benefit or right provided by
this Agreement or in connection with any tax audit or proceeding to the extent
attributable to the application of section 4999 of the Code to any payment or
benefit provided hereunder. Such payments shall be made within five (5) business
days after delivery of the Executive's written requests for payment accompanied
with such evidence of fees and expenses incurred as the Company reasonably may
require.
7. Termination Procedures and Compensation During Dispute.
7.1 Notice of Termination. After a Change in Control and during the
Term, any
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purported termination of the Executive's employment (other than by reason of
death) shall be communicated by written Notice of Termination from one party
hereto to the other party hereto in accordance with Section 10. For purposes of
this Agreement, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision in this Agreement relied upon and
shall state in reasonable detail the facts and circumstances claimed to provide
a basis for termination of the Executive's employment under the provision so
indicated. Further, a Notice of Termination for Cause is required to include a
copy of a resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board at a meeting of the
Board which was called and held for the purpose of considering such termination
(after reasonable notice to the Executive and an opportunity for the Executive,
together with the Executive's counsel, to be heard before the Board) finding
that, in the good faith opinion of the Board, the Executive was guilty of
conduct stated in clause (i) or (ii) of the definition of Cause herein, and
specifying the particulars thereof in detail.
7.2 Date of Termination. "Date of Termination," with respect to any
purported termination of the Executive's employment after a Change in Control
and during the Term, shall mean (i) if the Executive's employment is terminated
for Disability, thirty (30) days after Notice of Termination is given (provided
that the Executive shall not have returned to the full-time performance of the
Executive's duties during such thirty (30) day period), and (ii) if the
Executive's employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination by the Company,
shall not be less than thirty (30) days (except in the case of a termination for
Cause) and, in the case of a termination by the Executive, shall not be less
than fifteen (15) days nor more than sixty (60) days, respectively, from the
date such Notice of Termination is given).
7.3 Dispute Concerning Termination. If within fifteen (15) days after
any Notice of Termination is given, or, if later, prior to the Date of
Termination (as determined without regard to this Section 7.3), the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, the Date of Termination shall be extended
until the earlier of (i) the date on which the Term ends or (ii) the date on
which the dispute is finally resolved, either by mutual written agreement of the
parties or by a final judgment, order or decree of an arbitrator or a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected);
provided, however, that the Date of Termination shall be extended by a notice of
dispute given by the Executive only if such notice is given in good faith and
the Executive pursues the resolution of such dispute with reasonable diligence.
7.4 Compensation During Dispute. If a purported termination occurs
following a Change in Control and during the Term and the Date of Termination is
extended in accordance with Section 7.3, the Company shall continue to pay the
Executive the full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, salary) and continue the
Executive as a participant in all compensation, benefit and insurance plans in
which the Executive was participating when the notice giving rise to the dispute
was given, until the Date of Termination, as determined in accordance with
Section 7.3. Amounts paid under this Section 7.4 are in addition to all other
amounts due under this Agreement (other than those due under Section 5.2) and
shall not be offset against or reduce any other amounts due under this
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Agreement.
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8. No Mitigation. The Company agrees that, if the Executive's employment with
the Company terminates during the Term, the Executive is not required to seek
other employment or to attempt in any way to reduce any amounts payable to the
Executive by the Company pursuant to Section 6 or Section 7.4. Further, the
amount of any payment or benefit provided for in this Agreement (other than
Section 6.1(B)) shall not be reduced by any compensation earned by the Executive
as the result of employment by another employer, by retirement benefits, by
offset against any amount claimed to be owed by the Executive to the Company, or
otherwise.
9. Successors; Binding Agreement.
9.1 SAFECO Successors. In addition to any obligations imposed by law
upon any successor to SAFECO, SAFECO will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of SAFECO to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that SAFECO would be required to perform it if no such succession had taken
place. Failure of SAFECO to obtain such assumption and agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle the Executive to compensation from the Company in the same amount
and on the same terms as the Executive would be entitled to hereunder if the
Executive were to terminate the Executive's employment for Good Reason after a
Change in Control, except that, for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination.
9.2 Executive's Successors. This Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive shall die while any amount would still be payable to
the Executive hereunder (other than amounts which, by their terms, terminate
upon the death of the Executive) if the Executive had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
10. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered mail, return receipt requested, postage prepaid, addressed, if to the
Executive, to the address inserted below the Executive's signature on the final
page and, if to the Company, to the address stated below, or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of a change of address shall be effective only upon
actual receipt:
To the Company:
SAFECO Corporation
SAFECO Plaza
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
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11. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by the Executive and an officer of SAFECO. No waiver by either party
hereto at any time of any breach by the other party hereto of, or of any lack of
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. This Agreement
supersedes any other agreements or representations, oral or otherwise, express
or implied, with respect to its subject matter which have been made by either
party. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Washington. All
references to sections of the Exchange Act or the Code shall be deemed also to
refer to any successor provisions to such sections. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state or local law and any additional withholding to which the
Executive has agreed. The obligations of the Company and the Executive under
this Agreement which by their nature may require either partial or total
performance after the expiration of the Term (including, without limitation,
those under Sections 6 and 7) shall survive such expiration.
12. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
13. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
14. Settlement of Disputes; Arbitration.
(A) All claims by the Executive for benefits under this Agreement shall
be directed to and determined by the Committee and shall be in writing. Any
denial by the Committee of a claim for benefits under this Agreement shall be
delivered to the Executive in writing and shall state the specific reasons for
the denial and the specific provisions of this Agreement relied upon. The
Committee shall afford a reasonable opportunity to the Executive for a review of
the decision denying a claim and shall further allow the Executive to appeal to
the Committee a decision of the Committee within sixty (60) days after
notification by the Committee that the Executive's claim has been denied.
(B) Any further dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration in Seattle,
Washington in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Notwithstanding any provision of this Agreement to the
contrary, the Executive shall be entitled to seek specific performance of the
Executive's right to be paid until the Date of Termination during the pendency
of any dispute or controversy arising under or in connection with this
Agreement.
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15. Definitions. For purposes of this Agreement, the following terms shall have
the meanings indicated below:
(A) "Accountant" shall have the meaning stated in Section 6.2.
(B) "Affiliate" shall have the meaning stated in Rule 12b-2 promulgated
under Section 12 of the Exchange Act.
(C) "Base Amount" shall have the meaning stated in section 280G(b)(3) of
the Code.
(D) "Beneficial Owner" shall have the meaning stated in Rule 13d-3 under
the Exchange Act.
(E) "Board" shall mean the Board of Directors of SAFECO.
(F) "Cause" for termination by the Company of the Executive's employment
shall mean (i) the willful and continued failure by the Executive to
substantially perform the Executive's duties with the Company (other than any
such failure resulting from the Executive's incapacity due to physical or mental
illness or any such actual or anticipated failure after the issuance of a Notice
of Termination for Good Reason by the Executive pursuant to Section 7.1) after a
written demand for substantial performance is delivered to the Executive by the
Board, which demand specifically identifies the manner in which the Board
believes that the Executive has not substantially performed the Executive's
duties, or (ii) the willful engaging by the Executive in conduct which is
demonstrably and materially injurious to the Company or its subsidiaries,
monetarily or otherwise. For purposes of clauses (i) and (ii) of this
definition, (x) no act, or failure to act, on the Executive's part shall be
deemed "willful" unless done, or omitted to be done, by the Executive not in
good faith and without reasonable belief that the Executive's act, or failure to
act, was in the best interest of the Company and (y) in the event of a dispute
concerning the application of this provision, no claim by the Company that Cause
exists shall be given effect unless the Company establishes to the Committee by
clear and convincing evidence that Cause exists.
(G) A "Change in Control" shall be deemed to have occurred if the event
stated in any one of the following paragraphs shall have occurred:
(i) any Person is or becomes the Beneficial Owner, directly or
indirectly, of securities of SAFECO (not including in the securities
beneficially owned by such Person any securities acquired directly from SAFECO
or its affiliates) representing 25% or more of the combined voting power of
SAFECO's then outstanding securities, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in clause (a) of
paragraph (iii) below; or
(ii) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, on the date
hereof, constitute the Board and any new director (other than a director whose
initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
12
to the election of directors of SAFECO) whose appointment or election by the
Board or nomination for election by SAFECO's stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still
in office who either were directors on the date hereof or whose appointment,
election or nomination for election was previously so approved or recommended;
or
(iii) there is consummated a merger or consolidation of SAFECO or any
direct or indirect subsidiary of SAFECO with any other corporation, other than
(a) a merger or consolidation which would result in the voting securities of
SAFECO outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of SAFECO or any subsidiary of SAFECO, at least 75% of the
combined voting power of the securities of SAFECO or such surviving entity or
any parent thereof outstanding immediately after such merger or consolidation,
or (b) a merger or consolidation effected to implement a recapitalization of
SAFECO (or similar transaction) in which no Person is or becomes the Beneficial
Owner, directly or indirectly, of securities of SAFECO (not including in the
securities Beneficially Owned by such Person any securities acquired directly
from SAFECO or its Affiliates) representing 25% or more of the combined voting
power of SAFECO's then outstanding securities; or
(iv) the stockholders of SAFECO approve a plan of complete liquidation
or dissolution of SAFECO or there is consummated an agreement for the sale or
disposition by SAFECO of all or substantially all of SAFECO's assets, other than
a sale or disposition by SAFECO of all or substantially all of SAFECO's assets
to an entity, at least 75% of the combined voting power of the voting securities
of which are owned by stockholders of SAFECO in substantially the same
proportions as their ownership of SAFECO immediately prior to such sale.
Notwithstanding the foregoing, a "Change in Control" shall not be deemed to have
occurred by virtue of the consummation of any transaction or series of
integrated transactions immediately following which the record holders of the
common stock of SAFECO immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in
an entity which owns all or substantially all of the assets of SAFECO
immediately following such transaction or series of transactions.
(H) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
(I) "Committee" shall mean (i) the individuals (not fewer than three in
number) who, on the date six months before a Change in Control, constitute the
Compensation Committee of the Board, plus (ii) in the event that fewer than
three individuals are available from the group specified in clause (i) above for
any reason, such individuals as may be appointed by the individual or
individuals so available (including for this purpose any individual or
individuals previously so appointed under this clause (ii)).
(J) "Company" shall mean SAFECO and its subsidiaries, collectively.
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(K) "Date of Termination" shall have the meaning stated in Section 7.2.
(L) "Deferred Benefit" shall have the meaning stated in Section 5.4.
(M) "Deferred Benefit Commencement Date" shall have the meaning stated
in Section 5.4.
(N) "Disability" shall be deemed the reason for the termination by the
Company of the Executive's employment, if, as a result of the Executive's
incapacity due to physical or mental illness, the Executive shall have been
absent from the full-time performance of the Executive's duties with the Company
for a period of one hundred and thirty (130) consecutive business days, the
Company shall have given the Executive a Notice of Termination for Disability,
and, within thirty (30) days after such Notice of Termination is given, the
Executive shall not have returned to the full-time performance of the
Executive's duties.
(O) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(P) "Excise Tax" shall mean any excise tax imposed under section 4999 of
the Code.
(Q) "Executive" shall mean the individual named in the first paragraph
of this Agreement.
(R) "Good Reason" for termination by the Executive of the Executive's
employment shall mean the occurrence (without the Executive's express written
consent) after any Change in Control, or prior to a Change in Control under the
circumstances described in clause (ii) of the second sentence of Section 6.1
(treating all references in paragraphs (i) through (vii) below to a "Change in
Control" as references to a "Potential Change in Control"), of any one of the
following acts by the Company, or failures by the Company to act, unless, in the
case of any act or failure to act described in paragraph (i), (v), (vi) or (vii)
below, such act or failure to act is corrected prior to the Date of Termination
specified in the Notice of Termination given in respect thereof:
(i) the assignment to the Executive of any duties inconsistent with the
Executive's status as a senior executive officer of the Company or a substantial
adverse alteration in the nature or status of the Executive's responsibilities
from those in effect immediately prior to the Change in Control;
(ii) a reduction by the Company in the Executive's annual base salary as
in effect on the date hereof or as the same may be increased from time to time;
(iii) the relocation of the Executive's principal place of employment to
a location outside of King County, Washington (or, if different, the county in
which such principal place of employment is located immediately prior to the
Change in Control) or the Company's requiring the Executive to be based anywhere
other than such principal place of employment (or permitted
14
relocation thereof) except for required travel on the Company's business to an
extent substantially consistent with the Executive's present business travel
obligations;
(iv) the failure by the Company to pay to the Executive any portion of
the Executive's current compensation, or to pay to the Executive any portion of
an installment of deferred compensation under any deferred compensation program
of the Company, within seven (7) days of the date such compensation is due;
(v) the failure by the Company to continue in effect any compensation
plan (including stock option, restricted stock, stock appreciation right,
incentive compensation and bonus plans) in which the Executive participates
immediately prior to the Change in Control which is material to the Executive's
total compensation, unless an equitable arrangement (embodied in an ongoing
substitute or alternative plan) has been made with respect to such plan, or the
failure by the Company to continue the Executive's participation therein (or in
such substitute or alternative plan) on a basis not materially less favorable,
both in terms of the amount or timing of payment of benefits provided and the
level of the Executive's participation relative to other participants, as
existed immediately prior to the Change in Control;
(vi) the failure by the Company to continue to provide the Executive
with benefits substantially similar to those enjoyed by the Executive under any
of the Company's profit sharing, pension, savings, life insurance, medical,
health and accident, or disability plans in which the Executive was
participating immediately prior to the Change in Control, the taking of any
action by the Company which would directly or indirectly materially reduce any
of such benefits or deprive the Executive of any material fringe benefit enjoyed
by the Executive at the time of the Change in Control, or the failure by the
Company to provide the Executive with the number of paid vacation days to which
the Executive is entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy in effect at the time of
the Change in Control; or
(vii) any purported termination of the Executive's employment which is
not effected pursuant to a Notice of Termination satisfying the requirements of
Section 7.1; for purposes of this Agreement, no such purported termination shall
be effective.
The Executive's right to terminate the Executive's employment for Good
Reason shall not be affected by the Executive's incapacity due to physical or
mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
For purposes of any determination regarding the existence of Good
Reason, any claim by the Executive that Good Reason exists shall be presumed to
be correct unless the Company establishes to the Committee by clear and
convincing evidence that Good Reason does not exist.
(S) "Gross-Up Payment" shall have the meaning stated in Section 6.2.
(T) "Notice of Termination" shall have the meaning stated in Section
7.1.
15
(U) "Person" shall have the meaning given in Section 3(a)(9) of the
Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except
that such term shall not include (i) SAFECO or any of its subsidiaries, (ii) a
trustee or other fiduciary holding securities under an employee benefit plan of
SAFECO or any of its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or (iv) a corporation
owned, directly or indirectly, by the stockholders of SAFECO in substantially
the same proportions as their ownership of stock of SAFECO.
(V) "Potential Change in Control" shall be deemed to have occurred if
the event stated in any one of the following paragraphs shall have occurred:
(i) SAFECO enters into an agreement, the consummation of which would
result in the occurrence of a Change in Control;
(ii) SAFECO or any Person publicly announces an intention to take or to
consider taking actions which, if consummated, would constitute a Change in
Control;
(iii) any Person becomes the Beneficial Owner, directly or indirectly,
of securities of SAFECO representing 10% or more of either the then outstanding
shares of common stock of SAFECO or the combined voting power of SAFECO's then
outstanding securities (not including in the securities beneficially owned by
such Person any securities acquired directly from SAFECO or its affiliates); or
(iv) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Potential Change in Control has occurred.
(W) "Retirement" shall be deemed the reason for the termination by the
Company or the Executive of the Executive's employment if such employment is
terminated on or after the date Executive attains age 65.
(X) "SAFECO" shall mean SAFECO Corporation and, except in determining
under Section 15(G) whether or not any Change in Control has occurred, shall
include any successor to its business and/or assets which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(Y) "Severance Payments" shall mean the payments so described in Section
6.1.
(Z) "Severance Period" shall have the meaning stated in Section 6.1(B).
(AA) "Tax Counsel" shall have the meaning stated in Section 6.2.
(BB) "Term" shall mean the period of time described in Section 2
(including any extension, continuation or termination described therein).
16
(CC) "Total Payments" shall mean the payments so described in Section
6.2.
SAFECO CORPORATION
By:
--------------------------- -------------------------------------------
Name
Such address as may appear on the personnel
records of SAFECO or such other address as
Name may specify in writing
17
