EXHIBIT 10.37
AT-WILL EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AT-WILL EMPLOYMENT AND SEVERANCE AGREEMENT (hereinafter referred
to as the "Agreement") is effective January 1, 2005, by and among Meadowbrook,
Inc., Meadowbrook Insurance Group, Inc., (hereinafter referred to as the
"Company"), and NAME (hereinafter referred to as the "Executive").
WHEREAS, Executive is currently employed by the Company as its TITLE;
and
WHEREAS, the Company desires to provide certain security to Executive
in connection with a change in control of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto agree as follows:
1. BENEFITS ON CHANGE OF CONTROL. If within two years after a Change in
Control, the Company shall terminate the Executive's employment without "Good
Cause" (as defined in Section 2) or Executive shall voluntarily terminate such
employment with "Good Reason" (as defined in Section 2), then Company shall make
the following payments to the Executive:
(a) The Company shall make a single lump sum payment to
Executive equal to [AMOUNT] times the sum of the Executive's annual base salary
and the Executive's target bonus under the Company's annual bonus plan (the
"Discretionary Bonus"), subject to repayment by the Executive upon the
Executive's breach of the Executive's covenant to not compete with the Company
or to solicit Company employees as provided in Section 4. For purposes of this
section, "base salary" shall be the greater of the base salary in effect on the
date the Executive's employment terminates and the amount of the Executive's
base salary in effect immediately prior to a Change in Control. The Company
shall make such payment within ten (10) days following the date the Executive's
employment terminates.
(b) The Executive shall also be entitled to payment of a pro
rata share of such portion of the Discretionary Bonus for the year in which
Executive's employment terminates that is based on Company performance criteria.
Such pro rata portion shall be determined by a fraction, the numerator of which
is the number of days in the year that the Executive is employed by the Company
and the denominator of which is 365. Such payment shall be made no later than
the February 28 of the calendar year immediately following the year in which
Executive's employment terminates.
(c) The Company shall also pay the Executive an amount equal
to the premiums payable by the Executive in the event the Executive elects
continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA"). Such payments shall cease upon the earlier of eighteen
(18) months of continuation coverage or the cessation of the Executive's and the
Executive's family members rights to COBRA continuation coverage. The Company
shall make such payments directly to the party to whom premiums are payable at
such times as they are due under COBRA.
2. DEFINITIONS. For purposes of this Agreement:
(a) A "Change in Control" shall be deemed to have taken place
upon:
i. The acquisition by any individual, entity or
group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the
"Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 35%
or more of either (a) the then outstanding
shares of common stock of the Company (the
"Outstanding Company Common Stock") or (b)
the combined voting power of the then
outstanding voting securities of the Company
entitled to vote generally in the election
of directors (the "Outstanding Company
Voting Securities"); provided, however, that
for purposes of this subparagraph 1, the
following acquisitions shall not constitute
a Change in Control: (i) any acquisition
directly from the Company, (ii) any
acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or
related trust) sponsored or maintained by
the Company or any corporation controlled by
the Company, or (iv) any acquisition by any
corporation pursuant to a transaction which
complies with clauses (a), (b) and (c) of
subparagraph iii of this Section 2(a); or
ii. Individuals who, as of the date hereof,
constitute the Board of Directors of the
Company (the "Incumbent Board") cease for
any reason to constitute at least a majority
of the Board of Directors; provided,
however, that any individual who becomes a
director subsequent to the date hereof and
whose election, or nomination for election
by the Company's shareholders, was approved
by a vote of at least a majority of the
directors then comprising the Incumbent
Board (either by a specific vote or by
approval of the proxy statement of the
Company in which such person is named as a
nominee for director, without written
objection to such nomination) shall be
deemed to be a member of the Incumbent
Board; provided, further, that
notwithstanding the immediately preceding
proviso, any individual whose initial
assumption of office occurs as a result of
an actual or threatened election contest
with respect to the election or removal of
directors or other actual or threatened
solicitation of proxies or contests by or on
behalf of a Person, other than the Board of
Directors of the Company, shall not be
deemed to be a member of the Incumbent
Board; or
iii. Consummation of a reorganization, merger,
share exchange or consolidation or sale or
other disposition of all or substantially
all of the assets of the Company (a
"Business Combination"), in each case,
unless, following such Business Combination:
(a) all or substantially all of the
individuals and entities who were the
beneficial owners, respectively, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities
immediately prior to such Business
Combination beneficially own, directly or
indirectly, more than 65% of, respectively,
the then outstanding shares of common stock
and the combined voting power of the then
outstanding voting securities entitled to
vote generally in the election of directors,
as the case may be, of the corporation
resulting from such Business Combination
(including,
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without limitation, a corporation which as a
result of such transaction owns the Company
or all or substantially all of the Company's
assets either directly or through one or
more subsidiaries) in substantially the same
proportions as their ownership, immediately
prior to such Business Combination, of the
Outstanding Company Common Stock and
Outstanding Company Voting Securities, as
the case may be; (b) no Person (excluding
any corporation resulting from such Business
Combination or any employee benefit plan (or
related trust) of the Company or such
corporation resulting from the Business
Combination) beneficially owns, directly or
indirectly, 35% or more of, respectively,
the then outstanding shares of common stock
of the corporation resulting from such
Business Combination or the combined voting
power of the then outstanding voting
securities of such corporation except to the
extent that such ownership existed prior to
the Business Combination; and (c) at least a
majority of the members of the board of
directors of the corporation resulting from
such Business Combination were members of
the Incumbent Board immediately prior to the
time of the execution of the initial
agreement, or of the action of the Board of
Directors of the Company, providing for such
Business Combination; or
iv. Approval by the stockholders of the Company
of a complete liquidation or dissolution of
the Company.
(b) "Good Cause" shall mean (i) the failure by the Executive
to obey the reasonable and lawful orders of the Board of Directors of the
Company or Executive's direct supervisor; (ii) misconduct by the Executive that
is materially injurious to the Company; or (ii) the Executive engaging in
dishonest activities injurious to the Company.
(c) "Good Reason" shall exist if Executive resigns from
employment with the Company following the occurrence of any one or more of the
following, without Executive's prior written consent: (i) Executive is not
reelected to or is removed as [TITLE] of the Company; (ii) the Company fails to
vest Executive with or removes from Executive the duties, responsibilities,
authority or resources that Executive reasonably needs to competently perform
Executive's duties as [TITLE] of the Company; (iii) the Company changes the
primary location of Executive's employment to a place that is more than 50 miles
the Executive's principal location of employment with the Company immediately
prior to a Change in Control of the Company; or (iv) the Company otherwise
commits a material breach of its obligations under this Agreement and fails to
cure the breach within 30 days after Executive gives the Company written notice
of the breach.
3. CONFIDENTIAL INFORMATION AGREEMENT. Executive agrees that the
Confidential Information Agreement executed by him and dated [DATE] (the
"Confidential Information Agreement"), which includes, not by way of limitation,
covenants not to compete with the Company and covenants to refrain from
soliciting employees to leave the Company's employment, shall remain in full
force and effect.
4. COVENANT NOT TO COMPETE OR SOLICIT EMPLOYEES. In the event severance
becomes payable to Executive following a Change in Control, Executive, in
addition to the restrictive
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covenants contained in the Confidential Information Agreement, agrees to the
restrictive covenants of this Section:
(a) Executive agrees that, for [SEVERANCE PERIOD] following
the termination of Executive's employment under circumstances described in
Section 1, Executive will not, without the Company's prior written consent,
directly or indirectly Compete with the Company or any of its subsidiaries. For
the purposes of Section 4:
i. "Compete" means directly or indirectly
owning, managing or operating a Competitor
which solicits or obtains business of the
Company, or directly or indirectly serving
as an employee, officer or director of or a
consultant to a Competitor which solicits or
obtains business of the Company, or
soliciting or inducing any employee or agent
of the Company to terminate employment with
the Company or any of its subsidiaries and
become employed by a Competitor.
ii. "Competitor" means any person, firm,
partnership, corporation, trust or other
entity that owns, controls or is an
insurance company or a similar financial
services company (a "Financial Services
Company").
(b) In the event that a successor to the Company succeeds to
or assumes the Company's rights and obligations under this Agreement, Section
4(a) will apply only to the Company as it existed immediately before the
succession or assumption occurred and will not apply to any of the successor's
other offices.
(c) Section 4(a) will not prohibit Executive from directly or
indirectly owning or acquiring any capital stock or similar securities that are
listed on a securities exchange or quoted on the Nasdaq or NYSE and do not
represent more than 5% of the outstanding capital stock of any Financial
Services Company.
(d) Executive agrees that a violation of this Section 4 would
result in direct, immediate and irreparable harm to the Company, and in such
event, agrees that the Company, in addition to their other rights and remedies,
would be entitled to injunctive relief enforcing the terms and provisions of
this Section 4 and a return of any severance payments under Section 1 to the
Company. The terms of this Section are intended to be in addition to any
restrictions contained in the Confidential Information Agreement.
5. LITIGATION EXPENSES. The Company shall pay to Executive all
out-of-pocket expenses, including attorneys' fees, incurred by Executive in
connection with the successful enforcement by Executive of this Agreement, and
shall pay prejudgment interest on any money judgment obtained by Executive,
calculated at the prime interest rate as reported in The Wall Street Journal,
Midwest Edition, compounded daily from the date that payment(s) to Executive
should have been made under this Agreement.
6. SUCCESSORS. The obligations of the Company provided for in this
Agreement shall be the binding legal obligations of any successor to the Company
by purchase, merger, consolidation, or otherwise. This Agreement may not be
assigned by Executive during Executive's life, and upon Executive's death will
inure to the benefit of Executive's heirs, legatees and the legal
representatives of Executive's estate.
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7. INTERPRETATION. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Michigan.
8. EFFECT ON EMPLOYMENT STATUS. This Agreement establishes the terms
and conditions pursuant to which severance payments shall be made to Executive
upon termination of employment. Nothing in this Agreement changes the at-will
status of the Executive's employment. The Company retains the right to terminate
Executive's employment with the Company for any reason and at any time and the
Executive retains the same right.
9. WITHHOLDING. The Company may withhold from any payment that it is
required to make under this Agreement amounts sufficient to satisfy applicable
withholding requirements under any federal, state or local law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first written above.
MEADOWBROOK INSURANCE GROUP, INC.
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By: Xxxxxx X. Xxxxxx
Its: President & CEO
MEADOWBROOK, INC.
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By: Xxxxxx X. Xxxxxx
Its: President & CEO
EXECUTIVE
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