EXHIBIT 10.31
SAFETY HOLDINGS, INC.
SAR AGREEMENT
THIS AGREEMENT, entered into as of the Grant Date, by and between the
Participant and Safety Holdings, Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, the Company and the Participant have agreed upon the grant of
the stock appreciation rights as set forth in this Agreement;
NOW, THEREFORE, IT IS AGREED, by and between the Company and the
Participant, as follows:
TERMS OF AWARD. This Agreement specifies the terms of the stock appreciation
right with respect to the number of Covered Shares (the "SAR"). The
following terms used in this Agreement shall have the meanings set forth
in this paragraph 1:
The "Participant" is Xxxxx X. Xxxxxxxx.
The "Grant Date" is the Effective Time as that term is defined in the Merger
Agreement by and among the Company, Safety Acquisition, Inc., Xxxxxx
Xxxxx Corporation, and the shareholders of Xxxxxx Xxxxx Corporation dated
as of May 31, 2001.
The number of "Covered Shares" is 1,568.962 shares of Stock.
The "Exercise Price" is $160.00 per share.
Other terms used in this Agreement are defined pursuant to paragraph 17 or
elsewhere in this Agreement.
VESTING. Subject to the limitations of this Agreement, each Installment of
Covered Shares of the SAR shall be vested on and after the Vesting Date
for such Installment as described in the following schedule (but only
if the Date of Termination has not occurred before the Vesting Date):
-------------------------------------------------------------------------------
INSTALLMENT VESTING DATE
APPLICABLE TO
INSTALLMENT
-------------------------------------------------------------------------------
20% of the Covered Shares One-year anniversary of December 31, 2001
-------------------------------------------------------------------------------
20% of the Covered Shares Two-year anniversary of December 31, 2001
-------------------------------------------------------------------------------
20% of the Covered Shares Three-year anniversary of December 31, 2001
-------------------------------------------------------------------------------
20% of the Covered Shares Four-year anniversary of December 31, 2001
-------------------------------------------------------------------------------
20% of the Covered Shares Five-year anniversary of December 31, 2001
-------------------------------------------------------------------------------
The vesting of the SAR shall be subject to the following:
Notwithstanding the foregoing schedule, but subject to paragraph (b) below, the
SAR shall become fully vested upon the date of a Public Offering or
Change of Control that occurs on or before the Date of Termination. The
vesting described in this paragraph (a) shall be deemed to occur
immediately before the exercise of the SAR described in paragraph 3.
If, during any Vesting Period, an Event of Default occurs, then the number of
Covered Shares that would otherwise vest on the last day of that Vesting
Period shall instead be forfeited, and in no event shall the Participant
be entitled to any amounts with respect to such Covered Shares by reason
of exercise of the SAR, by reason of paragraph (a) above, or for any
other reason.
If a Public Offering or Change of Control does not occur on or before the
Participant's Date of Termination, and such Date of Termination occurs
for reasons other than a Material Breach or Cause, or voluntary
termination then all rights under the SAR that are not vested on the Date
of Termination shall expire and all rights under the SAR that have vested
prior to the Date of Termination shall be subject to repurchase by the
Company under Section 7(a) of the Management Subscription Agreement,
dated as of the date hereof, among the Company and certain employees of
the Company or its subsidiaries. If a Public Offering or Change of
Control does not occur on or before the Participant's Date of
Termination, and such Date of Termination occurs by reason of a Material
Breach, Cause or voluntary termination, then all rights under the SAR
shall be forfeited on the Date of Termination.
EXERCISE OF SAR. The SAR shall be exercised with respect to the vested portion
of the Covered Shares on the first to occur of a Public Offering or a
Change of Control. (For the avoidance of doubt, it is recited here that
the SAR shall not be exercised except as provided in the preceding
sentence.) As soon as practicable after the exercise of the SAR with
respect to a share of Stock, the Participant shall receive a cash payment
from the Company which is equal to the excess of the Fair Market Value of
a share of Stock on the date of exercise over the Exercise Price of one
share of Stock. Notwithstanding the foregoing provisions of this
paragraph 3, if the SAR would otherwise become exercisable in accordance
with this paragraph 3 by reason of a Public Offering, and the
Participant's Date of Termination has not occurred prior to the date of
the Public Offering, then, in the sole discretion of the Board, the SAR
may be canceled, provided that, at the time of the Public Offering, the
Participant will be granted an option to purchase shares of Stock equal
to the number of Covered Shares. Such option (i) shall be fully
exercisable at and after the granting of the option (until expiration
described in clause (iii) below) with respect to all of the Covered
Shares, (ii) shall have a per-share exercise price equal to the exercise
price of the SAR; and (iii) shall expire on the earlier of the ten-year
anniversary of the Grant Date (as defined in this Agreement), but not
event later than the 90-day anniversary of the Participant's Date of
Termination (or, in the case of a Date of Termination occurring by reason
of the Participant's Death or Disability, not later than the one-year
anniversary following the Date of Termination).
ADJUSTMENTS. If the Board determines that, after the Effective Date, one or more
transactions (including, without limitation, a stock split or
combination) have occurred in which stock of the Company is issued,
exchanged, or modified without receipt of additional
2
consideration by the Company of money or property (but excluding
consideration in the form of services), the Board shall adjust the number
of shares of Stock subject to the SAR and shall adjust the Exercise Price
to reflect such transaction.
WITHHOLDING. All deliveries and distributions under this Agreement are subject
to withholding of all applicable taxes.
BENEFITS MAY NOT BE ASSIGNED. The interests of a Participant under this
Agreement are not subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance, attachment, or
garnishment by creditors of the Participant or the Participant's
beneficiary. The SAR is not transferable other than as designated by the
Participant by will or by the laws of descent and distribution.
BENEFITS UNDER OTHER PLANS. Amounts payable to the Participant under this
Agreement shall be disregarded for purposes of determining the benefits
under any plan that is intended to be qualified under section 401(a) of
the Internal Revenue Code of 1986 and any other plan or arrangement
maintained by the Company or any Related Company, except as otherwise
specifically provided to the contrary in such other plan or arrangement.
SAR NOT CONTRACT OF EMPLOYMENT. Neither this Agreement nor the SAR constitutes
a contract of employment, and will not give the Participant the right to
be retained in the employ of the Company or Related Company nor any right
or claim to any benefit under the SAR, unless such right or claim has
specifically accrued under the terms of this Agreement and the SAR.
NO RIGHTS AS STOCKHOLDER. Except in the case of this SAR being converted to an
option (and then only with respect to shares acquired upon the exercise
of the option), the Participant shall not have any rights of a
stockholder with respect to the shares subject to the SAR.
NO GUARANTEE. Neither the Participant nor any other person shall, by reason of
this Agreement, acquire any right in or title to any assets, funds or
property of the Company or any Related Company whatsoever, including,
without limitation, any specific funds, assets, or other property which
the Company, in its sole discretion, may set aside in anticipation of a
liability under this Agreement. The Participant shall have only a
contractual right to the amounts, if any, payable under this Agreement,
unsecured by any assets of the Company or any Related Company. Nothing
contained in this Agreement shall constitute a guarantee by the Company
that the assets of the Company shall be sufficient to pay any benefits to
any person.
HEIRS AND SUCCESSORS. This Agreement shall be binding upon, and inure to the
benefit of, the Company and its successors and assigns, and upon any
person acquiring, whether by merger, consolidation, purchase of assets or
otherwise, all or substantially all of the Company's assets and business.
If any benefits deliverable to the Participant under this Agreement have
not been delivered at the time of the Participant's death, such benefits
shall be delivered to the Designated Beneficiary in accordance with the
provisions of this Agreement. The "Designated Beneficiary" shall be the
beneficiary or beneficiaries designated by the Participant in a writing
filed with the Board in such form and at such
3
time as the Board shall require. If a deceased Participant fails to
designate a beneficiary, or if the Designated Beneficiary does not
survive the Participant, any benefits distributable to the Participant
shall be distributed to the legal representative of the estate of the
Participant. If a deceased Participant designates a beneficiary and the
Designated Beneficiary survives the Participant but dies before the
complete distribution of benefits to the Designated Beneficiary under
this Agreement, then any benefits distributable to the Designated
Beneficiary shall be distributed to the legal representative of the
estate of the Designated Beneficiary.
DISTRIBUTIONS TO DISABLED PERSONS. Notwithstanding the provisions of this
Agreement to the contrary, if, in the opinion of the Board, the
Participant or beneficiary is under a legal disability or is in any way
incapacitated so as to be unable to manage his financial affairs, the
Board may direct that payment be made to a relative or friend of such
person for his benefit until claim is made by a conservator or other
person legally charged with the care of his person or his estate, and
such payment shall be in lieu of any such payment to the Participant or
beneficiary. Thereafter, any benefits under this Agreement to which such
Participant or beneficiary is entitled shall be paid to such conservator
or other person legally charged with the care of his person or his
estate.
APPLICABLE LAW. Except to the extent that not preempted by the laws of the
United States of America, this Agreement shall be construed and
administered with the laws of the state of
New York; provided that no
doctrine of choice of law shall be used to apply any law other than that
of
New York, and no defense, counterclaim or right of set-off given or
allowed by the laws of any other state or jurisdiction, or arising out of
the enactment, modification or repeal of any law, regulation, ordinance
or decree of any foreign jurisdiction, shall be interposed in any action
hereon.
AMENDMENT. This Agreement may be amended by written agreement of the Participant
and the Company without the consent of any other person.
ADMINISTRATION. The authority to control and manage the operation and
administration of this Agreement and the arrangement specified by this
Agreement shall be vested in the Board. The Board will have the authority
and discretion to interpret this Agreement, to establish, amend, and
rescind any rules and regulations relating to this Agreement, and to make
all other determinations that may be necessary or advisable for the
administration of this Agreement. Any interpretation of this Agreement by
the Board and any decision made by it under this Agreement is final and
binding on all persons. Except to the extent prohibited by applicable
law, the Board may allocate all or any portion of its responsibilities
and powers to any one or more of its members and may delegate all or any
part of its responsibilities and powers to any person or persons selected
by it. Any such allocation or delegation may be revoked by the Board at
any time. The Company and Related Companies shall furnish the Board with
such data and information as it determines may be required for it to
discharge its duties. The records of the Company and Related Companies as
to the Participant's employment, termination of employment, leave of
absence, reemployment and compensation shall be conclusive on all persons
unless determined to be incorrect. The Participant and other persons
entitled to benefits
4
under this Agreement must furnish the Board such evidence, data or
information as the Board considers desirable to carry out the terms of
this Agreement.
EVIDENCE. Evidence required of anyone under this Agreement may be by
certificate, affidavit, document or other information which the person
acting on it considers pertinent and reliable, and signed, made or
presented by the proper party or parties.
DEFINITIONS. In addition to the other definitions contained herein, the
following definitions shall apply:
BOARD. The term "Board" means the Board of Directors of the Company.
CAUSE. The term "Cause" shall have the meaning ascribed to it in the Employment
Agreement.
CHANGE OF CONTROL. The term "Change of Control" means any of the following: (i)
the closing of any merger, combination, consolidation or similar business
transaction involving the Company in which the holders of Stock
immediately prior to such closing are not the holders, directly or
indirectly, of a majority of the ordinary voting securities of the
surviving person in such transaction immediately after such closing, (ii)
the closing of any sale or transfer by the Company of all or
substantially all of its assets to an acquiring person in which the
holders of Stock immediately prior to such closing are not the holders of
a majority of the ordinary voting securities of the acquiring person
immediately after such closings, or (iii) the closing of any sale by the
holders of Stock of an amount of Stock that equals or exceeds a majority
of the shares of Stock immediately prior to such closing to a person in
which the holders of the Stock immediately prior to such closing are not
the holders of a majority of the ordinary voting securities of such
person immediately after such closing.
DATE OF TERMINATION. A Participant's "Date of Termination" means the first day
on which the Participant is not employed by the Company or any Related
Company, regardless of the reason for the termination of employment;
provided that a termination of employment shall not be deemed to occur by
reason of a transfer of the Participant between the Company and a Related
Company or between two Related Companies; and further provided that the
Participant's employment shall not be considered terminated while the
Participant is on a leave of absence from the Company or a Related
Company approved by the Participant's employer. If, as a result of a sale
or other transaction, the Participant's employer ceases to be a Related
Company (and the Participant's employer is or becomes an entity that is
separate from the Company), and the Participant is not, at the end of the
30-day period following the transaction, employed by the Company or an
entity that is then a Related Company, then the occurrence of such
transaction shall be treated as the Date of Termination.
EMPLOYMENT AGREEMENT. The term " Employment Agreement" means the employment
agreement between Safety Insurance Company, a Massachusetts corporation
and indirect subsidiary of the Company, and the Participant dated as of
the Effective Date.
EVENT OF DEFAULT. The term "Event of Default" means a financial covenant or
payment default in any of the debt instruments of Holdings or Xxxxxx
Xxxxx Corporation.
5
FAIR MARKET VALUE. If the SAR is exercised by reason of a Public Offering, the
"Fair Market Value" of the Stock shall be the public offering price for
such Stock. If the SAR is exercised by reason of a Change of Control, the
"Fair Market Value" of the Stock shall be equal to the net consideration
received by the holders of the Company's Common Stock in connection with
a Change of Control
MATERIAL BREACH. The term "Material Breach" shall have the meaning ascribed to
it in the Employment Agreement.
PUBLIC OFFERING. The term "Public Offering" means a bona fide underwritten
public offering and sale of equity securities of the Company pursuant to
an effective registration statement under the Securities Act of 1933, as
amended.
RELATED COMPANIES. The term "Related Company" means the Company and any
corporation, partnership, joint venture or other entity during any period
in which at least fifty percent of the voting power of all classes
entitled to vote with respect to such entity is owned, directly or
indirectly, by the Company.
STOCK. The term "Stock" means the common stock of the Company.
VESTING PERIOD. The term "Vesting Period" means the period beginning on the
Effective Date and ending on December 31, 2002, and each of the calendar
years 2003, 2004, 2005, and 2006.
6
IN WITNESS WHEREOF, the Participant has executed this Agreement, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Grant Date.
Participant
/s/Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx
Safety Holdings, Inc.
By: /s/A. Xxxxxxx Xxxxxx, Xx.
--------------------------------
Name: A. Xxxxxxx Xxxxxx, Xx.
Its: Vice President
