EXHIBIT 10.12n
TERMINATION AGREEMENT
TERMINATION AGREEMENT dated as of November 5, 2002, by and between
SELECTIVE INSURANCE COMPANY OF AMERICA (the "Company"), a New Jersey
corporation, having an office at 00 Xxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxx Xxxxxx
00000, and XXXXXXX X. XXXXXXXX (the "Executive"), having an address at 000
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Company recognizes the Executive to be a valuable management
employee of the Company; and
WHEREAS, the Company recognizes that a change in control of Selective
Insurance Group, Inc., the Company's parent corporation ("Selective"), could
occur in the future, and that it is of importance to the Company and to
Selective and its stockholders to provide for the continuity of management and
its uninterrupted attention and dedication to the business affairs of the
Company; and
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that appropriate steps should be taken to encourage the continued
attention and dedication of principal members of the Company's management to
their assigned duties in circumstances arising from the possibility of a change
in control of Selective; and
WHEREAS, the Company has determined that an arrangement of the type set
forth herein will serve the purpose of attracting desirable persons for
executive positions with the Company, will induce the Executive to remain with
the Company, and will enhance the Executive's ability to assess and advise the
Board as to whether any proposal involving a change in the control would be in
the best interests of the Company, Selective and its shareholders and to take
such other action regarding such proposal without being influenced by the
prospects of his own future employment with the Company; and
WHEREAS, the Company and the Executive wish to set forth their agreements
as to the subject and procedures contemplated hereunder acknowledging, however,
that this Agreement supplements any employment agreement that may be in effect
from time to time between the Executive and the Company and sets forth the
severance benefits which the Company agrees will be provided to the Executive in
the event the Executive's employment with the Company is terminated subsequent
to a change of control of Selective under the circumstances hereinbelow
described.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the Company and the Executive hereby agree as follows:
1. TERM OF AGREEMENT.
The term of this Agreement (the "Term") shall commence on the date hereof
and shall continue in effect until November 5, 2005, provided, however, that
commencing on November 5, 2005, and each November 5, thereafter (each such
November 5 being hereinafter referred to as an "Extension Date"), the Term shall
automatically be extended for one (1) additional year, unless at least
twenty-four (24) months prior to an Extension Date, the Company or the Executive
shall have given written notice in the manner hereinafter prescribed that the
Term shall not be extended as of the next Extension Date; and, provided further,
that if a "Change in Control" of Selective, as defined in Section 2 hereof,
shall have occurred during the term, as the same may be extended, this Agreement
shall terminate on the last day of the twenty-four (24) month period commencing
on the date that such Change in Control shall have occurred. Notwithstanding
anything in this Section 1 to the contrary, this Agreement shall terminate if
the Executive or the Company terminates the Executive's employment prior to the
date on which a Change in Control shall occur.
2. CHANGE IN CONTROL.
(a) For the purposes of this Agreement, a "change in control of Selective"
(a "Change in Control") shall mean the occurrence of an event of a nature that
would be required to be reported in response to Item 1(a) of a Current Report on
Form 8-K, as in effect on the date hereof, pursuant to Sections 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") provided,
however, that a Change in Control shall, in any event, conclusively be deemed to
have occurred upon the first to occur of any one of the following events:
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(i) The acquisition by any person or group, including, without
limitation, any current shareholder or shareholders of Selective, of
securities of Selective resulting in such person's or group's owning
of record or beneficially twenty-five percent (25%) or more, of any
class of voting securities of Selective;
(ii) The acquisition by any person or group, including,
without limitation, any current shareholder or shareholders of
Selective, of securities of Selective resulting in such person's or
group's owning of record or beneficially twenty percent (20%) or
more, but less than twenty-five percent (25%), of any class of
voting securities of Selective, if the Board adopts a resolution
that such acquisition constitutes a Change in Control;
(iii) The sale or disposition of all or substantially all of
the assets of Selective;
(iv) The reorganization, recapitalization, merger,
consolidation or other business combination involving Selective the
result of which is the ownership by the shareholders of Selective of
less than eighty percent (80%) of those voting securities of the
resulting or acquiring entity having the power to elect a majority
of the board of directors of such entity; or
(v) A change in the membership in the Board of Directors of
Selective (the "Selective Board") which, taken in conjunction with
any other prior or concurrent changes, results in twenty percent
(20%) or more of the Selective Board's membership being persons not
nominated by Selective's management or Selective's Board as set
forth in Selective's then most recent proxy statement, excluding
changes resulting from substitutions by Selective's Board because of
retirement or death of a director or directors, removal of a
director or directors by Selective's Board or
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resignation of a director or directors due to demonstrated
disability or incapacity.
(b) Notwithstanding anything in the foregoing Section 2(a) to the
contrary, no Change in Control shall be deemed to have occurred for the purposes
of this Agreement by virtue of any transaction which results in the Executive,
or a group of persons which includes the Executive, acquiring, directly or
indirectly, voting securities of Selective.
(c) For the purpose of Section 2(a) the following definitions shall
apply:
(i) the terms "person" and "beneficial owner" shall have the
meanings set forth in Regulation 13D under the Exchange Act, as such
Regulation exists on the date hereof;
(ii) the term "voting security" shall include any security
that has, or may have upon an event of default or in respect to any
transaction, a right to vote on any matter upon which the holder of
any class of common stock of Selective would have a right to vote;
(iii) the term "group" shall have the meaning set forth in
Section 13(d)(3) of the Exchange Act; and
(iv) the term "substantially all of the assets of Selective"
shall mean more than fifty percent (50%) of Selective's assets on a
consolidated basis, as shown in Selective's most recent audited
balance sheet.
3. CONTINUATION OF EMPLOYMENT.
Notwithstanding any termination date as may be specified in any employment
agreement in effect from time to time between the Company and the Executive, in
the event of a Change in Control, the Company agrees to continue to employ the
Executive, and, subject to the provisions of Section 4 hereof, the Executive
agrees to continue in the employ of the Company, in the capacity in which the
Executive was serving, and with the duties, responsibilities and status of the
Executive immediately prior to such Change in Control or in such other capacity
as shall be agreeable to the Executive, for a term commencing on the date on
which the Change in Control shall have occurred and ending three (3) years after
the date on which the Change in Control shall have occurred.
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Commencing on the date three (3) years after the date on which the Change in
Control shall have occurred and each anniversary date of the Change in Control
thereafter (each such date being hereinafter referred to as a "Renewal Date"),
the term of the Executive's employment shall automatically be renewed for one
(1) additional year unless at least twenty-four (24) months prior to a Renewal
Date the Company or the Executive shall have given written notice in the manner
hereinafter prescribed that such employment shall not be renewed as of such
Renewal Date. The provisions of this Section 3 shall survive any termination of
this Agreement pursuant to Section 1 hereof after a Change in Control and shall
continue in full force and effect.
4. TERMINATION OF EMPLOYMENT FOLLOWING CHANGE IN CONTROL.
The Executive shall be entitled to the benefits provided in Section
5 hereof upon the termination of his employment during the term of this
Agreement, as the same may be extended, after a Change in Control has occurred,
unless such termination is: (a) due to the Executive's death or Retirement, (b)
by the Company for Cause or Disability, or (c) by the Executive other than for
Good Reason (as such foregoing capitalized terms are hereinafter defined).
(i) Termination by the Executive or by the Company of the
Executive's employment based on "Retirement" shall mean termination:
(A) at such age as shall be established by the Board prior to a
Change in Control for mandatory or normal retirement of Company
executives in general, which shall not be less than age 65, or (B)
at any other retirement age set by mutual agreement of the Company
and the Executive and approved by the Board.
(ii) Termination by the Company of the Executive's employment
based on "Disability" shall mean termination because of the
Executive's physical injury or physical or mental illness which
causes him to be absent from his duties with the Company on a
full-time basis for a continuous period in excess of the greater of:
(A) the period of disability constituting permanent disability as
specified under the Company's long-term disability insurance
coverage applicable to the Executive prior to a Change in Control or
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(B) six (6) calendar months, unless within thirty (30) days after
Notice of Termination (as hereinafter defined) is thereafter given
the Executive shall have returned to the full-time performance of
his duties.
(iii) Termination by the Company of the Executive's employment
based on "Cause" shall mean termination upon: (A) the Executive's
conviction of a felony (as evidenced by a binding and final
judgment, order or decree of a court of competent jurisdiction, in
effect after exhaustion or lapse of all rights of appeal), (B) the
continued willful failure by the Executive to perform substantially
his duties with the Company (other than any such failure resulting
from his incapacity due to physical injury or physical or mental
illness) for a period of thirty (30) days after a demand for
substantial performance is delivered to the Executive by the Board
of Directors of the Company which specifically identifies the manner
in which the Board of Directors believes that the Executive has not
substantially performed his duties, or (C) willful misconduct in the
performance of the Executive's duties and obligations to the Company
which constitute common law fraud or other gross malfeasance of
duty; provided, however, that no termination for Cause pursuant to
clauses (B) or (C) shall occur unless and until there shall have
been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than sixty-six and two thirds
percent (66 2/3%) of the entire membership of the Board, excluding
the Executive, at a meeting of the Board called and held for the
purpose (after reasonable notice to the Executive and an opportunity
for the Executive, together with his counsel, to be heard before the
Board), finding that in good faith opinion of the Board the
Executive was guilty of the conduct set
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forth in such clause (B) or (C) and specifying the particulars
thereof in reasonable detail. For purposes of this clause (iii), no
act, or failure to act, on the part of the Executive shall be
considered "willful" unless done or omitted to be done by the
Executive in bad faith and without reasonable belief that his action
or omission was in, or not opposed to, the best interests of the
Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the
advice of counsel for the Company shall be conclusively presumed to
have been done or omitted to have been done by the Executive in good
faith and in the best interests of the Company.
(iv) Termination by the Executive of his employment for "Good
Reason" shall mean (A) termination by the Executive based on: (1)
any reduction in his base salary below the annualized rate in effect
on the date preceding the date on which a Change in Control shall
have occurred or the Company's failure to increase (within 12 months
of the Executive's last increase in base salary) the Executive's
base salary after a Change in Control in an amount which at least
equals, on a percentage basis, changes in the Consumer Price Index,
all items, for New Jersey in the preceding twelve (12) months; or
(2) a failure by the Company to continue in effect, or the material
reduction of any of Executive's benefits under, any Plan (as
hereinafter defined) in which the Executive was participating on the
date preceding the date on which a Change in Control shall have
occurred (or Plans providing the Executive with at least
substantially similar benefits) other than as a result of the normal
expiration of any such Plan in accordance with its terms as in
effect on the date preceding the date on which a Change in Control
shall have occurred, or the taking of any action, or the failure to
act,
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by the Company which would adversely affect the Executive's
continued participation in any of such Plans on at least as
favorable a basis to him as was the case on the date preceding the
date on which a Change in Control shall have occurred or which would
materially reduce the Executive's benefits in the future under any
such Plans or deprive the Executive of any material benefit enjoyed
by him at the time of the Change in Control; or (3) without the
Executive's express prior written consent, the assignment to the
Executive of any duties inconsistent with his positions, duties,
responsibilities and status with the Company immediately prior to a
Change in Control, or any diminution in the Executive's
responsibilities as an executive of the Company as compared with
those he had as an executive of the Company immediately prior to a
Change in Control, or any change in the Executive's titles or office
as in effect immediately prior to a Change in Control, or any
removal of the Executive from, or failure to re-elect him to, any of
such positions, except in connection with the termination of the
Executive's employment for Cause, Disability or Retirement or as a
result of the Executive's death or by his termination of his
employment other than for Good Reason; or (4) without the
Executive's express prior written consent, the imposition of a
requirement by the Company that the Executive be based anywhere
other than where the Executive's office is located on the date
preceding the date on which a Change in Control shall have occurred;
or (5) without the Executive's express prior written consent, any
reduction in the number of paid vacation days to which the Executive
was entitled as of the date preceding the date on which a Change in
Control shall have occurred; or (6) a failure by the Company to
provide the Executive with office, secretarial, computer and other
support services and facilities consistent with his position
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in the Company and substantially equivalent to those available to
the Executive on the date preceding the date on which a Change in
Control shall have occurred; or (7) the failure by the Company to
obtain from any successor to the business of the Company, as set
forth in Section 13, the assent to this Agreement, as described in
such Section 13; or (8) subsequent to a Change in Control, any
purported termination of the Executive's employment which is not
effected pursuant to a Notice of Termination (as hereinafter
defined) satisfying the requirements of Section 4(v) (and, if
applicable, Section 4(iii)), and for purposes of this Agreement no
such purported termination shall be effective; or (9) any breach by
the Company of any of the terms and conditions of any employment
agreement between the Company and the Executive or any agreement
between the Company and the Executive providing for incentive
compensation, stock options, stock appreciation rights, stock
bonuses, pension benefits, group insurance or any similar benefits;
or (10) any requirement by the Company that the Executive be absent
from Executive's office on business travel or otherwise more than
forty-five (45) days in any calendar year or for more than fourteen
(14) consecutive days at any time, or (B) a voluntary termination by
the Executive upon Notice of Termination given by the Executive to
the Company no later than six (6) months after the occurrence of a
Change in Control, provided that Executive shall not thereafter
violate the provisions of any agreement between the Executive and
the Company relating to nondisclosure of confidential information or
noncompetition with the Company. For purposes of this Agreement, a
"Plan" shall mean any plan, contract, authorization or arrangement,
whether or not set forth in any formal written documents, providing
for compensation, incentive compensation,
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non-qualified supplemental retirement benefits, stock options
(whether or not in tandem with stock appreciation rights), stock
appreciation rights, long-term incentives, stock bonuses or
restricted stock grants or any employee benefit plan such as a
pension, retirement, profit sharing, medical, disability, accident,
life insurance plan or a relocation plan or policy or any other
plan, program, policy or arrangement of the Company intended to
benefit the Executive or employees of the Company generally.
(v) Any termination of the Executive's employment by the
Company or by the Executive shall be communicated by a Notice of
Termination to the other party hereto. For purposes of this
Agreement, a "Notice of Termination" shall mean a written notice
given in the manner hereinafter prescribed which shall indicate the
specific termination provision in this Agreement relied upon and
shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and shall specify the
date of termination in accordance with this Agreement.
(vi) "Date of Termination" following a Change in Control shall
mean: (A) if the employment is to be terminated by the Company for
Disability, thirty (30) days after Notice of Termination is given
(provided that the Executive shall not have returned to the
performance of the Executive's duties on a full-time basis during
such thirty (30) day period), or (B) if the employment is to be
terminated by either party for any other reason, the date on which
Notice of Termination is given.
(vii) In the event of dispute as to the Executive's
termination under Section 4(iv) the matter shall be forthwith
submitted to binding arbitration as hereinafter provided.
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5. PAYMENT OF BENEFITS.
(a) If an event has occurred pursuant to Section 4 hereof which entitles
the Executive to the benefits and rights set forth in this Section 5, the
Executive shall receive from the Company, or from the Escrow Agent (as
hereinafter defined), as the case may be, within five (5) days following the
Date of Termination (except as otherwise provided) all of the following
benefits, other than those benefits which he specifically elects by written
notice to the Company or to the Escrow Agent, as the case may be, not to
receive:
(i) earned but unpaid base salary through the Date of
Termination at the rate in effect immediately prior to the time a
Notice of Termination is given plus any incentive compensation,
benefits or awards (including both the cash and stock components)
which pursuant to the terms of any Plans have been accrued, earned
or have become payable, but which have not yet been paid to the
Executive (including any amounts which previously had been deferred
at the Executive's request); and
(ii) as severance pay and in lieu of any further salary for
periods subsequent to the Date of Termination (including any
payments of salary provided for by any employment agreement with the
Company), an amount in cash equal to the Executive's "annualized
includible compensation for the base period" (as defined in Section
280G(d)(1) of the Internal Revenue Code of 1986, as amended (the
"Code")), multiplied by a factor of 2.99.
(b) If an event has occurred pursuant to Section 4 hereof which entitles
the Executive to the benefits and rights set forth in this Section 5, the
Executive shall be entitled to the benefits of any stock options, stock
appreciation rights, restricted stock grants, stock bonuses or other benefits
theretofore granted by the Company to the Executive under any Plan, whether or
not provided for in any agreement with the Company, provided, however, that,
except to the extent requiring approval of Selective's stockholders, (i) all
unvested stock options, stock appreciation rights, restricted stock grants,
stock bonuses, long-term incentives and similar benefits shall be deemed to be
vested in full on the Date of Termination, notwithstanding any provision to the
contrary or any provision requiring any act or acts by the Executive in any
agreement with the Company or Selective or any
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Plan, and (ii) to the extent that any such stock options, stock appreciation
rights, restricted stock grants, stock bonuses, long-term incentives or similar
benefits shall require by its terms the exercise thereof by the Executive, the
last date to exercise the same shall, notwithstanding any provision to the
contrary in any agreement or any Plan, shall be the later to occur of (A) the
last date provided for such exercise in any agreement or Plan evidencing any
such stock options, stock appreciation rights, restricted stock grants, stock
bonuses, long-term incentives or similar benefits or (B) the close of business
on the date which shall be one hundred twenty (120) days after the Date of
Termination and (iii) if the vesting pursuant hereto of any such stock options,
stock appreciation rights, restricted stock grants, stock bonuses, long-term
incentives or similar benefits shall have the effect of subjecting the Executive
to liability under Section 16(b) of the Exchange Act or any similar provision of
law, the vesting date thereof shall be deemed to be the first day after the
Termination Date on which such vesting may occur without subjecting the
Executive to such liability.
(c) If an event has occurred pursuant to Section 4 hereof which entitles
the Executive to the benefits and rights set forth in this Section 5, the
Company shall maintain in full force and effect, for the continued benefit of
the Executive and his dependents for a period terminating on the earliest of:
(i) three (3) years after the Date of Termination or (ii) the commencement date
of equivalent benefits from a new employer, all insured and self-insured
employee welfare benefit Plans in which the Executive was entitled to
participate immediately prior to the Date of Termination, provided that the
Executive's continued participation is not barred under the general terms and
provisions of such Plans. In the event that the Executive's participation in any
such Plan is barred by its terms, the Company, at its sole cost and expense,
shall arrange to have issued for the benefit of the Executive and his dependents
individual policies of insurance providing benefits substantially similar (on an
after-tax basis) to those which the Executive otherwise would have been entitled
to receive under such Plans pursuant to this Section 5(c). If, at the end of
three (3) years after the Termination Date, the Executive has not previously
received or is not receiving equivalent benefits from a new employer, or is not
otherwise receiving such benefits, the Company shall arrange, at its sole cost
and expense, to enable him to convert his and his dependents' coverage
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under such Plans to individual policies or programs upon the same terms as
employees of the Company may apply for such conversions upon termination of
employment.
(d) Except as specifically provided in Section 5(c) above, the amount of
any payment provided for in this Section 5 shall not be reduced, offset or
subject to recovery by the Company by reason of any compensation earned by the
Executive as the result of employment by another employer after the Date of
Termination, or otherwise. The Executive shall not be required to mitigate any
amounts payable or benefits provided under this Agreement by seeking or
accepting other employment.
(e) The rights and benefits provided herein shall be in addition to, and
not (except as provided in this Agreement) to the exclusion of, any other rights
and benefits that may be available to the Executive in regard to or arising out
of the termination of the Executive's employment, including claims for breach of
contract or for violation of relevant employment, worker's compensation or
employee benefits laws. The prosecution or enforcement of rights granted by this
Agreement or the election to take benefits under this Agreement shall in no
manner constitute an election of rights or remedies by the Executive other than
in respect of this Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, if any of
the payments or benefits provided for in this Agreement, together with any other
payments or benefits which the Executive has the right to receive from the
Company (including, without limitation, any amounts payable under any employment
contract with the Company), would constitute a "parachute payment" (as defined
in Section 280G(b)(2) of the Code), the payments and benefits due to the
Executive shall be reduced, in such order of priority and amount as the
Executive shall elect, to the largest amount as will result in no portion of
such payments being subject to the excise tax imposed by Section 4999 of the
Code. Notwithstanding anything in the foregoing to the contrary, any dispute or
controversy regarding whether any payments under this Agreement must be reduced
pursuant to this Section 5(f) shall be conclusively settled by an independent
accounting firm acceptable to each of the parties hereto, or, if no firm is
acceptable to both parties hereto, each of the Executive and the Company shall
select an accounting firm acceptable to it, and such accounting firms shall
together designate an independent accounting firm to settle such dispute or
controversy, and such settlement shall be binding upon both parties, provided,
however, that any
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accounting firm designated to settle any dispute or controversy hereunder shall
not have been previously retained by either party for a period of a least two
(2) years prior to the date of this settlement of such dispute or controversy.
The Company or the Escrow Agent, as the case may be, may withhold from any
benefits payable under this Agreement all federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
(g) In the event that a court of competent jurisdiction shall determine
that any portion of the payment and benefits paid to the Executive pursuant to
this Agreement shall have constituted a "parachute payment" (as defined in
Section 280G(b)(2) of the Code) and subject to an excise tax under Section
4999(a) of the Code, the Company shall pay to the Executive in cash such
additional amount as is necessary so that the total amount received by the
Executive under this Agreement, after payment of any applicable taxes on such
total amount (including, without limitation, federal, state or local income
taxes, any taxes imposed by Section 4999(a) of the Code and any taxes in respect
of any amount payable to the Executive under this Section 5(g)) shall not be
less than the net after tax amount that the Executive would have been entitled
to receive under this Agreement had such excise tax under Section 4999(a) not
been imposed. The Company shall pay such additional amount to the Executive
within thirty (30) days after the Executive gives written notice to the Company
that such determination has been made by a court of competent jurisdiction.
6. ESCROW OF BENEFITS.
(a) At any time after the occurrence of a Change in Control, the Company
shall, upon the written request of the Executive, promptly deliver to a bank or
other institution acceptable to the Executive, as escrow agent (the "Escrow
Agent"), an amount of cash or certificates of deposit, treasury bills or
irrevocable letters of credit adequate to fully fund the obligations of the
Company under this Agreement.
(b) The escrow agreement or arrangement between the Company and the Escrow
Agent shall provide that amounts payable to the Executive under this Agreement
shall be paid by the Escrow Agent to the Executive five (5) days after written
demand therefore by the Executive to the Escrow Agent, with a copy to the
Company, certifying that such amounts are due and payable under this Agreement
because of the occurrence of an event specified under Section 4 hereof. Such
escrow agreement or arrangements shall also provide that if the Company shall,
prior to
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payment by the Escrow Agent, object in writing to the Escrow Agent, with a copy
to the Executive, as to the payment of any amounts demanded by the Executive
under this Agreement, certifying that such amounts are not due and payable to
the Executive because an event specified in Section 4 hereof has not occurred,
such dispute shall be resolved by binding arbitration as hereinafter set forth.
(c) Such escrow agreement or arrangements shall further provide that any
dispute described in Section 6(b) hereof shall be forthwith submitted to binding
arbitration as hereinafter provided.
7. ARBITRATION.
Any disputes arising under Section 4(iv) or Section 6(b) hereof shall be
forthwith submitted to binding arbitration by three (3) arbitrators in Newark,
New Jersey, under the expedited rules of the American Arbitration Association
then obtaining. One such arbitrator shall be selected by each of the Company and
the Executive, and the two arbitrators so selected shall select the third
arbitrator. Selection of all three arbitrators shall be made within thirty (30)
days after the date the dispute arose. Such arbitration shall be limited solely
to a determination of whether or not an event has occurred pursuant to Section 4
of this Agreement which entitles the Executive to the benefits and rights set
forth in Section 5 of this Agreement. The written decision of the arbitrators
shall be rendered within ninety (90) days after selection of the third
arbitrator. The decision of the arbitrators shall be final and binding on the
Company and the Executive and may be entered by either party in any court having
jurisdiction.
8. ENFORCEMENT OF RIGHTS.
The Company, and any survivor of any business combination with the Company
causing rights to accrue to the Executive under this Agreement, shall pay all
the Executive's legal, accounting and arbitration fees and expenses and costs as
they become due, which the Executive may become obligated to pay in obtaining,
enforcing, retaining or defending any right or benefit provided by this
Agreement, whether in respect of any enforcement undertaken or demand made by
the Executive that is successful or in respect of any enforcement undertaken or
demand made in good faith by the Executive that is not successful. If judgment
is rendered against any of such persons, it will pay the Executive, unless
expressly included in the judgment, prejudgment interest
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from the date of the Notice of Termination at the prime rate being charged by
Midlantic National Bank on the date of the Notice of Termination.
9. EXECUTIVE'S COMMITMENT.
The Executive agrees that subsequent to his period of employment with the
Company, he will not at any time communicate or disclose to any unauthorized
person, without the written consent of the Company, any proprietary or
confidential information concerning the business affairs, products or customers
of the Company which, if disclosed, would have a material adverse effect upon
the business or operations of the Company and its subsidiaries, taken as a
whole; it being understood, however, that the obligations of this Section 9
shall not apply to the extent that the aforesaid matters: (a) are disclosed in
circumstances where the Executive is legally required to do so or (b) become
generally known to and available for use by the public otherwise than by the
Executive's wrongful act or omission.
10. SEVERABILITY.
If any one or more of the provisions (or any part thereof) of this
Agreement would be, invalid, illegal or unenforceable in any respect under
applicable law, then such provision (or any part thereof) shall be deemed
modified to the extent necessary to render it valid while most nearly preserving
its original intent; no provision (or any part thereof) of this Agreement shall
be affected by another provision (or any part thereof) of this Agreement being
held invalid.
11. NOTICE.
For the purposes of this Agreement, notices, requests, demands and all
other communications provided for in this Agreement shall be in writing and
shall be deemed to have been duly given: (i) when delivered personally, or (ii)
three (3) days after having been mailed by registered or certified mail, return
receipt requested, or (iii) one (1) day after having been sent by telegraph or
mailed by express mail or other overnight courier service, postage, telegraph,
courier and registry fees, as the case may be, prepaid and addressed to the
addresses set forth in the first paragraph of this Agreement or to such other
address as either party may have furnished to the other in writing in accordance
herewith, except that notice of change of address shall be effective only upon
receipt. All notices to the Company shall be directed to the attention of the
President of the Company.
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12. MERGER; AMENDMENT; WAIVER.
(a) This Agreement supersedes all other agreements, arrangements and
understandings, and merges all negotiations and discussions, with respect to the
subject matter hereof; provided, however, that this Agreement shall not, except
to the extent specifically provided herein, supersede or limit the rights,
duties or obligations that the Executive may have under any written employment
agreement with the Company.
(b) This Agreement may be amended or modified only by a writing signed by
both parties. No further agreement between the parties shall be deemed to
supersede, amend or modify this Agreement unless a statement to that effect is
made in such future agreement or the enforcement of such agreement would give
rise to conflicting obligations between the Executive on the one hand and the
Company, its successor or other bound party on the other hand; in the latter
case, however, this Agreement shall be deemed to be superseded, amended or
modified only to the extent necessary to avoid such conflict.
(c) The waiver of the non-performance of any obligation under this
Agreement shall apply to that non-performance only and shall not constitute a
waiver, modification or amendment of this provision giving rise to such
obligation.
13. SUCCESSORS; BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
merger, consolidation or other combination other than a sale of assets) to the
business of the Company, by agreement in form and substance satisfactory to the
Executive, to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall constitute
Good Reason for termination by the Executive of his employment, and, if a Change
in Control shall have occurred, the Executive shall be entitled to the benefits
set forth in Section 5 of this Agreement, except that for purposes of
implementing the foregoing, the date. On which any such succession becomes
effective shall be deemed the Date of Termination. As used in this Agreement,
the "Company" shall mean the Company as hereinbefore defined, and any successor
and assign to its business as
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aforesaid which executes and delivers the agreement provided for in this Section
13 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) This Agreement shall inure to the benefit of and be enforceable by the
personal or legal representatives, executors, administrators, successors, heirs,
distributees, devises and legatees of the Executive. If the Executive should die
while any amount would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee, legatee
or other designee or, if there be no such designee, to his estate.
14. GOVERNING LAW.
This Agreement is being made in the State of New Jersey and shall be
governed by, and interpreted and construed with reference to, the laws of New
Jersey.
15. HEADINGS.
Headings in this Agreement are for convenience of reference only and shall
not be used to construe or interpret this Agreement.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties hereunder have executed this Agreement as
of the date first above written.
SELECTIVE INSURANCE COMPANY OF AMERICA
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
XXXXXXX X. XXXXXX,
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
XXXXXXX X. XXXXXXXX, EXECUTIVE
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In consideration of the covenants of the Executive hereinabove set forth,
Selective hereby guarantees to the Executive the full performance by the Company
of all of its obligations under the foregoing Termination Agreement.
SELECTIVE INSURANCE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
XXXXXXX X. XXXXXX,
CHAIRMAN, PRESIDENT AND CHIEF
EXECUTIVE OFFICER
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