EMPLOYMENT AGREEMENT
Exhibit 10.8
This Employment Agreement (the “Agreement”) is made and entered into by and between
ProAssurance Corporation, a Delaware corporation (“ProAssurance”) and Xxxx X. Xxxxxx, an individual
(the “Xxxxxx”) effective as of January 1, 2008 (the “Effective Date”).
RECITALS:
Xxxxxx has served as an executive officer of ProAssurance and its predecessors and
subsidiaries, Medical Assurance, Inc. (“MAI”) and The Medical Assurance Company, Inc. (“TMAC”)
since their respective dates of organization. Xxxxxx intends to resign each of his positions as an
officer or director of ProAssurance’s subsidiaries. Xxxxxx will continue as an employee of
ProAssurance (or a subsidiary) in a non-executive capacity, and he will continue as a director on
Board of ProAssurance’s Board of Directors. ProAssurance and Xxxxxx desire to to enter into this
agreement to set forth the terms and conditions of Xxxxxx’x employment with ProAssurance from and
after his resignation.
NOW, THEREFORE, THESE PREMISES CONSIDERED, Xxxxxx and ProAssurance hereby agree as follows:
1. Resignation. Xxxxxx hereby resigns as an officer and director of each of the
direct and indirect subsidiaries of ProAssurance of which he is an officer or director Effective
Date.
2. Employment Term. ProAssurance hereby employs Xxxxxx, and Xxxxxx accepts
employment, upon the terms and conditions of this Agreement for the term running from the Effective
Date to and including December 31, 2008 (the “Term”).
3. Offices; Directorship; Other Activities.
3.1 Office and Duties.
(a) From and after the Effective Date, Xxxxxx shall perform such duties as may be requested
from time to time by the Chief Executive Officer of ProAssurance, which duties shall be related to
and consistent with the areas of responsibility and duties assigned to Xxxxxx as an executive
officer of ProAssurance.
(b) Xxxxxx shall devote such attention and time to the business and affairs of ProAssurance as
may be reasonably required to discharge his duties under this Agreement.
3.2 Other Activities. Xxxxxx may directly or indirectly participate in other business
ventures, investments or charitable organizations, and may also deliver lectures, fulfill speaking
engagements or teach at educational institutions and may manage personal investments, so long as
such activities do not materially interfere with Xxxxxx’x responsibilities to ProAssurance;
provided that Xxxxxx may not invest in any business that does business with, or competes with,
ProAssurance except for investment in a business where Xxxxxx’x percentage of ownership is
insignificant; and provided further that Xxxxxx shall remain subject to the restrictions set forth
in the ProAssurance Code of Ethics and Conduct.
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4. Compensation and Benefits.
4.1 Base Salary. Xxxxxx will continue his 2007 base salary through December 31, 2007.
For the 2008 calendar year, ProAssurance will pay to Xxxxxx a base salary at the rate of $300,000
per annum (“Base Salary”). Base Salary will be payable in periodic installments in accordance with
ProAssurance’s customary practices. Amounts payable will be reduced by standard withholding and
other authorized deductions.
4.2 Other Incentive Compensation. ProAssurance will pay Xxxxxx the annual incentive
compensation for the calendar year ending December 31, 2007, if and to the extent that the
incentive compensation is earned in accordance with the 2007 Incentive Award Guidelines as adopted
by the Board on March 7, 2007. The annual incentive compensation will be paid at such time and
manner as the annual incentive compensation is paid to ProAssurance’s senior executive officers
consistent with past practice but not later than March 15, 2008; provided that payment of such
incentive compensation shall be subject to and conditioned upon Xxxxxx’x employment with
ProAssurance with ProAssurance on December 31, 2007.
4.3 Outstanding Equity Compensation. During the Term, Xxxxxx shall continue as a
participant under the 1995 Incentive Compensation Stock Plan, as amended (the “1995 Plan”) and the
2004 Equity Incentive Plan, as amended (the “2004 Plan”). All grant agreements for stock options
granted under the 1995 Plan and the 2004 Plan and performance share agreements for performance
shares granted under the 2004 Plan in effect on the Effective Date shall continue and remain in
effect in accordance with their respective terms.
4.4 Other Savings and Retirement Plans. During the Term, Xxxxxx shall be entitled to
participate in all savings and retirement plans, practices, policies and programs applicable
generally to other employees of ProAssurance. The current savings and retirement plans, all of
which may be terminated or amended by the Board, include the Equity Plan, the Executive
Non-Qualified Excess Plan and Trust, the Amended and Restated ProAssurance Corporation Stock
Ownership Plan, and the ProAssurance Group Savings and Retirement Plan.
4.5 Welfare Benefit Plans. During the Term, Xxxxxx shall be eligible for
participation in and shall receive all benefits under welfare benefit plans (including group
health, disability and life insurance plans and programs) as shall be in effect from time to time,
to the extent applicable to other employees of ProAssurance.
4.6 Reimbursement of Expenses. Xxxxxx shall be entitled to receive prompt
reimbursement for all reasonable expenses incurred by Xxxxxx in accordance with the policies,
practices and procedures generally applicable to senior executive officers of ProAssurance.
4.7 Office and Support Staff. ProAssurance shall provide Xxxxxx an office and
clerical support.
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4.8 Vacations and Leave. Xxxxxx shall be entitled to vacation and sick leave (without
loss of pay) in accordance with ProAssurance’s policies in effect from time to time, and other
personal and family leave as may be provided by law.
4.9 Conflict. In the event of any conflict between this Agreement and the terms of
any benefit, severance, deferred compensation, incentive or similar plan or agreement in which
Xxxxxx is or becomes a participant during the Term (other than a stockholder-approved plan or ERISA
plan), the provisions of this Agreement shall apply unless Xxxxxx makes specific written election
otherwise, but Xxxxxx shall not be entitled to duplicative payments or benefits.
5. Termination of Employment.
5.1 Death, Disability or Retirement. Xxxxxx’x employment shall terminate upon
Xxxxxx’x death, Disability or Retirement during the Term.
(a) For purposes of this Agreement, “Disability” means a serious injury or illness that
requires Xxxxxx to be under regular care of a licensed medical physician and renders Xxxxxx
incapable of performing the essential function of Xxxxxx’x position for twelve (12) consecutive
months as determined by the Board in good faith and upon receipt of and in reliance on competent
medical advice from one or more individuals selected by the Board, who are qualified to give
professional medical advice. Xxxxxx will submit to such medical or psychiatric examinations and
tests as such medical professional deems necessary to make any determination of Xxxxxx’x Disability
and consent to such medical professional sharing the results of such examination with a
representative of the Board.
(b) For purposes of this Agreement, “Retirement” means voluntary retirement by Xxxxxx when
eligible to receive retirement benefits under a retirement plan then in effect for ProAssurance,
Xxxxxx having reached the age of mandatory retirement (if such requirement then exists for
ProAssurance’s senior Executive officers) or any other retirement by Xxxxxx with the consent of the
Board. ProAssurance acknowledges that Xxxxxx is eligible for retirement at his election.
5.2 Termination by ProAssurance with Cause. ProAssurance may terminate Xxxxxx’x
employment during the Term for Cause. For purposes of this Agreement, the term “Cause” means: (i)
Xxxxxx has been convicted in a federal or state court of a crime classified as a felony; (ii)
action or inaction by Xxxxxx (A) that constitutes embezzlement, theft, misappropriation or
conversion of assets of ProAssurance or its subsidiaries which alone or together with related
actions or inactions involve assets of more than a de minimus amount or that constitutes
intentional fraud, gross malfeasance of duty, or conduct grossly inappropriate to Xxxxxx’x office,
and (B) such action or inaction has adversely affected or is likely to adversely affect the
business of ProAssurance or its subsidiaries, taken as a whole, or has resulted or is intended to
result in a direct or indirect gain or personal enrichment of Xxxxxx to the detriment of
ProAssurance; or (iii) Xxxxxx has been grossly inattentive to, or in a grossly negligent manner
failed to competently perform, Xxxxxx’x job duties and the failure was not cured within 45 days
after written notice from ProAssurance. Any termination of Xxxxxx’x employment by ProAssurance for
Cause shall
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be communicated by a Notice of Termination (as defined in Section 5.4 below) to Xxxxxx, which
Notice of Termination shall be in writing and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Xxxxxx’x employment under this
provision. Xxxxxx shall not be deemed to have been terminated for Cause unless and until (x) he
receives a Notice of Termination from ProAssurance; (y) he is given the opportunity to be heard
before the Board; and (z) the Board finds in its good faith opinion, Xxxxxx was guilty of the
conduct set forth in the Notice of Termination.
5.3 Termination by Xxxxxx for Good Reason. Xxxxxx may terminate his employment with
ProAssurance for Good Reason. For purposes of this Agreement, “Good Reason” shall constitute any
of the following circumstances if they occur without Xxxxxx’ express written consent during the
Term: (i) a material reduction in Xxxxxx’x Base Salary as set forth in Section 4.1 hereof; or (ii)
a breach by ProAssurance of any provision of this Agreement in any material respect; or (iii) the
occurrence of a Change of Control (as herein defined). Except with respect to a Change of Control,
Xxxxxx must provide ProAssurance with a Notice of Termination no later than 45 calendar days after
Xxxxxx knows or should have known that Good Reason has occurred. Following delivery of Xxxxxx’x
Notice of Termination, ProAssurance shall have 45 calendar days to rectify the circumstances
causing the Good Reason. If ProAssurance fails to rectify the events causing Good Reason within
said 45 day period, or if ProAssurance delivers to Xxxxxx written notice stating that the
circumstances cannot or shall not be rectified, Xxxxxx shall be entitled to assert Good Reason and
terminate employment as of the expiration of the 45 day period after delivery of Xxxxxx’x Notice of
Termination. Should Xxxxxx fail to provide the required Notice of Termination in a timely manner,
Good Reason shall not be deemed to have occurred as a result of the event. The Term shall not be
deemed to have expired during the notice period, however, as long as Xxxxxx has provided Notice of
Termination within the Term.
For purposes of this Agreement, the following terms have the meanings set forth below:
(a) “Exchange Act” means the Securities Exchange Act of 1934, as amended.
(b) “Person” is used as such term is used for purposes of Section 13(d) or 14(d) of the
Exchange Act.
(c) “Beneficial Ownership” is used as such term is used within the meaning of Rule 13d-3
promulgated under the Exchange Act.
(d) “Change of Control” shall mean the occurrence during the Term of any one of the following
events:
(i) an acquisition of the voting securities of ProAssurance by any Person, immediately after
which such Person has Beneficial Ownership of more than 50.1% of the combined voting power of
ProAssurance’s then outstanding voting securities;
(ii) a merger, consolidation or reorganization involving ProAssurance in which an entity other
than ProAssurance is the surviving entity or in which ProAssurance is the surviving entity and the
stockholders of ProAssurance immediately preceding such transaction will own less than 50.1% of the
outstanding voting securities of the surviving entity; or
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(iii) the sale or other disposition of substantially all of the assets of ProAssurance (as
defined in the regulations under Section 409A of the Code) and ProAssurance ceases to function on a
going forward basis as an insurance holding company system that provides medical professional
liability insurance.
The transactions as described in (i), (ii) and (iii) shall be referred to as “Change of
Control Transactions.” In no event shall a Change of Control be deemed to have occurred, with
respect to Xxxxxx, if Xxxxxx is part of a purchasing group which consummates a Change of Control
Transaction. Xxxxxx shall be deemed “part of a purchasing group” for purposes of the preceding
sentence if Xxxxxx is an equity participant or has agreed to become an equity participant in the
purchasing company or group (except for passive ownership of less than 5% of the stock of the
purchasing company or ownership of equity participation in the purchasing company or group as a
result of the conversion or exchange of ProAssurance’s common stock beneficially owned by Xxxxxx.
5.4 Notice and Date of Termination. Any termination by ProAssurance, or by Xxxxxx,
shall be communicated by Notice of Termination to the other party given in accordance with Section
10 hereof. For purposes of this Agreement, a “Notice of Termination” is a written notice which
indicates the specific termination provision in this Agreement relied upon and sets forth such
additional information as may be required in Section 5.2 or Section 5.3 hereof, to the extent
applicable. The “Date of Termination” means (i) if Xxxxxx’x employment is terminated by
ProAssurance for Cause, the Date of Termination shall be as of the date of Xxxxxx’x receipt of
ProAssurance’s Notice of Termination; (ii) if Xxxxxx’x employment is terminated by Xxxxxx for Good
Reason, the Date of Termination shall be the last day of the 45 day period after delivery of
Xxxxxx’x Notice of Termination; (iii) if Xxxxxx’x employment is terminated due to a Change of
Control, the Date of Termination shall be the date of closing of the Change of Control Transaction;
(iv) if Xxxxxx’x employment is terminated by reason of death of Xxxxxx, the date of death shall be
the Date of Termination; or (v) if Xxxxxx’x employment is terminated by reason of Disability, the
Date of Termination shall be the date of determination of Disability by the Board; (vi) if Xxxxxx’x
employment is terminated by reason of Retirement, the Date of Termination shall be the last day of
employment of Xxxxxx; (vii) if Xxxxxx’x employment is terminated by ProAssurance other than for
Cause, death, Disability or Retirement, the Date of Termination shall be the date of receipt of the
Notice of Termination by Xxxxxx.
6. Certain Benefits Upon Termination.
6.1 Accrued Salary and Benefits. Xxxxxx shall be entitled to receive the following
upon any termination of employment: (i) accrued and unpaid Base Salary as of the Date of
Termination; (ii) if the termination occurs during 2008, unpaid annual incentive compensation
payable under Section 3.2(a) hereof; (iii) accrued vacation and sick leave, if any, on Date of
Termination in accordance with the then current policy of ProAssurance with respect to terminated
employees generally; and (iv) benefits under ProAssurance’s employee benefit plans in which Xxxxxx
was a participant on the Date of Termination, which benefits shall be vested, paid or provided in
accordance with the terms of said employee benefit plans.
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6.2 Severance Benefits.
(a) If at any time prior to December 31, 2008, ProAssurance terminates the employment of
Xxxxxx for any reason other than Cause, death, Disability or Retirement, or if Xxxxxx terminates
his employment with ProAssurance for Good Reason, and Xxxxxx, within sixty (60) days after the Date
of Termination, signs the release form that is attached to this Agreement as Exhibit A (the
"Release”), Xxxxxx shall receive an amount equal to a sum of the amounts that would otherwise be
payable hereunder as Base Salary during the period commencing on the Date of Termination and ending
on December 31, 2008 (the “Severance Benefits”). Subject to the delivery of the executed Release
by Xxxxxx, the Xxxxxxxxx Benefits shall be paid by continuing the payment of Xxxxxx’ Base Salary in
each payroll period through December 31, 2008, except that payment of Severance Benefits shall be
deferred until seven (7) days after the execution of the Release at which time any deferred amounts
shall be paid. Notwithstanding anything herein it to the contrary, unpaid Severance Benefits shall
be subject to termination under provisions of Section 7.2 hereof in the event Xxxxxx should violate
the covenant set forth therein and unpaid Severance Benefits shall be payable in lump sum by
ProAssurance on termination of this Agreement by Xxxxxx for Good Reason as a result of a Change of
Control seven (7) days after the execution of the Release. ProAssurance shall withhold from any
amounts payable under this Agreement all federal, state, city or other income and employment taxes
that shall be required. Notwithstanding the foregoing, if Xxxxxx is a “specified employee” within
the meaning of Section 409A(a)(2)(B)(i) of the Internal Revenue Code of 1986, as amended, the
payment schedule for Severance Benefits shall be modified or adjusted to provide that no payments
shall be made until the expiration of six (6) months following the Date of Termination. In the
event payments are so delayed, a lump sum payment of the accumulated unpaid amounts attributable to
the six (6) month period shall be made to Xxxxxx on the first day of the seventh month following
the Date of Termination. This six month delay shall not apply to any Severance Benefits which are
not subject to the requirements of Code Section 409A by reason of their being separation pay upon
an involuntary separation from service and their meeting the requirements and imitations of the
regulations under the above referenced Code section. In no event shall the aggregate amount of the
Severance Benefits be reduced as a result of such modification or adjustment.
(b) Xxxxxx shall be under no duty or obligation to seek or accept other employment and shall
not be required to mitigate the amount of severance benefits provided under this Agreement by
seeking employment or otherwise.
6.3 Parachute Payment Tax Reimbursement.
(a) If any payment or benefit within the meaning of Section 280G(b)(2) of the Internal Revenue
Code of 1986, as amended (the “Code”), to Xxxxxx for his benefit paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising
out of, his employment with ProAssurance or a Change of Control (as defined in Section 5.3(d)
hereof) (a “Payment” or “Payments”), will be subject to the excise tax imposed by Section 4999 of
the Code or any interest or penalties are incurred by Xxxxxx with respect to such excise tax (such
excise tax, together with such interest and penalties are collectively referred to as the “Excise
Tax”), then Xxxxxx will be entitled to receive an additional payment (a “Gross Up Payment”). The
amount of the Gross Up Payment will be such that after payment by Xxxxxx of all taxes (including
any interest or penalties, other than interest and
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penalties imposed by reason of Xxxxxx’x failure to file a timely tax return or pay taxes shown
due on his return, imposed with respect to such taxes and the Excise Tax), including any Excise Tax
imposed upon the Gross Up Payment, Xxxxxx retains an amount of the Gross Up Payment equal to the
Excise Tax imposed upon the Payments.
(b) An initial determination as to whether a Gross Up Payment is required pursuant to this
Agreement and the amount of such Gross Up Payment shall be made by the income tax accountants of
ProAssurance. The tax accountants shall provide their determination (“Determination”) together
with detailed supporting calculations and documentation to ProAssurance and Xxxxxx within a
reasonable time after the Date of Termination and if the tax accountants determine that no Excise
Tax is payable by Xxxxxx with respect to a Payment or Payments, it shall furnish Butrus with an
opinion reasonably acceptable to Xxxxxx that no Excise Tax will be imposed with respect to any
Payment or Payments. Within ten days of the delivery of the Determination to Xxxxxx, Xxxxxx shall
have the right to dispute the Determination. The Gross Up Payment, if any, as determined pursuant
to this Section 6.3(b) shall be paid by ProAssurance to Xxxxxx within 30 days of the receipt of the
Determination. The existence of the Dispute shall not in any way affect Xxxxxx’x right to receive
Gross Up Payments in accordance with the Determination. Upon the final resolution of a Dispute,
ProAssurance shall promptly pay Xxxxxx any additional amount required by such resolution. If there
is no Dispute, the Determination shall be binding, final and conclusive upon ProAssurance and
Xxxxxx.
7. Non-Competition.
7.1 Non-Competition; Nonsolicitation of Employee. Xxxxxx will not during the
Restricted Period (herein defined):
(a) become Employed by a Competitor Company that offers, sells or markets medical professional
liability insurance in the primary market area of the Companies, except that Xxxxxx may be employed
with a Competitor Company so long as and on the condition that Xxxxxx does not participate in the
medical professional liability insurance business of the Competitor Company; or
(b) solicit or induce any employees of the Companies to leave such employment or accept
employment with any other person or entity, or solicit or induce any insurance agent of the
Companies to offer, sell or market medical professional liability insurance for a competitor
company in the primary market area of the Companies;
“Companies” means any direct or indirect subsidiary of ProAssurance that, now or in the
future, offers medical professional liability insurance or non-risk bearing products and services
related to underwriting, claims or risk management, or indemnification for medical professional
liability, and any other company that has succeeded to the business of any of the Companies.
“Competitor Company” means an insurance company, insurance agency, business, for profit or not
for profit organization (other than the Companies) that provides, or offers to provide medical
professional liability insurance to health care providers.
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“Employed” includes activities as an owner, proprietor, employee, agent, solicitor, partner,
member, manager, principal, shareholder (owning more than 1% of the outstanding stock), consultant,
officer, director or independent contractor.
“Health care providers” means physicians, dentists, podiatrists, physician assistants, nurse
practitioners, other individual health care providers and hospital and other institutional health
care providers.
“Medical professional liability insurance” means medical malpractice insurance and
reinsurance, and equivalent self-insured services such as administration of self-insured trusts,
claims management services and risk management services for health care providers. “Medical
professional liability insurance” does not include services provided as an employee of a health
care provider if such services are rendered solely for the purpose of servicing medical
professional liability risk of the employer or that of its employees.
“Primary market area” means any state in which any one or more of the Companies derived more
than $15 million in revenues from the sale of medical professional liability insurance and non-risk
bearing medical professional liability services or products to health care providers in the most
recent complete fiscal year prior to the Date of Termination.
“Restricted Period” means a period of 12 months from the Date of Termination.
7.2 Remedies for Breach. If Xxxxxx is deemed to have materially breached the
non-competition covenants set forth in Section 7.1 of this Agreement, ProAssurance may, in addition
to seeking an injunction or any other remedy they may have, withhold or cancel any remaining
payments of Severance Benefits due to Xxxxxx pursuant to Section 6.2 of this Agreement.
ProAssurance shall give prior or contemporaneous written notice of such withholding or cancellation
of payments in accordance with Section 6.2 hereof. If Xxxxxx violates any of these restrictions,
the Companies shall be further entitled to an immediate preliminary and permanent injunctive
relief, without bond, in addition to any other remedy which may be available to ProAssurance.
7.3 Reasonableness of Restrictions. ProAssurance and Xxxxxx agree that the
restrictions in this Agreement are fair and reasonable in all respects, including the geographic
and temporal restrictions, and that the benefits described in this Agreement, to the extent any
separate or special consideration is necessary, are fully sufficient consideration for Xxxxxx’x
obligations under this Agreement.
7.4 Confidentiality. Xxxxxx will remain obligated under any confidentiality or
nondisclosure agreement with the Companies (or any of them) that is currently in effect or to which
Xxxxxx may in the future be bound. In the event that Xxxxxx is at any time not the subject of a
separate confidentiality or nondisclosure agreement with the Companies (or any of them), Xxxxxx
expressly agrees that Xxxxxx shall not use for Xxxxxx’x personal benefit, or disclose, communicate
or divulge to, or use for the direct or indirect benefit of any person, firm, association or
company any confidential or competitive material or information of the Companies or their
subsidiaries, including without limitation, any information regarding insureds or other customers,
actual or prospective, and the contents of their files; marketing, underwriting
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or financial plans or analyses which is not a matter of public record; claims practices or
analyses which are not matters of public record; pending or past litigation in which the Companies
have been involved and which is not a matter of public record; and all other strategic plans,
analyses of operations, computer programs, personnel information and other proprietary information
with respect to the Companies which are not matters of public record. Xxxxxx shall return to the
Companies promptly, and in no event later than the Date of Termination, all items, documents, lists
and other materials belonging to the Companies or their subsidiaries, including but not limited to,
credit, debit or service cards, all documents, computer tapes, or other business records or
information, keys and all other items in Xxxxxx’x possession or control.
8. Indemnification. In addition to any indemnification required by law, under the
Certificate of Incorporation or Bylaws of ProAssurance or any of the Companies (as defined in
Section 6.1 hereof), or under a policy of insurance owned by ProAssurance or the Companies,
ProAssurance shall provide Xxxxxx indemnification under the terms and conditions of his current
Indemnification Agreement with ProAssurance.
9. Notice. For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand or commercial courier or mailed by certified or registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses as set forth below or to such
other address as one party may have furnished to the other in writing in accordance herewith.
Notice to Xxxxxx:
Notice to the Companies:
Street Address:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
10. Arbitration. ProAssurance and Xxxxxx agree that final and binding arbitration
shall be the sole recourse to settle any claim or controversy arising out of or relating to a
breach or the interpretation of this Agreement, except as either party may be seeking injunctive
relief. Either party may file a demand for arbitration. The arbitration shall be held at a
mutually agreeable location, and shall be subject to and in accordance with the Employment
Arbitration Rules of the American Arbitration Association then in effect; provided that if the
location cannot be agreed upon the arbitration shall be held in Birmingham, Alabama. The
arbitrator may award
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any and all remedies allowable by the cause of action subject to the arbitration, but the
arbitrator’s sole authority shall be to interpret and apply the provisions of this Agreement. In
reaching its decision the arbitrator shall have no authority to change or modify any provision of
this Agreement or other written agreement between the parties. The arbitrator shall have the power
to compel the attendance of witnesses at the hearing. Any court having jurisdiction may enter a
judgment based upon such arbitration. All decisions of the arbitrator shall be final and binding
on the parties without appeal to any court. Upon execution of this Agreement, Xxxxxx shall be
deemed to have waived any right to commence litigation proceedings regarding this Agreement outside
of arbitration or injunctive relief without the express consent of ProAssurance. ProAssurance
shall pay all arbitration fees and the arbitrator’s compensation. If Xxxxxx prevails in the
arbitration proceeding, ProAssurance shall reimburse to Xxxxxx the reasonable fees and expenses of
Xxxxxx’x personal counsel for his or her professional services rendered to Xxxxxx in connection
with the enforcement of this Agreement.
11. Miscellaneous.
(a) Except insofar as this provision may be contrary to applicable law, no sale, transfer,
alienation, assignment, pledge, collateralization or attachment of any benefits under this
Agreement shall be valid or recognized by ProAssurance.
(b) This Agreement sets forth the entire agreement between the parties with respect to the
matters set forth herein. This Agreement may not be modified or amended except by written
agreement intended as such and signed by all parties.
(c) This Agreement shall benefit and be binding upon the parties and their respective
directors, officers, employees, representatives, agents, heirs, successors, assigns, devisees, and
legal or personal representatives.
(d) ProAssurance, from time to time, shall provide government agencies with such reports
concerning this Agreement and copies thereof as may be required by law, and shall provide Xxxxxx
with such disclosure concerning this Agreement as may be required by law or as ProAssurance may
deem appropriate.
(e) Xxxxxx and ProAssurance respectively acknowledge that each of them has read and understand
this Agreement, that they have each had adequate time to consider this Agreement and discuss it
with each of their attorneys and advisors, that each of them understands the consequences of
entering into this Agreement, that each of them is knowingly and voluntarily entering into this
Agreement, and that they are each competent to enter into this Agreement.
(f) If any provision of this Agreement is determined to be unenforceable, at the discretion of
ProAssurance the remainder of this Agreement shall not be affected but each remaining provision
shall continue to be valid and effective and shall be modified so that it is enforceable to the
fullest extent permitted by law.
(g) This Agreement will be interpreted as a whole according to its fair terms. It will not be
construed strictly for or against either party.
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(h) Except to the extent that federal law controls, this Agreement is to be construed
according to Delaware law.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on February 26, 2008 to be
effective as of the Effective Date
Xxxx X. Xxxxxx | ||||||
PROASSURANCE CORPORATION | ||||||
By: | ||||||
Xxxxxx X. Xxxxx, President |
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EXHIBIT A
RELEASE IN CONJUNCTION WITH SEVERANCE COMPENSATION
This Release of Claims (“Release”) is between ProAssurance Corporation (“ProAssurance”), and
any successor company that has assumed the Agreement to which this Release was an attachment (all
such organizations being referred to in this Release as the “Companies”) and Xxxx X. Xxxxxx
(“Xxxxxx”).
The Companies and Xxxxxx have agreed to terminate their employment relationship. To effect an
orderly termination, Xxxxxx, and the Companies are entering into this Release.
1. For the purposes of this Release, “Date of Termination” is the effective date of Xxxxxx’x
termination of employment from Companies. Xxxxxx hereby waives any and all rights Xxxxxx may
otherwise have to continued employment with or re-employment by the Companies or any parent,
subsidiary or affiliate of Companies.
2. Effective with the Date of Termination, Xxxxxx is relieved of all duties and obligations to
the Companies, except as provided in this Release or any applicable provisions of the Employment
Agreement between Companies and Xxxxxx, effective as of ___, 2007 (“Agreement”), which survive
termination of the employment relationship.
3. Xxxxxx agrees that this Release and its terms are confidential and shall not be disclosed
or published directly or indirectly to third persons, except as necessary to enforce its terms, by
Xxxxxx or to Xxxxxx’x immediate family upon their agreement not to disclose the fact or terms of
this Release, or to Xxxxxx’x attorney, financial consultant or accountant, except that Xxxxxx may
disclose, as necessary, the fact that Xxxxxx has terminated Xxxxxx’x employment with the Companies.
4. Any fringe benefits that Xxxxxx has received or currently is receiving from the Companies
or its affiliates shall cease effective with the Date of Termination, except as otherwise provided
for in this Release, in the Agreement or by law.
5. The parties agree that the terms contained and payments provided for in the Agreement are
compensation for and in full consideration of Employee’s release of claims under this Release, and
Xxxxxx’x confidentiality, non-compete, non-solicitation and non-disclosure agreements contained in
the Agreement.
6. Xxxxxx shall be under no duty or obligation to seek or accept other employment and shall
not be required to mitigate the amount of the Severance Benefits (as defined and provided under
the Agreement) by seeking employment or otherwise, provided, however, that Xxxxxx shall be required
to notify the Companies if Xxxxxx becomes covered by a health or dental care program providing
substantially similar coverage, at which time health or dental care continuation coverage provided
under the Agreement shall cease.
7. Xxxxxx waives, releases, and forever discharges the Companies and each of their direct or
indirect parents, subsidiaries, affiliates, and any partnerships, joint ventures or other entities
involving or related to any of the Companies, their parents, subsidiaries or affiliates, and
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all present or former employees, officers, agents, directors, successors, assigns and
attorneys of any of these corporations, persons or entities (all collectively referred to in this
Release as the “Released”) from any and all claims, charges, suits, causes of action, demands,
expenses and compensation whatsoever, known or unknown, direct or indirect, on account of or
growing out of Xxxxxx’x employment with and termination from the Companies, or relationship or
termination of such relationship with any of the Released, or arising out of related events
occurring through the date on which this Release is executed. This includes, but is not limited to,
claims for breach of any employment contract; handbook or manual; any express or implied contract;
any tort; continued employment; loss of wages or benefits; attorney fees; employment discrimination
arising under any federal, state, or local civil rights or anti-discrimination statute, including
specifically any claims Xxxxxx may have under the federal Age Discrimination in Employment Act, as
amended, 29 USC §§ 621, et seq.; emotional distress; harassment; defamation; slander; and
all other types of claims or causes of action whatsoever arising under any other state or federal
statute or common law of the United States.
8. Xxxxxx does not waive or release any rights or claims that may arise under the federal Age
Discrimination in Employment Act, as amended, after the date on which this Release is executed by
Xxxxxx.
9. Xxxxxx acknowledges and agrees that Xxxxxx has been advised in writing by this Release, and
otherwise, to CONSULT WITH AN ATTORNEY before Xxxxxx executes this Release.
10. Xxxxxx agrees that Xxxxxx received a copy of this Release prior to executing the
Agreement, that this Release incorporates the Companies’ FINAL OFFER; that Xxxxxx has been given a
period of at least twenty-two (22) calendar days within which to consider this Release and its
terms and to consult with an attorney should Xxxxxx so elect.
11. Xxxxxx shall have seven (7) calendar days following Xxxxxx’x execution of this Release to
revoke this Release. Any revocation of this Release shall be made in writing by Xxxxxx and shall be
received on or before the time of close of business on the seventh calendar day following the date
of the Employee’s execution of this Release at ProAssurance’s address at 000 Xxxxxxxxx Xxxxx, P. O.
Box 590009, Birmingham, Alabama 35259-0009, Attention: Chairman, or such other place as the
Companies may notify Xxxxxx in writing. This Release shall not become effective or enforceable
until the eighth (8th) calendar day following Xxxxxx’x execution of this Release.
12. Xxxxxx and the Companies acknowledge that they have read and understand this Release, that
they have had adequate time to consider this Release and discuss it with their attorneys and
advisors, that they understand the consequences of entering into this Release, that they are
knowingly and voluntarily entering into this Release, and that they are competent to enter into
this Release.
13. This Release shall benefit and be binding upon the parties and their respective directors,
officers, employees, agents, heirs, successors, assigns, devisees and legal or personal
representatives.
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14. This Release, along with the attached Agreement, sets forth the entire agreement between
the parties at the time and date these documents are executed, and fully supersedes any and all
prior agreements or understandings between them pertaining to the subject matter in this Release.
This Release may not be modified or amended except by a written agreement intended as such, and
signed by all parties.
15. Except to the extent that federal law controls, this Release is to be construed according
to the law of the state of Delaware.
16. If any provision of this Release is determined to be unenforceable, at the discretion of
ProAssurance the remainder of this Release shall not be affected but each remaining provision or
portion shall continue to be valid and effective and shall be modified so that it is enforceable to
the fullest extent permitted by law.
17. To signify their agreement to the terms of this Release, the parties have executed it on
the date set forth opposite their signatures, or those of their authorized agents, which follow.
Dated:
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Xxxx X. Xxxxxx | ||||||||||
PROASSURANCE CORPORATION | ||||||||||
Dated:
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By: | |||||||||
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