CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") is between MEEMIC
Insurance Company, a Michigan corporation (the "Company"), MEEMIC Holdings,
Inc., a Michigan corporation ("Holdings"), and Xxxxxxx X. Xxxxx ("Executive").
WHEREAS the Executive is rendering valuable services to the Company and
the Company desires to be assured that the Executive will continue rendering
such services; and
WHEREAS, the Company is a wholly-owned subsidiary of Holdings, and
Holdings desires to participate in this Agreement to strengthen the management
of the Company; and
WHEREAS the Executive is willing to continue to serve in an at-will
employment relationship but desires assurance that Executive will be protected
in the event of a change of control;
NOW, THEREFORE, in consideration of the mutual covenants and promises
in this Agreement, the sufficiency of which is hereby acknowledged, the parties
agree as follows.
1. TERM OF AGREEMENT. This Agreement is effective on July 1, 2000
("Effective Date") and shall continue in effect for five years ("Term"). The
Term shall automatically be extended for successive periods of one additional
year each unless the Company, Holdings, or their successors, delivers written
notice to the Executive six (6) months before the end of the original or any
successive Term that the Agreement will not be extended. However, in the event a
Change of Control occurs during the Term of this Agreement, the Term shall be
extended for the longer of (i) sixty (60) months beyond the month in which the
Change of Control occurred or (ii) until all benefits required hereunder shall
have been paid to the Executive. At the end of the Term, this Agreement shall
expire of its own accord. If the Executive's employment is terminated during the
term of this Agreement, the date on which the Executive's employment terminates
shall be referred to as the "Date of Termination."
2. SEVERANCE BENEFITS. If there is a Change of Control, as defined
in Paragraph 4 of this Agreement, during the Term of this Agreement, and (A) the
Executive leaves the employment of the Company for Good Reason, as explained in
Paragraph 5 of this Agreement, within the twenty-four (24) months after the
Change or Control; or (B) the employment of the Executive is terminated without
Cause as defined in Paragraph 6 of this Agreement within twenty-four (24) months
after the Change of Control; and (C) the Executive signs the form of the Release
that is attached to and incorporated in this Agreement with the Company or
Holdings, or their successors; then, in addition to the Executive's unpaid base
salary and unused accrued vacation as of the Date of Termination, the Executive
shall receive the following benefits ("Severance Benefits"):
a. An amount equal to two (2) times the Executive's annual Base
Salary, which shall be defined as the Executive's base rate of
compensation in effect as of the date of the Date of
Termination; and
b. An amount equal to two (2) times the Executive's actual total
annual incentive award(s) or bonus(es) earned with the Company,
its affiliates (as defined in the federal securities laws), and
any successors thereto, averaged over the last three (3) years
(whether or not deferred) or, if shorter, over the Executive's
entire period of employment with either the Company, its
affiliate, or any successor thereto. The total annual incentive
award or bonus is the sum of (i) cash awards or bonuses paid to
the Executive, plus (ii) the value of stock awarded to the
Executive. The value of stock awarded to the Executive shall be
calculated based on the value of the stock as of the date the
stock was awarded to the Executive. Notwithstanding the
foregoing, the Executive's actual total annual incentive
award(s) or bonus(es) shall be calculated excluding the value of
options to purchase stock which may have been awarded to the
Executive. If the Executive's period of employment with either
the Company, its affiliates, or any successors thereto, is less
than one (1) year, the average incentive award or bonus shall be
considered zero (0); and
c. Outplacement services that are customary to the position,
relative to the Company's past practice; and
d. Payment of the Executive's monthly COBRA premiums for continued
health and dental insurance coverage for the shorter of the
following periods: (i) eighteen (18) months; or (ii) until the
Executive no longer has coverage under COBRA; or (iii) until the
Executive becomes eligible for substantially similar coverage
under a subsequent employer's group health plan; and
e. If the Executive has regular use of a Company vehicle for
business and personal use, personal use of a vehicle (of the
same make and model for which the Executive was eligible within
180 days before the Executive's Date of Termination) for a
two-year period following the date of the Executive's Date of
Termination. At the end of the two-year period the Company shall
offer for sale to the Executive the vehicle which the Executive
was then using at the then current book value (purchase price
less accumulated depreciation) of such vehicle. In lieu of the
foregoing, and in full satisfaction of the company's obligations
under this subparagraph, the Company may, at its election,
transfer title of the vehicle to the Executive within one month
after the Executive's Date of Termination. The Company will be
responsible for all vehicle transfer taxes and the Executive
will be responsible for all income taxes arising from the
transfer which will be valued at the then current book value
(purchase price less accumulated depreciation) of such vehicle.
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The cash Severance Benefits described in sub-paragraphs (a) and (b)
above shall be paid to the Executive in a single lump sum within thirty (30)
calendar days after the Date of Termination. The Company shall withhold from any
amounts payable under this Agreement all federal, state, city or other income
and employment taxes that shall be required.
The Executive shall not be entitled to receive Severance Benefits if
employment with the Company ends due to (i) death, (ii) retirement pursuant to
the Company's pension plan as then in effect, (iii) the Executive has reached
the age of 65, (iv) Disability as defined in paragraph 6, (iv) without Good
Reason, or (v) due to Cause.
3. PARACHUTE PAYMENTS.
A. ALTERNATIVE CAP. Subject to Code Section 280G of the Internal
Revenue Code of 1986, as amended ("Code"), if a Change of
Control occurs, and the board of directors of the Company
determines that an excise tax under Section 4999 ("Excise Tax")
would be due, the Executive's benefits under this Agreement
shall be limited to the amount necessary to avoid the Excise Tax
only if applying such a limit results in a greater net benefit
to the Executive than would have resulted had the benefits not
been limited and an Excise Tax paid.
B. ALTERNATIVE CAP COMPUTATION. For purposes of making the
computation described in sub-paragraph 3A above:
(1) Any other payments or benefits received or to be received by
an Executive in connection with a Change of Control of the
Company or an Executive's termination of employment (whether
pursuant to the terms of this Agreement or any other plan,
arrangement, or agreement with the Company, or with any
Person whose actions result in a Change of Control of the
Company or any Person affiliated with the Company or such
Person) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1)
shall be treated as subject to the Excise Tax, unless in the
opinion of tax counsel selected by the Company's independent
auditors, that such other payments or benefits (in whole or
in part) do not constitute parachute payments, or that such
excess parachute payments (in whole or in part) do not
constitute parachute payments, or that such excess parachute
payments (in whole or in part) represent reasonable
compensation for services actually rendered within the
meaning of Section 280G(b)(4) of the Code in excess of the
base amount within the meaning of Section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise Tax. In the
event an Excise Tax is due, because of payments made under
this Agreement, the Executive shall be responsible for
paying said Excise Tax.
(2) The amount of the Severance Benefits that will be treated as
subject to the Excise Tax shall be equal to the lesser of:
(i) the total amount of the
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Severance Benefits; or (ii) the amount of excess parachute
payments within the meaning of Section 280G(b)(1) (after
applying sub-paragraph 3B(1) above;
(3) The value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of Section
280G(d)(3) and (4) of the Code; and
(4) The Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in a
calendar year in which the Severance Benefits are to be
paid, and state and locate income taxes at the highest
marginal rate of taxation in the state and locality of the
Executive's residence on the Date of Termination, net of the
maximum reduction in federal income taxes that could be
obtained from deduction of such state and local taxes.
C. REIMBURSEMENT. In the event the Internal Revenue Service adjusts
the computation of the compensation set forth in sub-paragraph 3B above, so that
the Executive did not receive the greatest net benefit, the Company shall
reimburse the Executive for the amount necessary to make the payment to the
Executive under paragraph 3A, plus a market rate of interest, as determined by
the board of directors of the Company.
4. CHANGE OF CONTROL.
A. As used in this Agreement "Change of Control" shall mean:
i. At any time after the Effective Date, any Person, as defined
by Section 3(a)(9) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), and other than Holdings, ProNational Insurance Company, or Professionals
Group, Inc., becomes the Beneficial Owner as that term is defined as of the
Effective Date for purposes of Section 13(d) of the Exchange Act, directly or
indirectly, of securities of the Company, Holdings, ProNational Insurance
Company or Professionals Group, Inc. representing more than 24.9 percent of the
combined voting power of any of these companies' then outstanding securities.
ii. At any time after the Effective Date, the shareholders of
the Company, Holdings, ProNational Insurance Company or Professionals Group,
Inc. approve (A) a plan of complete liquidation of any of these companies; or
(B) an agreement for the sale or disposition of all or substantially all the
assets of one of these companies; or (C) the sale or reinsurance of all or
substantially all of the insurance business of the Company so as to cause the
Company to cease to function on a going forward basis as a personal lines
insurance company; or (D) a merger, consolidation, or reorganization of the
Company, Holdings, ProNational Insurance Company and/or Professionals Group,
Inc., with or involving any other corporation, other than a merger,
consolidation, or reorganization that would result in at least 51 percent of the
combined voting power of the voting securities of the Company, Holdings,
ProNational Insurance Company and Professionals Group, Inc. as to which the
merger, consolidation or reorganization occurs (or such
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surviving entity) outstanding immediately after such merger, consolidation, or
reorganization being owned by the persons who, immediately prior to such merger,
consolidation or reorganization, are the shareholders of the Company, Holdings,
ProNational Insurance Company and Professionals Group, Inc., respectively (the
transactions described in (A), (B), (C) and (D) being each referred to as a
"Change of Control Transaction"). However, in no event shall a Change of Control
be deemed to have occurred, with respect to the Executive, if the Executive is
part of a purchasing group which consummates the Change of Control Transaction.
The Executive shall be deemed "part of a purchasing group" for purposes of the
preceding sentence if the Executive is an equity participant or has agreed to
become an equity participant in the purchasing company or group (except for (i)
passive ownership of less than 5 percent of the stock of the purchasing company;
or (ii) ownership of equity participation in the purchasing company or group
which is otherwise deemed not to be significant, as determined prior to the
Change in Control by a majority of the nonemployee continuing Directors).
B. Notwithstanding any provision in this Paragraph 4 to the
contrary, the Company or Holdings becoming a direct wholly owned subsidiary of
Professionals Group, Inc. shall not be deemed a Change of Control.
C. The parties acknowledge that prior to the effective date of
this Agreement, Professionals Group, Inc. entered into an Agreement to
Consolidate dated June 22, 2000 with Medical Assurance, Inc. The parties
therefore acknowledge and agree that approval by the shareholders of
Professionals Group, Inc. of that Agreement to Consolidate shall constitute a
Change of Control.
D. Notwithstanding any provision in this Paragraph 4 to the
contrary, (i) any Change of Control Transaction involving Professionals Group,
Inc. or ProNational Insurance Company at any time at which such company is not a
direct or indirect beneficial owner of at least a majority of the combined
voting power of the Company or Holdings shall not constitute a "Change of
Control"; and (ii) after a Change of Control has occurred, any Change of Control
Transaction with respect to which the "Ultimate Parent Entity" of the Company or
Holdings immediately prior to such Transaction is the "Ultimate Parent Entity"
immediately after the Transaction shall not constitute a new "Change of
Control." The "Ultimate Parent Entity" of the Company or Holdings is the Person
that (x) directly or indirectly beneficially owns not less than 51% of the
issued and outstanding voting securities of the Company or Holdings, as the case
may be, and (y) with respect to which not more than 51% of its issued and
outstanding voting securities are directly or indirectly beneficially owned by
any other Person.
5. GOOD REASON FOR TERMINATION. In the event that there is a Change of
Control and the Executive's employment relationship with the Company is
terminated for any of the reasons described in this Paragraph, the Executive
shall be entitled to the Severance Benefits, subject to and described in
Paragraph 2 of this Agreement.
"Good Reason" shall constitute any of the following circumstances if
they occur without the Executive's express written consent and within
twenty-four months following a Change in Control.
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a. The Executive no longer holds an executive level position with
executive level responsibilities with the Company or an
affiliate of the Company consistent with the Executive's
training and experience;
b. The Company requires that the Executive be based at a location
in excess of fifty (50) miles from the location of the
Executive's principal office at the time of the Change of
Control;
c. The failure of the Company to provide to the Executive, at a
level commensurate with the Executive's position, all incentive
compensation opportunities and employee benefits that are
provided to other executives of comparable rank with the
Company;
d. A breach by the Company or Holdings or any successor of the
provisions of this Change of Control Agreement;
e. The termination of the Executive's employment by the Company or
a successor for a reason other than: (i) death; (ii) retirement
pursuant to the Company's pension plans then in effect; (iii)
the Executive has reached the age of 65, (iv) Disability, as
explained in Paragraph 6 of this Agreement; or (v) for Cause, as
explained in Paragraph 7 of this Agreement;
f. A reduction by the Company in the Executive's base salary in
effect as of ninety (90) calendar days prior to the Change of
Control; or
g. Notwithstanding the foregoing, "Good Reason" for Executive shall
not include any changes in Executive's authority, responsibility
or status with ProNational Insurance Company or Professionals
Group, but only changes made by the Company.
The Executive must provide the Company with written notice ("Notice")
no later than forty-five (45) calendar days after the Executive knows or should
have known that Good Reason has occurred. Following the Executive's Notice, the
Company shall have forty-five (45) calendar days to rectify the circumstances
causing the Good Reason. If the Company fails to rectify the event(s) causing
the Good Reason within the forty-five (45) day period after the Executive's
Notice, or if the Company delivers to the Executive written Notice stating that
the circumstances cannot, or shall not, be rectified, the Executive shall be
entitled for forty-five (45) days thereafter to assert Good Reason. Should the
Executive fail to provide the required Notice in a timely manner, Good Reason
shall not be deemed to have occurred as a result of that event. The twenty-four
months following a Change of Control shall not be deemed to have expired during
the Notice period, however, as long as the Executive has provided Notice within
twenty-four months following the Change of Control.
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6. DISABILITY. For purposes of this Agreement, "Disability" means a
serious injury or illness that requires the Executive to be under the regular
care of a licensed medical physician and renders the Executive incapable of
performing the essential functions of the Executive's position for twelve (12)
months, as determined by the board of directors of the Company in good faith and
upon receipt of and in reliance on competent medical advice from one or more
individuals, selected by the board of directors, who are qualified to give
professional medical advice.
7. CAUSE. If the Executive's employment is terminated for Cause, as
described below in this Paragraph, the Executive shall not be eligible for
Severance Benefits and all rights of the Executive and obligations of the
Company and Holdings under this Agreement shall expire. Cause means:
A. The Executive committed an act constituting a felony and
resulting, or that was intended to result, directly or
indirectly, in the Executive's substantial personal gain or
personal enrichment at the expense of the Company; or
B. The Executive willfully engaged in gross misconduct that was or
could have been materially and demonstrably injurious to the
Company, as determined by the board of directors. "Willfully"
means that the Executive did not have a good faith or reasonable
belief that the act or omission was in the best interest of the
Company; or
C. The Executive was grossly inattentive to or in a grossly
negligently manner failed to competently perform Executive's job
duties, and the failure was not cured after forty-five (45)
calendar days' written Notice from the Company.
Anything in this Paragraph 7 to the contrary notwithstanding, the
termination of the Executive's employment by the Company is not considered to
have been for Cause if the termination resulted from:
(i) An act or omission by the Executive that the Executive
reasonably believed in good faith to have been in the interests
of the Company or not opposed to such interests; or
(ii) Any act or omission for which the Executive could be found to
have met the applicable standard of conduct prescribed for
indemnification, reimbursement, or payment of expenses under the
practices of the Company pursuant to the laws of the State of
Michigan, or under the director's and officers' liability
insurance of the Company (if any) in each case as in effect on
the Effective Date; or
(iii) The Company's discovery that the Executive is looking for other
employment while still working for Company.
Any termination of the Executive's employment by the Company for Cause
shall be communicated by a Notice of Termination to the Executive. The Notice of
Termination shall be
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a written notice indicating 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
this provision.
8. SUCCESSOR.
A. The Company or Holdings shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) of all or
substantially all of the business and/or assets of the Company, as defined in
sub-paragraphs 4.A or 4.B, to expressly assume and agree to perform this
Agreement (unless assumed by operation of law). Failure of the Company or
Holdings to obtain such agreement and assumption from the successor, on or
before the effective date of any such Change of Control shall be considered to
be a breach of this Agreement, and the date on which any such Change of Control
becomes effective shall be deemed the effective Date of Termination.
B. If, on the effective date of a Change of Control, the Executive
does not continue in the employ of the successor because of the successor's
failure to assume this Agreement, the Executive shall be entitled, subject to
the Executive's execution of the Release that is attached to and incorporated
into this Agreement, to Severance Benefits from the Company or Holdings, as
described in and pursuant to the terms of Paragraph 2.
C. If on the effective date of the Change of Control, the Executive
becomes employed by the successor notwithstanding the successor's failure to
assume this Agreement, the Executive shall be entitled, subject to the
Executive's execution of the Release that is attached to and incorporated into
this Agreement, and pursuant to the terms described in Paragraph 2 of this
Agreement, to compensation from the Company or Holdings as described in
sub-paragraphs 2.A and 2.B. The Executive agrees and understands that if the
Executive receives the compensation described in sub-paragraphs 2A. and 2.B, the
obligation of the Company and Holdings to pay Severance Benefits pursuant to
this Agreement shall be satisfied in full and Executive shall have no further
rights to receive Severance Benefits, even if terminated thereafter or upon the
occurrence of Good Reason for Termination.
9. CLAIMS PROCEDURE AND ARBITRATION.
A. The administrator for purposes of this Agreement shall be
the Company or, following a Change of Control, the Survivor ("Administrator"),
whose address is MEEMIC Insurance Company, 000 X. Xxxxxxxx Xxxx, Xxxxx 000, P.O.
Box 217019, Xxxxxx Xxxxx, XX 00000, and whose telephone number is (248)
377-8500. The "Named Fiduciary" as defined in Section 402(a)(2) of ERISA, also
shall be the Company. The Company shall have the right to designate one or more
Company employees as the Administrator and the Named Fiduciary at any time, and
to change the address and telephone number of the same. The Company shall give
the Executive written notice of any change in the Administrator and Named
Fiduciary, or in the address or telephone number of the same.
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B. The Administrator shall make all determinations as to the
right of any person to receive benefits under the Agreement. Any denial by the
Administrator of a claim for benefits by the Executive ("the claimant") shall be
stated in writing by the Administrator and delivered or mailed to the claimant
within ten (10) days after receipt of the claim, unless special circumstances
require an extension of time for processing the claim. If such an extension is
required, written notice of the extension shall be furnished to the claimant
prior to the termination of the initial 10-day period. In no event shall such
extension exceed a period of ten (10) days from the end of the initial period.
Any notice of denial shall set forth the specific reasons for the denial,
specific reference to pertinent provisions of this Agreement upon which the
denial is based, a description of any additional material or information
necessary for the claimant to perfect the claim, with an explanation of why such
material or information is necessary, and any explanation of claim review
procedures, written to the best of the Administrator's ability in a manner that
may be understood without legal or actuarial counsel.
C. A claimant whose claim for benefits has been wholly or
partially denied by the Administrator may request, within ten (10) days
following the receipt of such denial, in a writing addressed to the
Administrator, a review of such denial. The claimant shall be entitled to submit
such issues or comments in writing or otherwise, as the claimant shall consider
relevant to a determination of the claim, and the claimant may include a request
for a hearing in person before the Administrator. Prior to submitting the
request, the claimant shall be entitled to review such documents as the
Administrator shall agree are pertinent to the claim. The claimant may, at all
stages of review, be represented by counsel, legal or otherwise, of the
claimant's choice. All requests for review shall be promptly resolved. The
Administrator's decision with respect to any such review shall be set forth in
writing and shall be mailed to the claimant not later than ten (10) days
following receipt by the Administrator of the claimant's request unless special
circumstances, such as the need to hold a hearing, require an extension of time
for processing, in which case the Administrator's decision shall be so mailed
not later than twenty (20) days after receipt of such request.
10. ARBITRATION. The parties to this Agreement 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 for arbitration. A claimant seeking relief on a claim for benefits,
however, must first follow the procedure in paragraphs 9(b) and 9(c) of this
Agreement, and then file for arbitration within sixty (60) days following the
Executive's receipt of the Administrator's written decision on review. The
arbitration is to be held in Oakland County, Michigan, in accordance with the
arbitration rules of the American Arbitration Association, as then in effect.
The arbitration may award any and all remedies allowable by the cause of action
plead, but the arbitrator's sole authority shall be to interpret and apply the
provisions of this Agreement; the arbitrator shall not change, add to, or
subtract from, any of the Agreement's provisions. The arbitrator shall have the
power to compel 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 Executive and the Company and
Holdings without appeal to any court. Upon execution of this Agreement, the
Executive shall be deemed to have waived any right to commence litigation
proceedings regarding this Agreement outside of arbitration without the express
written consent of the Company and Holdings, except for
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seeking injunctive relief as provided herein. The Company and Holdings shall pay
all their own attorney fees and expenses and the arbitrator's compensation. If
the Executive prevails in the arbitration, the Company shall reimburse to the
Executive the reasonable fees and expenses of the Executive's personal counsel
for professional services rendered to the Executive in connection with the
enforcement of this Agreement.
11. INJUNCTIVE RELIEF. The parties agree that any breach of the
covenant not to compete and confidentiality provisions set forth in the attached
Release are not subject to ERISA, the Claims Procedure, or Arbitration and may
be settled through injunctive relief.
12. NONALIENATION OF BENEFITS. Except in so far 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 the Company or Holdings.
13. ERISA. This Agreement is an unfunded compensation arrangement
for a member of a select group of the Company's management and any exemptions
under ERISA, as applicable to such an arrangement, shall be applicable to this
Agreement. Nothing in this Agreement shall require the Company or Holdings, Inc.
to segregate, earmark, or otherwise set aside any funds or other assets to
provide for any payments made or required hereunder.
14. REPORTING AND DISCLOSURE. Holdings and the Company, from time to
time, shall provide government agencies with such reports concerning this
Agreement as may be required by law, and shall provide the Executive with such
disclosure concerning this Agreement as may be required by law or as Holdings or
the Company may deem appropriate.
15. AT-WILL EMPLOYMENT. Nothing in this Agreement shall be deemed to
create an employment agreement between the Executive and the Company providing
for Executive's employment for any fixed duration, nor shall it be deemed to
modify or undercut the Executive's at-will employment status with the Company.
16. OTHER BENEFITS. Neither the provisions in this Agreement nor the
Severance Benefits provided hereunder shall reduce any amounts payable, or in
any way diminish the Executive's rights as an employee of the Company, whether
existing now or hereafter, under any benefit, incentive, retirement, stock
option, stock bonus, or stock purchase plan, or any employment agreement, or
other plan or arrangement.
17. NOTICES. Any Notice permitted or required under this Agreement
shall be in writing and shall be delivered by hand, facsimile transmission with
subsequent written confirmation, overnight delivery service or certified mail,
postage prepaid with return receipt requested, to the other party's last known
address. Notices shall be deemed to be given, in the case of (i) hand delivery
or facsimile transmission, upon receipt; (ii) overnight delivery service, on the
business day after timely delivery of a properly addressed notice, with
appropriate fees paid, to a recognized overnight delivery service that
guarantees overnight delivery; and (iii) regular mail, upon the third business
day after proper deposit in the mail of a properly addressed notice with
appropriate postage paid.
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17. ENTIRE AGREEMENT. This Agreement, the attached Release, and a
Covenant Not to Compete set forth the entire agreement between the parties at
the time and date this Agreement is executed, and fully supersedes any and all
prior agreements or understandings between them pertaining to the subject matter
in this Agreement including, but not limited to the PICOM/Professionals Group
Key Employee Retention Plan. This Agreement may not be modified or amended
except by a written agreement intended as such, and signed by all parties.
18. COMPETENT AND KNOWING AGREEMENT. Executive, the Company, and
Holdings acknowledge that they have read and understand this Agreement, that
they have had adequate time to consider this Agreement and discuss it with their
attorneys and advisors, that they understand the consequences of entering into
this Agreement, that they are knowingly and voluntarily entering into this
Agreement, and that they are competent to enter into this Agreement.
19. BINDING EFFECT. This Agreement shall benefit and be binding upon
the parties and their respective directors, officers, employees, agents, heirs,
successors, assigns, devisees and legal or personal representatives.
20. GOVERNING LAW. Except to the extent that federal law controls,
this Agreement is to be construed according to Michigan law.
21. SEVERABLE PROVISIONS. If any provision of this Agreement is
determined to be unenforceable, at the discretion of the Company the remainder
of this Agreement 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. Moreover, in the event that
this Agreement is determined to be unenforceable against the Company, it shall
continue to be valid and enforceable against Holdings, and any successor to
Company or Holdings.
22. GENERAL RULE OF INTERPRETATION. This Agreement will be
interpreted as a whole according to its fair terms. It will not be construed
strictly for or against either party.
To signify their agreement to the terms of this Agreement, the parties
have executed it on the date set forth opposite their signatures, or those of
their authorized agents, which follow.
Dated: 12-22-00 /s/ Xxxxxxx X. Xxxxx
------------------------- -------------------------------------
XXXXXXX X. XXXXX, EXECUTIVE
MEEMIC HOLDINGS, INC.
Dated: 12-21-00 By: /s/ R. Xxxxx Xxxxxxx
-------------------------- ---------------------------------------
President and Chief Executive Officer
Its:
---------------------------------------
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MEEMIC INSURANCE COMPANY
Dated: 12-21-00 By: /s/ R. Xxxxx Xxxxxxx
-------------------------- ---------------------------------------
President and Chief Executive Officer
Its:
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RELEASE IN CONJUNCTION WITH CHANGE OF CONTROL AGREEMENT
This Release of Claims ("Release") is between MEEMIC Insurance Company,
MEEMIC Holdings, Inc., and any successor company that has assumed the Change of
Control Agreement to which this Release was an attachment (all such
organizations being referred to in this Release as the "Company") and Xxxxxxx X.
Xxxxx ("Executive").
The Company and Executive have agreed to terminate their employment
relationship. To effect an orderly termination, Executive and the Company are
entering into this Release.
1. For the purposes of this Release, "Date of Termination" is the
effective date of Executive's termination of employment from Company. Executive
hereby waives any and all rights Executive may otherwise have to continued
employment with or re-employment by the Company or any parent or affiliate of
Company.
2. Effective with the Date of Termination, Executive is relieved of
all duties and obligations to the Company, except as provided in this Release or
any applicable provisions of the Change of Control Agreement between the Company
and Executive, effective as of July 1, 2000 ("Agreement"), which survive
termination of the employment relationship.
3. CONFIDENTIALITY. Executive 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
Executive to Executive's immediate family upon their agreement not to disclose
the fact or terms of this Release, or to Executive's attorney, financial
consultant or accountant, except that Executive or the Company may disclose, as
necessary, the fact that Executive has terminated Executive's employment with
Company.
4. Pursuant to this Release, and subject to Paragraph 16 herein,
the Company shall make any payments and perform any obligations to Executive
pursuant to the Agreement. Any payments to Executive shall have all applicable
and legally required income and employment taxes withheld.
5. Any fringe benefits that Executive has received or currently is
receiving from the Company 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.
6. The parties agree that the terms contained and payments
referenced in Paragraph 4 of this Release are compensation for and in full
consideration of Employee's release of claims, and Executive's confidentiality,
noncompete and non-disclosure agreements.
7. The Executive 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 provided by this Agreement by seeking employment or
otherwise, provided, however, that the Executive shall be required to notify the
Company if the Executive becomes covered by a
13
health or dental care program providing substantially similar coverage, at which
time health or dental care continuation coverage hereunder shall cease.
8. Executive waives, releases, and forever discharges the Company,
its holding company, and each of their direct or indirect parents, subsidiaries,
affiliates and related entities, any partnerships, joint ventures or other
entities involving or related to the Company, its holding company, or their
affiliates, and each of their 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 Executive's employment with and termination from
the Company, 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 antidiscrimination statute, including specifically any claims
Executive may have under the federal Age Discrimination in Employment Act, as
amended, 29 USC sections 621, et seq; attorney fees; 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.
9. The Executive 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 the Executive.
10. The Executive acknowledges and agrees that Executive has been
advised in writing by this Release, and otherwise, to CONSULT WITH AN ATTORNEY
before Executive executes this Release.
11. The Executive agrees that Executive received a copy of this
Release prior to executing the Agreement, that this Release incorporates the
Company's FINAL OFFER; that Executive 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 Executive so elect.
12. If this Release is executed by the parties, the Executive shall
have seven (7) calendar days following Executive's execution of this Release to
revoke this Release. Any revocation of this Release shall be made in writing by
the Executive 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 by the President of the Company at the Company's address at 000 X.
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxx Xxxxx, XX 00000, or such other place as Company
may notify Executive in writing. This Release shall not become effective or
enforceable until the eighth (8th) calendar day following the Employee's
execution of this Release.
14
13. NON-DISCLOSURE. Executive expressly acknowledges and agrees that:
A) During the course of Executive's employment with the
Company, certain confidential information may have been divulged
to or become known by Executive in the nature of, but not
limited to (i) information concerning the Company's and
Company's affiliates' current, former and prospective employees;
(ii) business practices and business plan; (iii) customer
information; (iv) contract information; (v) marketing
strategies; (vi) business plans; (vii) product information;
(viii) Company policies and procedures; financial, pricing and
wage information; (ix) administrative information; (x) future
plans of the Company and its affiliates; (xi) and other trade
secrets, which is valuable, confidential information of Company
and its affiliates (all of which is referred to herein as
"Confidential Information"), which Confidential Information has
been uniquely developed by the Company and its affiliates and
cannot be readily obtained by third parties from outside
sources.
B) The Confidential Information is important and is an
essential asset of the Company and its affiliates;
C) Employee's knowledge of the Confidential Information
could be useful to a competitor of the Company and its
affiliates which does or intends to do business in
competition with the Company or its affiliates.
In recognition of the facts expressed above, Executive expressly agrees
that Executive shall not use for Executive's 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 Company or its affiliates, or Confidential Information.
14. NONCOMPETITION. Executive expressly acknowledges and agrees that
for a period of 365 calendar days after the Date of Termination, the Executive
will remain obligated under any covenant not to compete or non-competition
agreement with the Company or affiliate to which the Executive was subject as of
the Date of Termination. In the event that the Executive was not subject to a
change of control or non-competition agreement with the Company or affiliate as
of the Date of Termination (other than a covenant not to compete or
non-competition agreement contained in an employee handbook or otherwise
applicable to employees generally), or was subject to a covenant not to compete
or non-competition agreement with a term of less than 365 days, then for a
period of 365 calendar days after the Executive leaves the Company, the
Executive shall not: (i) become employed by a competitor company that is
underwriting, selling or marketing insurance products that target educators,
including teachers, administrators or other employees of public and private
school systems (include colleges and universities) in the Company's primary
market area; or (ii) assist a competitor company to develop insurance products
that target educators, including teachers,
15
administrators or other employees of public and private school systems
(including colleges and universities) that will be marketed or sold in the
Company's primary market area.
As used in this Covenant Not to Compete the following terms have the following
meanings:
A. "Competitor company" means any insurance company (other than the
Company or a subsidiary, parent, or affiliate of the Company), insurance agency
or other person or entity which is engaged, directly or indirectly, in
underwriting, selling or marketing any insurance product that targets educators,
including teachers, administrators or other employees of public and private
school systems (including colleges and universities).
B. "Employed" includes activities as an owner, proprietor,
employee, agent, solicitor, partner, principal, shareholder (owning more than 1%
of the outstanding stock), consultant, officer, director, or independent
contractor.
C. "Primary market area" means the state of Michigan in which the
Company currently provides insurance and any other state in which, at the time
of Executive's Date of Termination, the Company has more than $5 million of
combined personal auto and homeowners insurance written premium.
15. NON-SOLICITATION. Executive agrees that for a period of 365
calendar days after the Date of Termination, Executive shall not in any manner,
alone or in connection with others, without the prior written approval of the
Board of Directors of MEEMIC, either (i) solicit or induce any employees of
MEEMIC to leave such employment or accept employment with any other person or
entity, or (ii) solicit or induce any insurance agent of MEEMIC to offer, sell
or market, in MEEMIC's primary market area, insurance products that target
educators, including teachers, administrators or other employees of public and
private school systems (including colleges and universities), other than on
behalf of MEEMIC.
16. If Executive is deemed to have materially breached this Release,
including the release, "confidentiality," "non-disclosure," "non-solicitation,"
and "non-compete" provisions, the Company may, in addition to seeking an
injunction or any other remedy it may have, withhold or cancel any remaining
payments or benefits due to Executive pursuant to paragraph 4 of this Release or
otherwise. The Company shall give prior or contemporaneous written notice of
such withholding or cancellation of payments. If Executive violates any of these
restrictions, the Company shall be further entitled to immediate Preliminary and
Permanent Injunctive Relief, without bond, in addition to any other remedy which
may be available to the Company.
17. The parties agree that the restrictions in this Agreement are
fair and reasonable in all respects, including the geographic and temporal
restrictions, and that providing Executive with the opportunity to work with the
Company, to the extent any separate or special consideration is necessary, is
fully sufficient consideration for Executive's obligations under this Agreement.
16
18. Executive shall return to the Company promptly, and in no event
later than the Date of Termination, all items, documents, lists, and other
materials belonging to the Company or its affiliates, 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 Executive's
possession or control.
19. Executive and the Company 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.
20. 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.
21. This Release and the Agreement, and a Covenant Not To Compete,
set 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.
22. Except to the extent that federal law controls, this Release is
to be construed according to Michigan law.
23. If any provision of this Release is determined to be
unenforceable, at the discretion of the Company, 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.
24. 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:
------------------------- -------------------------------------
XXXXXXX X. XXXXX, EXECUTIVE
MEEMIC HOLDINGS, INC.
DATED: BY:
-------------------------- ---------------------------------------
ITS:
----------------------------------------
17
MEEMIC INSURANCE COMPANY
DATED: BY:
--------------------- --------------------------------------
ITS:
----------------------------------------
18
COVENANT NOT TO COMPETE
MEEMIC INSURANCE COMPANY
I, XXXXXXX X. XXXXX, understand and agree that:
----------------
1. MEEMIC Insurance Company ("MEEMIC") provides its officers with valuable
business information, customer contacts, specialized knowledge, training and
opportunities for skill development related to the business of insurance for
educators. Professionals Group and MEEMIC desire to limit any situation in which
an officer of MEEMIC, during the time of employment with Professionals Group or
MEEMIC, and for a reasonable time thereafter, would become employed by or assist
a competitor company in MEEMIC's primary market area, or otherwise solicit, sell
to, or service educators as a target group in MEEMIC's primary market area.
2. For good and valuable consideration, the receipt or which is hereby
acknowledged, including, but not limited to, my employment and Change of Control
Agreement this is provided to me in connection with the signing of this
Covenant, I agree that during my time of employment with Professionals Group or
MEEMIC, and for a period of 365 calendar days thereafter, I will not: (i) become
employed by a competitor company that is underwriting, selling or marketing
insurance products that target educators, including teachers, administrators or
other employees of public and private school systems (including colleges and
universities) in MEEMIC's primary market area; or (ii) assist a competitor
company to develop insurance products that target educators, including teachers,
administrators or other employees of public and private school systems
(including colleges and universities) that will be marketed or sold in MEEMIC's
primary market area.
3. I expressly acknowledge and agree that for a period of 365 calendar
days after my time of employment with Professionals Group or MEEMIC, I shall not
in any manner, alone or in connection with others, without the prior written
approval of the Board of Directors of MEEMIC, either (i) solicit or induce any
employees of MEEMIC to leave such employment or accept employment with any other
person or entity, or (ii) solicit or induce any insurance agent of MEEMIC to
offer, sell or market, in MEEMIC's primary market area, insurance products that
target educators, including teachers, administrators or other employees of
public and private school systems (including colleges and universities), other
than on behalf of MEEMIC.
As used in this Covenant Not to Compete the following terms have the following
meanings:
o "Competitor company" means any insurance company (other than Professionals
Group or MEEMIC), insurance agency or other person or entity which is
engaged, directly or indirectly, in underwriting, selling or marketing any
insurance product that targets educators, including teachers,
administrators or other employees of public and private school systems
(including colleges and universities).
o "Employed" includes activities as an, owner, proprietor, employee, agent,
solicitor, partner, principal, shareholder (owning more than 1% of the
outstanding stock), consultant, officer,
19
director, or independent contractor.
o Professionals Group includes any subsidiary insurance company, division or
affiliate of Professionals Group.
o MEEMIC includes any subsidiary insurance company, division or affiliate of
MEEMIC.
o "Primary market area" means the state of Michigan in which MEEMIC currently
provides insurance and any other state in which, at the time of my
termination of employment, MEEMIC has more than $5 million of combined
personal auto and homeowners insurance written premium.
4. In the event that I should breach this Covenant Not to Compete, I
understand that Professionals Group or MEEMIC may file suit in court to seek an
injunction or other equitable relief to enjoin the breach of this Covenant Not
to Compete. Professionals Group or MEEMIC may apply to any court of the State of
Michigan or the United States District Courts in Michigan to enforce this
Covenant Not to Compete. The parties hereto consent to such jurisdiction and
agree that venue will be proper in such courts and waive any objections based
upon FORUM NON CONVENIENS. The choice of forum set forth in this paragraph shall
not be deemed to preclude the enforcement of any judgment rendered in any such
court in any other jurisdiction.
5. This Covenant Not to Compete shall be construed and enforced in
accordance with, and shall be governed by, the laws of the State of Michigan.
6. Each provision in this Covenant Not to Compete is separate and shall be
construed as severable and independent. If any provision of this Covenant Not to
Compete is ever held by a court or arbitrator to be unreasonable, the parties
agree that this Covenant Not to Compete shall be enforced to the extent it is
deemed to be reasonable and in such a manner as to afford Professionals Group
and MEEMIC the fullest protection commensurate with making this Covenant Not to
Compete, as modified, legal and enforceable under applicable laws.
7. Nothing herein contained shall be deemed to create an employment
agreement between Professionals Group or MEEMIC and me for any fixed period of
time. I understand that my employment with Professionals Group or MEEMIC is
terminable at will by Professionals Group, or MEEMIC or me.
8. I acknowledge that prior to signing this Covenant, I was provided the
opportunity to review this Covenant and seek advice and counsel from my attorney
if I so desired.
9. I acknowledge that MEEMIC and Professionals Group may assign their
rights under this Covenant to any affiliate or any person who acquires or
succeeds to all or substantially all the business or assets or MEEMIC or
Professionals Group.
10. The restrictions set forth in this Covenant can be changed only in
writing and signed by the Chairman of Professionals Group or MEEMIC and me.
20
/s/ Xxxxxxx X. Xxxxx 12-22-00
-------------------------- ----------------------------
Signature Date
/s/ R. Xxxxx Xxxxxxx 10-13-00
-------------------- ----------------------------
Accepted on behalf of Professionals Group, Inc. Date
And MEEMIC Insurance Company
21
