Exhibit 10(e)(4)
AMENDED AND
RESTATED
EMPLOYMENT CONTINUATION
AGREEMENT
WITH SENIOR
OFFICER
This Amended and Restated Employment
Continuation Agreement dated as of November 3, 2008
(“Agreement”) is by and between Protective Life
Corporation, a Delaware corporation (the “Company”),
and
(“Senior Officer”).
W I T N E S
S E T H :
WHEREAS, the Company has determined
that Senior Officer holds a position that is critical to the
Company;
WHEREAS, the Company believes that,
if it is confronted with a situation that could result in a change
in ownership or control of the Company, continuity of management
will be essential to its ability to evaluate and respond to such
situation in the best interests of shareholders;
WHEREAS, the Company understands
that any such situation could be a distraction to Senior Officer,
to the detriment of the Company and its shareholders;
WHEREAS, the Company desires to
assure itself of Senior Officer’s services during the period
in which it is confronting such a situation, and to provide Senior
Officer with certain financial assurances to enable Senior Officer
to perform his or her responsibilities without undue distraction
and without bias due to Senior Officer’s personal
circumstances; and
WHEREAS, to achieve these
objectives, the Company and Senior Officer have previously entered
into an Employment Continuation Agreement (the “Prior
Agreement”) which provided the Company and Senior Officer
with certain rights and obligations upon the occurrence of a Change
of Control (as defined in Section 2);
NOW, THEREFORE, in consideration of
the premises and mutual covenants herein contained, the Company and
Senior Officer hereby amend and restate the Prior Agreement to
bring it into compliance with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the
“Code”), and to make certain other changes (as so
amended and restated, the “Agreement”) as
follows:
1. Effective
Date . The effective date of this Agreement (the
“Effective Date”) shall be the date on which a Change
of Control occurs during the term of this Agreement (as provided in
Section 12(c)); provided that (i) anything in this
Agreement to the contrary notwithstanding, if a Change of Control
occurs and if Senior Officer’s employment with the Company is
terminated before the date on which the Change of Control occurs,
and if it is reasonably demonstrated by Senior Officer that such
termination of employment (A) was at the request of a third
party who has taken steps reasonably calculated to effect a Change
of Control, or (B) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of this
Agreement the “Effective Date” shall mean the date
immediately
before such termination of
employment, and (ii) except as provided in clause
(i) above, if Senior Officer is not employed by the Company on
the date on which a Change of Control occurs, this Agreement shall
be void and without effect.
2. Definition of Change of
Control . Subject to the provisions of Code
Section 409A, a “Change of Control” shall occur
when (i) any one person (or more than one person acting as a
group (as provided in Code Section 409A)) (such person or
group, an “Acquiring Person”) acquires ownership of the
Company’s stock that, together with stock previously held by
the Acquiring Person, constitutes more than 50% of the total fair
market value or more than 50% of the total voting power of the
Company, or (ii) a majority of the members of the Board is
replaced during any 12-month period by directors whose appointment
or election was not endorsed by a majority of the members of the
Board before the date of the appointment or election, or
(iii) an Acquiring Person acquires (or has acquired during the
12-month period ending on the date of the most recent acquisition
by such Acquiring Person) assets from the Company that have a total
gross fair market value equal to or more than 80% of the total
gross fair market value of the Company’s assets immediately
before such acquisition or acquisitions, or (iv) (except for
purposes of Section 1) any other event or transaction occurs
that is declared by resolution of the Board to constitute a Change
in Control for purposes of this Agreement .
3. Employment Period
. Subject to Section 6, the Company agrees to continue
Senior Officer in its employ, and Senior Officer agrees to remain
in the employ of the Company, for the period (the “Employment
Period”) commencing on the Effective Date and ending on the
second anniversary of the Effective Date.
4. Position and Duties
. (a) No Reduction in Position . During
the Employment Period, Senior Officer’s position (including
titles), authority and responsibilities shall be at least
commensurate with those held, exercised and assigned immediately
before the Effective Date. Senior Officer’s services
shall be performed at the location where Senior Officer was
employed immediately before the Effective Date.
(b) Business Time .
From and after the Effective Date, Senior Officer agrees to devote
Senior Officer’s full attention during normal business hours
to the business and affairs of the Company and to perform
faithfully and efficiently the responsibilities assigned to Senior
Officer to the extent necessary to discharge such responsibilities,
except for periods of vacation, sick leave and other leave to which
Senior Officer is entitled. Senior Officer’s continuing to
serve on any boards and committees on which Senior Officer is
serving or with which Senior Officer is otherwise associated
immediately before the Effective Date shall not be deemed to
interfere with the performance of Senior Officer’s services
for the Company.
5. Compensation .
(a) Base Salary . During the Employment Period,
Senior Officer shall receive a base salary at a monthly rate at
least equal to the monthly base salary paid to Senior Officer by
the Company immediately before the Effective Date. The base
salary shall be reviewed at least once each year after the
Effective Date, and may be increased (but not decreased) at any
time and from time to time by action of the Board of Directors or
any committee thereof or any individual having authority to take
such action in accordance with the Company’s regular
practices. Senior Officer’s base salary, as it may be
increased from time to time, shall hereafter be referred to as
“Base Salary”. Neither the Base Salary nor
any
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increase in Base Salary after the
Effective Date shall limit or reduce any other obligation of the
Company hereunder.
(b) Annual Bonus and
Incentive Compensation . During the Employment Period, in
addition to the Base Salary, for each fiscal year of the Company
ending during the Employment Period, Senior Officer shall be
entitled to receive an (i) annual bonus which is at least
equal to the greater of (A) the highest annual bonus,
including any bonus provided under the Company’s Annual
Incentive Plan (“AIP”), that had been payable to Senior
Officer in respect of either of the two fiscal years ended
immediately before the Effective Date or (B) the amount that
would have been payable to Senior Officer as a target bonus under
any bonus program in which Senior Officer participated (including
the AIP) for the year in which the Effective Date occurs and
(ii) long-term incentive compensation opportunities on terms
and conditions no less favorable to Senior Officer than those
applicable to Senior Officer before the Effective Date. Any
amount payable hereunder as an annual bonus shall be paid later
than March 15 of the year following the year for which the
amount is payable, unless electively deferred by Senior Officer
pursuant to any deferral programs or arrangements that the Company
may make available to Senior Officer.
(c) Benefit Plans
. During the Employment Period, Senior Officer (and, to the
extent applicable, Senior Officer’s dependents) shall be
entitled to participate in or be covered under all pension,
retirement, deferred compensation, savings, medical, dental,
health, disability, group life, accidental death and travel
accident insurance plans at a level that is commensurate with
Senior Officer’s participation in such plans immediately
before the Effective Date or, if more favorable to Senior Officer,
at the level made available to Senior Officer or other similarly
situated employees at any time thereafter. Senior Officer
shall also be entitled to receive such perquisites as were
generally provided to Senior Officer in accordance with the
Company’s policies and practices immediately before the
Effective Date.
(d) Expenses .
During the Employment Period, Senior Officer shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred
by Senior Officer in accordance with the policies and procedures of
the Company as in effect immediately before the Effective
Date. Notwithstanding the foregoing, the Company may apply
the policies and procedures in effect after the Effective Date to
Senior Officer, if such policies and procedures are more favorable
to Senior Officer than those in effect immediately before the
Effective Date.
(e) Indemnification
. During and after the Employment Period, the Company shall
indemnify Senior Officer and hold Senior Officer harmless from and
against any claim, loss or cause of action arising from or out of
or related in any way to Senior Officer’s performance as an
officer, director or employee of the Company or any of its
subsidiaries or in any other capacity, including any fiduciary
capacity, in which Senior Officer serves at the request of the
Company to the maximum extent permitted by applicable law and the
Company’s Certificate of Incorporation and By-Laws (the
“Governing Documents”); provided that in no
event shall the protection afforded to Senior Officer hereunder be
less than that afforded under the Governing Documents as in effect
immediately before the Effective Date.
6. Termination of
Employment . (a) Death or Disability .
Senior Officer’s employment shall automatically terminate
upon Senior Officer’s death or termination of
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employment due to Disability (as
defined below) during the Employment Period. For purposes of this
Agreement, “Disability” shall mean Senior
Officer’s inability to perform the duties of Senior
Officer’s position, as determined in accordance with the
policies and procedures applicable with respect to the
Company’s long-term disability plan as in effect immediately
before the Effective Date.
(b) Voluntary
Termination . Anything in this Agreement to the contrary
notwithstanding, Senior Officer may, upon not less than 10
days’ written notice to the Company, voluntarily terminate
employment for any reason (including early retirement under the
terms of any of the Company’s retirement plans as in effect
from time to time) during the Employment Period; provided
that any termination of employment by Senior Officer pursuant
to Section 6(d) on account of Good Reason (as defined
therein) shall not be treated as a voluntary termination under this
Section 6(b).
(c) Cause . The
Company may terminate Senior Officer’s employment for
Cause. For purposes of this Agreement, “Cause”
shall mean (i) Senior Officer’s conviction or plea of
nolo contendere to a felony; (ii) an act or acts of
extreme dishonesty or gross misconduct on Senior Officer’s
part which result or are intended to result in material damage to
the Company’s business or reputation; or (iii) repeated
material violations by Senior Officer of Senior Officer’s
obligations under Section 4, which violations are demonstrably
willful and deliberate on Senior Officer’s part and which
result in material damage to the Company’s business or
reputation.
(d) Good Reason .
Senior Officer may terminate employment for Good Reason. For
purposes of this Agreement, “Good Reason” shall mean
the occurrence of any of the following, without the express written
consent of Senior Officer, after the Effective Date:
(i) (A) the assignment to
Senior Officer of any duties inconsistent in any material adverse
respect with Senior Officer’s position (including titles),
authority or responsibilities as contemplated by Section 4, or
(B) any other material adverse change in such position
(including titles), authority or responsibilities;
(ii) any failure by the
Company to comply with any of the provisions of Section 5,
other than an insubstantial or inadvertent failure remedied by the
Company promptly after receipt of notice thereof given by Senior
Officer;
(iii) the Company’s
requiring Senior Officer to be based at any office or location more
than 20 miles from that location at which Senior Officer performed
services specified under the provisions of Section 4
immediately before the Change of Control, except for travel
reasonably required in the performance of Senior Officer’s
responsibilities; or
(iv) any failure by the Company
to obtain the assumption and agreement to perform this Agreement by
a successor as contemplated by Section 11(b).
In no event shall the mere
occurrence of a Change of Control, absent any further impact on
Senior Officer, be deemed to constitute Good Reason.
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(e) Notice of
Termination . Any termination of Senior Officer’s
employment by the Company for Cause or by Senior Officer for Good
Reason shall be communicated by Notice of Termination to the other
party hereto given in accordance with Section 12(e). For
purposes of this Agreement, a “Notice of Termination”
shall mean a written notice given, in the case of a termination for
Cause, within 10 business days of the Company’s having actual
knowledge of the events giving rise to such termination, and in the
case of a termination for Good Reason, within 180 days of Senior
Officer’s having actual knowledge of the events giving rise
to such termination, and which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Senior Officer’s
employment under the provision so indicated, and (iii) if the
termination date is other than the date of receipt of such notice,
specifies the termination date of this Agreement (which date shall
be not more than 15 days after the giving of such notice).
The failure by Senior Officer to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing
of Good Reason shall not waive any right of Senior Officer
hereunder or preclude Senior Officer from asserting such fact or
circumstance in enforcing Senior Officer’s rights
hereunder.
(f) Date of Termination
. For purposes of this Agreement, the term “Date of
Termination” shall mean (i) in the case of a termination
of employment for which a Notice of Termination is required, the
date of receipt of such Notice of Termination or, if later, the
date specified therein, and (ii) in all other cases, the
actual date on which Senior Officer’s employment terminates
during the Employment Period.
7. Obligations of the
Company upon Termination . (a) Death or
Disability . If Senior Officer’s employment is
terminated during the Employment Period by reason of Senior
Officer’s death or Disability, this Agreement shall terminate
without further obligations to Senior Officer or Senior
Officer’s legal representatives under this Agreement other
than those obligations accrued hereunder at the Date of
Termination, and the Company shall pay to Senior Officer (or Senior
Officer’s beneficiary or estate) (i) Senior
Officer’s full Base Salary through the Date of Termination
(the “Earned Salary”), (ii) any vested amounts or
benefits owing to Senior Officer under the Company’s
otherwise applicable employee benefit plans and programs, including
any compensation previously deferred by Senior Officer (together
with any accrued earnings thereon) and not yet paid by the Company
and any accrued vacation pay not yet paid by the Company (the
“Accrued Obligations”), and (iii) any other
benefits payable due to Senior Officer’s death or Disability
under the Company’s plans, policies, programs or arrangements
(the “Additional Benefits”).
Any Earned Salary shall be paid in
cash in a single lump sum as soon as practicable, but in no event
more than 10 business days (or at such earlier date required by
law), following the Date of Termination. Accrued Obligations
and Additional Benefits shall be paid in accordance with the terms
of the applicable plan, policy, program or arrangement.
(b) Cause and Voluntary
Termination . If, during the Employment Period, Senior
Officer’s employment is terminated for Cause or voluntarily
terminated by Senior Officer (other than on account of Good Reason
following a Change of Control) in accordance with
Section 6(b), the Company shall pay Senior Officer
(i) the Earned Salary in cash in a single lump sum as soon as
practicable, but in no event more than 10 business days (or such
earlier
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date required by law), following the
Date of Termination, and (ii) the Accrued Obligations in
accordance with the terms of the applicable plan, policy, program
or arrangement.
(c) Termination by the
Company other than for Cause and Good Reason Termination by Senior
Officer .
(i)
Lump Sum Payments
. If either (a) the
Company terminates Senior Officer’s employment other than for
Cause during the Employment Period or (b) Senior Officer
terminates employment for Good Reason at any time during the
Employment Period, then the Company shall pay to Senior Officer the
following amounts:
(A) Senior Officer’s
Earned Salary;
(B) a cash amount (the
“Severance Amount”) equal to two (2) times the sum
of
(1)
Senior Officer’s annual Base
Salary; and
(2)
the greater of (i) the average
of the bonus amount payable (including any amounts payable under
the AIP) to Senior Officer (including any amounts the receipt of
which Senior Officer elected to defer) with respect to the three
fiscal years of the Company (or, if fewer, the number of such
fiscal years in which Senior Officer was
