|
Exhibit 10.2 CHANGE IN CONTROL SEVERANCE AGREEMENT
BETWEEN FPIC INSURANCE GROUP, INC. AND JOHN R. BYERS
THIS AGREEMENT, effective as of January 1, 2008, between FPIC
Insurance Group, Inc., a Florida corporation (the “Company"),
and John R. Byers, an individual (the "Executive")
W I T N E S S E T H:
WHEREAS, the Company and the Executive are parties to that certain
Severance Agreement dated as of January 1, 1999, as amended by that
certain Amendment to Severance Agreement dated as of December 14,
2001 (the “Prior Agreement”) and wish to terminate the
Prior Agreement and to enter into this Agreement in replacement
thereof; and
WHEREAS, the Executive is a valuable employee of the Company and an
integral part of its management and a key participant in the
decision making process relative to planning and policy for the
Company; and
WHEREAS, the Company wishes to encourage the Executive to continue
his career and services with the Company for the period during and
after an actual or threatened Change in Control (as hereinafter
defined).
NOW, THEREFORE, it is hereby agreed by and between the parties
hereto as follows:
1. Certain Definitions.
a. "Board"
shall mean the Board of Directors of the Company.
b. "Cause"
shall mean:
(i) the
willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company (other than
any such failure resulting from incapacity due to physical or
mental illness, and specifically excluding any failure by the
Executive, after reasonable efforts, to meet performance
expectations) after a written demand for substantial performance is
delivered to the Executive by the Board that specifically
identifies the manner in which such person or the Board believes
that the Executive has not substantially performed the Executive's
duties, or
(ii) the
willful engaging by the Executive in illegal conduct, fraud,
misappropriation, or embezzlement that is injurious to the Company.
For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless it
is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission
was in the best interests of the Company. Any act, or
failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or based upon the advice of counsel for
the Company shall be conclusively presumed to be done, or omitted
to be done, by the Executive in good faith and in the best
interests of the Company.
Cause shall not exist unless the Board shall have given Executive
written notice specifying the Cause alleged to exist, Executive
shall have been granted a reasonable opportunity to respond to the
notice, in writing, and in an appearance, with counsel, before the
Board, and a determination shall thereafter be made by the Board to
terminate the Executive’s employment for Cause at a meeting
of the Board at which a quorum is present and by a vote of at least
a majority of the entire then current membership of the Board.
c. "Change
in Control" shall mean the earlier of the following events:
(i) either
(A) receipt by the Company of a report on Schedule 13D, or an
amendment to such a report, filed with the Securities and Exchange
Commission (“SEC”) pursuant to Section 13(d) of the
Securities Exchange Act of 1934 (the "1934 Act"), disclosing that
any person (as such term is used in Section 13(d) of the 1934 Act)
("Person"), is the beneficial owner, directly or indirectly, of
twenty (20) percent or more of the outstanding stock of the
Company, or (B) actual knowledge by the Company of facts on the
basis of which any Person is required to file such a report on
Schedule 13D, or to file an amendment to such a report, with the
SEC (or would be required to file such a report or amendment upon
the lapse of the applicable period of time specified in Section
13(d) of the 1934 Act) disclosing that such Person is the
beneficial owner, directly or indirectly, of twenty (20) percent or
more of the outstanding stock of the Company;
(ii) purchase
by any Person, other than the Company or a wholly owned Subsidiary
of the Company, of shares pursuant to a tender or exchange offer to
acquire any stock of the Company (or securities convertible into
stock) for cash, securities or any other consideration provided
that, after consummation of the offer, such Person is the
beneficial owner (as defined in Rule 13d-3 under the 1934 Act
regardless of whether the Company or such Person would otherwise be
subject to the 1934 Act), directly or indirectly, of twenty (20)
percent or more of the outstanding stock of the Company (calculated
as provided in paragraph (d) of Rule 13d-3 under the 1934 Act in
the case of rights to acquire stock regardless of whether the
Company or such Person would otherwise be subject to the 1934
Act);
(iii) either
(A) the filing by any Person acquiring, directly or indirectly,
twenty percent (20%) or more of the outstanding stock of the
Company of a 2
statement with the Florida Office of Insurance
Regulation pursuant to § 628.461 of the Florida Statutes or a
successor statutory provision, or (B) actual knowledge by the
Company of facts on the basis of which any Person acquiring,
directly or indirectly, twenty percent (20%) or more of the
outstanding stock of the Company or a controlling company is
required to file such a statement pursuant to § 628.461 or a
successor provision;
(iv) approval
by the shareholders of the Company of (A) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of stock of the
Company would be converted into cash, securities or other property,
other than a consolidation or merger of the Company in which
holders of its stock immediately prior to the consolidation or
merger have substantially the same proportionate ownership of
common stock of the surviving corporation immediately after the
consolidation or merger as immediately before, or (B) any
consolidation or merger in which the Company is the continuing or
surviving corporation but in which the common shareholders of the
Company immediately prior to the consolidation or merger do not
hold at least a majority of the outstanding common stock of the
continuing or surviving corporation (except where such holders of
common stock hold at least a majority of the common stock of the
corporation that owns all of the common stock of the Company), or
(C) any sale, lease, exchange or other transfer (in one transaction
or a series of related transactions) of all or substantially all
the assets of the Company, or (D) any merger or consolidation of
the Company where, after the merger or consolidation, one Person
owns 100% of the shares of stock of the Company (except where the
holders of the Company's common stock immediately prior to such
merger or consolidation own at least 90% of the outstanding stock
of such Person immediately after such merger or consolidation);
or
(v) a
change in a majority of the members of the Board within a 24-month
period unless the election or nomination for election by the
Company's shareholders of each new director was approved by the
vote of at least two-thirds of the directors then still in office
who were in office at the beginning of the 24-month period.
d. "Code"
shall mean the Internal Revenue Code of 1986, as amended.
e. "Constructive
Discharge" shall mean any (i) material change by the Company of the
Executive's position, functions, or duties to an inferior position,
functions, or duties from that in effect on the date of this
Agreement, (ii) assignment or reassignment by the Company of the
Executive without the Executive's consent to another place of
employment more than 50 miles from the Executive's current place of
employment, or (iii) reduction in the Executive's base
salary or percentage target bonus opportunity. The
Company and the Executive, upon mutual written agreement, may waive
any of the foregoing provisions with respect to an event that would
otherwise constitute a Constructive Discharge. 3
f. "Coverage
Period" shall mean the period beginning on the Starting Date and
ending on the Ending Date. The "Starting Date" shall be
the date on which a Change in Control occurs; provided, that if a
Termination of Employment occurs prior to a Change in Control and
in contemplation of a potential Change in Control or occurs at the
request or direction of a third party in connection with a
potential Change in Control, the “Starting Date” shall
be the date immediately prior to such termination of
employment. The "Ending Date" shall be (i) in the case
of a transaction described in subparagraph 1(c)(iv) of this
Agreement, the earlier of (A) the date on which a public
announcement is made by the Company that it has abandoned such
transaction, or (B) the date that is 36 full calendar
months following the date on which the transaction is consummated,
and (ii) in all other cases, the date that is 36 full calendar
months following the date on which a Change in Control occurs.
g. “Disability”
shall mean the Executive's absence from the Executive's duties with
the Company on a full-time basis for at least one hundred eighty
(180) consecutive days as a result of Executive's incapacity due to
physical or mental illness.
h. "ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as
amended.
i. "Person"
shall be construed as broadly as possible and shall include an
individual or natural person, a partnership (including a limited
liability partnership), a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, a business, and any other entity.
j. "Subsidiary"
means, with respect to any Person, any other Person (i) whose
securities having a majority of the general voting power in
electing the board of directors or equivalent governing body of
such Person (excluding securities entitled to vote only upon the
failure to pay dividends thereon or the occurrence of other
contingencies) are, at the time as of which any determination is
being made, owned by such Person either directly or indirectly
through one or more other entities constituting Subsidiaries, or
(ii) a fifty percent (50%) interest in the profits or capital of
whom is, at the time as of which any determination is being made,
owned by such Person either directly or indirectly through one or
more other entities constituting Subsidiaries.
k. “Termination
of Employment,” or words of similar import in relation to the
Executive’s employment by the Company, means the
Executive’s ceasing to be employed by the Company or any of
its Subsidiaries. The Executive's cessation of
employment to become an employee of a Person of which
the Company is a Subsidiary (or an employee of a Person of which a
former Subsidiary of the Company is a Subsidiary) or an
employee of a Subsidiary of the Company shall not be considered a
Termination of Employment for purposes of this
Agreement. The subsequent cessation of the Executive's
employment with such Person or from such Subsidiary shall be
considered a Termination of Employment for purposes of this
Agreement. 4
2. Termination
of Prior Agreement; Term.
Effective at 12:00 midnight on December 31, 2007, the Prior
Agreement is hereby terminated and of no further force or
effect. This Agreement shall be effective as of the date
of this Agreement and shall continue thereafter until (i) the date
of the Termination of Employment if such date is prior to the
Coverage Period or (ii) if the Termination of Employment shall
occur during the Coverage Period, this Agreement shall remain in
effect until all of the obligations of the parties hereunder are
satisfied.
3. Severance
Benefit.
a. If
at any time during the Coverage Period a Termination of Employment
is effected by the Company for any reason other than
Cause, death, or Disability, or by the Executive in the event of a
Constructive Discharge, then the Company shall pay to the
Executive severance pay in a lump sum cash amount equal
to three times the sum of Executive's (i) annual salary and (ii)
target bonus opportunity for the current calendar year (or, if
greater than the target bonus opportunity, the average of the
annual bonuses for the three prior calendar years). The
Company shall also pay Executive any unpaid salary, unreimbursed
expenses or benefits accrued to the date of Termination of
Employment. Also, in such event, the Executive shall be
100% vested in all stock options, stock appreciation rights,
contingent stock, restricted stock and other long-term incentive
awards. Without limiting the generality of the
foregoing, (x) all outstanding stock options shall become
immediately exercisable, (y) all transfer restrictions on shares of
restricted stock shall lapse, and (z) all performance shares or
units shall become immediately earned, vested and payable at the
level prescribed in the award agreement in the event of a Change in
Control (as defined therein), with no transfer restrictions on any
shares of stock issued on payment.
b. Pursuant
to paragraph 3(a) of this Agreement, the Executive may terminate
his Employment in the event of a Constructive Discharge by
providing written notice to the Company within ninety (90) days
after the occurrence of such event, specifying the event relied
upon for a Constructive Discharge. Within ten days of
receiving such written notice from the Executive, the Company may
cure the event that constitutes a Constructive Discharge, in which
event the Termination of Employment shall be of no force or
effect.
c. For
a period commencing with the month in which Termination of
Employment as described in paragraph 3(a) above shall have
occurred, and ending twenty-four months thereafter, the
Company shall continue to provide to the Executive all
“benefits” as if the Executive were still employed
during such period, at the same level of benefits that the
Executive was receiving at Termination of Employment or at such
higher level and at the same dollar cost as provided by the Company
to the Executive as is available to all of the Company's senior
executives generally; provided that, if and to the extent that
providing or payment of such benefits shall not be permitted under
any benefit plan, the Company shall pay or provide tax equivalent
benefits on an individual basis within 60 days of Termination of
Employment, subject to Paragraph 16 of this
Agreement. The benefits provided in accordance with this
paragraph 3(c) shall be secondary to any comparable benefits
provided by another employer. As used herein,
“benefits” shall include, but not be limited to: (i)
automobile lease or allowance; (ii) health and dental benefits;
(iii) life, short term 5
disability and long term disability insurance; (iv)
initiation fees, dues and assessments of membership in a club; and
(v) participation in the Company’s retirement, savings and
deferred compensation plans (including without limitation the FPIC
Insurance Group, Inc. Defined Benefit Pension Plan; the
Company’s Supplemental Executive Retirement Plan or any plan
or arrangement adopted in lieu thereof; the FPIC Insurance Group,
Inc. Defined Contribution (and Profit Sharing) Plan; and the FPIC
Insurance Group, Inc. Deferred Compensation Plan, to the extent and
in the form they remain in effect from time to
time). The Executive’s entitlement to such
“benefits” shall be in accordance with the
Company’s employee benefit plans and other applicable
programs, policies, and practices then in effect, to be interpreted
so that payment of such “benefits” does not violate
Section 409A of the Code. d. &n
|
