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Exhibit 10.11
FORM OF CHANGE IN
CONTROL
SEVERANCE
AGREEMENT
[FORM OF CHANGE IN CONTROL
SEVERANCE AGREEMENT ENTERED INTO BY PAULA ROSPUT REYNOLDS, ROSS J,
KARI, ARTHUR CHONG AND MICHAEL H. HUGHES]
THIS AGREEMENT, effective [DATE], is
made by and between Safeco Corporation, a Washington corporation
(“Safeco”), and [NAME].
WHEREAS, Safeco (together with its
subsidiaries, collectively, the “Company”), considers
it essential to the best interests of its shareholders to foster
the continued employment of key management personnel;
and
WHEREAS, Safeco recognizes that, as is
the case with many publicly held corporations, the possibility of a
Change in Control exists and that such possibility, and the
uncertainty and questions which it may raise among management, may
result in the departure or distraction of management personnel to
the detriment of the Company and its stockholders; and
WHEREAS, Safeco has determined that
appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of the
Company’s management, including the Executive, to their
assigned duties without distraction in the face of potentially
disturbing circumstances arising from the possibility of a Change
in Control;
NOW, THEREFORE, in consideration of the
premises and the mutual covenants herein contained, the Company and
the Executive agree as follows:
1. Defined Terms . The
definitions of capitalized terms used in this Agreement are
provided in Section 15.
2. Term of Agreement . The Term
of this Agreement shall commence on the date hereof and shall
continue in effect until the earlier of (i) the date it is
terminated by written agreement between the Company and the
Executive and (ii) seventh anniversary of a Change in
Control.
3. Company’s Covenants
Summarized . In order to induce the Executive to remain in the
employ of the Company and in consideration of the Executive’s
covenants stated in Section 4, the Company agrees, under the
conditions described herein, to pay the Executive the Severance
Payments and the other payments and benefits described herein.
Except as provided in Section 5.1, Section 5.4,
Section 6.2(A), and Section 9.1, no amount or benefit
shall be payable under this Agreement unless there shall have been
a termination of the Executive’s employment with the Company
following a Change in Control and during the Term. This Agreement
shall not be construed as creating an express or implied contract
of employment and, except as otherwise agreed in writing between
the Executive and the Company, the Executive shall not have any
right to be retained in the employ of the Company.
4. The Executive’s
Covenants . The Executive agrees that, subject to the terms and
conditions of this Agreement, in the event of a Potential Change in
Control during the Term, the Executive will remain in the employ of
the Company until the earliest of (i) a date which is six
(6) months from the date of such Potential Change of Control,
(ii) the date of a Change in Control, (iii) the date of
termination by the Executive of the Executive’s employment
for Good Reason or by reason of death, Disability or Retirement, or
(iv) the termination by the Company of the Executive’s
employment for any reason.
5. Compensation Other Than Severance
Payments .
5.1 Salary During
Incapacity or Illness . Following a Change in Control and
during the Term, during any period that the Executive fails to
perform the Executive’s fulltime duties with the Company as a
result of incapacity due to physical or mental illness, the Company
shall pay the Executive’s full salary to the Executive at the
rate in effect at the commencement of any such period, together
with all compensation and benefits payable to the Executive under
the terms of any applicable compensation or benefit plan, program
or arrangement maintained by the Company during such period, until
the Executive’s employment is terminated by the Company for
Disability.
5.2 Salary During Term
. If the Executive’s employment shall be terminated for any
reason following a Change in Control and during the Term, the
Company shall pay the Executive’s full salary to the
Executive through the Date of Termination at the rate in effect at
the time the Notice of Termination is given or, if higher, the rate
in effect immediately prior to the first occurrence of an event or
circumstance constituting Good Reason, together with all
compensation and benefits payable to the Executive through the Date
of Termination under the terms of the Company’s compensation
and benefit plans, programs or arrangements.
5.3 Post-Termination
Compensation and Benefits . If the Executive’s employment
shall be terminated for any reason following a Change in Control
and during the Term, the Company shall pay to the Executive the
normal post-termination compensation and benefits as such payments
become due. Such post-termination compensation and benefits shall
be determined under, and paid in accordance with, the
Company’s applicable retirement, insurance and other
compensation or benefit plans, programs and arrangements as in
effect immediately prior to the Date of Termination or, if more
favorable to the Executive, as in effect immediately prior to the
first occurrence of an event or circumstance constituting Good
Reason.
5.4 Incentive Awards
.
(A) Stock Options and
SARs . Immediately prior to the Change in Control, all awards
of stock options and stock appreciation rights (“SARs”)
previously granted to the Executive shall become fully vested and
exercisable. The phrase “immediately prior to the Change in
Control” shall be understood to mean sufficiently in advance
of a Change in Control to permit the Executive to take all steps
reasonably necessary to exercise all options and SARs and to deal
with the shares of stock underlying the awards of stock options and
SARs so that such shares may be treated in the same manner as the
shares of stock of other shareholders in connection with the Change
in Control.
(B) Performance Stock
Rights . To the extent deemed earned, each outstanding
performance stock right (“PSR”) previously granted to
the Executive shall become immediately payable in cash upon a
Change in Control, and the remainder of each outstanding PSR shall
be canceled for no value. All outstanding PSRs shall be deemed to
have been earned to the extent of the greater of:
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(i) |
the number of shares determined by the Committee based on the
extent to which the performance goals specified in the PSR award
agreement have been achieved during the portion of the performance
period ending on the last day of the last fiscal quarter of the
Company ending on or before the date of the Change in Control,
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(ii) the number of shares equal to the
product of the target shares identified in the PSR award agreement
multiplied by a fraction with a numerator equal to the whole number
of calendar months beginning with the month in which the PSR was
granted and ending on the date of the Change in Control and a
denominator equal to the whole number of calendar months in the
entire performance period covered by the PSR award agreement and
less any shares previously issued under the PSR award
agreement.
(C) Restricted Stock
Rights . All restrictions with respect to restricted stock
rights (“RSRs”) shall lapse upon a Change in Control,
and all outstanding RSRs of the Executive shall be immediately
settled by a cash payment.
(D) Leadership Performance
Plan . Executive shall be eligible to receive an incentive
award pursuant to the terms of the Leadership Performance
Plan.
(E) Other Incentive
Awards . All other restrictions with respect to outstanding
incentive awards of the Executive not described in subsections
(A) through (D) of this Section 5.4 shall lapse upon
a Change in Control, and such awards shall be fully vested and
nonforfeitable.
(F) Fair Market Value
. For purposes of this Section 5.4, with respect to
determining the cash equivalent value of an RSR or PSR or the
spread payable upon exercise of an SAR, the fair market value of a
share of the Company’s stock shall be deemed to equal the
greater of (i) the fair market value of a share of stock as of
the date on which a Change in Control occurs and (ii) the
highest price of a share of stock which is paid or offered to be
paid, by any person or entity, in connection with any transaction
which constitutes a Change in Control.
5.5 Deferral Election . The
Executive may elect to defer all or a portion of the payments that
are to be made to the Executive under Section 6.1(A) and
Section 6.2. The Executive may exercise such election by
delivering a notice of election (in accordance with
Section 10) prior to the occurrence of the Change in Control,
which notice shall state the portion of such payments that is to be
deferred (expressed as a dollar amount or as a percentage
(“the Deferred Benefit”)), the date the payment of the
Deferred Benefit shall commence (“the Deferred Benefit
Commencement Date”), and the number of equal consecutive
monthly installments (not to exceed 120) that the Deferred Benefit
is to be paid in. In no event shall the Deferred Benefit
Commencement Date be subsequent to the first day of January of the
year immediately following the Executive’s sixty-fifth
birthday. In the event such an election is made:
(A) The amount that would
have otherwise been paid under the provisions of
Section 6.1(A) and Section 6.2 shall be reduced by an
amount equal to the Deferred Benefit.
(B) The Deferred Benefit,
together with simple interest calculated at an annual rate of ten
percent (10%) on the unpaid balance of the Deferred Benefit
from the date that payment of the Deferred Benefit would have
otherwise been made, shall be paid in the number of equal
consecutive monthly installments selected by the Executive, with
the first such installment being made on the Deferred Benefit
Commencement Date and a subsequent payment being made on the first
day of each month thereafter.
(C) If the Executive dies
prior to receiving the full amount of the Deferred Benefit, the
Company shall continue to pay the Deferred Benefit to the estate of
the Executive in the same manner as the Deferred Benefit would have
been paid to the Executive if the Executive had not
died.
(D) The Deferred Benefit
shall in no event be set aside or deposited to a separate account
or fund, and the rights of the Executive to the Deferred Benefit
shall not be greater than the rights of any other general,
unsecured creditor of the Company.
(E) The Executive, the
Executive’s spouse, and any other person or entity claiming
through or under the Executive shall not have any power or
authority to commute, encumber, or dispose of any right to receive
payment of the Deferred Benefit, all of which payments are
expressly declared to be non-assignable. In the event of any
attempt at assignment or other disposition, the Company shall have
no further liability to pay the Deferred Benefit. The Deferred
Benefit provided for in this Agreement shall not be subject to
seizure for the payment of any debts, judgments, alimony, separate
maintenance or child support, or be reached or transferred by
operation of law, or in the event of bankruptcy, insolvency or
otherwise.
6. Severance Payments
.
6.1 Severance Payments Enumerated
. The Company shall pay the Executive the payments described in
this Section 6.1 (the “Severance Payments”) upon
the termination of the Executive’s employment following a
Change in Control and during the Term, in addition to any payments
and benefits to which the Executive is then entitled under
Section 5, unless such termination is (i) by the Company
for Cause, (ii) by reason of death, Disability or Retirement,
or (iii) by the Executive without Good Reason. Additionally,
during the one-month period beginning with the first day of the
month immediately following the first anniversary of the Change in
Control, the Executive may voluntarily terminate her employment for
any reason and, upon such termination, the Company shall pay the
Executive the Severance Payments and the Gross-Up Payment, in
addition to any payments and benefits to which the Executive
is
then entitled under Section 5. For
purposes of this Agreement, the Executive’s employment shall
be deemed to have been terminated following a Change in Control by
the Company without Cause or by the Executive with Good Reason, if
(i) the Executive’s employment is terminated by the
Company without Cause prior to a Change in Control and such
termination was at the request or direction of a Person who has
entered into an agreement with the Company the consummation of
which would constitute a Change in Control, (ii) the Executive
terminates her employment with Good Reason prior to a Change in
Control and the circumstance or event which constitutes Good Reason
occurs at the request or direction of such Person, or
(iii) the Executive’s employment is terminated by the
Company without Cause prior to a Change in Control and the
Executive reasonably demonstrates that such termination is
otherwise in connection with or in anticipation of a Change in
Control.
(A) In lieu of any further
salary payments to the Executive for periods subsequent to the Date
of Termination and in lieu of any severance benefit otherwise
payable to the Executive, the Company shall pay to the Executive a
lump sum severance payment, in cash, equal to three (or, if less,
the number of years, rounded to the nearest hundredth of a year,
remaining until December 31 of the year in which the Executive
attains age 65) times the higher of the Executive’s annual
base salary in effect immediately prior to the occurrence of the
event or circumstance upon which the Notice of Termination is based
and the Executive’s base salary in effect immediately prior
to Date of Termination.
(B) For the thirty-six
(36) month period immediately following the Date of
Termination or, if shorter, for the period commencing immediately
following the Date of Termination and ending on December 31 of
the year in which the Executive attains age 65 (such applicable
period, the “Severance Period”), the Company shall
arrange to provide the Executive with life, disability, accident
and health insurance benefits substantially similar to those which
the Executive is receiving immediately prior to the Date of
Termination; provided , however , that, unless the
Executive consents to a different method (after taking into account
the effect of such method on the calculation of “parachute
payments” pursuant to Section 6.2), such health
insurance benefits shall be provided through a third-party insurer.
Benefits otherwise receivable by the Executive pursuant to this
Section 6.1 (B) shall be reduced to the extent comparable
benefits are actually received by or made available to the
Executive (other than benefits available pursuant to the
Consolidated Omnibus Budget Reform Act of 1985) during the
Severance Period (and any such benefits actually received by or
made available to the Executive shall be reported to the Company by
the Executive).
(C) Notwithstanding any provision of any
annual or long-term incentive plan to the contrary, the Company
shall pay to the Executive a lump sum amount, in cash, equal to the
sum of (i) any incentive compensation which has been allocated
or awarded to the Executive for a completed year or other measuring
period preceding the Date of Termination under any such plan and
which, as of the Date of Termination, is contingent only upon the
continued employment of the Executive to a subsequent date, and
(ii) a pro rata portion to the Date of Termination of the
aggregate value of all contingent incentive compensation awards to
the Executive for all then uncompleted periods under any such plan,
calculated as to each such award by multiplying the award that the
Executive would have earned on the last day of the performance
award period, assuming the achievement, at the level that would
produce the maximum award, of the individual and corporate
performance goals established with respect to such award, by the
fraction obtained by dividing the number of full months and any
fractional portion of a month during such performance award period
through the Date of Termination by the total number of months
contained in such performance award period.
6.2 “ Gross-Up
Payment .”
(A) Whether or not the
Executive becomes entitled to the Severance Payments, if any of the
payments or benefits received or to be received by the Executive in
connection with a Change in Control or the Executive’s
termination of employment (whether pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or
any Person affiliated with the Company or such Person) (such
payments or benefits, excluding the Gross-Up Payment, being
hereinafter referred to as the “Total Payments”) will
be subject to the Excise Tax, the Company shall pay to the
Executive an additional amount (the “Gross-Up Payment”)
such that the net amount retained by the Executive, after deduction
of any Excise Tax on the Total Payments and any federal, state and
local income and employment taxes and Excise Tax upon the Gross-Up
Payment, and after taking into account the phase out of the
itemized deductions attributable to the Gross-Up Payment, shall be
equal to the Total Payments.
(B) For purposes of
determining whether any of the Total Payments will be subject to
the Excise Tax and the amount of such Excise Tax, (i) all of
the Total Payments shall be treated as “parachute
payments” (within the meaning of section 280G(b)(2) of the
Code) unless, in the opinion of tax counsel selected by the
accounting firm which was, immediately prior to the Change in
Control, the Company’s independent accountant (the
“Accountant”) and which tax counsel is reasonably
acceptable to the Executive (“Tax Counsel”), such
payments or benefits (in whole or in part) do not constitute
parachute payments, including by reason of section 280G(b)(4)(A) of
the Code, (ii) all “excess parachute payments”
within the meaning of section 280G(b)(1) of the Code shall be
treated as subject to the Excise Tax unless, in the opinion of Tax
Counsel, such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered
(within the meaning of section 280G(b)(4)(B) of the Code) in excess
of the Base Amount allocable to such reasonable compensation, or
are otherwise not subject to the Excise Tax, and (iii) the
value of any noncash benefits or any deferred payment or benefit
shall be determined by the Accountant in accordance with the
principles of sections 280G(d)(3) and (4) of the Code. For
purposes of determining the amount of the Gross-Up Payment, the
Executive shall be deemed to pay federal income tax at the highest
marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income
taxes at the highest marginal rate of taxation in the state and
locality of the Executive’s residence on the Date of
Termination (or if there is no Date of Termination, then the date
on which the Gross-Up Payment is calculated for purposes of this
Section 6.2), net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and
local taxes.
(C) In the event that the Excise Tax is
finally determined to be less than the amount taken into account
hereunder in calculating the Gross-Up Payment, the Executive shall
repay to the Company, at the time that the amount of such reduction
in Excise Tax is finally determined, the portion of the Gross-Up
Payment attributable to such reduction (plus that portion of the
Gross-Up Payme
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