Back to top

EMPLOYMENT AGREEMENT

Employee Retention Agreement

EMPLOYMENT AGREEMENT | Document Parties: Selective Insurance Company of America | John J. Marchioni You are currently viewing:
This Employee Retention Agreement involves

Selective Insurance Company of America | John J. Marchioni

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: EMPLOYMENT AGREEMENT
Governing Law: New Jersey     Date: 2/27/2009
Industry: Insurance (Prop. and Casualty)     Sector: Financial

EMPLOYMENT AGREEMENT, Parties: selective insurance company of america , john j. marchioni
50 of the Top 250 law firms use our Products every day

Exhibit 10.23f

EMPLOYMENT AGREEMENT

This Employment Agreement, (the “ Agreement ”) is made as of the 23rd day of December, 2008, between Selective Insurance Company of America , a New Jersey corporation with a principal place of business at 40 Wantage Avenue, Branchville, New Jersey 07890 (the “ Company ”) and John J. Marchioni , an individual residing at [Address Intentionally Omitted] (the “ Executive ”).

SECTION 1. DEFINITIONS .

1.1. Definitions . For purposes of this Agreement, the following terms shall have the meanings set forth below:

Accounting Firm ” has the meaning given to such term in Section 3.6(b) hereof.

Agreement ” has the meaning given to such term in the Preamble hereto.

Board ” means the Board of Directors of the Company’s Parent.

Cause ” means any one or more of the following:

(i) the Executive shall have been convicted by a court of competent jurisdiction of, or pleaded guilty or nolo contendere to, any felony under, or within the meaning of, applicable United States federal or state law;

(ii) the Executive shall have breached in any respect any one or more of the material provisions of this Agreement, including, without limitation, any failure to comply with the Code of Conduct, and, to the extent such breach may be cured, such breach shall have continued for a period of thirty (30) days after written notice by the Chief Executive Officer to the Executive specifying such breach; or

(iii) the Executive shall have engaged in acts of insubordination, gross negligence or willful misconduct in the performance of the Executive’s duties and obligations to the Company.

For purposes of clauses (ii) and (iii) of this definition of “Cause”, no act, or failure to act, on the part of the Executive shall be considered grounds for “Cause” under such clauses if such act, or such failure to act, was done or omitted to be done based upon authority or express direction given by the Chief Executive Officer, or such other executive as the Chief Executive Officer may designate, or based upon the advice of counsel for the Company.

 

 


 

Change in Control ” means the occurrence of an event of a nature that would be required to be reported by the Company’s Parent in response to Item 5.01 of a Current Report on Form 8-K, as in effect on the date thereof, pursuant to Section 13 or 15(d) of the Securities Exchange Act; provided , however , that a Change in Control shall, in any event, conclusively be deemed to have occurred upon the first to occur of any one of the following events:

(i) The acquisition by any “person” or “group” (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act or any successor provisions to either of the foregoing), including, without limitation, any current shareholder or shareholders of the Company’s Parent, of securities of the Company’s Parent resulting in such person or group being a “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act) of twenty-five percent (25%) or more of any class of Voting Securities of the Company’s Parent;

(ii) The acquisition by any “person” or “group” (as such terms are used in Sections 13(d)(3) and 14(d)(2) of the Securities Exchange Act or any successor provisions to either of the foregoing), including, without limitation, any current shareholder or shareholders of the Company’s Parent, of securities of the Company’s Parent resulting in such person or group being a “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act) of twenty percent (20%) or more, but less than twenty-five percent (25%), of any class of Voting Securities of the Company’s Parent, if the Board adopts a resolution that such acquisition constitutes a Change in Control;

(iii) The sale or disposition of more than fifty percent (50%) of the Company’s Parent’s assets on a consolidated basis, as shown in the Company’s Parent’s then most recent audited consolidated balance sheet;

(iv) The reorganization, recapitalization, merger, consolidation or other business combination involving the Company’s Parent the result of which is the ownership by the shareholders of the Company’s Parent of less than eighty percent (80%) of those Voting Securities of the resulting or acquiring Person having the power to vote in the elections of the board of directors of such Person; or

(v) A change in the membership in the Board which, taken in conjunction with any other prior or concurrent changes, results in twenty percent (20%) or more of the Board’s membership being persons not nominated by the Company’s Parent’s management or the Board as set forth in the Company’s Parent’s then most recent proxy statement, excluding changes resulting from substitutions by the Board because of retirement or death of a director or directors, removal of a director or directors by the Board or resignation of a director or directors due to demonstrated disability or incapacity.

(vi) Anything in this definition of Change in Control to the contrary notwithstanding, no Change in Control shall be deemed to have occurred for purposes of this Agreement by virtue of any transaction which results in the Executive, or a group of Persons which includes the Executive, acquiring, directly or indirectly, Voting Securities of the Company’s Parent.

 

- 2 -


 

Code ” means the Internal Revenue Code of 1986, as amended from time to time.

Code of Conduct ” has the meaning given to such term in Section 2.3(a) hereof.

Commencement Date ” has the meaning given to such term in Section 2.2 hereof.

Company ” has the meaning given to such term in the Preamble hereto and includes any Person which shall succeed to or assume the obligations of the Company hereunder pursuant to Section 5.6 hereof.

“Company’s Parent” means Selective Insurance Group, Inc., a publicly traded New Jersey corporation with a principal office at 40 Wantage Avenue, Branchville, New Jersey 07890.

Determination ” has the meaning given to such term in Section 3.6(b) hereof.

Disability ” means the Executive’s physical injury or physical or mental illness which causes him to be absent from his duties with the Company on a full-time basis for a continuous period in excess of the greater of: (i) the period of disability constituting permanent disability as specified under the Company’s long-term disability insurance coverage applicable to the Executive at the time of the determination of the existence of a disability (or, if such determination is made after the occurrence of a Change in Control, as specified under the long-term disability insurance coverage applicable to the Executive prior to a Change in Control) or (ii) 180 days, unless within thirty (30) days after a Notice of Termination is thereafter given the Executive shall have returned to the full-time performance of his duties.

Early Termination ” has the meaning given to such term in Section 3.2 hereof.

Excise Tax ” has the meaning given to such term in Section 3.6(a) hereof.

Executive ” has the meaning given to such term in the Preamble hereto.

Extended Benefit Period ” has the meaning given to such term in Section 3.3(c) hereof.

Good Reason ” means the occurrence of any one or more of the following conditions; provided , however, that no such condition shall be deemed to constitute “Good Reason” unless the Executive provides notice of such condition to the Company within ninety (90) days of its initial existence, and the Company shall have failed to remedy the condition within thirty (30) days of its receipt of such notice:

(i) any material diminution in the Executive’s Salary below the annualized rate in effect on the date on which a Change in Control shall have occurred, unless such reduction is implemented for the senior executive staff generally, provided , however that such reduction shall constitute Good Reason even if implemented for senior executive staff generally if such reduction occurs within two years after a Change in Control;

 

- 3 -


 

(ii) any material negative change in the aggregate benefits the Executive receives, other than as a result of the normal expiration of any Plan as to other eligible employees in accordance with its terms as in effect on the date preceding the date on which a Change in Control shall have occurred, or unless such change affects all participants of such Plan generally;

(iii) without the Executive’s express prior written consent, a material diminution of the Executive’s position, duties, responsibilities and status with the Company immediately prior to a Change in Control, or any material diminution in the Executive’s responsibilities as an executive of the Company as compared with those he had as an executive of the Company immediately prior to a Change in Control, or any material negative change in the Executive’s titles or office as in effect immediately prior to a Change in Control, except in connection with the termination of the Executive’s employment for Cause, Disability or Retirement or as a result of the Executive’s death, or by his termination of his employment other than for Good Reason;

(iv) without the Executive’s express prior written consent, the imposition of a requirement by the Company that the Executive be based at any location in excess of fifty (50) miles from the location of the Executive’s office on the date preceding the date on which a Change in Control shall have occurred;

(v) the failure by the Company to obtain from any Person with which it may merge or consolidate or to which it may sell all or substantially all of its assets, the agreement of such Person as set forth in the proviso in Section 5.6 hereof; provided that such merger, consolidation or sale constitutes a Change in Control; or

(vi) within two years after a Change in Control shall have occurred, any action or inaction that constitutes a material breach by the Company of any of the terms and conditions of this Agreement.

Gross-Up Payment ” has the meaning given to such term in Section 3.6(a) hereof.

Notice of Termination ” means a written notice which shall (i) indicate the specific termination provision in this Agreement relied upon, (ii) set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated and, (iii) specify the date of termination in accordance with this Agreement (other than for a termination for Cause).

Overpayments ” has the meaning given to such term in Section 3.6(c) hereof.

 

- 4 -


 

Person ” means an individual, partnership, corporation, association, limited liability company, trust, joint venture, unincorporated organization, and any government, governmental department or agency or political subdivision thereof.

Plans ” has the meaning given to such term in Section 2.4(b) hereof.

Rabbi Trust ” has the meaning given to such term in Section 3.4(d) hereof.

Release ” has the meaning given to such term in Section 3.5 hereof.

Restrictive Covenants ” has the meaning given to such term in Section 3.5 hereof.

Retirement ” means a termination of the Executive’s employment by the Company or the Executive (i) at such age as shall be established by the Board for mandatory or normal retirement of Company executives in general (which age shall be, if the determination of Retirement is made after the occurrence of a Change in Control, the age established by the Board prior to a Change in Control), which shall not be less than age 65, or (ii) at any other retirement age set by mutual agreement of the Company and the Executive and approved by the Board.

Salary ” has the meaning given to such term in Section 2.4(a) hereof.

Section 409A ” means Section 409A of the Code and the regulations of the Treasury and other applicable guidance promulgated thereunder.

Section 409A Tax ” has the meaning given to such term in Section 3.7 hereof.

Securities Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Term ” has the meaning given to such term in Section 2.2 hereof.

Termination Date ” means the date of the Executive’s termination of employment with the Company and all its affiliates. If the Executive’s employment is to be terminated by the Company for Disability, the Executive’s employment shall terminate thirty (30) days after a Notice of Termination is given; provided that the Executive shall not have returned to the performance of the Executive’s duties on a full-time basis during such thirty (30) day period.

Total Payments ” has the meaning given to such term in Section 3.6(a) hereof.

Triggering Event ” has the meaning given to such term in Section 3.4(d) hereof.

Trustee ” has the meaning given to such term in Section 3.4(d) hereof.

Underpayments ” has the meaning given to such term in Section 3.6(c) hereof.

 

- 5 -


 

Voting Securities ” means, with respect to a specified Person, any security of such Person that has, or may have upon an event of default or in respect to any transaction, a right to vote on any matter upon which the holder of any class of common stock of such Person would have a right to vote.

1.2. Terms Generally . Unless the context of this Agreement requires otherwise, words importing the singular number shall include the plural and vice versa, and any pronoun shall include the corresponding masculine, feminine and neuter forms.

1.3. Cross-References . Unless otherwise specified, references in this Agreement to any Paragraph or Section are references to such Paragraph or Section of this Agreement.

SECTION 2. EMPLOYMENT AND COMPENSATION . The following terms and conditions will govern the Executive’s employment with the Company throughout the Term.

2.1. Employment . The Company hereby employs the Executive, and the Executive hereby accepts employment with the Company, on the terms and conditions set forth herein.

2.2. Term . The term of employment of the Executive under this Agreement shall commence as of the date hereof (the “ Commencement Date ”) and, subject to Section 3.1 hereof, shall terminate on February 28, 2010, and shall automatically be extended for additional one (1) year periods thereafter (any such renewal periods, together with the initial three (3) year period, being referred to as the “ Term ”) unless terminated by either party by written notice to the other party.

2.3. Duties . (a) The Executive agrees to serve as Executive Vice President during the Term. In such capacity, the Executive shall have the responsibilities and duties customary for such office(s) and such other executive responsibilities and duties as are assigned by the Chief Executive Officer, or such other executive as the Chief Executive Officer may designate, which are consistent with the Executive’s position(s). The Executive agrees to devote substantially all his business time, attention and services to the business and affairs of the Company and its subsidiaries and to perform his duties to the best of his ability. At all times during the performance of this Agreement, the Executive will adhere to the Code of Conduct of the Company (the “ Code of Conduct ”) that has been or may hereafter be established and communicated by the Company to the Executive for the conduct of the position or positions held by the Executive. The Executive may not accept directorships on the board of directors of for-profit corporations without the prior written consent of the Executive Vice President, Human Resources of the Company. The Executive may accept directorships on the board of directors of not-for-profit corporations without the prior, written consent of the Executive Vice President, Human Resources so long as (a) such directorships do not interfere with Executive’s ability to carry out his responsibilities under this Agreement, and (b) Executive promptly notifies the Executive Vice President, Human Resources in writing of the fact that he has accepted such a non-profit directorship.

 

- 6 -


 

(b)  If the Company or the Executive elects not to renew the Term pursuant to Section 2.2, the Executive shall continue to be employed under this Agreement until the expiration of the then current Term (unless earlier terminated pursuant to Section 3.1 hereof), shall cooperate fully with the Chief Executive Officer, or such other executive as the Chief Executive Officer may designate and shall perform such duties not inconsistent with the provisions hereof as he shall be assigned by the Chief Executive Officer, or such other executive as the Chief Executive Officer may designate.

2.4. Compensation .

(a)  Salary . For all services rendered by the Executive under this Agreement, the Company shall pay the Executive a salary during the Term at a rate of not less than THREE HUNDRED TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($325,000.00) per year, which may be increased but not decreased unless decreased for the senior executive staff generally (the “ Salary ”), payable in installments in accordance with the Company’s policy from time to time in effect for payment of salary to its executives. The Salary shall be reviewed no less than annually and nothing contained herein shall prevent the Company from at any time increasing the Salary or other benefits herein provided to be paid or provided to the Executive or from providing additional or contingent benefits to the Executive as it deems appropriate.

(b)  Benefits . During the Term, the Company shall permit the Executive to participate in or receive benefits based on eligibility under the Selective Insurance Group, Inc. 2005 Omnibus Stock Plan, the Selective Insurance Group, Inc. Cash Incentive Plan, the Selective Insurance Retirement Savings Plan, the Retirement Income Plan For Selective Insurance Company of America, as amended, the Selective Insurance Company of America Deferred Compensation Plan, the Selective Insurance Supplemental Pension Plan and any other incentive compensation, stock option, stock appreciation right, stock bonus, pension, group insurance, retirement, profit sharing, medical, disability, accident, life insurance plan, relocation plan or policy, or any other plan, program, policy or arrangement of the Company intended to benefit the employees of the Company generally, if any, in accordance with the respective provisions thereof, from time to time in effect (collectively, the “ Plans ”).

(c)  Vacations and Reimbursements . During the Term, the Executive shall be entitled to vacation time off and reimbursements for ordinary and necessary business travel and entertainment expenses in accordance with the Company’s policies on such matters from time to time in effect.

(d)  Perquisites . During the Term, the Company shall provide the Executive with suitable offices, secretarial and other services, and other perquisites to which other executives of the Company generally are (or become) entitled, to the extent as are suitable to the character of the Executive’s position with the Company, subject to such specific limits on such perquisites as may from time to time be imposed by the Company.

 

- 7 -


 

(e) Taxable Reimbursement and Perquisites . Any taxable reimbursement of business or other expenses, or any provision of taxable in-kind perquisites or other benefits to the Executive, as specified under this Agreement, shall be subject to the following conditions: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year; (ii) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

SECTION 3. TERMINATION AND SEVERANCE .

3.1. Termination . The Executive’s employment hereunder shall commence on the Commencement Date and continue until the expiration of the Term, except that the employment of the Executive hereunder shall earlier terminate:

(a)  Death . Upon the Executive’s death.

(b)  Disability . At the option of the Company, upon the Disability of the Executive.

(c)  For Cause . At the option of the Company, for Cause.

(d)  Resignation . At any time at the option of the Executive, by resignation (other than a resignation for Good Reason).

(e)  Without Cause . At any time at the option of the Company, without Cause; provided , that a termination of the Executive’s employment hereunder by the Company based on Retirement, death, or Disability shall not be deemed to be a termination without Cause.

(f)  Relocation . At the option of the Executive at any time prior to a Change in Control and within two years of, the Company first imposing a requirement without the consent of the Executive that the Executive be based at a location in excess of fifty (50) miles from the location of the Executive’s office on the Commencement Date.

(g)  For Good Reason . At any time at the option of the Executive within two (2) years following the occurrence of a Change in Control, for Good Reason.

 

- 8 -


 

3.2. Procedure For Termination . Any termination of the Executive’s employment by the Company or by the Executive prior to the expiration of the Term (an “ Early Termination ”) shall be communicated by delivery of a Notice of Termination to the other party hereto given in accordance with Section 5.13 hereof. Any Early Termination shall become effective as of the applicable Termination Date.

3.3. Rights and Remedies on Termination . The Executive will be entitled to receive the payments and benefits specified below if there is an Early Termination.

(a)  Accrued Salary . If the Executive’s employment is terminated pursuant to any of the Paragraphs set forth in Section 3.1 hereof, then the Executive (or his legal representative, as applicable) shall only be entitled to receive his accrued and unpaid Salary through the Termination Date.

(b)  Severance Payments .

(i) If the Executive’s employment is terminated pursuant to Paragraphs (a) or (b) in Section 3.1 hereof, then the Executive (or his legal representative, as applicable) shall be entitled to receive a severance payment from the Company in an aggregate amount equal to the product of (A) 1.5 times (B) the Executive’s Salary plus an amount equal to the average of the three most recent annual cash incentive payments (each an “ACIP”) made to the Executive; provided that any such severance payment shall be reduced by the amount of payments the Executive receives under any life or disability insurance policies with respect to which the premiums were paid by the Company.

(ii) If the Executive’s employment is terminated pursuant to Paragraph (e) or (f) in Section 3.1 hereof, then the Executive shall be entitled to receive a severance payment from the Company in an aggregate amount equal to the product of (A) 1.5 times (B) the Executive’s Salary plus an amount equal to the average of the three most recent ACIP payments made to the Executive.

(iii) The severance payment required to be paid by the Company to the Executive pursuant to Paragraph (b)(i) or (b)(ii) above, shall, subject to Section 3.7, be paid in equal monthly installments over the twelve (12) month period following the Termination Date.

Notwithstanding the foregoing, the Executive shall not be entitled to any ACIP for the year in which the Termination Date occurs.

(c)  Severance Benefits .

(i) If the Executive’s employment is terminated pursuant to any of the Paragraphs set forth in Section 3.1 hereof, then the Executive (or his legal representative, as applicable) shall be entitled to receive the benefits which the Executive has accrued or earned or which have become payable under the Plans as of the Termination Date, but which have not yet been paid to the Executive. Payment of any such benefits shall be made in accordance with the terms of such Plans.

 

- 9 -


 

(ii) If the Executive’s employment is terminated pursuant to Paragraph (e) or (f) in Section 3.1 hereof, then the Company shall, subject to Section 3.7, maintain in full force and effect for the continued benefit of the Executive and his dependents for a period terminating on the earlier of (A) eighteen (18) months following the applicable Termination Date, or (B) the commencement date of equivalent benefits from a new employer, (any such period being referred to as the applicable “ Extended Benefit Period ”) all insured and self-insured medical, dental, vision, disability and life insurance employee benefit Plans in which the Executive was entitled to participate immediately prior to the Termination Date; provided that the Executive’s continued participation is not barred under the general terms and provisions of such Plans. Notwithstanding the foregoing, the Executive shall continue to participate in such Plans during the Extended Benefit Period only to the extent that such Plans remain in effect for other executives of the Company from time to time during the Extended Benefit Period and subject to the terms of such Plans, including any modifications and amendments thereto following the Termination Date. In the event that the Executive’s participation in any such Plan is barred by its terms, the Company shall arrange, at its sole cost and expense, to have issued for the benefit of the Executive and his dependents during the Extended Benefit Period individual policies of insurance providing benefits substantially similar (on an after-tax basis) to those which the Executive otherwise would have been entitled to receive under such Plans pursuant to this Paragraph (c)(ii). Executive shall be responsible for making any required contributions to the cost of such coverage, on an after-tax basis, at the rate which Executive was obligated to pay immediately prior to the Termination Date. If, at the end of the applicable Extended Benefit Period, the Executive has not previously received or is not receiving equivalent benefits from a new employer, or is not otherwise receiving such benefits, the Company shall arrange to enable the Executive to convert his and his dependents’ coverage under such Plans to individual policies or programs upon the same terms as employees of the Company may apply for such conversions upon termination of employment. In no event shall the Company’s obligation to provide disability benefits hereunder be reduced as a result of any individual disability policy purchased by the Executive. Any portion of the continued or replacement welfare benefits coverage provided for under this Section 3.3(c)(ii) which constitutes deferred compensation subject to Section 409A shall be subject to the following conditions: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year (except with respect to annual, lifetime or similar limits under arrangements providing for the reimbursement of medical expenses under Section 105(b) of the Code); (ii) the reimbursement of an eligible expense shall be made no later than the end of the year after the year in which such expense was incurred; and (iii) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.

 

- 10 -


 

(d)  Rights Under Plans . If the Executive’s employment is terminated pursuant to Paragraphs (a), (b), (e), or (f) in Section 3.1 hereof, the Executive shall be


 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more