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 ”).
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.
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“
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;
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(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.
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“
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.
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“
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.
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(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.
(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.
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(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.
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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.
(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.
(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.
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(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.
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(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
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