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 Ronald J. Zaleski , 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 Company’s 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 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.
“ 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.
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“ 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.
“Covered Employee”
means a covered employee, within the
meaning of Section 162(m)(3) of the Code, of the
Company.
“ 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;
(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;
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(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’s
Parent 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.
“ 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.
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“ 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
Company’s 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 Company’s 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 Company’s 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 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.
“ 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.
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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 July 31, 2009 , 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 and Chief Actuary of the Company 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
Company’s Chief Executive Officer 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 affiliates 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 Chief
Executive Officer of the Company. The Executive may accept
directorships on the board of directors of not-for-profit
corporations without the Chief Executive Officer’s prior,
written consent 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 Chief Executive Officer in writing of the
fact that he has accepted such a non-profit
directorship.
(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 and shall perform such duties not inconsistent
with the provisions hereof as he shall be assigned by the Chief
Executive Officer.
(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 FOUR HUNDRED THOUSAND
DOLLARS ($400,000) 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 executives. The Salary shall be
reviewed no less than annually by the Chief Executive Officer and
nothing contained herein shall prevent the Board 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.
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(b) Benefits
. During the Term, the Company shall
permit the Executive to participate in or receive benefits 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 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’s Board and
the Chief Executive Officer.
(e) Taxable Reimbursements 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.
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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.
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.
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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 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.
(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.
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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.
(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
entitled to the benefit
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