EMPLOYMENT AGREEMENT BETWEEN JOSEPH M. ZUBRETSKY AND UNUMPROVIDENT CORPORATION

Exhibit 10.1

 

EXECUTION COPY

 

 

EMPLOYMENT AGREEMENT

 

BETWEEN

 

JOSEPH M. ZUBRETSKY

 

AND

 

UNUMPROVIDENT CORPORATION

 

EMPLOYMENT AGREEMENT

 

 

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EMPLOYMENT AGREEMENT

 

THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into this 1st day of March, 2005 by and between UnumProvident Corporation, a Delaware corporation (the “Company”), and Joseph M. Zubretsky (“Executive”), to be effective as of the Effective Date, as defined in Section 1.

 

BACKGROUND

 

The Company desires to engage Executive as the Senior Executive Vice President, Finance, Investments and Corporate Development of the Company from and after the Effective Date, in accordance with the terms of this Agreement. Executive is willing to serve as such in accordance with the terms and conditions of this Agreement.

 

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1. Effective Date. The effective date of this Agreement (the “Effective Date”) shall be March 16, 2005.

 

2. Employment . Executive is hereby employed on the Effective Date as the Senior Executive Vice President, Finance, Investments and Corporate Development of the Company. Executive will be the highest ranking financial executive in the Company who reports directly to the Chief Executive Officer of the Company (“CEO”) and he will have as direct reports the Finance (including the Chief Financial Officer), Investments and Investor Relations functions. In such capacity, Executive shall have the duties, responsibilities and authority commensurate with such position as shall be assigned to him by the CEO, which shall be consistent with the duties, responsibilities and authority of such an officer of a public company engaged in similar lines of business to that engaged in by the Company and its subsidiaries from time to time.

 

3. Employment Period. Unless earlier terminated herein in accordance with Section 7 hereof, Executive’s employment shall be for a term beginning on the Effective Date and ending on December 31, 2007 (the “Employment Period”). Beginning on December 31, 2005 and on each December 31 thereafter, the Employment Period shall, without further action by Executive or the Company, be extended by an additional one-year period; provided, however, that either party may cause the Employment Period to cease to extend automatically, by giving written notice (a “Notice of Non-Renewal”) to the other not less than 60 days prior to any December 31 renewal date. Upon such Notice of Non-Renewal, the Employment Period shall terminate upon the expiration of the then-current term, including any prior extensions.

 

4. Extent of Service. During the Employment Period, and excluding any periods of vacation and sick leave to which Executive is entitled, Executive agrees to

devote reasonable attention and time during normal business hours to the business and affairs of the Company and, to the extent necessary to discharge the responsibilities assigned to Executive hereunder, to use Executive’s reasonable best efforts to perform faithfully and efficiently such responsibilities. During the Employment Period it shall not be a violation of this Agreement for Executive to (A) serve on corporate, civic or charitable boards or committees, (B) deliver lectures, fulfill speaking engagements or teach at educational institutions and (C) manage personal investments, so long as such activities do not significantly interfere with the performance of Executive’s responsibilities as an employee of the Company in accordance with this Agreement. It is expressly understood and agreed that to the extent that any such activities have been conducted by Executive prior to the Effective Date and acknowledged by the Company in writing, the continued conduct of such activities (or the conduct of activities similar in nature and scope thereto) subsequent to the Effective Date shall not thereafter be deemed to interfere with the performance of Executive’s responsibilities to the Company. Specifically, the Company hereby acknowledges and agrees that Executive may continue to serve as a member of the board of directors of GAB Robins LLC (Delaware) until December 31, 2005; provided that, with respect to such board service, Executive shall recuse himself from any matter related to GENEX Services, Inc. or the Company and provided, further, that Executive acknowledges that his service on the board of directors of GAB Robins LLC (Delaware) is not at the request of the Company and is not covered by any rights to indemnification or director and officer liability insurance provided by the Company.

 

5. Compensation and Benefits.

 

(a) Base Salary. During the Employment Period, the Company will pay to Executive base salary at the rate of U.S. $650,000 per year (“Base Salary”), less normal withholdings, payable in approximately equal bi-weekly or other installments as are or become customary under the Company’s payroll practices for its employees from time to time. The Compensation Committee of the Board of Directors of the Company shall review Executive’s Base Salary annually and may increase (but not decrease) Executive’s Base Salary from year to year. Such adjusted salary then shall become Executive’s Base Salary for purposes of this Agreement. The annual review of Executive’s salary by the Board will consider, among other things, Executive’s own performance, and the Company’s performance.

 

(b) Incentive, Savings and Retirement Plans. During the Employment Period, Executive shall be entitled to participate in all incentive, savings and retirement plans, practices, policies and programs available to senior executive officers of the Company (“Peer Executives”), as determined by the Board of Directors from time to time. Without limiting the foregoing, the following shall apply:

 

(i) Sign-On Bonus. On the Effective Date, Executive shall receive a sign-on bonus in the amount of $775,000. If Executive voluntarily terminates employment prior to the second anniversary of the Effective Date, excluding a

 

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resignation for Good Reason, he shall repay to the Company an amount equal to the product of (A) $775,000, and (B) a fraction, the numerator of which is the number of days between the Date of Termination and the second anniversary of the Effective Date, and the denominator of which is 730. Such repayment shall be set-off or otherwise credited against Executive’s taxable W-2 compensation hereunder or repaid in such a way for Executive to recoup income taxes paid on such amount.

 

(ii) Annual Bonus. During the Employment Period, Executive will be entitled to participate in the Company’s executive bonus plan, pursuant to which he will have an opportunity to receive an annual cash bonus based upon the achievement of performance goals established from year to year by the Compensation Committee of the Board of Directors of the Company (such bonus earned at the stated “target” level of achievement being referred to herein as the “Target Bonus”). Executive’s Target Bonus opportunity each year shall be recommended by the CEO to the Compensation Committee, and shall always be at least 100% of his Base Salary. Payout can vary from the Target Bonus, depending upon corporate performance and individual performance which can have formula driven features and subjective features; provided, however that for 2005 only, Executive’s minimum annual bonus will be 100% of his Base Salary, payable in February 2006. The 2005 annual bonus will not be prorated if the Effective Date is before March 31, 2005.

 

(iii) Long-Term Incentives. During the Employment Period, Executive will be eligible for long-term incentive awards, which may be in the form of cash or equity-based awards or both, in each case having terms and determined in the same manner as long-term incentive awards to Peer Executives, unless Executive consents to a different type of award or different terms of such award than are applicable to Peer Executives. Executive’s target long-term incentive opportunity shall be recommended by the CEO to the Compensation Committee, and shall be at least 200% of Executive’s Base Salary measured on an annual equivalent basis. Without limiting the foregoing, Executive shall be granted an award of performance-based restricted stock as of the Effective Date, which will vest based on the achievement of Company and individual performance goals, as determined by the Compensation Committee, consistent with awards to Peer Executives granted in February 2005. The number of shares subject to such initial award shall be determined by dividing $1,300,000 by the fair market value of the Company’s common stock on the Effective Date, which represents 200% of Executive’s starting Base Salary, and such award shall vest over not more than two years.

 

(iv) Initial Grant of Restricted Stock. Executive shall be granted an award of restricted stock as of the Effective Date (the “Sign-On Grant”), which will vest as to one third of the shares on the third, fourth and fifth anniversaries of the Effective Date, provided Executive is then employed by the Company, or in full upon an occurrence of a Change in Control, the giving by the Company of a Notice of Non-Renewal, or Executive’s earlier termination of employment due to his Death, Retirement (as defined below), Disability or as provided in Section 7(d) or 8(a) of this Agreement. The number of shares subject to the Sign-On Grant shall be determined by dividing

 

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$2,700,000 by the fair market value of the Company’s common stock on the Effective Date. As the record owner, Executive shall be entitled to full voting and dividend rights with respect to such shares from and after the date of grant, even while they are subject to a risk of forfeiture.

 

(v) SERP. Executive will participate in the Unum Corporation Senior Executive Retirement Plan providing monthly retirement benefits, determined as set forth in Attachment A, and subject to satisfying applicable eligibility requirements (the “Retirement Benefit”).

 

(c) Welfare Benefit Plans. During the Employment Period, Executive and Executive’s eligible dependents shall be eligible for participation in, and shall receive all benefits under, the welfare benefit plans, practices, policies and programs provided by the Company (including, without limitation, medical, prescription drug, dental, disability, employee life, dependent life, accidental death and travel accident insurance plans and programs) (“Welfare Plans”) to the extent available to other Peer Executives.

 

(d) Expenses. During the Employment Period, Executive shall be entitled to receive prompt reimbursement for all reasonable expenses incurred by Executive in the course of performing his duties and responsibilities under this Agreement, in accordance with the policies, practices and procedures of the Company to the extent available to other Peer Executives with respect to travel, entertainment and other business expenses. Without limiting the foregoing, the Company will pay, or reimburse Executive for, the reasonable legal fees and expenses incurred by Executive in connection with the negotiation and execution of this Agreement, not to exceed $10,000.

 

(e) Fringe Benefits. During the Employment Period, Executive shall be entitled to fringe benefits in accordance with the plans, practices, programs and policies of the Company available to other Peer Executives. Without limiting the foregoing the following shall apply:

 

(i) Relocation Benefits. Executive will be entitled to relocation assistance in connection with his move to Chattanooga, Tennessee from Connecticut, for up to the longer of (i) two years after the Effective Date or (ii) two years after the sale of his home in Connecticut, consistent with the terms and conditions the UnumProvident Relocation Payback Agreement, including the Primacy Relocation Program. The Company will make a gross-up payment to Executive to cover federal, state and local income taxes on any income recognized by Executive from the Home Sale Benefit. For such period as desired by Executive during the Employment Period, the Company will provide Executive with use of the corporate apartment in Chattanooga, Tennessee. The Company will make a gross-up payment to Executive to cover federal, state and local income taxes on any income recognized by Executive for the first six months of such apartment privileges.

 

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(ii) Financial and Tax Planning. During the Employment Period, and consistent with plans, practices, programs and policies of the Company available to Peer Executives, Executive will be provided with the services of a financial counselor (through financial counseling firms designated by the Company), plus reimbursement of $3,000 per year for related financial planning services, such as will preparation and preparation of tax returns.

 

(iii) Club Membership. During the Employment Period, Executive will be provided with membership privileges at the Chattanooga Golf and Country Club.

 

(f) Paid Time Off . During the Employment Period, Executive will be entitled to such paid time off as may be provided from time to time under any plans, practices, programs and policies of the Company available to other Peer Executives.

 

6. Change in Control. For the purposes of this Agreement, a “Change in Control” shall mean the occurrence of any one of the following events:

 

(a) during any period of two consecutive years, individuals who, at the beginning of such period, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming a director and whose election or nomination for election was approved by a vote of at least two-thirds of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which such person is named as a nominee for director, without written objection to such nomination) shall be an Incumbent Director; provided, however, that no individual initially elected or nominated