Exhibit 10.7
DEFERRED
COMPENSATION
and
SETTLEMENT
AGREEMENT
between
FPIC INSURANCE GROUP,
INC.
and
JOHN R. BYERS
THIS AGREEMENT, effective as of December 31, 2008, between FPIC
Insurance Group, Inc., a Florida corporation (the “
Company ”), and John R. Byers, an individual (the
“ Executive ”).
W I T N E S S E T H:
WHEREAS, the Executive is an active employee of the
Company and is currently a participant in the FPIC Insurance
Group, Inc. Supplemental Executive Retirement Plan , as
amended (the “ Prior Plan ”), sponsored by the
Company; and
WHEREAS, the Company maintains the FPIC Insurance
Group, Inc. Nonqualified Deferred Compensation Plan (the "
Deferred Comp Plan ") for the benefit of certain of its
management and highly compensated employees; and
WHEREAS, the Company wishes to terminate the Prior
Plan with respect to the Executive, and the parties hereto wish to
enter into this Agreement for the purpose of (i) providing for a
full and final settlement of all matters arising with respect to or
pertaining to the Prior Plan, including without limitation the
value of benefits, whether past, present or future, the
value of which is subject to a bona fide dispute, claims for attorneys' fees and expenses, and any and
all other tort, contract, statutory and other claims of any kind
related to the Prior Plan and (ii) providing the Executive with
additional Deferred Comp Plan benefits in order to provide
retirement benefits to the Executive; and
NOW, THEREFORE, in consideration of the mutual
promises, covenants, agreements and undertakings contained herein,
and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties,
intending to be legally bound, do hereby agree as
follows:
a. “
Code ” shall mean the Internal Revenue Code of 1986,
as amended.
b. “
ERISA ” shall mean the Employee Retirement Income
Security Act of 1974, as amended.
c. “
Person ” shall be construed as broadly as possible and
shall include an individual or natural person, a partnership
(including a limited liability partnership), a
corporation, a
limited liability company, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization, a business,
and any other entity.
d. Capitalized
terms used herein without definition shall have the same meanings
herein as in the Deferred Comp Plan.
2.
Termination of the Prior Plan; Release .
(a) On
the date hereof, the Executive shall cease to be a participant in
the Prior Plan, which is hereby terminated as to the Executive, and
the Company shall have no further obligations to the Executive
thereunder. In settlement of the amounts accrued and
vested on or before December 31, 2008, for the benefit of the
Executive in the Prior Plan the Company shall credit the
contribution to the Deferred Comp Plan described in Section 3(a)
below. In consideration of the Executive’s
relinquishment of future benefits under the Prior Plan and of his
continued services to the Company, the Company shall credit the
contributions to the Deferred Comp Plan described in Section 3(b)
below.
(b) The
Executive accepts the terms of this Agreement in full, final and
complete settlement and satisfaction of any and all claims that in
any way relate, pertain to or arise out of the Prior
Plan. Accordingly, the Executive does hereby release the
Company, its successors or purchasers, and any and all parent,
subsidiary and affiliated corporations or business entities, and
any and all respective past or present executives, officers,
agents, directors, shareholders, members, partners and
representatives of the foregoing, and others acting for or on
behalf of the foregoing (hereinafter the “ Releasees
”) from all past, present or future claims, actions, rights
or benefits of whatever nature or description, including any claims
for attorneys' fees and expenses, from the beginning of time
arising out of or relating to the Executive's rights under the
Prior Plan.
(c) It
is further understood and agreed that this document is intended to
be a total accord, settlement and satisfaction of any and all
claims, in law or in equity, that the Executive has or may have
against the Releasees related to the Prior Plan, including, but not
limited to, all contract, tort and statutory claims arising under
any applicable state or federal statutes or laws, including but not
limited to ERISA and the Code.
(d) The
Executive warrants and acknowledges that the execution by the
Executive of this Agreement, including the general release set
forth above, is knowing and voluntary and that the Executive
understands this Agreement, including the general release set forth
above. The Executive further acknowledges and warrants
that he has been advised to consult with an attorney prior to the
execution of this Agreement, and that he has had the opportunity to
consult with an attorney with respect to the terms of this
Agreement, including the general release contained herein.
3
.
Company Contributions to Deferred Comp Plan .
(a)
Initial Contribution. As soon as reasonably
practicable after January 12, 2009, the Company will credit the
Executive's Retirement Account under the Deferred Comp Plan with a
Company Contribution equal to $1,276,433.
(b)
Annual Contributions. Contemporaneously with
each payment of base salary (whether before or after the
Executive’s Separation from Service) paid by the Company to
the Executive, commencing with the first payment during 2009, the
Company will credit the Executive's Retirement Account under the
Deferred Comp Plan with Company Contributions in an amount equal to
the percentage shown on Schedule 1 hereto of the gross
amount of each such payment of base salary.
(c)
Transfer to Rabbi Trust. Contemporaneously with
each Company Contribution hereunder, the Company will transfer to a
trust established pursuant to Section 11.2 of the Deferred Comp
Plan an amount in cash equal to the amount of such Company
Contribution. The Company will cause such trust at all
times to possess funds at least equal to the s
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