1
EXHIBIT 10.9
[FORM OF RETENTION AGREEMENT
FOR MESSRS. ▇▇▇▇▇▇ AND ▇▇▇▇▇]
ARGONAUT GROUP, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
February __, 1998
Mr. [______________]
Argonaut Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear [_________]:
This letter sets forth the agreement (the "Agreement") between
you and Argonaut Group, Inc. (the "Company") regarding severance payments and
related benefits if your employment terminates in connection with a Change in
Control (as defined below).
ARTICLE I
DEFINITIONS
1.1 Definitions
Whenever used in this Agreement, the following capitalized terms shall have
the meanings set forth in this Section 1.1, certain other capitalized terms
being defined elsewhere in this Agreement:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" shall mean the occurrence of any of the following:
(i)Any "Person" or "Group" (as such terms are defined in Section 13(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") and the rules and
regulations promulgated thereunder) is or becomes the "Beneficial Owner"
(within the meaning of Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company, or of any entity resulting from a
merger or consolidation involving the Company, representing more than fifty
percent (50%) of the combined voting power of the then outstanding
securities of the Company or such entity.
(ii) The individuals who, as of the date hereof, are members of the Board
10.9-1
2
EXHIBIT 10.9
(the"Existing Directors"), cease, for any reason, to constitute more than fifty
percent (50%) of the number of authorized directors of the Company as
determined in the manner prescribed in the Company's Certificate of
Incorporation and Bylaws; provided, however, that if the election, or
nomination for election, by the Company's stockholders of any new director
was approved by a vote of at least fifty percent (50%) of the Existing
Directors, such new director shall be considered an Existing Director;
provided further, however, that no individual shall be considered an
Existing Director if such individual initially assumed office as a result of
either an actual or threatened "Election Contest" (as described in Rule
14a-11 promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies by or on behalf of anyone other than the Board (a
"Proxy Contest"), including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest.
(iii) The consummation of (x) a merger, consolidation or reorganization to
which the Company is a party, whether or not the Company is the Person
surviving or
resulting therefrom, or (y) a sale, assignment, lease, conveyance or other
disposition of all or substantially all of the assets of the Company, in one
transaction or a series of related transactions, to any Person other than
the Company, where any such transaction or series of related transactions as
is referred to in clause (x) or clause (y) above in this subparagraph (iii)
(a "Transaction") does not otherwise result in a "Change in Control"
pursuant to subparagraph (i) of this definition of "Change in Control";
provided, however, that no such Transaction shall constitute a "Change in
Control" under this subparagraph (iii) if the Persons who were the
stockholders of the Company immediately before the consummation of such
Transaction are the Beneficial Owners, immediately following the
consummation of such Transaction, of fifty percent (50%) or more of the
combined voting power of the then outstanding voting securities of the
Person surviving or resulting from any merger, consolidation or
reorganization referred to in clause (x) above in this subparagraph (iii) or
the Person to whom the assets of the Company are sold, assigned, leased,
conveyed or disposed of in any transaction or series of related transactions
referred in clause (y) above in this subparagraph (iii).
(c) "Company" means Argonaut Group, Inc., a Delaware corporation, and any
successor or assignee as provided in Article V.
(d) "Compensation" means and includes all of your base salary attributable
to your employment with the Company and/or any of its Subsidiaries
(including, but not limited to, any amounts excludable from your gross
income for federal income tax purposes pursuant to Section 125 or Section
401(k) of the Internal Revenue Code of 1986, as amended), in effect
immediately before a Change in Control. "Compensation" shall not include
your bonuses or other cash or non-cash compensations or reimbursements, if
any (e.g., the grant or vesting of restricted stock, the grant, vesting, or
exercise of stock options, automobile allowance and gasoline reimbursement).
(e) "Disability" means a physical or mental infirmity which substantially
impairs your ability to perform your material duties for a period of at
least one hundred eighty (180) consecutive calendar days, and, as a result
of such Disability, you have not returned to your full-time regular
employment prior to termination.
10.9-2
3
EXHIBIT 10.9
(f) "Effective Time" means February __, 1998.
(g) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(h) "Good Reason" means the occurrence, on or after the Effective Time, of
any of the following:
(i) The Company or any of its Subsidiaries
reduces your Compensation as in effect on
the Effective Time.
(ii) Without your express written consent, the
Company or any of its Subsidiaries requires
you to change the location of your job or
office, so that you will be based at a
location more than fifty (50) miles from the
location of your job or office on the
Effective Time.
(iii) A successor to the Company fails or refuses
to assume the obligations of the Company
under this Agreement.
(iv) The Company or any successor breaches any of
the material provisions of this Agreement.
(i) "Just Cause" means the termination of your employment as a
result of (i) fraud, misappropriation of or intentional and
material damage to the property or business of the Company
(including its Subsidiaries), (ii) conviction of a felony
involving moral turpitude, (iii) material neglect, failure or
refusal to follow the reasonable directions of the Board, to
perform the duties reasonably assigned to you, or to follow
material Company policies, if you do not begin to cure such
neglect, failure or refusal within ten (10) days after
receiving written notice from the Company to do so.
(j) "Person" shall have the meaning set forth in the definition
of
"Change in Control."
(k) "Release" means the Separation and General Release Agreement
in the form attached hereto as Exhibit "A".
(l) "Severance Payment" means the payment of severance compensation as
provided in Article III.
(m) "Subsidiary" means any corporation or other Person, a majority
of the voting power, equity securities or equity interest of
which is owned directly or indirectly by the Company.
(n) "WARN" means the Worker Adjustment and Retraining
Notification
Act, 29 U.S.C. ss. 2101 et seq.
ARTICLE II
EXCISE TAX LIMITATION
10.9-3
4
EXHIBIT 10.9
2.1 Limitation
Notwithstanding anything contained in this Agreement to the contrary,
in the event that any payment or benefit (within the meaning of Section
280G(b)(2) of the Code) to you or for your benefit paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise in connection with, or arising out of, your employment with the
Company or any of its Subsidiaries or a Change of Control within the meaning of
Section 280G of the Code (a "Payment" or "Payments"), would be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then the
Payments shall be reduced (but not below zero) but only to the extent necessary
that no portion thereof shall be subject to the excise tax imposed by Section
4999 of the Code (the "Section 4999 Limit"). Unless you shall have given prior
written notice specifying a different order to the Company to effectuate the
limitations described in the preceding sentence, the Company shall reduce or
eliminate the Payments by first reducing or eliminating those Payments or
benefits which are not payable in cash and then by reducing or eliminating cash
Payments, in each case in reverse order beginning with payments or benefits
which are to be paid the farthest in time from the Determination (as hereinafter
defined). Any notice given by you pursuant to the preceding sentence shall take
precedence over the provisions of any other plan, arrangement or agreement
governing your rights and entitlements to any benefits or compensation.
2.2 Determinations
All determinations required to be made under this Article III (each, a
"Determination") shall be made, at the Company's expense, by a nationally
recognized accounting firm designated by the Company and reasonably acceptable
to you (the "Accounting Firm"). The Accounting Firm shall provide its
calculations, together with detailed supporting documentation, both to the
Company and to you before payment of your Severance Payment hereunder (if
requested at that time by the Company or you) or such other time as requested by
the Company or you (in either case provided that the Company or you believe in
good faith that any of the Payments may be subject to the Excise Tax); provided,
however, that if the Accounting Firm determines that no Excise Tax is payable by
you with respect to a Payment or Payments, it shall furnish you with an opinion
reasonably acceptable to you that no Excise Tax will be imposed with respect to
any such Payment or Payments. Within ten (10) calendar days of the delivery of
the Determination to you, you shall have the right to dispute the Determination
(the "Dispute"). The existence of any Dispute shall not in any way affect your
right to receive the Payments in accordance with the Determination. If there is
no Dispute, the Determination by the Accounting Firm shall be final, binding and
conclusive upon the Company and you, subject to the application of Section 2.3.
2.3 Adjustments
As a result of the uncertainty in the application of Sections 4999 and
280G of the Code, it is possible that the Payments either will have been made or
will not have been made by the Company, in either case in a manner inconsistent
with the limitations provided in Section 2.1 (an "Excess Payment" or
"Underpayment", respectively). If it is established pursuant to (i) a final
determination of a court for which all appeals have been taken and finally
resolved or the time for all appeals has expired, or (ii) an Internal Revenue
Service (the "IRS") proceeding which has been finally and conclusively resolved,
that an Excess Payment has been made, such Excess Payment shall be deemed for
all purposes to be a loan to you made on the date you received the
10.9-4
5
EXHIBIT 10.9
Excess Payment and you shall repay the Excess Payment to the Company on demand,
together with interest on the Excess Payment at one hundred twenty percent
(120%) of the applicable federal rate (as defined in Section 1274(d) of the
Code) compounded semi-annually from the date of your receipt of such Excess
Payment until the date of such repayment. If it is determined (i) by the
Accounting Firm, the Company (which shall include the position taken by the
Company, together with its consolidated group, on its federal income tax return)
or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the
resolution to your satisfaction of the Dispute, that an Underpayment has
occurred, the Company shall pay an amount equal to the Underpayment to you
within ten (10) calendar days of such determination or resolution, together with
interest on such amount at one hundred twenty percent (120%) of the applicable
federal rate compounded semi-annually from the date such amount should have been
paid to you pursuant to the terms of this Agreement or otherwise, but for the
operation of this Section 2.3, until the date of payment.
ARTICLE III
SEVERANCE PAYMENTS
3.1 Right to Severance Payment; Release
Conditioned on the execution and delivery by you (or your beneficiary
or personal representative, if applicable) of the Release, you shall be entitled
to receive a Severance Payment from the Company in the amount provided in
Section 3.2 if (a) you are an active employee of the Company or any Subsidiary
on the Effective Time, and (b) within eighteen (18) months after the occurrence
of a Change in Control, your employment is involuntarily terminated by the
Company or any of its Subsidiaries for any reason other than Just Cause or your
death or Disability, or you voluntarily terminate your employment with the
Company and all Subsidiaries for Good Reason within sixty (60) days after the
occurrence of such Good Reason. For purposes of clause (a) of the preceding
sentence, you will still be considered to be an active employee on the Effective
Time if you are then on sick leave, military leave or any other leave of absence
approved by the Company or any of its Subsidiaries. Notwithstanding the
foregoing, you will not be entitled to receive a Severance Payment to the extent
you receive payments which the Company or its Subsidiaries are required to make
to you under WARN.
3.2 Amount of Severance Payment
If you become entitled to a Severance Payment under this Agreement, the
amount of your Severance Payment, when added to any payments which the Company
or its Subsidiaries are required to make to you under WARN, shall equal the sum
of:
(a) [two and one-half (2-1/2) for ▇▇. ▇▇▇▇▇▇] [one (1) for ▇▇.
▇▇▇▇▇] times your annual Compensation; plus
(b)the amount of your annual bonus for the fiscal year of the Company preceding
10.9-5
6
EXHIBIT 10.9
the fiscal year in which the Change in Control occurs.
3.3 No Mitigation
The Company acknowledges and agrees that you shall be entitled to
receive your entire Severance Payment regardless of any income which you may
receive from other sources following your termination on or after the Effective
Time.
3.4 Payment of Severance Payment
The Severance Payment to which you are entitled shall be paid to you,
in cash and in full, not later than eight (8) calendar days after execution and
delivery by you (or your beneficiary or personal representative, if applicable)
of the Release Agreement, but in no event before the date on which such Release
becomes effective. If you should die before all amounts payable to you have been
paid, such unpaid amounts shall be paid to your beneficiary under this Agreement
or, if you have not designated such a beneficiary in writing to the Company, to
the personal representative(s) of your estate.
3.5 Health Benefits Coverage
If you are entitled to receive a Severance Payment under Section 3.1,
you will also be entitled to receive health benefits coverage for you and your
dependents under the same plan(s) or arrangement(s) under which you were covered
immediately before your termination of employment or plan(s) established or
arrangement(s) provided by the Company or any of its Subsidiaries thereafter.
Such health benefits coverage shall be paid for by the Company to the same
extent as if you were still employed by the Company, and you will be required to
make such payments as you would be required to make if you were still employed
by the Company. The benefits provided under this Section 3.5 shall continue
until the earlier of (a) the expiration of [two and one-half (2-1/2) years for
▇▇. ▇▇▇▇▇▇] [one (1) year for ▇▇. ▇▇▇▇▇] following the date of your termination
of employment, or (b) the date you become covered under any other group health
plan not maintained by the Company or any of its Subsidiaries; provided,
however, that if such other group health plan excludes any pre-existing
condition that you or your dependents may have when coverage under such group
health plan would otherwise begin, coverage under this Section 3.5 shall
continue (subject to the [two and one-half (2-1/2) for ▇▇. ▇▇▇▇▇▇] [one (1) year
for ▇▇. ▇▇▇▇▇] limitation of clause (a) of this sentence) with respect to such
pre-existing condition until such exclusion under such other group health plan
lapses or expires. In the event you are required to make an election under
Sections 601 through 607 of ERISA (commonly known as COBRA) to qualify for the
benefits described in this Section 3.5, the obligations of the Company and its
Subsidiaries under this Section 3.5 shall be conditioned upon your timely making
such an election.
3.6 Automobile
If you become entitled to receive a Severance Payment under Section
3.1, and you then have the use of an automobile that is provided to you at the
expense of the Company or any Subsidiary, you shall have the right, for ninety
(90) days following your termination of
10.9-6
7
EXHIBIT 10.9
employment, (a) to continue your use of the automobile on the same basis on
which you used it immediately before your termination of employment, or (b) to
purchase the automobile from the Company or Subsidiary for its low wholesale
bluebook value, or, if the Company or Subsidiary has leased the automobile, to
assume the lease, or (c) to take the actions described in clauses (a) and (b) of
this sentence.
3.7 Withholding of Taxes
The Company may withhold from any amounts payable under this Agreement
all federal, state, city or other taxes required by applicable law to be
withheld by the Company.
ARTICLE IV
OTHER RIGHTS AND BENEFITS NOT AFFECTED
4.1 Other Benefits
This Agreement does not provide a pension for you, nor shall any
payment hereunder be characterized as deferred compensation. Except as set forth
in Section 4.2, neither the provisions of this Agreement nor the Severance
Payment provided for hereunder shall reduce any amounts otherwise payable, or in
any way diminish your rights as an employee, whether existing now or hereafter,
under any written benefit, incentive, retirement, stock option, stock bonus or
stock purchase plan or any written employment agreement or other written plan or
arrangement not related to severance.
4.2 Other Severance Agreements Superseded
As of the Effective Time, this Agreement will supersede any and all
other severance plans of the Company or its Subsidiaries and severance
agreements between you and the Company and its Subsidiaries, and your
participation in any other severance plan of the Company and its Subsidiaries
will be hereby terminated.
4.3 Employment Status
This Agreement does not constitute a contract of employment or impose
on you any obligation to remain in the employ of the Company, nor does it impose
on the Company or any of its Subsidiaries any obligation to retain you in your
present or any other position, nor does it change the status of your employment
as an employee at will. Nothing in this Agreement shall in any way affect the
right of the Company or any of its Subsidiaries in its absolute discretion to
change or reduce your compensation at any time, or to change at any time one or
more benefit plans, including but not limited to pension plans, dental plans,
health care plans, savings plans, bonus plans, vacation pay plans, disability
plans, and the like.
10.9-7
8
EXHIBIT 10.9
ARTICLE V
SUCCESSOR TO COMPANY
The Company shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Company, expressly and
unconditionally to assume and agree to perform the Company's obligations under
this Agreement, in the same manner and to the same extent that the Company would
be required to perform if no such succession or assignment had taken place. In
such event, the term "Company," as used in this Agreement, shall mean (from and
after, but not before, the occurrence of such event) the Company as herein
before defined and any successor or assignee to the business or assets which by
reason hereof becomes bound by the terms and provisions of this Agreement.
10.9-8
9
EXHIBIT 10.9
ARTICLE VI
CONFIDENTIALITY
6.1 Nondisclosure of Confidential Material
In the performance of your duties, you have previously had, and may in
the future have, access to confidential records and information, including, but
not limited to, development, marketing, purchasing, organizational, strategic,
financial, managerial, administrative, manufacturing, production, distribution
and sales information, data, specifications and processes presently owned or at
any time hereafter developed by the Company or its agents or consultants or used
presently or at any time hereafter in the course of its business, that are not
otherwise part of the public domain (collectively, the "Confidential Material").
All such Confidential Material is considered secret and has been and/or will be
disclosed to you in confidence. By your acceptance of your Severance Payment
under this Agreement, you shall be deemed to have acknowledged that the
Confidential Material constitutes proprietary information of the Company which
draws independent economic value, actual or potential, from not being generally
known to the public or to other persons who could obtain economic value from its
disclosure or use, and that the Company has taken efforts reasonable under the
circumstances, of which this Section 6.1 is an example, to maintain its secrecy.
Except in the performance of your duties to the Company, you shall not, directly
or indirectly for any reason whatsoever, disclose or use any such Confidential
Material, except that the foregoing disclosure prohibition shall not apply as to
Confidential Material that (i) has been publicly disclosed or was within your
possession prior to its being furnished to you by the Company or becomes
available to you on a nonconfidential basis from a third party (in any of such
cases, not due to a breach by you of your obligations to the Company or by
breach of any other person of a confidential, fiduciary or confidential
obligation, the breach of which you know or reasonably should know), (ii) is
required to be disclosed by you pursuant to applicable law, and you provide
notice to the Company of such requirement as promptly as possible, or (iii) was
independently acquired or developed by you without violating any of the
obligations under this Agreement and without relying on Confidential Material of
the Company. All records, files, drawings, documents, equipment and other
tangible items, wherever located, relating in any way to the Confidential
Material or otherwise to the Company's business, which you have prepared, used
or encountered or shall in the future prepare, use or encounter, shall be and
remain the Company's sole and exclusive property and shall be included in the
Confidential Material. Upon your termination of employment with the Company, or
whenever requested by the Company, you shall promptly deliver to the Company any
and all of the Confidential Material and copies thereof, not previously
delivered to the Company, that may be, or at any previous time has been, in your
possession or under your control.
6.2 Nonsolicitation of Employees
By your acceptance of your Severance Payment under this Plan, you agree
that, for a period of two (2) years following your termination of employment
with the Company or its Subsidiaries, neither you nor any Person or entity in
which you have an interest shall solicit any person who was employed on the date
of your termination of employment by the Company or any of its Subsidiaries to
leave the employ of the Company or any of its Subsidiaries. Nothing in
10.9-9
10
EXHIBIT 10.9
this Section 6.2, however, shall prohibit you or any Person or entity in which
you have an interest from placing advertisements in periodicals of general
circulation soliciting applications for employment, or from employing any person
who answers any such advertisement. For purposes of this Section 6.2, you shall
not be deemed to have an interest in any corporation whose stock is publicly
traded merely because you are the owner of not more than two percent (2%) of the
outstanding shares of any class of stock of such corporation, provided you have
no active participation in the business of such corporation (other than voting
your stock) and you do not provide services to such corporation in any capacity
(whether as an employee, an independent contractor or consultant, a board
member, or otherwise).
6.3 Equitable Relief
By your acceptance of your Severance Payment under this Agreement, you
shall be deemed to have acknowledged that violation of Sections 6.1 or 6.2 would
cause the Company irreparable damage for which the Company cannot be reasonably
compensated in damages in an action at law, and that therefore in the event of
any breach by you of Sections 6.1 or 6.2, the Company shall be entitled to make
application to a court of competent jurisdiction for equitable relief by way of
injunction or otherwise (without being required to post a bond). This provision
shall not, however, be construed as a waiver of any of the rights which the
Company may have for damages under this Agreement or otherwise, and, except as
limited in Article VII, all of the Company's rights and remedies shall be
unrestricted.
10.9-10
11
EXHIBIT 10.9
ARTICLE VII
ARBITRATION
Except for equitable relief as provided in Section 6.3, arbitration in
accordance with the then most applicable rules of the American Arbitration
Association shall be the exclusive remedy for resolving any dispute or
controversy between you and the Company or any of its Subsidiaries, including,
but not limited to, any dispute regarding your employment or the termination of
your employment or any dispute regarding the application, interpretation or
validity of this Agreement not otherwise resolved through the claims procedure
set forth in Section 8.10. The arbitrator shall be empowered to grant only such
relief as would be available in a court of law. In the event of any conflict
between this Agreement and the rules of the American Arbitration Association,
the provisions of this Agreement shall be determinative. If the parties are
unable to agree upon an arbitrator, they shall select a single arbitrator from a
list designated by the office of the American Arbitration Association having
responsibility for the city in which you primarily performed services for the
Company or its Subsidiaries immediately before your termination of employment of
seven arbitrators, all of whom shall be retired judges who are actively involved
in hearing private cases or members of the National Academy of Arbitrators, and
who, in either event, are residents of the area in which you primarily performed
services for the Company or its Subsidiaries immediately before your termination
of employment. If the parties are unable to agree upon an arbitrator from such
list, they shall each strike names alternatively from the list, with the first
to strike being determined by lot. After each party has used three strikes, the
remaining name on the list shall be the arbitrator. The fees and expenses of the
arbitrator shall initially be borne equally by the parties; provided, however,
that each party shall initially be responsible for the fees and expenses of its
own representatives and witnesses. Unless mutually agreed otherwise by the
parties, any arbitration shall be conducted at a location within fifty (50)
miles from the location in which you primarily performed services for the
Company or any of its Subsidiaries immediately before your termination of
employment. If the parties cannot agree upon a location for the arbitration, the
arbitrator shall determine the location within such fifty (50) mile radius.
Judgment may be entered on the award of the arbitrator in any court having
jurisdiction. The prevailing party in the arbitration proceeding, as determined
by the arbitrator, and in any enforcement or other court proceedings, shall be
entitled to the extent provided by law to reimbursement from the other party for
all of the prevailing party's costs (including but not limited to the
arbitrator's compensation), expenses and reasonable attorney's fees.
ARTICLE VIII
MISCELLANEOUS
8.1 Applicable Law
To the extent not preempted by the laws of the United States, the laws of the
State of
10.9-11
12
EXHIBIT 10.9
California shall be the controlling law in all matters relating to this
Agreement, regardless of the choice-of-law rules of the State of California or
any other jurisdiction.
8.2 Construction
No term or provision of this Agreement shall be construed so as to
require the commission of any act contrary to law, and wherever there is any
conflict between any provision of this Agreement and any present or future
statute, law, ordinance, or regulation, the latter shall prevail, but in such
event the affected provision of this Agreement shall be curtailed and limited
only to the extent necessary to bring such provision within the requirements of
the law.
8.3 Severability
If a provision of this Agreement shall be held illegal or invalid, the
illegality or invalidity shall not affect the remaining parts of this Agreement
and this Agreement shall be construed and enforced as if the illegal or invalid
provision had not been included.
8.4 Headings
The Section headings in this Agreement are inserted only as a matter of
convenience, and in no way define, limit, or extend or interpret the scope of
this Agreement or of any particular Section.
8.5 Assignability
Your rights or interests under this Agreement shall not be assignable
or transferrable (whether by pledge, grant of a security interest, or otherwise)
by you, your beneficiaries or legal representatives, except by will or by the
laws of descent and distribution.
8.6 Term
If no Change in Control has theretofore occurred, this Agreement shall
expire and be of no further force and effect on December 31, 1999; provided that
the Board may, at any time prior to the expiration hereof, extend the term of
this Agreement. If a Change in Control occurs on or before December 31, 1999 (or
before the expiration of the extended term if the Board had extended the term of
this Agreement), this Agreement shall continue in full force and effect until
its terms and provisions are completely carried out.
8.7 Amendment
Except as set forth in Section 8.6, no provision of this Agreement may
be modified, waived or discharged unless such waiver, modification or discharge
is agreed to in writing and signed by you and the Company. No waiver by the
Company or you at any time or any breach by the other party of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar provisions or conditions
at the same or any prior or subsequent time. No agreement or representations,
written
10.9-12
13
EXHIBIT 10.9
or oral, express or implied, with respect to the subject matter hereof, have
been made by either party which are not expressly set forth in this Agreement.
8.8 Notices
For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly
given when personally delivered, telecopied, or sent by certified or overnight
mail, return receipt requested, postage prepaid, addressed to the respective
addresses, or sent to the respective telecopier numbers, last given by each
party to the other, provided that all notices to the Company shall be directed
to the attention of the Board of Directors with a copy to the General Counsel.
All notices and communications shall be deemed to have been received on the date
of delivery thereof if personally delivered, upon return confirmation if
telecopied, on the third business day after the mailing thereof, or on the date
after sending by overnight mail, except that notice of change of address shall
be effective only upon actual receipt. No objection to the method of delivery
may be made if the written notice or other communication is actually received.
8.9 Administration
This Agreement is part of the Argonaut, Inc. Employee Retention Plan,
which is a welfare benefit plan within the meaning of Section 3(1) of ERISA. The
Administrator of such Plan, within the meaning of Section 3(16) of ERISA, and
the Named Fiduciary thereof, within the meaning of Section 402 of ERISA, is the
Company. Attached hereto as Exhibit "B" is a statement of your rights under
ERISA.
8.10 Claims
If you believe you are entitled to a benefit under this Agreement, you
may make a claim for such benefit by filing with the Company a written statement
setting forth the amount and type of payment so claimed. The statement shall
also set forth the facts supporting the claim. The claim may be filed by mailing
or delivering it to the Secretary of the Company.
Within sixty (60) calendar days after receipt of such a claim, the
Company shall notify you in writing of its action on such claim and if such
claim is not allowed in full, shall state the following in a manner calculated
to be understood by you:
(a) The specific reason or reasons for the denial;
(b) Specific reference to pertinent provisions of this Agreement on which
the denial is based;
(c) A description of any additional material or information necessary for
you to be entitled to the benefits that have been denied and an
explanation of why such material or information is necessary; and
(d) An explanation of this Agreement's claim review procedure.
10.9-13
14
EXHIBIT 10.9
If you disagree with the action taken by the Company, you or your duly
authorized representative may apply to the Company for a review of such action.
Such application shall be made within one hundred twenty (120) calendar days
after receipt by you of the notice of the Company's action on your claim. The
application for review shall be filed in the same manner as the claim for
benefits. In connection with such review, you may inspect any documents or
records pertinent to the matter and may submit issues and comments in writing to
the Company. A decision by the Company shall be communicated to you within sixty
(60) calendar days after receipt of the application. The decision on review
shall be in writing and shall include specific reasons for the decision, written
in a manner calculated to be understood by you, and specific references to the
pertinent provisions of this Agreement on which the decision is based.
8.11 Notice of Termination
Following the Effective Time, any purported termination of your
employment by the Company or any of its Subsidiaries shall be communicated by a
written notice of termination, which such notice shall indicate the specific
termination provision in this Agreement, if any, relied upon and which shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of your employment under any provision so indicated.
If this Agreement is acceptable to you, please sign the enclosed copy
of this Agreement in the space provided below and return it to me.
Sincerely,
ARGONAUT GROUP, INC.
By: _____________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
President and CEO
ACCEPTED AND AGREED TO:
-----------------------
10.9-14