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EXHIBIT 10(b)
CONSULTING, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
THIS CONSULTING, CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
("Agreement") is made and entered into as of the 24th day of April, 2000 by and
between Professionals Group, Inc., a Michigan corporation ("Professionals
Group"), and ___________________ (the "Consultant").
W I T N E S S E T H :
WHEREAS, Professionals Group desires to retain Consultant for the
period set forth in this Agreement to obtain services from the Consultant, and
Consultant is willing to be retained by Professionals Group pursuant to this
Agreement; and
WHEREAS, Consultant acknowledges (i) that Consultant's expertise will
contribute significantly to the financial success of the business of
Professionals Group and (ii) that the compensation, covenants not to compete and
confidentiality provisions in this Agreement are reasonable.
NOW, THEREFORE, in consideration of the premises, as well as for other
good and valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereby agree as follows:
1. Consulting Relationship. Professionals Group hereby retains
Consultant to provide Consulting Services (as defined in Section 2 of this
Agreement) for a term commencing on the date hereof (the "Effective Date") and
ending on that date that is the earlier of the date this Agreement is terminated
and December 31, 2002 (the "Expiration Date").
2. Consulting Services. Consultant agrees if requested by the
Chairman of the Board or President of Professionals Group: (i) to serve as a
member of the Board of Directors of Professionals Group, any committees thereof,
any advisory boards and/or regional advisory boards of Professionals Group,
consistent with Consultant's skills, background and experience; and, (ii) to
serve as a member of any committees, advisory boards and/or regional advisory
boards of ProNational Insurance Company consistent with Consultant's skills,
background and experience; and, (iii) to provide such other consulting services
as may be reasonably requested by the Chairman or President of Professionals
Group consistent with the Consultant's skills, background and experience.
Consultant shall not be required to devote a specific amount of time each year
to the performance of his duties, but shall spend that amount of time reasonably
necessary to accomplish the assigned tasks (including Board, advisory board and
committee service) faithfully and completely. The services of Consultant as
described above are collectively defined as the "Consulting Services."
3. Compensation.
a. In consideration of, among other things, the
Consulting Services rendered by Consultant, Professionals Group shall pay
Consultant during each calendar year during the term of this Agreement the sum
of $25,000; provided, however, that any and all fees paid to
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Consultant during such calendar year for serving on the Board of Directors of
Professionals Group and any advisory board or committee thereof, and/or for
serving on the Board of Directors of any subsidiary of Professionals Group or
any advisory board or committee thereof, shall be credited against, and, to the
extent of the aggregate amount of such fees, shall constitute payment of, said
sum.
b. Professionals Group shall reimburse Consultant,
within 30 days after Consultant submits expense receipts to the Company, for all
reasonable out-of-pocket travel expenses that are paid by Consultant in
performing the Consulting Services.
c. In consideration of Consultant's Consulting Services
and Consultant's covenants regarding confidentiality and noncompetition,
Professionals Group has granted and allocated to Consultant 7,140 shares of
Professionals Group Common Stock (the "Shares"); provided, however, that
Professionals Group, at its sole election, may pay to Consultant the sum of
Twenty-eight ($28.00) Dollars per share in lieu of, and in full satisfaction of,
its obligation to issue any or all of the shares of Professionals Group common
stock granted to Consultant pursuant to this Agreement ("the Cash Payment in
Lieu of Shares").
(i) The grant and allocation of Shares to Consultant
shall be provisional, and subject to the vesting requirements of this
Agreement. Any Shares that do not vest pursuant to the terms of this
Agreement shall be canceled and forfeited.
(ii) The Shares granted and allocated to Consultant
shall vest in accordance with the schedule that follows: (A) one-third
of the Shares granted and allocated to Consultant shall vest on July 1,
2000 provided this Agreement is then in effect; (B) one-third of the
Shares granted and allocated to Consultant shall vest on July 1, 2001
provided this Agreement is then in effect; and, (C) one-third of the
Shares granted and allocated to Consultant shall vest on July 1, 2002
provided this Agreement is then in effect. Notwithstanding anything to
the contrary express or implied in this Agreement, all Shares granted
and allocated to Consultant shall automatically vest (y) upon the death
of Consultant while this Agreement is in effect, or (z) upon a change
of control of Professionals Group prior to the termination of this
Agreement.
(iii) All Shares granted and allocated to Consultant
that vest shall cease to be subject to cancellation and forfeiture and,
except to the extent that Consultant may have pledged or otherwise
encumbered such vested Shares, Consultant shall be the full record and
beneficial owner of such vested Shares. Within 30 days of the date of
vesting of any of the Shares granted and allocated to Consultant,
Professionals Group shall deliver to Consultant certificates evidencing
full legal and beneficial ownership of the Shares vesting on such date.
Those Shares granted and allocated to Consultant that vest need not, at
the time of such vesting, be registered with the Securities and
Exchange Commission and need not be freely tradable by the Consultant.
Consultant agrees to comply with all securities laws in connection with
the retention, sale or disposition of any Shares of Professionals Group
Common Stock received by Consultant.
(iv) For purposes of this Agreement: A change of
control shall be
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deemed to have occurred if (A) any person or entity (other than a
person or entity in control of Professionals Group as of the date of
this Agreement, or other than a trustee or other fiduciary holding
securities under an employee benefit plan of Professionals Group or any
of its subsidiaries, or an entity owned directly or indirectly by the
stockholders of Professionals Group in substantially the same
proportions as their ownership of stock of Professionals Group becomes
the "beneficial owner" (defined herein as in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
securities of Professionals Group representing more than 24.9% of the
combined voting power of Professionals Group's then outstanding voting
securities; or (B) during any period of two consecutive years
commencing after the date of this Agreement the stockholders of
Professionals Group approve (1) a plan of complete liquidation of
Professionals Group, or (2) an agreement for the sale or disposition of
all or substantially all of Professionals Group's assets, or (3) the
sale or reinsurance of all or substantially all of the insurance
business of ProNational Insurance Company so as to cause ProNational to
cease to function on a going forward basis as a medical professional
liability insurance company, or (4) a merger, consolidation, or
reorganization of Professionals Group with or involving any other
corporation, other than a merger, consolidation, or reorganization that
would result in the voting securities of Professionals Group
outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 51% of the combined voting power of
the voting securities of Professionals Group (or such surviving entity)
outstanding immediately after such merger, consolidation, or
reorganization. Notwithstanding anything to the contrary express or
implied in this Agreement, in no event shall a change of control be
deemed to have occurred, with respect to Consultant, if Consultant is
part of a group which consummates the change of control. Consultant
shall be deemed "part of a group" for purposes of the preceding
sentence if Consultant is an equity participant or has agreed to become
an equity participant in such group (except for passive ownership of
less than 5% of the stock of such group or ownership of equity
participation in such group which is otherwise deemed not to be
significant, as determined prior to the change of control by a majority
of the nonemployee continuing directors of Professionals Group). In the
event of a change of control, notwithstanding the payment schedule set
forth in section 3 c. (ii) above, Professionals Group may, at its sole
election, accelerate the payment of any or all of the Shares and/or
Cash in Lieu of Shares then remaining to be paid to Consultant pursuant
to this Agreement.
(v) Upon the occurrence after the date first above
written of any dividend or other distribution (whether in cash, shares,
other securities, or other property), stock split, reverse stock split,
recapitalization, reorganization, split-up, spin-off, merger,
consolidation, share exchange, rights offering, or other change in the
capital or corporate structure of Professionals Group affecting
Professionals Group Common Stock, then the Board of Directors of
Professionals Group shall have the authority to make such adjustment,
if any, in such manner as it deems appropriate, to the number of shares
of Professionals Group Common Stock granted and allocated to
Consultant, and/or the amount of the Cash Payment in Lieu of Shares;
provided, however, (i) that the number of shares of Professionals Group
Common Stock granted and allocated to Consultant shall
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always be a whole number; and (ii) in the event that any award under
the Professionals Group 1996 Non-Employee Directors Stock Option Plan
is adjusted by the Board of Directors of Professionals Group pursuant
to Section 7 thereof, then an appropriate adjustment shall be made to
the number of shares of Professionals Group Common Stock, and/or the
Cash Payment in Lieu of Shares, granted and allocated to Consultant.
(vi) If at the time of any vesting date set forth in
Section 3. c. (ii) above, the closing market price of the Professionals Group
common stock (the "market price") is greater than $28 per share, as adjusted
pursuant to Section 3. c. (v) above (the "adjusted cash price"), then
Professionals Group may, at its sole election and in full satisfaction of its
obligation to issue Shares and/or Cash in Lieu of Shares pursuant to this
Agreement, reduce the number of Shares to be issued to Consultant at said
vesting date as follows. The number of Shares to be issued to Consultant at said
vesting date shall be established by: multiplying the number of Shares that
would be issued without regard to this Section 3. c. (vi) by the adjusted cash
price, and dividing the resulting amount by the market price.
d. It is understood and agreed that Consultant is
responsible for all tax payments. If Professionals Group, in its sole
discretion, shall determine that Professionals Group or any of its subsidiaries
has incurred or will incur any liability to withhold any federal, state or local
income or other taxes by reason of any remuneration payable to Consultant
(including, without limitation, the grant and allocation of shares of
Professionals Group Common Stock to Consultant), then Professionals Group may
effect such withholding.
4. Right of Employment. Except as otherwise provided in this
Agreement, no person or entity other than Consultant shall have any claim or
right to be granted or allocated any Shares of Professionals Group Common Stock
under this Agreement or otherwise. Neither this Agreement nor any action taken
or not taken pursuant to this Agreement shall be construed as giving Consultant
any right to be retained, as an employee or otherwise, by Professionals Group or
any of its subsidiaries.
5. No Funding. This Agreement shall be unfunded. Professionals
Group shall not be required to establish any special or separate fund or to make
any other segregation of assets to assure the vesting of any of the Shares;
provided, however, that Professionals Group has reserved for issuance pursuant
to this Agreement that number of shares of Professionals Group Common Stock that
is equivalent to the number of shares of Professionals Group Common Stock
granted and allocated to Consultant pursuant to this Agreement.
6. Termination. This Agreement may be terminated as follows:
a. This Agreement shall terminate one day after Consultant's
death.
b. Professionals Group may terminate this Agreement if, by
reason of a disability, Consultant has been unable to perform Consulting
Services for a period of 180 consecutive days.
c. Professionals Group may terminate this Agreement for Cause
at any time.
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For purposes of this Agreement "Cause" shall mean, and this Agreement shall be
deemed to have been terminated for Cause if such termination results from, (i)
willful gross misconduct on the part of Consultant that is materially and
demonstrably injurious to Professionals Group or any of its subsidiaries as
determined by the Board of Directors of Professionals Group; provided however,
that no act, or failure to act, on the part of Consultant shall be considered
willful gross misconduct unless Consultant acted, or failed to act, other than
in good faith and with a reasonable belief that such action, or failure to act,
was in the best interest of Professionals Group and its subsidiaries; or (ii)
Consultant commits any act that constitutes a felony and that results, or is
intended to result, directly or indirectly, in Consultant's substantial personal
gain or personal enrichment at the expense of Professionals Group or any of its
subsidiaries.
d. Consultant may terminate this Agreement with cause or
without cause at any time.
7. Compensation Upon Termination. Upon termination of this
Agreement Professionals Group shall have no further obligation under this
Agreement to make any payments to Consultant or to bestow any benefits on
Consultant after the date this Agreement is terminated (the "Termination Date"),
other than payments and benefits accrued and due and payable to Consultant prior
to the Termination Date.
8. Confidentiality.
a. Consultant acknowledges (i) that as a result of
Consultant's prior service as a Board member and/or consultant of PICOM
Insurance Company, ProNational Insurance Company, and/or Professionals Group,
and his engagement by Professionals Group, Consultant has and will become
informed of, and has had and will have access to, valuable and confidential
information of Professionals Group and its subsidiaries including, but not
limited to, trade secrets, technical information, know-how, plans,
specifications, marketing and sales information, claims handling information,
investment information, and the identity of policyholders and reinsurers
(collectively, "Confidential Information"), (ii) that the Confidential
Information is the exclusive property of Professionals Group and its
subsidiaries, and (iii) that the Confidential Information is to be held by
Consultant in trust and solely for the benefit of Professionals Group and its
subsidiaries. Accordingly, Consultant shall not at any time subsequent to the
date of this Agreement, use, reveal, report, publish, transfer or otherwise
disclose to any person or entity any of the Confidential Information without the
prior consent of Professionals Group, except to officers and employees of
Professionals Group and its subsidiaries, and other persons or entities whom
Professionals Group agrees are in a contractual or fiduciary relationship with
Professionals Group or any of its subsidiaries. This provision does not prohibit
Consultant from disclosing information which legally is or becomes of general
public knowledge from authorized sources other than Consultant.
b. If the Confidential Information known to Consultant
or in Consultant's possession is subpoenaed, is subject to a demand for
production, or is subject to any other form of legal process, by any judicial,
regulatory, administrative, legislative or governmental authority, or any other
person or entity, Consultant agrees to notify Professionals Group promptly that
such subpoena, demand or other legal process has been received. Consultant
agrees to use
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Consultant's best efforts, consistent with the requirements of applicable law,
to protect the Confidential Information from disclosure and to cooperate with
Professionals Group and its subsidiaries in seeking protection from disclosure
of the Confidential Information. If Consultant is required to disclose the
Confidential Information, Consultant agrees, at Professional Group's request and
expense, to use Consultant's best efforts to obtain assurances that the
Confidential Information will be maintained on a confidential basis and not be
disclosed to a greater degree than legally required.
c. Upon the termination of this Agreement, Consultant
shall promptly deliver to Professionals Group all originals and all copies that
are in Consultant's possession or control of the following: all customer lists,
stockholder lists, lists of names of beneficial owners, policyholder lists,
manuals, letters, notes, notebooks, reports and all other materials relating to
the business of Professionals Group and its subsidiaries. Consultant shall
represent to Professionals Group that Consultant has complied with the
provisions of this Section 8 at the time the Consultant ceases to be a
consultant to Professionals Group.
9. Noncompetition and Nonsolicitation.
a. Consultant agrees that during the term of this
Agreement and for five years after its termination (for whatever reason),
Consultant shall not, directly or indirectly, engage, participate, or assist in
any business organization by performing services related to the providing of
medical malpractice insurance to physicians, dentists and other persons or
entities insured by Professionals Group or any of its subsidiaries (the
"Proscribed Activities") in the states in which Professionals Group or any of
its subsidiaries is then conducting the Proscribed Activities, whether as owner,
part-owner, stockholder, partner, director, officer, trustee, employee, agent,
consultant or in any other capacity, on Consultant's own behalf or on behalf of
any person or entity. Consultant may make passive investments in a competitive
enterprise the voting equity interests of which are publicly traded, provided
that Consultant's holdings in such enterprise, together with the holdings of any
of the Consultant's affiliates (as that term is defined in Rule 405 of the Rules
under the Exchange Act) do not exceed 3% of the outstanding voting equity
interests of such enterprise.
b. Consultant agrees that during the term of this
Agreement and for five years after its termination (for whatever reason),
Consultant shall not (i) directly or indirectly solicit any person or entity in
the states in which Professionals Group or any of its subsidiaries is then
conducting the Proscribed Activities to purchase insurance products or services
competitive with the Proscribed Activities, (ii) directly or indirectly solicit
any person or entity to purchase or sell insurance products or services relating
to the Proscribed Activities, or (iii) recruit or otherwise solicit or induce
any person who is at the time an employee or consultant with Professionals Group
or any of its subsidiaries to terminate such person's employment or consulting
relationship with Professionals Group or any of its subsidiaries.
10. Restrictions Reasonable. The restrictions against competition
and solicitation set forth above are considered by the parties to be reasonable
for the purposes of protecting the business of Professionals Group and its
subsidiaries. If any restriction is found by a court of competent jurisdiction
to be unenforceable because it extends for too long a period of time, or
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over too broad a range of activities, or in too large a geographic area, then
that restriction shall be interpreted to extend only over the maximum period of
time, or range of activities, or geographic area, as to which it may be
enforceable.
11. Remedies. Consultant and Professionals Group acknowledge that
Professionals Group and its subsidiaries would not have an adequate remedy at
law for money damages if the covenants contained in Sections 8 or 9 of this
Agreement were not complied with in accordance with their terms. Because the
breach or threatened breach of any of the covenants in Sections 8 or 9 of this
Agreement will result in immediate and irreparable injury to Professionals Group
and its subsidiaries, Consultant agrees that Professionals Group and its
subsidiaries shall be entitled to an injunction restraining Consultant from
violating Sections 9 and 10 of this Agreement to the fullest extent allowed by
law. Nothing in this Agreement shall prohibit Professionals Group or any of its
subsidiaries from pursuing all other legal or equitable remedies that may be
available to it for a breach or threatened breach, including the recovery of
damages.
12. Survival. The provisions of Sections 8, 9, 10 and 11 shall
survive the termination of this Agreement and shall inure to the benefit of
Professionals Group, its successors and assigns.
13. Third-Party Agreements and Rights. Consultant confirms that
Consultant is not bound by any agreement with any other person or entity that
would restrict engagement of Consultant in any business or Consultant's use or
disclosure of information. Consultant represents that Consultant's execution of
this Agreement, engagement by Professionals Group and performance of duties
pursuant to this Agreement will not violate any obligations Consultant may have
to any other person or entity. Consultant shall not disclose or make use of
information in violation of any agreements with or rights of any other person or
entity.
14. Further Assurances. Consultant and Professionals Group agree
to execute, acknowledge, deliver and file, or cause to be executed,
acknowledged, delivered and filed, all further instruments, agreements or
documents as may be necessary to consummate the transactions provided for in
this Agreement and to do all further acts necessary to carry out the purpose and
intent of this Agreement.
15. No Waiver. No term or condition of this Agreement shall be
deemed to have been waived, nor shall there be any estoppel against the
enforcement of any provision of this Agreement, except by written instrument of
the party charged with the waiver or estoppel. No written waiver shall be deemed
a continuing waiver unless specifically stated therein, and each waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver of the term or condition for the future or as to any act
other than that specifically waived. The waiver by any party of any other
party's breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach, and the failure of any party to
exercise any right or remedy shall not operate or be construed as a waiver or
bar to the exercise of such right or remedy upon the occurrence of any
subsequent breach. No delay on the part of a party in exercising a right, power
or privilege hereunder shall operate as a waiver thereof. No waiver on the part
of a party of a right, power or privilege, or a single or partial exercise of a
right, power or privilege, shall preclude further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies of this
Agreement are cumulative and are not
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exclusive of the rights or remedies that a party may otherwise have at law or in
equity.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan without reference
to its conflicts of law principles.
17. Notices. Notices required or permitted to be given under this
Agreement shall be in writing and shall be deemed given if delivered personally,
telecopied (with confirmation), mailed by registered or certified mail (return
receipt requested), or delivered by an express courier (with confirmation), to
the parties at the addresses below (or at such other address for a party as
shall be specified by like notice):
a. If to Professionals Group:
Professionals Group, Inc.
2600 Professionals Drive
P.O. Box 150
Okemos, Michigan 48805-0150
Attention: President
Facsimile: 517-349-3127
b. If to Consultant:
At address following the signature line
18. Assignment.
a. This Agreement and all of Consultant's rights, duties
and obligations under this Agreement are personal in nature and shall not be
assignable by the Consultant. A purported assignment shall not be valid or
binding on Professionals Group.
b. This Agreement shall inure to the benefit of and be
legally binding upon all successors and assigns of Professionals Group.
Professionals Group will require a successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of Professionals Group by agreement in form and substance
satisfactory to the Consultant, to expressly assume and agree to perform this
Agreement in the same manner and to the same extent that Professionals Group
would be required to perform it if no such succession had taken place. For
purposes of this Section 18, "Professionals Group" shall mean Professionals
Group as defined above and all successors to its business or assets that execute
and deliver the agreement provided for in this Section 18 or that otherwise
become bound by the terms and provisions of this Agreement by operation of law.
19. Attorneys' Fees. If litigation is brought concerning this
Agreement, the prevailing party shall be entitled to receive from the
non-prevailing party, and the non-prevailing party shall upon final judgment and
the expiration of all appeals immediately pay upon demand all reasonable
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attorneys' fees and expenses of the prevailing party.
20. Entire Agreement. This Agreement constitutes the entire
understanding of the parties and supersedes all prior discussions, negotiations,
agreements and understandings, whether oral or written, with respect to its
subject matter. This Agreement may be modified only by a written instrument
properly executed by Consultant and Professionals Group.
21. Severability. If any one or more of the provisions of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unimpaired, and the invalid, illegal or unenforceable
provision shall be replaced by a mutually acceptable valid, legal and
enforceable provision which comes closest to the intent of the parties.
22. Counterparts. This Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
The parties have executed this Agreement effective as of the day and
year first written above.
PROFESSIONALS GROUP, INC. CONSULTANT
By:
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Victor T. Adamo, President Name:
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Taxpayer Identification Number
Address for Notice to Consultant:
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