EXHIBIT 10.34
SEPARATION AND SEVERANCE AGREEMENT
AGREEMENT by and between UnumProvident Corporation, a Delaware corporation (the
"Company"), and John S. Roberts (the "Executive") dated as of the 12th day of
November, 2001.
The Company has determined that it is in the best interests of the stockholders
and the Company to provide for the separation of the Executive in accordance
with the terms of this Agreement which includes continued services of the
Executive during a transition period as Special Advisor to the head of
Underwriting, provisions relating to Executive's employment and certain other
activities and conduct following separation from the Company, and compensation
arrangements in connection with the foregoing.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the effective date of the
Agreement, which shall be November 12, 2001.
2. Term of Agreement. The Company agrees to continue to employ the Executive,
and the Executive hereby agrees to continue in the employ of the Company,
subject to the terms and conditions of this Agreement, for the period commencing
on November 12, 2001 and ending on February 28, 2002 (the "Term").
3. Terms of Employment.
(a) Position and Duties.
(i) The Executive shall serve as Special Advisor to the Senior Vice
President in charge of Underwriting for the Company (SVP-Underwriting) reporting
to the SVP-Underwriting. The Executive's primary responsibility as Special
Advisor shall be to assist the SVP-Underwriting in making a smooth and effective
transition into his position during the initial period of the Term, but the
Executive shall not continue to have line authority with regard to underwriting
decisions on new or renewal business. Additionally, the Special Advisor during
the Term shall assist with special projects and requests from the SVP-
Underwriting relating to the Company's underwriting function. The Executive's
duties may be refined or changed from time to time by letter agreement between
the SVP-Underwriting and the Executive.
(ii) Excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote such time and attention
during normal business hours of the week to the extent necessary to discharge
the
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responsibilities assigned hereunder and to use Executive's best efforts to
perform such responsibilities faithfully and efficiently. It is agreed that the
period during which most effort shall be required is during the initial portion
of the Term assisting with the transition and thereafter the time spent will not
exceed one-half the normal business hours and will depend in large measure on
the extent to which the SVP-Underwriting requests specific assistance from the
Executive on projects and cases.
(iii) It shall not be a violation of this Agreement for the Executive to
(x) serve, with prior approval of the Chief Executive Officer of the Company
(the "CEO"), on corporate, civic or charitable boards or committees, (y) deliver
lectures, fulfill speaking engagements or teach at educational institutions, and
(z) manage personal investments, so long as such activities do not interfere
with the performance of the Executive's responsibilities as set forth in this
Agreement. It is expressly understood and agreed that to the extent that any
such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or 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 the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Compensation. The Executive shall receive base compensation at
the rate in effect for Executive prior to the Effective Date for the period from
November 12, 2001 through December 31, 2001 and thereafter Executive shall
receive $1,510.50 per pay period through the end of the Term or an aggregate
base compensation of approximately $42,294 for the period from November 16, 2001
through February 28, 2002.
(ii) Incentive Awards. No additional long-term or annual incentive
awards are contemplated by this Agreement.
(iii) Employee Benefit Plans. Except as otherwise expressly provided
herein, Executive shall be entitled to participate in all employee benefit,
welfare and other plans and programs (collectively, "Employee Benefit Plans") in
accordance with their terms, but this shall not include further use of the
financial counseling program of the Company after that applicable to Executive
for reimbursable expenses for 2001, any severance benefits or any outplacement
policy that would otherwise be applicable.
4. Termination of Employment
(a) Death. The Executive's employment shall terminate automatically upon
the Executive's death.
(b) Cause. The Company may terminate the Executive's employment for Cause.
For purposes of this Agreement, "Cause" shall mean:
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(i) The continued failure of the Executive to perform substantially the
Executive's duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive which specifically
identifies the manner in which the CEO believes that the Executive has not
substantially performed the Executive's duties, or
(ii) The willful engaging by the Executive in illegal conduct or gross
misconduct which, in either case, is materially injurious to the Company, or
(iii) Conviction of a felony or guilty or nolo contendere plea by the
Executive with respect thereto.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
adopted by the Board or upon the instructions of the CEO or based upon the
advice of counsel for the Company shall be conclusively presumed to be done, or
omitted to be done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment by the Executive shall not be deemed to
be for Cause unless and until there shall have been delivered to the Executive a
written notice delivered to the Executive specifying the basis thereof.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean the following events, provided, however, that clauses (i) through (iv)
shall constitute Good Reason only in the absence of the written consent of the
Executive:
(i) The assignment to the Executive of any duties materially
inconsistent with the Executive's duties set forth in Section 3(a) (i),
excluding for this purpose an action not taken in bad faith and which is
remedied by the Company promptly after receipt of written notice thereof given
by the Executive to the CEO;
(ii) Any failure by the Company to comply with any of the provisions of
Section 3(b) hereof, other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Executive;
(iii) Any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(iv) Any failure by the Company to comply with and satisfy Section 9(c)
of this Agreement.
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(d) Notice of Termination. Any termination by the Company or by the
Executive shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 10(b) of this Agreement. For purposes of
this Agreement, a "Notice of Termination" means a written notice which (i)
indicates the specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets 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) specifies the Date of
Termination (as defined below). The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the Executive's
employment is terminated by the Company, the date of receipt of the Notice of
Termination or any later date specified therein within 30 days of such notice,
(ii) if the Executive's employment is terminated by reason of death, the Date of
Termination shall be the date of death of the Executive, (iii) if the
Executive's employment is terminated by the Executive the Date of Termination
shall be thirty days after the giving of such notice by the Executive provided
that the Company may elect any earlier date, and (iv) if the Executive shall
remain in the employ of the Company until the end of the Term, then February 28,
2002.
5. Obligations of the Company upon Termination
(a) Termination at the end of the Term; termination by the Company other
than for Cause prior to the end of the Term; termination by the Executive for
Good Reason. If the Executive remains in the employ of the Company until the end
of the Term or is terminated by the Company other than for Cause prior to the
end of the Term, or the Executive terminates for Good Reason prior to the end of
the Term,
(i) The Company shall pay to the Executive in a lump sum in cash within
10 days after the Date of Termination the sum of $290,000 (the "Severance
Lump Sum"),
(ii) The Company shall pay to the Executive the sum of $400,000 (the
"Covenant Payment"), payable ratably monthly during the Covenant Period
specified in Section 7(a) provided the Executive is in compliance with
Section 7,
(iii) To the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amount or benefits required to
be paid or provided or which the Executive is eligible to receive under any plan
or program of the Company pursuant to its terms through the Date of Termination,
except further use of the Company's applicable financial counseling program or
outplacement policy (such other
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amounts or benefits shall be hereinafter referred to as the "Other Benefits"),
(iv) All outstanding stock options and other equity-based awards shall
be governed by their respective terms and, unless expressly provided otherwise,
all such options and awards shall terminate at the close of business on February
28, 2002.
(b) Death. If the Executive's employment is terminated by reason of death,
this Agreement shall terminate without further obligations to the Executive's
legal representatives under this Agreement, other than the payment of the
Severance Lump Sum and the timely payment or provision of Other Benefits.
Payments shall be made to the Executive's estate or beneficiary, as applicable,
in a lump sum in cash within 30 days of the Date of Termination.
(c) Cause; Other than for Good Reason. If the Executive's employment shall
be terminated for Cause or the Executive terminates his employment without Good
Reason, this Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive (i) his then current
base compensation through the Date of Termination to the extent theretofore
unpaid, and (ii) the Other Benefits.
6. Non-exclusivity of Rights. Except as otherwise provided, nothing in this
Agreement shall prevent or limit the Executive's continuing participation in any
plan, or program provided by the Company and for which the Executive may
qualify, nor, subject to Sections 1 and 10(f), shall anything herein limit or
otherwise affect such rights as the Executive may have under any contract or
agreement with the Company. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan or program of or any
contract or agreement with the Company at or subsequent to the Date of
Termination shall be payable in accordance with such plan or program or contract
or agreement except as explicitly modified by this Agreement; provided that the
Executive shall not be eligible for severance benefits under any other plan or
program of the Company.
7. Special Covenants of Executive.
(a) Covenant Not To Compete. Through the period ending December 31, 2002
or, if earlier, the period ending twelve (12) months after either (i) the
Executive is terminated by the Company other than for Cause or (ii) the
Executive terminates for Good Reason (the applicable period herein referred to
as the "Covenant Period"), the Executive shall not directly or indirectly, own,
manage, operate, join, control, or participate in the ownership, management,
operation or control of, or be employed by or connected in any manner with, or
solicit any employee of the Company to apply for or accept employment with any
competing business, or solicit or advise any third party to place disability or
group life insurance with a carrier other than the Company, whether for
compensation or otherwise, without the prior written consent of the Company.
Notwithstanding the preceding sentence, the Executive shall not be prohibited
from owning less than one (1%) percent of any publicly traded corporation,
whether or not such corporation is deemed to be a competing business. For
purposes of this Agreement,
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a "competing business" shall be (i) any business which is a significant
competitor of the Company or which the Company reasonably determines may become
a significant competitor or (ii) any business as to which the Company is a
significant competitor or may reasonably become a significant competitor, unless
in either instance the Executive's duties and responsibilities with respect to
such business are not related to the management or operation of disability
insurance or complementary special risk products and services in any country
where the Company is conducting business. For purposes of this Agreement, the
term "solicit" means any communication regardless of by whom initiated,
inviting, advising, encouraging or requesting any person to take or refrain from
taking any action.
(b) Confidentiality and Non-Disclosure of Information. The Executive hereby
acknowledges that, as an employee of the Company, he has made use of, acquired
and added, and will be making use of, acquiring and adding to confidential
information of a special and unique nature and value relating to the Company and
its strategic plan and financial operations. The Executive further recognizes
and acknowledges that all confidential information is the exclusive property of
the Company, is material and confidential, and is critical to the successful
conduct of the business of the Company. Accordingly, the Executive covenants and
agrees that he has not taken and will not take from the Company any confidential
information in paper or electronic form that he has not returned or destroyed
without copying. Further, Executive hereby covenants and agrees that he will use
confidential information for the benefit of the Company only and shall not at
any time, directly or indirectly, divulge, reveal or communicate any
confidential information to any person, firm, corporation or entity whatsoever,
or use any confidential information for his own benefit or for the benefit of
others. Nothing in this paragraph prevents Executive from communicating with or
responding to a request for information from a federal or state administrative
agency or court after at least 10 days prior written notice thereof to the
Company.
(c) Non-Solicit and Non-Hire. The Executive agrees not to hire or solicit
for hire, directly or indirectly, any employee on the payroll of the Company to
work for Executive or for any third party during the Covenant Period without the
prior written consent of the Company.
(d) Non-Disparagement. The Executive agrees not to make any statement, oral
or written, publicly or in private, which is reasonably likely to harm the
Company's business interest or to impact negatively on the Company's business
reputation or its reputation in the community. Nothing in this paragraph
prevents Executive from communicating with or responding to a request for
information from a federal or state administrative agency or court after at
least 10 days prior written notice thereof to the Company.
(e) Continuing Effect. Any termination of the Executive's employment or
of this Agreement shall have no effect on the continuing operation of this
Section 7.
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(f) Violations and Remedies. In addition to the cessation of payments under
this Agreement, the Executive acknowledges and agrees that the Company will have
no adequate remedy at law, and could be irreparably harmed, if the Executive
breaches or threatens to breach any of the provisions of this Section 7. The
Executive agrees that the Company shall be entitled to equitable and/or
injunctive relief to prevent any breach or threatened breach of this Section 7,
and to specific performance of each of the terms hereof in addition to any other
legal or equitable remedies that the Company may have. Prior to bringing any
such action or ceasing payments as set forth in this Section 7, the Company
shall provide the Executive with a ten (10) day opportunity to cure a breach of
this Section 7 which, in the CEO's good faith judgment, is susceptible of being
cured. The Executive further agrees that he shall not, in any equity proceeding
relating to the enforcement of the terms of this Section 7, raise the defense
that the Company has an adequate remedy at law.
(g) Separability and Enforceability. The terms and provisions of this
Section 7 are intended to be separate and divisible provisions and if, for
any reason, any one or more of them is held to be invalid or unenforceable,
neither the validity nor the enforceability of any other provision of this
Agreement shall thereby be affected. The parties hereto acknowledge that
the potential restrictions on the Executive's future employment imposed by
this Section 7 are reasonable in both duration and geographic scope and in
all other respects. If for any reason any court of competent jurisdiction
shall find any provisions of this Section 7 unreasonable in duration or
geographic scope or otherwise, the Executive and the Company agree that the
restrictions and prohibitions contained herein shall be effective to the
fullest extent allowed under applicable law in such jurisdiction.
(h) Significance of Section 7. The parties acknowledge that this
Agreement would not have been entered into and the benefits described in
Sections 3 or 5 would not have been promised in the absence of the
Executive's promises under this Section 7.
8. Special Covenant of the Company. The Company covenants and agrees that it
will instruct its executive officers who worked directly or closely with the
Executive not to make any statement, oral or written, which could reasonably be
expected to impact negatively on the business reputation of Executive, and the
Company covenants and agrees that it shall not issue any public statement that
is critical of the Executive or his performance while employed by the Company;
provided, however, that nothing in this Section 8 shall prevent the Company or
any of its executive officers from communicating with or responding to a request
for information from a federal or state administrative agency or court.
9. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and
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be enforceable by the Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon
the Company and its successors.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
10. Miscellaneous
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the
provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by
the parties hereto or their respective successors and legal
representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, or by facsimile
followed by overnight delivery addressed as follows:
If to the Executive: If to the Company:
John S. Roberts Chief Executive Officer
11 Mitchellwood Drive UnumProvident Corporation
Falmouth, Maine 04105 1 Fountain Square
Chattanooga, Tennessee 37402
Facsimile Number: 423-755-8503
Or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
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(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amount payable under this Agreement
such federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder shall not be deemed to be
a waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date this Agreement shall supersede any
other employment, severance or change in control agreement between the parties.
11. General Release. All payments under this Agreement to be made in connection
with the Executive's termination of employment will be conditioned on the
Executive's signing a general form of release in the form attached as Exhibit A
hereto at the time Executive receives the Severance Lump Sum; provided, that in
no event shall the Executive be required to release claims relating to his
rights under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
EXECUTIVE
--------------------------------
John S. Roberts
UNUMPROVIDENT CORPORATION
--------------------------------
Name: J. Harold Chandler
Title: Chairman, President and
Chief Executive Officer
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