Exhibit
10(e)(5)


 


AMENDED AND RESTATED


EMPLOYMENT CONTINUATION AGREEMENT


WITH KEY OFFICER


 


This Amended and Restated Employment Continuation Agreement dated as of
November 3, 2008 (“Agreement”) is by and between Protective Life
Corporation, a Delaware corporation (the “Company”), and Andrew S. Martin (“Officer”).


 


W I T N E S S E T H :


 


WHEREAS, the Company has determined that Officer holds a position that
is critical to the Company;


 


WHEREAS, the Company believes that, if it is confronted with a
situation that could result in a change in ownership or control of the Company,
continuity of management will be essential to its ability to evaluate and
respond to such situation in the best interests of shareholders;


 


WHEREAS, the Company understands that any such situation could be a
distraction to Officer, to the detriment of the Company and its shareholders;


 


WHEREAS, the Company desires to assure itself of Officer’s services
during the period in which it is confronting such a situation, and to provide
Officer with certain financial assurances to enable Officer to perform his or
her responsibilities without undue distraction and without bias due to Officer’s
personal circumstances; and


 


WHEREAS, to achieve these objectives, the Company and Officer have
previously entered into an Employment Continuation Agreement (the “Prior
Agreement”) which provided the Company and Officer with certain rights and
obligations upon the occurrence of a Change of Control (as defined in Section 2);


 


NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Company and Officer hereby amend and restate the Prior
Agreement to bring it into compliance with the requirements of Section 409A
of the Internal Revenue Code of 1986, as amended (the “Code”), and to make
certain other changes (as so amended and restated, the “Agreement”) as follows:


 


1.               Effective Date.  The
effective date of this Agreement (the “Effective Date”) shall be the date on
which a Change of Control occurs during the term of this Agreement (as provided
in Section 12(c)); provided that (i) anything
in this Agreement to the contrary notwithstanding, if a Change of Control
occurs and if Officer’s employment with the Company is terminated before the
date on which the Change of Control occurs, and if it is reasonably
demonstrated by Officer that such termination of employment (A) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control, or (B) otherwise arose in connection with or
anticipation of a Change of Control, then for all purposes of this Agreement
the “Effective Date” shall mean the date immediately before such termination of
employment, and (ii) except as provided in clause (i) above, if


 

















 


Officer is not employed by the Company on the date on which a Change of
Control occurs, this Agreement shall be void and without effect.


 


2.               Definition of Change of Control. 
Subject to the provisions of Code Section 409A, a “Change of
Control” shall occur when (i) any one person (or more than one person
acting as a group (as provided in Code Section 409A)) (such person or
group, an “Acquiring Person”) acquires ownership of the Company’s stock that,
together with stock previously held by the Acquiring Person, constitutes more
than 50% of the total fair market value or more than 50% of the total voting
power of the Company, or (ii) a majority of the members of the Board is
replaced during any 12-month period by directors whose appointment or election
was not endorsed by a majority of the members of the Board before the date of
the appointment or election, or (iii) an Acquiring Person acquires (or has
acquired during the 12-month period ending on the date of the most recent
acquisition by such Acquiring Person) assets from the Company that have a total
gross fair market value equal to or more than 80% of the total gross fair
market value of the Company’s assets immediately before such acquisition or
acquisitions, or (iv) (except for purposes of Section 1) any other
event or transaction occurs that is declared by resolution of the Board to
constitute a Change in Control for purposes of this Agreement .


 


3.               Employment Period. 
Subject to Section 6, the Company agrees to continue Officer in its
employ, and Officer agrees to remain in the employ of the Company, for the
period (the “Employment Period”) commencing on the Effective Date and ending on
the second anniversary of the Effective Date.


 


4.               Position and Duties.  (a) 
No Reduction in Position.  During
the Employment Period, Officer’s position (including titles), authority and
responsibilities shall be at least commensurate with those held, exercised and
assigned immediately before the Effective Date. 
Officer’s services shall be performed at the location where Officer was
employed immediately before the Effective Date.


 


(b)         Business Time.  From
and after the Effective Date, Officer agrees to devote Officer’s full attention
during normal business hours to the business and affairs of the Company and to
perform faithfully and efficiently the responsibilities assigned to Officer to
the extent necessary to discharge such responsibilities, except for periods of
vacation, sick leave and other leave to which Officer is entitled. Officer’s
continuing to serve on any boards and committees on which Officer is serving or
with which Officer is otherwise associated immediately before the Effective
Date shall not be deemed to interfere with the performance of Officer’s
services for the Company.


 


5.               Compensation.  (a) Base
Salary.  During the Employment
Period, Officer shall receive a base salary at a monthly rate at least equal to
the monthly base salary paid to Officer by the Company immediately before the
Effective Date.  The base salary shall be
reviewed at least once each year after the Effective Date, and may be increased
(but not decreased) at any time and from time to time by action of the Board of
Directors or any committee thereof or any individual having authority to take
such action in accordance with the Company’s regular practices. Officer’s base
salary, as it may be increased from time to time, shall hereafter be referred
to as “Base Salary”.  Neither the Base
Salary nor any increase in Base Salary after the Effective Date shall limit or
reduce any other obligation of the Company hereunder.


 


2

















 


(b)         Annual Bonus and Incentive Compensation. 
During the Employment Period, in addition to the Base Salary, for each
fiscal year of the Company ending during the Employment Period, Officer shall
be entitled to receive an (i) annual bonus which is at least equal to the
greater of (A) the highest annual bonus, including any bonus provided
under the Company’s Annual Incentive Plan (“AIP”), that had been payable to
Officer in respect of either of the two fiscal years ended immediately before
the Effective Date or (B) the amount that would have been payable to
Officer as a target bonus under any bonus program in which Officer participated
(including the AIP) for the year in which the Effective Date occurs and (ii) long-term
incentive compensation opportunities on terms and conditions no less favorable
to Officer than those applicable to Officer before the Effective Date.  Any amount payable hereunder as an annual
bonus shall be paid later than March 15 of the year following the year for
which the amount is payable, unless electively deferred by Officer pursuant to
any deferral programs or arrangements that the Company may make available to
Officer.


 


(c)          Benefit Plans. 
During the Employment Period, Officer (and, to the extent applicable,
Officer’s dependents) shall be entitled to participate in or be covered under
all pension, retirement, deferred compensation, savings, medical, dental,
health, disability, group life, accidental death and travel accident insurance
plans at a level that is commensurate with Officer’s participation in such
plans immediately before the Effective Date or, if more favorable to Officer,
at the level made available to Officer or other similarly situated employees at
any time thereafter.  Officer shall also
be entitled to receive such perquisites as were generally provided to Officer
in accordance with the Company’s policies and practices immediately before the
Effective Date.


 


(d)         Expenses.  During the Employment Period,
Officer shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by Officer in accordance with the policies and procedures of
the Company as in effect immediately before the Effective Date.  Notwithstanding the foregoing, the Company
may apply the policies and procedures in effect after the Effective Date to
Officer, if such policies and procedures are more favorable to Officer than
those in effect immediately before the Effective Date.


 


(e)          Indemnification. 
During and after the Employment Period, the Company shall indemnify
Officer and hold Officer harmless from and against any claim, loss or cause of
action arising from or out of or related in any way to Officer’s performance as
an officer, director or employee of the Company or any of its subsidiaries or
in any other capacity, including any fiduciary capacity, in which Officer
serves at the request of the Company to the maximum extent permitted by
applicable law and the Company’s Certificate of Incorporation and By-Laws (the “Governing
Documents”); provided that in no event shall
the protection afforded to Officer hereunder be less than that afforded under
the Governing Documents as in effect immediately before the Effective Date.


 


6.               Termination of Employment.  (a) 
Death or Disability.  Officer’s
employment shall automatically terminate upon Officer’s death or termination of
employment due to Disability (as defined below) during the Employment Period.
For purposes of this Agreement, “Disability” shall mean Officer’s inability to
perform the duties of Officer’s position, as determined in accordance with the
policies and procedures applicable with respect to the Company’s long-term
disability plan as in effect immediately before the Effective Date.


 


3

















 


(b)         Voluntary Termination. 
Anything in this Agreement to the contrary notwithstanding, Officer may,
upon not less than 10 days’ written notice to the Company, voluntarily
terminate employment for any reason (including early retirement under the terms
of any of the Company’s retirement plans as in effect from time to time) during
the Employment Period; provided that
any termination of employment by Officer pursuant to Section 6(d) on
account of Good Reason (as defined therein) shall not be treated as a voluntary
termination under this Section 6(b).


 


(c)          Cause.  The Company may terminate
Officer’s employment for Cause.  For
purposes of this Agreement, “Cause” shall mean (i) Officer’s conviction or
plea of nolo contendere to a felony; (ii) an
act or acts of extreme dishonesty or gross misconduct on Officer’s part which
result or are intended to result in material damage to the Company’s business
or reputation; or (iii) repeated material violations by Officer of Officer’s
obligations under Section 4, which violations are demonstrably willful and
deliberate on Officer’s part and which result in material damage to the Company’s
business or reputation.


 


(d)         Good Reason.  Officer may terminate
employment for Good Reason.  For purposes
of this Agreement, “Good Reason” shall mean the occurrence of any of the
following, without the express written consent of Officer, after the Effective
Date:


 


(i)  (A) the assignment to Officer of any duties
inconsistent in any material adverse respect with Officer’s position (including
titles), authority or responsibilities as contemplated by Section 4, or (B) any
other material adverse change in such position (including titles), authority or
responsibilities;


 


(ii)  any failure by the Company to comply with any of the
provisions of Section 5, other than an insubstantial or inadvertent
failure remedied by the Company promptly after receipt of notice thereof given
by Officer;


 


(iii)  the Company’s requiring Officer to be based at any
office or location more than 20 miles from that location at which Officer performed
services specified under the provisions of Section 4 immediately before
the Change of Control, except for travel reasonably required in the performance
of Officer’s responsibilities; or


 


(iv)  any failure by the Company to obtain the assumption and
agreement to perform this Agreement by a successor as contemplated by Section 11(b).


 


In no event shall the mere occurrence of a Change of Control, absent
any further impact on Officer, be deemed to constitute Good Reason.


 


(e)          Notice of Termination.  Any
termination of Officer’s employment by the Company for Cause or by Officer for
Good Reason shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 12(e).  For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice given, in the case of a termination
for Cause, within 10 business days of the Company’s having actual knowledge of
the events giving rise to such termination, and in the case of a termination
for Good Reason, within 180 days of Officer’s having actual knowledge of the
events giving rise to such 


 


4

















 


termination, and which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of Officer’s employment under the provision so indicated, and (iii) if the
termination date is other than the date of receipt of such notice, specifies
the termination date of this Agreement (which date shall be not more than 15
days after the giving of such notice). 
The failure by Officer to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason shall not
waive any right of Officer hereunder or preclude Officer from asserting such
fact or circumstance in enforcing Officer’s rights hereunder.


 


(f)            Date of Termination.  For
purposes of this Agreement, the term “Date of Termination” shall mean (i) in
the case of a termination of employment for which a Notice of Termination is
required, the date of receipt of such Notice of Termination or, if later, the
date specified therein, and (ii) in all other cases, the actual date on
which Officer’s employment terminates during the Employment Period.


 


7.               Obligations of the Company upon Termination.  (a) 
Death or Disability.  If Officer’s
employment is terminated during the Employment Period by reason of Officer’s
death or Disability, this Agreement shall terminate without further obligations
to Officer or Officer’s legal representatives under this Agreement other than
those obligations accrued hereunder at the Date of Termination, and the Company
shall pay to Officer (or Officer’s beneficiary or estate) (i) Officer’s
full Base Salary through the Date of Termination (the “Earned Salary”), (ii) any
vested amounts or benefits owing to Officer under the Company’s otherwise
applicable employee benefit plans and programs, including any compensation
previously deferred by Officer (together with any accrued earnings thereon) and
not yet paid by the Company and any accrued vacation pay not yet paid by the
Company (the “Accrued Obligations”), and (iii) any other benefits payable
due to Officer’s death or Disability under the Company’s plans, policies,
programs or arrangements (the “Additional Benefits”).


 


Any Earned Salary shall be paid in cash in a single lump sum as soon as
practicable, but in no event more than 10 business days (or at such earlier
date required by law), following the Date of Termination.  Accrued Obligations and Additional Benefits
shall be paid in accordance with the terms of the applicable plan, policy,
program or arrangement.


 


(b)         Cause and Voluntary Termination.  If,
during the Employment Period, Officer’s employment is terminated for Cause or
voluntarily terminated by Officer (other than on account of Good Reason
following a Change of Control) in accordance with Section 6(b), the
Company shall pay Officer (i) the Earned Salary in cash in a single lump
sum as soon as practicable, but in no event more than 10 business days (or such
earlier date required by law), following the Date of Termination, and (ii) the
Accrued Obligations in accordance with the terms of the applicable plan,
policy, program or arrangement.


 


(c)          Termination by the Company other than for
Cause and Good Reason Termination by Officer.


 


(i)             Lump Sum Payments.  If
either (a) the Company terminates Officer’s employment other than for
Cause during the Employment Period or (b) Officer


 


5

















 


terminates employment for
Good Reason at any time during the Employment Period, then the Company shall
pay to Officer the following amounts:


 


(A) Officer’s
Earned Salary;


 


(B) a cash amount (the “Severance Amount”) equal to the sum of:


 


(1)                                 Officer’s annual Base Salary; and


 


(2)                                 the greater of (i) the average of the
bonus amount payable (including any amounts payable under the AIP) to Officer
(including any amounts the receipt of which Officer elected to defer) with
respect to the three fiscal years of the Company (or, if fewer, the number of
such fiscal years in which Officer was an employee of the Company or its
affiliates) immediately before the Change in Control (including, for this
purpose, any AIP Payout (as defined in Section 7(c)(i)(C)) or (ii) the
average of the bonus amount payable (including any amounts payable under the
AIP) to Officer (including any amounts the receipt of which Officer elected to
defer) with respect to the three fiscal years of the Company (or, if fewer, the
number of such fiscal years in which Officer was an employee of the Company or
its affiliates) immediately before the Date of Termination (including, for this
purpose, any AIP Payout); and


 


(C) if Officer has an annual cash bonus opportunity (including a cash
bonus  opportunity under the AIP)
outstanding and unpaid as of the Date of Termination, a cash payment (the “AIP
Payout”) equal to (1) if the Date of Termination is before December 31
of the fiscal year of the Company to which such bonus opportunity relates, an
amount equal to Officer’s target bonus opportunity under such bonus plan for
such fiscal year, and (2) if the Date of Termination is on or after December 31
of the fiscal year of the Company to which such bonus opportunity relates, an
amount equal to the amount Officer would have received under such bonus plan
for such fiscal year based on actual achievement of the performance goals with
respect thereto (assuming, for this purpose, that all subjective performance
measures are achieved at a level equal to the greater of the level determined
by the Company pursuant to the terms of such bonus plan and 100%).  Payment of the AIP Payout shall be in lieu of
payment of any annual cash bonus opportunity otherwise due and payable with
respect to the fiscal year of the Company referred to in this Section 7(c)(i)(C).


 


(D) the Accrued Obligations.


 


Subject to Section 7(f), the Earned Salary and Severance Amount
shall be paid in cash in a single lump sum as soon as practicable, but in no
event more than 10 business days (or such earlier date required by law),
following the Date of Termination. 
Subject to Section 7(f), the AIP Payout shall be paid in cash in a
single lump sum (a) if payable under Section 7(c)(i)(C)(1), as soon
as practicable, but in no event more than 10 business days (or such earlier
date required by law),


 


6

















 


following the Date of Termination, and (b) if payable under Section 7(c)(i)(C)(2),
as soon as practicable, but in no event later than the earlier of (i) 30
business days (or such earlier date required by law) following the Date of
Termination and (ii) March 15 of the year following the calendar year
for which the AIP Payout is payable. 
Accrued Obligations shall be paid in accordance with the terms of the
applicable plan, policy, program or arrangement.


 


(ii)          Supplemental Retirement Payment.  If
Officer is entitled to receive the Severance Amount described in Section 7(c)(i),
Officer shall be entitled to receive a supplemental retirement payment, payable
in a cash lump sum, equal in value to the actuarial equivalent (as defined
below) of (A) the monthly benefit payable to Officer (expressed as a life
annuity payable commencing at the later of the Date of Termination and age 65)
determined by adding three years to Officer’s credited service as determined at
Officer’s Date of Termination under the terms of Company’s qualified defined
benefit pension plan and supplemental or excess pension plan (collectively, the
“Pension Plans”) as in effect immediately before the Change in Control (subject
to any maximum on credited service set forth in the Pension Plans), minus (B) the monthly benefit payable to Officer
(expressed as a life annuity payable commencing at the later of the Date of
Termination and age 65) determined pursuant to the terms of all defined benefit
pension plans (including the Pension Plans), active or frozen, in which Officer
is a participant at Officer’s Date of Termination if such plans are sponsored
by the Company or its successors or affiliates.


 


For purposes of this Agreement, “actuarial equivalent” shall mean a
benefit actuarially equal in value to the value of a given benefit in a given
form or schedule, based upon (1) the mortality table or tables (including
any set backs of ages) used to calculate actuarial equivalents under the
Pension Plans as of the date on which an actuarial equivalent is being
determined under this Agreement and (2) an interest rate equal to the sum
of (A) the yield on U.S. 10-year Treasury Notes at constant maturity as
most recently published by the Federal Reserve Bank of New York before Officer’s
Date of Termination; provided, however,
that if such yield has not been so published within 90 days before Officer’s
Date of Termination, the interest rate shall be the yield on substantially
similar securities on the business day before Officer’s Date of Termination as
determined by Regions Bank N.A. upon the request of either the Company or
Officer, plus (B) .75%.


 


For purposes of making the foregoing determinations, at the request of
Officer in writing within 5 days of Officer’s receipt of Notice of Termination
or Officer’s Date of Termination, but in either event at the Company’s expense,
the independent pension consultants most recently used by the Company in connection
with its qualified pension plan before the Change in Control shall be engaged
and shall certify the benefits due to Officer under this Section 7(c)(ii) in
writing within 30 days after the Date of Termination.  In any event, the supplemental retirement
payment shall be paid to Officer (subject to Section 7(f)) no later than
45 days after the Date of Termination. 
If the amount to be offset under clause (B) of the first paragraph
of this Section 7(c)(ii) has not been determined within 30 days after the Date
of Termination, no such offset shall be permitted.


 


7














 


(iii)  Continuation of Benefits. If Officer is
entitled to receive the Severance Amount described in Section 7(c)(i),
Officer (and, to the extent applicable, Officer’s dependents) shall be
entitled, after the Date of Termination and until the earlier of (A) the
second anniversary of the Date of Termination (the “End Date”) or (B) the
date Officer becomes eligible for comparable benefits under a similar plan,
policy or program of a subsequent employer, to continue participation in all of
the Company’s employee welfare benefit plans including the Company’s hospital,
medical, accident, disability, and life insurance plans (the “Benefit Plans”)
as were generally provided to Officer in accordance with the Company’s policies
and practices immediately before the Effective Date.  To the extent any such benefits cannot be
provided under the terms of the applicable plan, policy or program, the Company
shall pay Officer an amount equal to the cost to the Company of providing such
coverage at the same time as the Severance Amount is payable to Officer.  Officer’s participation in the Benefit Plans
will be on the same terms and conditions that would have applied had Officer
continued to be employed by the Company through the End Date.  To the extent any Benefit Plan is a self-insured
group health or dental benefit plan, then in addition to any other limitation
provided hereunder, the period of coverage provided by this Section 7(c)(iii) under
such self-insured group health or dental benefit plan shall not exceed the
period of time during which Officer would be entitled to receive continuation
coverage under Code Section 4980B (“COBRA”) if Officer had elected such
coverage and paid the premiums required by COBRA.  To the extent that immediately preceding
sentence applies, the Company shall pay Officer an amount equal to the cost of
such COBRA continuation coverage for a period equal to the excess of (i) 24
months minus (ii) the number of months of COBRA coverage initially
available to Officer, as determined in good faith by the Company, at the same
time as the Severance Amount is payable to Officer.


 


(d)  Discharge of the Company’s Obligations.  Except as expressly provided in the last
sentence of this Section 7(d), the amounts payable to Officer pursuant to
this Section 7 (whether or not reduced pursuant to Section 7(e))
following termination of Officer’s employment shall be in full and complete
satisfaction of Officer’s rights under this Agreement and any other claims
Officer may have in respect of employment by the Company or any of its
subsidiaries.  Such amounts shall
constitute liquidated damages with respect to any and all such rights and
claims and, upon Officer’s receipt of such amounts, the Company shall be
released and discharged from any and all liability to Officer in connection
with this Agreement or otherwise in connection with Officer’s employment with
the Company and its subsidiaries. 
Nothing in this Section 7(d) shall be construed to release the
Company from its commitment to indemnify Officer and hold Officer harmless as
provided in Section 5(e).


 


(e)  Certain Further Payments by the Company.


 


(i)  If any amount or benefit paid or distributed to Officer
pursuant to this Agreement, taken together with any amounts or benefits
otherwise paid or distributed to Officer by the Company or any affiliated
company (including any distribution or payment made pursuant to the terms of
the Company’s compensation plans or arrangements) (collectively, the “Covered
Payments”) are or become subject to the tax (the “Excise Tax”) imposed under
Code Section 4999


 


8

















 


or any similar tax that may hereafter be imposed, the Company shall pay
to Officer at the time specified in Section 7(e)(v) an additional
amount (the “Tax Reimbursement Payment”) such that the net amount retained by
Officer with respect to such Covered Payments, after deduction of any Excise
Tax on the Covered Payments and any Federal, state and local income or
employment tax and Excise Tax on the Tax Reimbursement Payment provided for by
this Section 7(e), but before deduction for any Federal, state or local
income or employment tax withholding on such Covered Payments, shall be equal
to the amount of the Covered Payments.


 


(ii)  For purposes of determining whether any of the Covered
Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) such
Covered Payments will be treated as “parachute payments” within the meaning of
Code Section 280G, and as all “parachute payments” in excess of the “base
amount” (as defined under Code Section 280G(b)(3)) shall be treated as
subject to the Excise Tax, unless, and except to the extent that, in the good
faith judgment of the Company’s independent certified public accountants
appointed before the Effective Date or tax counsel selected by such accountants
(collectively, the “Accountants”), the Company has a reasonable basis to
conclude that such Covered Payments (in whole or in part) either do not
constitute “parachute payments” or represent reasonable compensation for
personal services actually rendered (within the meaning of Code Section 280G(b)(4)(B))
in excess of the “base amount,” or such “parachute payments” are otherwise not
subject to such Excise Tax, and (B) the value of any non-cash benefits or
any deferred payment or benefit shall be determined by the Accountants in
accordance with the principles of Code Section 280G.


 


(iii)  For purposes of
determining the amount of the Tax Reimbursement Payment, Officer shall be
deemed to pay: (A) Federal income taxes at the highest applicable marginal
rate of Federal income taxation for the calendar year in which the Tax
Reimbursement Payment is to be made, and (B) any applicable state and
local income taxes at the highest applicable marginal rate of taxation for the
calendar year in which the Tax Reimbursement Payment is to be made, net of the
maximum reduction in Federal income taxes which could be obtained from the
deduction of such state or local taxes if paid in such year.


 


(iv)  If the Excise Tax is subsequently determined
by the Accountants or pursuant to any proceeding or negotiations with the
Internal Revenue Service to be less than the amount taken into account
hereunder in calculating the Tax Reimbursement Payment made, Officer shall
repay to the Company, at the time that the amount of such reduction in the
Excise Tax is finally determined, the portion of such prior Tax Reimbursement
Payment that would not have been paid if such Excise Tax had been applied in
initially calculating such Tax Reimbursement Payment, plus interest on the
amount of such repayment at the rate provided in Code Section 1274(b)(2)(B).  Notwithstanding the foregoing, if any portion
of the Tax Reimbursement Payment to be refunded to the Company has been paid to
any Federal, state or local tax authority, repayment thereof shall not be
required until actual refund or credit of such portion has been made to
Officer,


 


9

















 


and interest payable to the Company shall not exceed interest received
or credited to Officer by such tax authority for the period it held such
portion.  Officer and the Company shall
mutually agree upon the course of action to be pursued (and the method of
allocating the expenses thereof) if Officer’s good faith claim for refund or credit
is denied.


 


If the Excise Tax is later determined by the Accountants or pursuant to
any proceeding or negotiations with the Internal Revenue Service to exceed the
amount taken into account hereunder at the time the Tax Reimbursement Payment
is made (including by reason of any payment the existence or amount of which
cannot be determined at the time of the Tax Reimbursement Payment), the Company
shall make an additional Tax Reimbursement Payment in respect of such excess
(plus any interest or penalty payable with respect to such excess) at the time
that the amount of such excess is finally determined but in no event later than
December 31 of the year following the calendar year in which such excess
is paid by Officer.


 


(v)  The Tax Reimbursement Payment (or portion thereof)
provided for in Section 7(e)(i) shall be paid to Officer not later
than 10 business days following the payment of the Covered Payments; provided, however, that if the amount of such Tax
Reimbursement Payment (or portion thereof) cannot be finally determined on or
before the date on which payment is due, the Company shall pay to Officer by
such date an amount estimated in good faith by the Accountants to be the
minimum amount of such Tax Reimbursement Payment and shall pay the remainder of
such Tax Reimbursement Payment (together with interest at the rate provided in
Code Section 1274(b)(2)(B)) as soon as the amount thereof can be
determined, but in no event later than 45 calendar days after payment of the
related Covered Payment.  If the amount
of the estimated Tax Reimbursement Payment exceeds the amount subsequently
determined to have been due, such excess shall constitute a loan by the Company
to Officer, payable on the fifth business day after written demand by the
Company for payment (together with interest at the rate provided in Code Section 1274(b)(2)(B)).


 


(f)   Delay of Payments. 
Any provision of this Agreement to the contrary notwithstanding and
subject to Code Section 409A, if Officer is a Specified Employee (as
defined below), any payments due under this Agreement to Officer that are
treated as deferred compensation for purposes of Code Section 409A (such
as the Severance Amount) and that are payable on account of a termination of
employment shall be made on the later to occur of the time otherwise specified
in this Section 7 and the first business day after the date that is six
months after Officer’s Date of Termination (or, if earlier, within 15 business
days after the date of death of Officer). Officer will be a Specified Employee
if, with respect to April 1 of each calendar year (beginning April 1,
2005) and for the 12-month period thereafter, Officer meets the definition of “key
employee” of the Company under Code Section 416(i) (without regard to
Code Section 416(i)(5)) at any time during the preceding calendar year,
all as provided in Code Section 409A.


 


8.    Non-exclusivity
of Rights.  Except as expressly
provided herein, nothing in this Agreement shall prevent or limit Officer’s
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Company or any of its affiliated


 


10

















 


companies and for which Officer may qualify, or limit or otherwise
prejudice such rights as Officer may have under any other agreements with the
Company or any of its affiliated companies. 
Amounts which are vested benefits or which Officer is otherwise entitled
to receive under any plan or program of the Company or any of its affiliated
companies at or subsequent to the Date of Termination shall be payable in
accordance with such plan or program.


 


9.   Full Settlement. 
The Company’s obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including any set-off, counterclaim, recoupment,
defense or other right which the Company may have against Officer or others
whether by reason of the subsequent employment of Officer or otherwise.


 


10.  Legal Fees and Expenses.  If Officer asserts any claim in any contest
(whether initiated by Officer or by the Company) as to the validity,
enforceability or interpretation of any provision of this Agreement, the
Company shall pay Officer’s legal expenses (or cause such expenses to be paid)
in accordance with Section 12(j) of this Agreement, including Officer’s
reasonable attorney’s fees, on a quarterly basis, upon presentation of proof of
such expenses; provided that Officer shall
reimburse the Company for such amounts, plus simple interest thereon at the
90-day United States Treasury Bill rate as in effect from time to time,
compounded annually, if Officer shall not prevail, in whole or in part, as to
any material issue as to the validity, enforceability or interpretation of any
provision of this Agreement.


 


11.  Successors. 
(a)  This Agreement is personal to Officer and, without the prior
written consent of the Company, shall not be assignable by Officer otherwise
than by will or the laws of descent and distribution.  This Agreement shall inure to the benefit of
and be enforceable by Officer’s legal representatives.


 


(b)  This Agreement shall inure to the benefit of and be
binding upon the Company and its successors. 
The Company shall require any successor to all or substantially all of
the business and/or assets of the Company, whether direct or indirect, by
purchase, merger, consolidation, acquisition of stock, or otherwise, by an
agreement in form and substance satisfactory to Officer, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent
as the Company would be required to perform if no such succession had taken
place.


 


12.  Miscellaneous. 
(a)  Applicable Law; Interpretation.  This Agreement shall be governed by and
construed and conferred in accordance with the laws of the State of Delaware
applied without reference to principles of conflict of laws.  If any provision of this Agreement is invalid
or unenforceable, the validity and enforceability of the remaining provisions
hereof shall not be affected.  The
masculine shall include the feminine (and vice versa),
the single shall include the plural (and vice versa),
and the words “include” and “including” shall be deemed to be followed by the
phrase “without limitation” unless the context clearly requires otherwise.  This Agreement may be executed by manual or
facsimile signature.  The headings in
this Agreement are solely for convenience and shall not affect the meaning or
interpretation of this Agreement.


 


11

















 


(b)  Arbitration. 
Any dispute or controversy arising under or in connection with this
Agreement shall be resolved by binding arbitration.  The arbitration shall be held at a site
selected by the arbitrators and except to the extent inconsistent with this
Agreement, shall be conducted in accordance with the Expedited Employment
Arbitration Rules of the American Arbitration Association then in effect
at the time of the arbitration, and otherwise in accordance with principles
which would be applied by a court of law or equity.  The arbitrator shall be acceptable to both
the Company and Officer.  If the parties
cannot agree on an acceptable arbitrator, the dispute shall be heard by a panel
of three arbitrators, one appointed by each of the parties and the third
appointed by the other two arbitrators.


 


(c)  Agreement Term, Termination and Amendment.  The initial term of this Agreement shall
begin on the date hereof and shall terminate on May 1, 2012.  On each May 1 beginning May 1, 2009,
the term of this Agreement shall automatically extend by one year unless at
least 30 days prior to such May 1 the Board of Directors of the Company
determines, and the Company so notifies Officer, that there will be no such
extension.  The determination made by the
Board of Directors as set forth in the preceding sentence shall not be
effective if it is reasonably demonstrated by Officer that such determination (i) was
at the request of a third party who has taken steps reasonably calculated to
effect a Change of Control, or (ii) otherwise arose in connection with or
anticipation of a Change of Control. 
This Agreement may be amended or modified only by a written agreement
signed by the parties hereto or by their respective successors and legal
representatives.


 


(d)  Entire Agreement. This Agreement shall constitute
the entire agreement between the parties hereto with respect to the matters
referred to herein and, without limiting the generality of the foregoing, any
Employment Continuation Agreement executed between the Company and Officer
before the date of this Agreement is hereby terminated.  There are no promises, representations,
inducements or statements between the parties other than those that are
expressly contained herein.  Officer is
entering into this Agreement of Officer’s own free will and accord, and with no
duress, has read this Agreement, and understands it and its legal consequences.


 


(e)  Notices. 
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, addressed as
follows:


 


	
  If
  to Officer:

  	
   

  	
  at
  the home address of Officer as set forth in the records of the Company

  
	
   

  	
   

  	
   

  
	
  If
  to the Company:

  	
   

  	
  Protective
  Life Corporation

  
	
   

  	
   

  	
  2801
  Highway 280 South

  
	
   

  	
   

  	
  Birmingham,
  Alabama  35223

  
	
   

  	
   

  	
  Attn:
  General Counsel

  



 


or to such other address as either party shall have furnished to the
other in writing in accordance herewith. 
Notices and communications shall be effective when actually received by
the addressee.


 


12

















 


(f)  Confidentiality. 
Officer agrees to keep the terms of this Agreement confidential and
agrees not to voluntarily disclose any information concerning this Agreement to
anyone except Officer’s spouse, parents, legal counsel or accountant and
provided that they (each and all) agree at Officer’s risk to keep such
information confidential and not disclose it to others; provided
that this nondisclosure provision does not prohibit disclosure (1) at the
direction or with the consent of the President or an Executive Vice President
of the Company, (2) to tax agencies, (3) as required by law or court
order, or (4) as may be necessary to enforce Officer’s rights under this
Agreement.


 


(g)  Tax Withholding. 
The Company may withhold from any amounts 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.


 


(h) Waivers.  The failure
of Officer or the Company to insist upon strict compliance with any provision
of this Agreement or the failure to assert any right Officer or the Company may
have hereunder, including the right of Officer to terminate employment for Good
Reason, shall not be deemed to be a waiver of such provision or right or of any
other provision or right of this Agreement.


 


(i)  Employment at Will. 
Officer and the Company acknowledge that, except as may otherwise be
provided under any other written agreement between Officer and the Company, the
employment of Officer by the Company is “at will” and, subject to Section 1,
Officer’s employment may be terminated by either Officer or the Company at any
time prior to the Effective Date, in which case Officer shall have no further
rights under this Agreement.


 


(j)  Reimbursement of Expenses.  Except as permitted by Code Section 409A,
(i) the right to reimbursement of expenses under this Agreement shall not
be subject to liquidation or exchange for another benefit, (ii) the amount
of expenses eligible for reimbursement under this Agreement provided during any
taxable year shall not affect the expenses eligible for reimbursement to be
provided in any other taxable year, provided that the foregoing clause (ii) shall
not be violated without regard to expenses reimbursed under any arrangement
covered by Code Section 105(b) solely because such expenses are
subject to a limit related to the period the arrangement is in effect and (iii) such
payments shall be made on or before the last day of Officer’s taxable year
following the taxable year in which the expense was incurred.


 


(k)  Termination of Employment.  For all purposes of this Agreement, Officer
shall not have “termination of employment” (and corollary terms) from the
Company unless and until Officer has a “separation from service” (as determined
under Code Section 409A as uniformly applied in accordance with such rules as
shall be established from time to time by the Company).


 


13

















 


(l)  Amendment to LTIP. 
Officer hereby agrees to the terms of the Company’s Long-Term Incentive
Plan as amended and restated as of December 31, 2008 (the “Amended LTIP”)
and to the application of terms of the Amended LTIP to any awards previously
granted to Officer.


 


IN WITNESS WHEREOF, the Company and Officer
have duly executed this Agreement as of the day and year first above written.


 


 


	
   

  	
  PROTECTIVE
  LIFE CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
  John
  D. Johns

  
	
   

  	
  Title:

  	
  Chairman
  of the Board, President and Chief Executive

  
	
   

  	
   

  	
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OFFICER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Signature:

  	
   

  
					



 


14