Exhibit 10.1


 


RETENTION AGREEMENT


 


This Agreement
between Lawrence P. Bascom (“you”) and 21st Century Insurance Group and its
subsidiary, 21st Century Insurance Company (hereinafter collectively referred
to as the “Company”) has been entered into as of 11/29/2004.  This Agreement promises you severance
benefits if you are terminated without Cause or resign for Good Reason during
the Term of this Agreement.  Capitalized
terms are defined in the last section of this Agreement.


 


1.                                      Purpose


 


The Company
considers a sound and vital management team to be essential. Management
personnel who become concerned about the possibility that the Company may
undergo substantial or adverse changes may terminate employment or become
distracted. Accordingly, the Board has determined that appropriate steps should
be taken to minimize the distraction or concerns executives may suffer from the
possibility of such events or business conditions.  One step is to enter into this Agreement with
you.


 


2.                                      Events
That Trigger Severance Benefits


 


(a)                               Termination


 


You will receive
Severance Benefits under this Agreement if, during the Term of this Agreement,
your employment is terminated by the Company without Cause or you resign for
Good Reason.


 


Your Severance
Benefits under this Agreement will continue to apply if you are transferred to
an affiliate of the Company and you are terminated by such affiliate without
Cause or you resign from such affiliate for Good Reason.


 


(b)                               Successor
Fails to Assume This Agreement


 


You also will
receive Severance Benefits under this Agreement if, during the Term of this
Agreement, a successor to the Company or affiliate to which you are transferred
fails to assume this Agreement.


 


3.                                      Events
That Do Not Trigger Severance Benefits


 


You will not be
entitled to Severance Benefits if your employment ends because you are
terminated for Cause or on account of Disability or because you resign without
Good Reason, retire, or die.  Except as
provided in Section 2(b), you will not be entitled to Severance Benefits while
you remain protected by this Agreement and remain employed by the Company, its
affiliates, or their successors.


 





















 


4.                                      Termination
Procedures


 


If you are
terminated by the Company during the Term of this Agreement, you will receive
advance written notice of your termination (“Termination Notice”). This
Termination Notice will be given to you at least 30 days in advance, unless you
are being terminated for Cause.  The
Termination Notice will indicate why you are being terminated and will set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for your termination.  If you are
being terminated for Cause, your Termination Notice will include a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters
of the entire membership of the Board (at a meeting of the Board called and
held for the purpose of considering your termination and after reasonable
notice to you and an opportunity for you and your counsel to be heard before
the Board) finding that Cause for your termination exists and specifying the
basis for that opinion in detail.  If you
are purportedly terminated without the Termination Notice required by this
Section, your termination shall not be effective.


 


5.                                      Severance
Benefits


 


(a)                               In
General


 


If you become
entitled to Severance Benefits under this Agreement, you will receive all of
the Severance Benefits described in this Section. Severance Benefits payable to
you following your termination of employment will be paid only if you deliver
to the Company (within an agreed upon time and in a mutually acceptable form)
your executed general and special release (The “Release”) of all claims you may
have against the Company, its affiliates and directors, officers, employees and
others specified in the Release, relating to your termination of employment,
other than claims for failure to fulfill obligations created by the Agreement,
indemnification and defense cost adjustment rights, pension plan and
supplemental executive retirement plans, 401(k) plans and supplemental 401(k)
plans, stock option and restricted stock plans, or under any other employee
benefit or vacation programs of the Company to which you are entitled.


 


(b)                               Lump-Sum
Payment in Lieu of Future Compensation


 


In lieu of any
further cash compensation for periods after your employment ends, you will be
paid a cash lump sum equal to 2.5 times your annual base salary in effect
immediately before any Notice of Termination or Good Reason event for which you
terminate employment.


 


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(c)                                Vesting
of Stock Options and Waiver of 90 Day Post-Termination Expiration Provision


 


Notwithstanding
any provision to the contrary, if you become entitled to Severance Benefits
under this Agreement, the Company agrees that any unvested stock option grants
outstanding shall become immediately vested on the date your employment ends
and that the Company shall waive any requirement that vested options be
exercised within 90 days of termination of employment and allow such options to
be exercisable for their full remaining term, subject to a maximum of five
years from the date of termination of your employment.


 


(d)                               Group
Insurance Benefit Continuation


 


During the period
that begins when you become entitled to Severance Benefits under this Agreement
and ends on the last day of the 30th calendar month beginning
thereafter, the Company shall provide, at no cost to you or your spouse or
dependents, the life, disability, accident, and health insurance benefits (or
substantially similar benefits) it was providing to you and your spouse and
dependents immediately before you became entitled to Severance Benefits under
this Agreement (or immediately before a benefit reduction that constitutes Good
Reason, if you terminate employment for that Good Reason). These benefits shall
be treated as satisfying the Company’s COBRA obligations.  After the benefit continuation under this
subsection ends, you and your spouse and dependents will be entitled to any
remaining COBRA rights. This benefit will terminate at such time as you become
eligible for substantially similar benefits as a result of subsequent
employment.


 


 


6.                                      Golden
Parachute Limitation


 


Your aggregate
payments and benefits under this Agreement and all other contracts,
arrangements, or programs shall not exceed the maximum amount that may be paid
without triggering golden parachute penalties under Section 280G and related
provisions of the Internal Revenue Code, as determined in good faith by the
Company’s independent auditors.  If your
benefits must be cut back to avoid triggering such penalties, your benefits
will be cut back in the priority order you designate or, if you fail to
designate an order within a reasonable time specified by the Company, in the
priority order designated by the Company. 
You and the Company agree to cooperate with each other reasonably in
connection with any administrative or judicial proceedings concerning the
existence or amount of golden parachute penalties on payments or benefits you
receive.


 


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7.                                      Time
for Payment


 


You will be paid
your cash Severance Benefits within 5 days after you become entitled to
Severance Benefits under this Agreement (e.g., within 5 days following your
termination of employment) or, if later, the date specified in the Separation
Agreement and General and Special Release of Claims Agreement executed in
connection with this Agreement.


 


8.                                      Payment
Explanation


 


When payments are
made to you, the Company will provide you with a written statement explaining
how your payments were calculated and the basis for the calculations.  This statement will include any opinions or
other advice the Company has received from auditors or consultants as to the calculation
of your benefits.


 


9.                                      Relation
to Other Severance Programs


 


Your Severance
Benefits under this Agreement are in lieu of and supercede any severance or
similar benefits that may be payable to you under any other employment
agreement or other arrangement, other than any benefits payable under the
Executive Severance Plan as it exists on the date hereof (the “Executive
Severance Plan”) and the Supplemental Executive Retirement Plan which may be
payable following a change in control of the Company. In the event you are
terminated or resign after a change in control under circumstances which
entitle you to benefits under the Executive Severance Plan, you shall be
entitled to receive the benefits payable under the Executive Severance Plan
(subject to all the terms and limitations thereof) and you shall not be
entitled to any Severance Benefits under this Agreement if you in fact receive
the severance benefits to which you are entitled under the Executive Severance
Plan. Nothing in this Agreement shall be deemed to affect your entitlement to benefits
payable under the Supplemental Executive Retirement Plan. Subject to the
foregoing, this Agreement constitutes the entire agreement between you and the
Company and its affiliates with respect to severance benefits.


 


10.                               Amendments


 


This Agreement may
be modified only by a written agreement executed by you and the chief executive
officer or general counsel of the Company that is approved by the Board of
Directors of the Company.


 


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11.                               Governing
Law


 


This Agreement
creates a “top hat” employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, and it shall be interpreted, administered, and
enforced in accordance with that law; the Company is the “plan administrator.”
To the extent that state law is applicable, the statutes and common law of the
State of California, excluding any that mandate the use of another jurisdiction’s
laws, shall apply.


 


12.                               Claims


 


(a)                               When
Required; Attorneys’ Fees


 


You do not need to
present a formal claim to receive benefits payable under this Agreement.  However, if you believe that your rights
under this Agreement are being violated, you must file a formal claim with the
Company (for the purposes of this Section 12, 21st Century Insurance
Group) in accordance with the procedures set forth in this Section.  If the claim cannot be resolved under these
administrative procedures, the Company will pay you ten (10) percent per annum
simple interest on all payments ultimately determined to have not been timely
made.  In addition, the Company shall
upon presentation of appropriate commercial vouchers pay all legal expenses
which include all reasonable attorneys’ fees and related costs and expenses in
connection with enforcing your rights under this Agreement, including
negotiating or settling any claim, subject to your obligation to promptly repay
(within 90 days after demand therefore) all such fees costs and expenses if you
do not ultimately prevail and it is determined that you were not acting in good
faith.


 


(b)                               Initial
Claim


 


Your claim must be
presented to the Company in writing. 
Within 30 days after receiving the claim, a claims official appointed by
the Company will consider your claim and issue his or her determination thereon
in writing.  The claims official may
extend the determination period for up to an additional 90 days by giving you
written notice.  With your consent, the
initial claim determination period can be extended further. If you can
establish that the claims official failed to respond to your claim in a timely
manner, you may treat the claim as having been denied by the claims official.


 


(c)                                Claim
Decision


 


If your claim is
granted, the benefits or relief you are seeking will be provided.  If your claim is wholly or partially denied,
the claims official shall, within 30 days (or a longer period, as described
above), provide you with written notice of the denial, setting forth, in a
manner calculated to be understood by you: (i) the specific reason or reasons
for the denial; (ii) specific references to the provisions on which the denial
is based; (iii) a description of any additional material or information
necessary for you to perfect your claim, together with an explanation of why
the material or information is necessary; and 


 


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(iv) an explanation of the
procedures for appealing denied claims. 
If you establish that the claims official has failed to respond to your
claim in a timely manner, you may treat the claim as having been denied by the
claims official.


 


(d)                               Appeal
of Denied Claims


 


You may appeal the
claims official’s denial of your claim in writing to an appeals official
designated by the Company (which may be a person, committee, or other entity)
for a full and fair appeal.  In connection
with the appeals proceeding, you (or your duly authorized representative) may
review pertinent documents and may submit issues and comments in writing.


 


(e)                                Appeal
Decision


 


The decision by
the appeals official will be made within 30 days after your appeal request,
unless special circumstances require an extension of time, in which case the
decision will be rendered as soon as possible, but not later than 120 days
after your appeal request, unless you agree to a greater extension of that
deadline.  The appeal decision will be in
writing, set forth in a manner calculated to be understood by you; it will
include specific reasons for the decision, as well as specific references to
the pertinent provisions of this Agreement on which the decision is based.  If you do not receive the appeal decision by
the date it is due, you may deem your appeal to have been denied.


 


(f)                                   Procedures


 


The Company will
adopt procedures by which initial claims and appeals will be considered and
resolved; different procedures may be established for different claims.  All procedures will be designed to afford you
full and fair consideration of your claim. 
Notwithstanding anything in this Section 12 to the contrary, claims and
appeals shall be resolved through procedures that comply with applicable
Department of Labor regulations as then in effect.


 


13.                               Limitation
on Employee Rights


 


This Agreement
does not give you the right to be retained in the service of the Company.


 


14.                               Validity


 


The invalidity or
unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.


 


15.                               Counterparts


 


This Agreement may
be executed in several counterparts, each of which will be deemed an original,
but all of which will constitute one and the same instrument.


 


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16.                               Giving
Notice


 


(a)                               To
the Company


 


All communications
from you to the Company relating to this Agreement must be sent to the Company
in writing, addressed as follows (or in any other manner the Company notifies
you to use):


 


If Mailed                                                                                                                                                21st
Century Insurance Group 

Attention: Bruce W. Marlow, President and CEO

6301 Owensmouth Ave.


Woodland
Hills CA 91367


 


If Faxed                                                                                                                                                      21st
Century Insurance Group

Attention: Bruce W. Marlow, President and CEO

Fax:  818 715-6223

Tel.:  818 704-3393


 


(b)                               To
You


 


All communications
from the Company to you relating to this Agreement must be sent to you in
writing, addressed as indicated at the end of this Agreement.


 


17.                               Definitions


 


(a)                               Agreement


 


“Agreement” means
this contract, as amended.


 


(b)                               Board


 


“Board” means the
Board of Directors of the 21st Century Insurance Group.


 


(c)                                Cause


 


“Cause” means any
of the following:


 


(1)                               Willful
Failure to Perform Duties.  You continue willfully to fail to
perform your duties for the Company after a written demand for performance has
been delivered to you by the Board that specifically identifies how you have
failed to perform.  Your conduct will not
be considered “willful” if a reasonable person would believe that you were
acting in the best interests of the Company, you believed the action you were
requested to perform was unlawful or unethical, or if your failure to perform
was caused by your physical or mental illness. 
You may not be terminated for Cause under this paragraph after you have
properly notified the Company that you are resigning for Good Reason.


 


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(2)                               Willful
Adverse Conduct.  You willfully engage in conduct that
is demonstrably and materially injurious to the Company or its affiliates,
monetarily or otherwise.  Your conduct
will not be considered “willful” if you believed in good faith that you were
acting in the best interests of the Company and such belief was reasonable.


 


(3)                               Disability.


 


(d)                               Company


 


“Company” means
21st Century Insurance Group and 21st Century Insurance Company and any
successor to the business or assets of either that (by operation of law, or
otherwise) assumes and agrees to perform this Agreement.  The liability of the each such Company
hereunder shall be joint and several.


 


(e)                                Disability


 


“Disability” means
that, due to physical or mental disability: (i) you have been absent from the
full-time performance of your duties with the Company for substantially all of
a period of 6 consecutive months; (ii) the Company has notified you that it
intends to terminate your employment because of your inability to perform your
job duties on account of Disability; and (iii) you do not resume the full-time
performance of your duties within 30 days after receiving notice of your
intended termination on account of your inability to perform your job duties on
account of Disability.


 


(f)                                   Good
Reason


 


“Good Reason”
means the occurrence of any of the following without your express written
consent:


 


(1)                               Breach
of Promise.  The Company has committed a material
breach of its obligations under this Agreement.


 


(2)                               Improper
Termination.  You are purportedly terminated, other
than pursuant to a Termination Notice satisfying the requirements of Section 4.


 


(3)                               Constructive
Termination.  You are constructively terminated by
the Company, as reasonably determined by you in good faith, by reason of
Company, Board or controlling shareholder actions that (i) reduce your base
compensation or benefits by more than 5% in any 12 month period, or (ii) reduce
by more than 25% your benefits under
incentive plans without regard to either your performance or the Company’s
performance, or (iii) demote you or materially change the nature or
location of your position, or transfer you to an affiliate of the Company
without your consent other than another wholly-owned subsidiary of 21st
Century Insurance Group or (iv) interfere with your ability to fulfill the
responsibilities of your office in a lawful manner.


 


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However, an event
that is or would constitute Good Reason shall cease to be Good Reason if: (a)
you do not terminate employment within 45 days after the event occurs; or (b)
you were a primary instigator of the Good Reason event and the circumstances
make it inappropriate for you to receive benefits under this Agreement (e.g.,
you agree temporarily to relinquish your position on the occurrence of a merger
transaction you negotiate). If you have Good Reason to terminate employment,
you may do so even if you are on a leave of absence due to physical or mental
illness or any other reason.


 


(g)                               Severance
Benefits


 


“Severance
Benefits” means your benefits under Section 5 of this Agreement.


 


(h)                               Term
of this Agreement


 


“Term of this
Agreement” means the period that commences on the date of this Agreement and
ends on a date specified by the Board for expiration of this Agreement (at
least 24 months’ advance written notice of this date must be given to you
before it is effective); provided, however, that in no event shall the Term of
this Agreement be less than three years.


 


 


	
   

  	
  21st Century Insurance Group

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date 

  	
  11/19/04

  	
   

  	
  /s/

  	
   

  
	
   

  	
  Bruce W. Marlow

  
	
   

  	
  President and CEO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  21st Century Insurance Company

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date 

  	
  11/22/04

  	
   

  	
  /s/

  	
   

  
	
   

  	
  Lawrence
  Bascom

  	
   

  
	
   

  	
   

  	
   

  
						



 


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