Exhibit 10.4


 


AMENDED AND
RESTATED EMPLOYMENT AGREEMENT


 


This Amended and Restated Employment
Agreement, dated as of December 31, 2008 (this “Agreement”), is by
and between Edward N. Patrick, Jr. (the “Executive”) and Safety
Insurance Group, Inc., a Delaware corporation (the “Company”);


 


W
I  T  N  E  S  S  E  T  H:


 


WHEREAS, the Company wishes to obtain the
future services of the Executive for and on behalf of the Companies (as defined
in Section 11);


 


WHEREAS, the Executive is willing upon the
terms and conditions herein set forth, to provide services to the Companies
hereunder; and


 


WHEREAS, the Company wishes to secure the
Executive’s non-interference with the Companies’ business, upon the terms and
conditions herein set forth;


 


WHEREAS, the Executive and the Company
entered into an Employment Agreement, dated November 8, 2004 (the “Prior
Employment Agreement”); and


 


WHEREAS, the Executive and the Company desire
to amend and restate the Prior Employment Agreement.


 


NOW, THEREFORE, in consideration of the
mutual promises and covenants contained herein, and intending to be legally
bound hereby, the parties hereto agree as follows:


 


1.           Nature of Employment


 


Subject to Section 3, the Company
shall continue to employ Executive, and Executive shall serve the Company, in
accordance with the terms of this Agreement, during the Term of Employment (as
defined in Section 3(a)), as Vice President of the Company with
such duties and responsibilities as are customarily assigned to an executive in
such position and such other duties and responsibilities not inconsistent
therewith as may from time to time reasonably be assigned to the Executive by
the Board of Directors and/or Chairman of the Board, President and Chief
Executive Officer of the Company.  The
Executive also agrees to serve without additional compensation in such
capacities (including, without limitation, as an officer or director) with
Company affiliates as the Board of Directors and/or Chairman of the Board,
President and Chief Executive Officer of the Company may prescribe.  Upon termination of the Executive’s
employment with the Company, the Executive’s employment, board membership or
other service relationship with any Company affiliate shall automatically
terminate unless otherwise agreed to by the parties.


 

















 


2.             Extent of
Employment


 


(a)           During the Term of Employment, the Executive
shall perform his obligations hereunder faithfully and to the best of his
ability at the principal executive offices of the Company, under the direction
of the Board of Directors and/or Chairman of the Board, President and Chief
Executive Officer of the Company, and shall abide by the rules, customs and
usages from time to time established by the Companies.


 


(b)           During the Term of Employment, the Executive
shall devote all of his business time, energy and skill as may be reasonably
necessary for the performance of his duties, responsibilities and obligations
hereunder (except for vacation periods and reasonable periods of illness or
other incapacity), consistent with past practices and norms in similar
positions.


 


(c)           Nothing contained herein shall require
Executive to follow any directive or to perform any act which would violate any
laws, ordinances, regulations or rules of any governmental, regulatory or
administrative body, agent or authority, any court or judicial authority, or
any public, private or industry regulatory authority (collectively, the “Regulations”).  Executive shall act in good faith in
accordance with all Regulations.


 


3.             Term of
Employment; Termination


 


(a)           The “Term of Employment” shall
commence on November 8, 2004 and shall continue until December 31,
2007 (the “Initial Term”); provided, that, (i) such term
shall continue for the twelve month period following such Initial Term, and for
each twelve month period thereafter (each, an “Additional Term”), unless
at least 180 days prior to the scheduled expiration date of the Initial Term or
any Additional Term, either the Executive or the Company notifies the other of
its decision not to continue such term and (ii) should the Executive’s
employment by the Company be earlier terminated pursuant to Section 3(b) or
by the Executive pursuant to Section 3(c), the Term of Employment
shall end on the date of such earlier termination.


 


(b)           Subject to the payments contemplated by Sections
3(f) through 3(i), the Term of Employment may be terminated at
any time by the Company:


 


(i)            upon
the death of Executive;


 


(ii)           in
the event that because of physical or mental disability Executive is unable to
perform, and does not perform, in the view of the Company and as certified in
writing by a competent medical physician, his duties hereunder for a continuous
period of three consecutive months or any sixty working days out of any
consecutive six month period;


 


(iii)          for
Cause (as defined in Section 3(d)) or Material Breach (as defined
in Section 3(e));


 


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(iv)          upon
the continuous poor or unacceptable performance of the Executive’s duties to
the Companies (other than due to a physical or mental disability), which has
remained uncured for a period of 90 days after delivery of notice by the
Company to the Executive of such dissatisfaction with Executive’s performance,
which notice shall describe in reasonable detail the areas of dissatisfaction;
or


 


(v)           for
any other reason or no reason, it being understood that no reason is required.


 


Executive acknowledges that no
representations or promises have been made concerning the grounds for
termination or the future operation of the Companies’ business, and that
nothing contained herein or otherwise stated by or on behalf of any of the
Companies modifies or amends the right of the Company to terminate Executive at
any time, with or without Material Breach or Cause.  Termination shall become effective upon the
delivery by the Company to the Executive of notice specifying such termination
and the reasons therefor (i.e., Section 3 (b)(i)-(v)), subject to
the requirements for advance notice and an opportunity to cure provided in this
Agreement, if and to the extent applicable. 
Notwithstanding anything to the contrary in this Agreement, for purposes
of this Agreement, any reference to “termination,” as it relates to a
termination of the Executive’s employment, shall refer to a termination of
employment which constitutes a “separation from service” within the meaning of Section 409A
of the Internal Revenue Code of 1986, as amended and the regulations
promulgated thereunder (“Section 409A”).


 


(c)           Subject to the payments contemplated by Section 3(f) and
3(i), the Term of Employment may be terminated at any time by the
Executive:


 


(i)            upon
the death of Executive;


 


(ii)           as
a result of a material reduction in Executive’s authority, perquisites,
position or responsibilities (other than such a reduction in perquisites which
affects all of the Company’s senior executives on a substantially equal or
proportionate basis), the relocation of the Company’s primary place of business
or the relocation of Executive by any of the Companies to another office more
than 75 miles from Boston, Massachusetts, or the Company’s willful, material
violation of its obligations under this Agreement, in each case, after 60 days’
prior written notice to the Company and its Board of Directors and the Company’s
failure thereafter to cure such reduction or violation; or


 


(iii)          as
a result of the Company’s willful and material violation of this Agreement, the
2002 Management Omnibus Incentive Plan (the “Incentive Plan”), or any
agreement between Executive and any of the Companies pertaining to awards made
pursuant to the Incentive Plan or the Executive Incentive Compensation Plan, in
each case as such agreements or plans may be amended from time to time.


 


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(d)           For the purposes of this Section 3,
“Cause” shall mean any of the following:


 


(i)            Executive’s
commission or conviction of any crime or criminal offense involving monies or
other property or any felony;


 


(ii)           Executive’s
commission or conviction of fraud or embezzlement;


 


(iii)          Executive’s
material and knowing violation of any obligations imposed upon Executive,
personally, as opposed to upon the Company, whether as a stockholder or
otherwise, under this Agreement, the Incentive Plan or any other agreement
between the Executive, on the one hand, and any of the Companies, on the other
hand, the Amended and Restated Certificate of Incorporation, or the By-Laws of
the Company, in each case as may be amended from time to time; provided,
that the Executive has been given written notice describing any such violation
in reasonable detail and fails to cure the violation within 90 days from such
notice; or


 


(iv)          Executive
engages in egregious misconduct involving serious moral turpitude to the extent
that Executive’s credibility and reputation no longer conform to the standard
of the Company’s executives.


 


(e)           For the purposes of this Section 3,
“Material Breach” shall mean any of the following:


 


(i)            Executive’s
breach of any of his fiduciary duties to the Companies or their stockholders or
making of a willful misrepresentation or omission which breach,
misrepresentation or omission would reasonably be expected to materially
adversely affect the business, properties, assets, condition (financial or
other) or prospects of the Companies;


 


(ii)           Executive’s
willful, continual and material neglect or failure to discharge his duties,
responsibilities or obligations prescribed by this Agreement or any other
agreement between the Executive and any of the Companies (other than arising
solely due to physical or mental disability);


 


(iii)          Executive’s
habitual drunkenness or substance abuse which materially interferes with
Executive’s ability to discharge his duties, responsibilities or obligations
prescribed by this Agreement or any other agreement between the Executive and
any of the Companies; and


 


(iv)          Executive’s
willful and material violation of any non-competition, non-disparagement, or
confidentiality agreement with any of the Companies, including without
limitation, those set forth in Sections 7, 8 and 9 of this
Agreement, or any other agreements with any of the Companies;


 


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in each case, for purposes of clauses (i) through (iv), after the
Company or the Board of Directors of the Company has provided Executive with 60
days’ written notice describing such circumstances and the possibility of a
Material Breach in reasonable detail, and Executive fails to cure such
circumstances and Material Breach within those 60 days.  No act or omission shall be deemed willful if
done, or omitted to be done, in good faith by the Executive based upon a
resolution duly adopted by the Company’s Board of Directors.


 


(f)            In the event Executive’s employment is
terminated by the Company under any circumstances described in Section 3(b)(v) or
by Executive under the circumstances described in Section 3(c)(ii) or
(iii),


 


(i)            the
Company shall pay or cause to be paid to the Executive, (A) within five
business days after the date of termination, any earned but unpaid base salary
and, subject to the provisions of Section 5, any expense reimbursement
payments owed to the Executive, and (B) any earned but unpaid annual bonus
payments relating to the prior year to be paid in accordance with the terms and
conditions of the Safety Insurance Group, Inc. Annual Performance
Incentive Plan, or any successor plan thereto (collectively, the “Accrued
Obligations”);


 


(ii)           the
Company shall pay or cause to be paid to the Executive, within thirty business
days after the date of termination, a lump-sum payment equal to the annual base
salary the Executive would have received over the remaining Term of Employment
if his employment had not terminated, assuming for this purpose that a notice
not to extend the Term of Employment was provided on the date of termination
(the “Severance Period”), based on the Executive’s base salary in effect
immediately prior to the date of termination; and


 


(iii)          subject
to the provisions of Section 5, during the Severance Period, the
Company will provide or cause to be provided to the Executive (and any covered
dependents), with life and health insurance benefits (but not disability
insurance benefits) substantially similar to those the Executive and any
covered dependents were receiving immediately prior to the date of termination
and at the same dollar cost to the Executive as in effect immediately prior to
the termination of employment.  Nothing
in this Section 3(f)(iii) will extend the COBRA continuation
coverage period.


 


(g)           In the event the Executive’s employment is
terminated within three years after a Change of Control (provided the Term of
Employment has not already expired) under any circumstances described in Section 3(b)(v) or
by Executive under the circumstances described in Section 3(c)(ii) or
(iii),


 


(i)            the
Company shall pay or cause to be paid to the Executive any Accrued Obligations
in accordance with Section 3(f)(i);


 


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(ii)           the
Company shall pay or cause to be paid to the Executive, within thirty business
days after the date of termination, a lump-sum payment equal to two (2) times
the sum of (A) the Executive’s annual base salary in effect immediately
prior to the date of termination and (B) the most recent annual bonus paid
to the Executive prior to the Change in Control; and


 


(iii)          subject
to the provisions of Section 5, for a two (2) year period
after the date of termination, the Company will provide or cause to be provided
to the Executive (and any covered dependents), with life and health insurance
benefits (but not disability insurance benefits) substantially similar to those
the Executive and any covered dependents were receiving immediately prior to
the date of termination and at the same dollar cost to the Executive as in
effect immediately prior to the termination of employment.  Nothing in this Section 3(g)(iii) will
extend the COBRA continuation coverage period.


 


(h)           In the event Executive’s employment is
terminated by the Company under the circumstances described in Section 3(b)(iv),


 


(i)            the
Company shall pay or cause to be paid to the Executive any Accrued Obligations
in accordance with Section 3(f)(i);


 


(ii)           the
Company shall pay or cause to be paid to the Executive, within thirty business
days after the date of termination, a lump-sum payment equal to three (3) months
base salary, based on the Executive’s base salary in effect immediately prior
to the date of termination; and


 


(iii)          subject
to the provisions of Section 5, for a three (3) month period
after the date of termination, the Company will provide or cause to be provided
to the Executive (and any covered dependents), with life and health insurance
benefits (but not disability insurance benefits) substantially similar to those
the Executive and any covered dependents were receiving immediately prior to
the date of termination and at the same dollar cost to the Executive as in
effect immediately prior to the termination of employment.  Nothing in this Section 3(h)(iii) will
extend the COBRA continuation coverage period.


 


(i)            In the event Executive’s employment is terminated
by the Company under the circumstances described in Section 3(b)(i) or
(ii) or by the Executive under Section 3(c)(i),


 


(i)            the
Company will pay or cause to be paid to the Executive (or the Executive’s
estate or representative, as the case may be) any Accrued Obligations in
accordance with Section 3(f)(i);


 


(ii)           the
Company will pay or cause to be paid to the Executive (or the Executive’s
estate or representative, as the case may be), within thirty business days
after the date of termination, a lump-sum payment equal to 100% of the 


 


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Executive’s
annual base salary in effect immediately prior to the date of termination; and


 


(iii)          subject
to the provisions of Section 5, for a one (1) year period after
the date of termination, the Company will provide or cause to be provided to
the Executive (and any covered dependents), with life and health insurance
benefits (but not disability insurance benefits) substantially similar to those
the Executive and any covered dependents were receiving immediately prior to
the date of termination and at the same dollar cost to the Executive as in
effect immediately prior to the termination of employment.  Nothing in this Section 3(i)(iii) will
extend the COBRA continuation coverage period.


 


(j)            In the event Executive’s employment is
terminated by the Company under any circumstances described in Section 3(b)(iii) or
by Executive as a result of resignation or voluntary termination due to any
circumstance other than the material reductions, relocation or violations
described in Section 3(c)(ii) above, there will be no amounts
owed to the Executive under Section 4 or any other part of this
Agreement, from and after the effectiveness of termination.


 


(k)           The payments and benefits required by Section 3(f),
3(g), 3(h) or 3(i), as applicable, constitute severance and liquidated
damages, and, except for payments that may be required pursuant to Section 10,
the Company will be obligated to pay or cause to be paid any further amounts to
Executive under this Agreement or otherwise be liable to Executive in
connection with any termination.


 


(l)            All determinations pursuant to this Section 3
shall be made by the Company’s Board of Directors (not including Executive) in
good faith.


 


(m)          Termination of the Term of Employment will
not terminate Sections 7 through 10 and 12 through 23,
or any other provisions not associated specifically with the Term of
Employment.


 


(n)           In the event the Term of Employment is
terminated and the Company is obligated to make or cause to be made payments
pursuant to Section 3(f), the Executive will use his reasonable
efforts to seek and obtain alternative employment; provided, however,
that the Executive shall not be required to accept a position or positions of a
substantially different character than the position(s) held by him under
this Agreement; and provided  further, if the Executive shall
become physically or mentally disabled, he will not be under such duty.  Moreover, in the event that after the
Restricted Period pursuant to Section 8(a), Executive is employed
by or engaged in a Competitive Business as contemplated by Section 8(a)(i),
then the payments under Section 3(f) will thereupon cease.


 


(o)           Notwithstanding any provision herein to the
contrary, as a condition to payment of any amounts or provision of any benefits
pursuant to Sections 3(f) through 3(i) or 10 of
this Agreement (other than due to the Executive’s death), the Executive shall 


 


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be required to have executed a complete release of the Companies and
related parties in such form as is reasonably required by the Company.  Subject to Section 3(p), all
payments and benefits under this Section 3 shall be paid or
commenced on the sixtieth (60th) day following the date of termination of the
Executive’s employment, provided that the release described in the preceding
sentence becomes irrevocable prior to such sixtieth (60th) day.


 


(p)           Notwithstanding
the foregoing, if the Executive is a “specified employee” within the meaning of
Section 409A at the time of a termination, any portion of the payments
under this Section 3 due hereunder during the first six months
following the date of the Executive’s termination, to extent that such payments
constitute “deferred compensation” under Section 409A, shall not be paid
during such six-month period and instead shall be paid on the first business
day following the expiration of such six-month period.  The remaining portion of the payments due
hereunder shall be paid as provided in the applicable provisions of this Section 3.


 


4.             Compensation


 


The Company shall pay or cause to be paid to
Executive the following compensation:


 


(a)           During the Term of Employment, the Company
shall pay or cause to be paid to Executive as base compensation for his
services hereunder, in monthly installments, a base salary at a rate of
$290,000 per annum, as increased on an annual basis to reflect the increase in
the United States Cost of Living Index for All Urban Consumer (CPI-U) for the
Boston, Massachusetts area (the “CPI-U Index”).  The January 2004
CPI-U Index shall provide the basis for calculations of such increases.  Notwithstanding the minimum increase set
forth above, the Board of Directors of the Company or a committee thereof may
establish a higher compensation level.


 


(b)           During the Term of Employment, the Company
shall pay or cause to be paid to Executive an annual bonus based on Executive’s
performance, as determined and approved by the Board of Directors of the
Company or a committee thereof under the Safety Insurance Group, Inc.
Annual Performance Incentive Plan, or any successor thereto.  Such bonus will be at the full discretion of
the Board of Directors of the Company or a committee thereof, and may not be
paid at all.  Executive acknowledges that
no bonus has been agreed upon or promised.


 


5.             Reimbursement of
Expenses


 


During the Term of Employment, the Company
shall reimburse or cause Executive to be reimbursed for documented travel,
entertainment and other expenses reasonably incurred by Executive in connection
with the performance of his duties hereunder and, in each case, in accordance
with applicable rules, customs and usages promulgated by the Companies from
time to time in effect.  All reimbursements and in-kind benefits
provided under this Agreement, shall be made or provided in accordance 


 


8

















 


with the requirements of Section 409A,
including, where applicable, the requirement that (a) any reimbursement
shall be for expenses incurred during a specified period, (b) the amount
of expenses eligible for reimbursement, or in-kind benefits provided, during a
calendar year may not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other calendar year, (c) the
reimbursement of an eligible expense shall be made on or before the last day of
the calendar year following the year in which the expense is incurred (or such
earlier date if specified in this Agreement), and (d) the right to
reimbursement or in-kind benefits is not subject to liquidation or exchange for
another benefit.


 


6.             Benefits


 


During the Term of Employment, the Executive
shall be entitled to perquisites, paid vacations and benefits (including
health, short and long term disability, pension and life insurance benefits
consistent with past practice, or as increased from time to time) established
from time to time, by the Board of Directors of the Company for executives of
the Companies, subject to the policies and procedures in effect regarding
participation in such benefits.


 


7.             Confidential
Information


 


During and after the Term of Employment,
Executive will not, directly or indirectly in one or a series of transactions,
disclose to any person, or use or otherwise exploit for the Executive’s own
benefit or for the benefit of anyone other than the Companies, any Confidential
Information, whether prepared by Executive or not; provided, however,
that any Confidential Information may be disclosed to officers,
representatives, employees and agents of the Companies who need to know such
Confidential Information in order to perform the services or conduct the
operations required or expected of them in the Business (as defined in Section 11).  Executive shall use his best efforts to
prevent the removal of any Confidential Information from the premises of the
Companies, except as required in his normal course of employment by the
Company.  Executive shall use
commercially reasonable efforts to cause all persons or entities to whom any
Confidential Information shall be disclosed by him hereunder to observe the
terms and conditions set forth herein as though each such person or entity was
bound hereby. Executive shall have no obligation hereunder to keep confidential
any Confidential Information if and to the extent disclosure of any thereof is
specifically required by law;  provided,
however, that in the event disclosure is required by applicable law, the
Executive shall provide the Companies with prompt notice of such requirement,
prior to making any disclosure, so that the Companies may seek an appropriate
protective order.  At the request of the
Companies, Executive agrees to deliver to the Companies, at any time during the
Term of Employment, or thereafter, all Confidential Information which he may
possess or control.  Executive agrees that all Confidential Information of
the Companies (whether now or hereafter existing) conceived, discovered or made
by him during the Term of Employment exclusively belongs to the Companies (and
not to Executive).  Executive will
promptly disclose such Confidential Information to the 


 


9

















 


Companies and perform all actions reasonably requested by the Companies
to establish and confirm such exclusive ownership.


 


8.             Non-Interference


 


(a)           Executive acknowledges that the services to
be provided give him the opportunity to have special knowledge of the Companies
and their Confidential Information and the capabilities of individuals employed
by or affiliated with the Companies and that interference in these
relationships would cause irreparable injury to the Companies.  In consideration of this Agreement, Executive
covenants and agrees that:


 


(i)            During
the Restricted Period (which shall not be reduced by any period of violation of
this Agreement by Executive or period which is required for litigation to
enforce the rights hereunder), Executive will not, without the express written
approval of the Board of Directors of the Company, anywhere in the Market,
directly or indirectly, in one or a series of transactions, own, manage,
operate, control, invest or acquire an interest in, or otherwise engage or
participate in, whether as a proprietor, partner, stockholder, lender,
director, officer, employee, joint venturer, investor, lessor, supplier,
customer, agent, representative or other participant, in any business which
competes, directly or indirectly, with the Business in the Market (“Competitive
Business”) without regard to (A) whether the Competitive Business has
its office, manufacturing or other business facilities within or without the
Market, (B) whether any of the activities of the Executive referred to
above occur or are performed within or without the Market or (C) whether
the Executive resides, or reports to an office, within or without the Market; provided,
however, that (x) the Executive may, anywhere in the Market,
directly or indirectly, in one or a series of transactions, own, invest or
acquire an interest in up to five percent (5%) of the capital stock of a
corporation whose capital stock is traded publicly, or that (y) Executive
may accept employment with a successor company to the Company.


 


(ii)           During
the Restricted Period (which shall not be reduced by any period of violation of
this Agreement by Executive or period which is required for litigation to
enforce the rights hereunder), Executive will not without the express prior
written approval of the Board of Directors of the Company (A) directly or
indirectly, in one or a series of transactions, recruit, solicit or otherwise
induce or influence any proprietor, partner, stockholder, lender, director,
officer, employee, sales agent, joint venturer, investor, lessor, supplier,
customer, agent, representative or any other person which has a business
relationship with the Companies or had a business relationship with the
Companies within the 24 month period preceding the date of the incident in
question, to discontinue, reduce or modify such employment, agency or business
relationship with the Companies, or (B) employ or seek to employ or cause
any Competitive Business to employ or seek to employ any person or agent who is
then (or was at any time within 24 months prior to the date the Executive or
the Competitive Business employs or seeks to employ such person) employed or
retained by the Companies.


 


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Notwithstanding
the foregoing, nothing herein shall prevent the Executive from providing a
letter of recommendation to an employee with respect to a future employment
opportunity.


 


(iii)          The
scope and term of this Section 8 would not preclude Executive from
earning a living with an entity that is not a Competitive Business.


 


(b)           In the event that Executive breaches his
obligations in any material respect under Section 7, this Section 8
or Section 9, the Company, in addition to pursuing all available
remedies under this Agreement, at law or otherwise, and without limiting its
right to pursue the same shall cease or cause to be ceased all payments to the
Executive under this Agreement or any other agreement.


 


9.             Non-Disparagement


 


During and after the Term of Employment, the
Executive agrees that he shall not make any false, defamatory or disparaging
statements about the Companies or the officers or directors of the
Companies.  During and after the Term of
Employment, the Company agrees, on behalf of the Companies that neither the
officers nor the directors of the Companies shall make any false, defamatory or
disparaging statements about the Executive.


 


10.           Excise Tax Gross-up
Payments


 


(a)           If any payments or benefits paid or provided
or to be paid or provided to the Executive or for his benefit pursuant to the
terms of this Agreement or otherwise in connection with, or arising out of, his
employment with the Company or the termination thereof (a “Payment”)
would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999
of the Internal Revenue Code of 1986, as amended (the “Code”), then the
Executive will be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Executive of all
income taxes, employment taxes and any Excise Tax imposed upon the Gross-Up
Payment (including any related interest and penalties), the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax (including any
related interest and penalties) imposed upon the Payments.


 


(b)           An initial determination of whether a
Gross-Up Payment is required pursuant to this Agreement, and the amount of such
Gross-Up Payment, will be made at the Company’s expense by an accounting firm
selected by the Company.  The accounting firm will provide its
determination, together with detailed supporting calculations and
documentation, to the Company and the Executive within 10 days after the date
of termination of Executive’s employment, or such other time as may be
requested by the Company or the Executive.  If the accounting firm
determines that no Excise Tax is payable by the Executive with respect to a
Payment or Payments, it will furnish the Executive with an opinion to that
effect.  If a Gross-Up Payment becomes payable, such Gross-Up Payment
shall be paid to the Executive within thirty business days of the receipt of
the accounting firm’s determination.  Within 10 days after the accounting
firm 


 


11

















 


delivers its determination to the Executive, the Executive will have
the right to dispute the determination. 
The existence of a dispute will not in any way affect the Executive’s
right to receive the Gross-Up Payment in accordance with the
determination.  If there is no dispute,
the determination will be binding, final, and conclusive upon the Company and
the Executive.  If there is a dispute,
the Company and the Executive will together select a second accounting firm,
which will review the determination and the Executive’s basis for the dispute
and then will render its own determination, which will be binding, final, and
conclusive on the Company and on the Executive for purposes of determining
whether a Gross-Up Payment is required pursuant to this Section 10(b).  If as a result of any dispute pursuant to
this Section 10(b) additional Gross-Up Payments are made, such
additional Gross-Up Payment will be paid to the Executive within thirty
business days of the receipt of the second accounting firm’s
determination.  The Company will pay or
caused to be paid all costs associated with the second accounting firm’s
determination, unless such determination does not result in additional Gross-Up
Payments to the Executive, in which case all such costs will be borne by the
Executive.  Notwithstanding anything
contained herein to the contrary, any such Gross-Up Payment shall be paid no
later than the end of the Executive’s taxable year next following the Executive’s
taxable year in which the Executive remits the related taxes.


 


(c)           For purposes of determining the amount of
the Gross-Up Payment, the Executive will be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and applicable state and local income
taxes at the highest marginal rate of taxation in the state and locality of the
Executive’s residence on the date of termination of Executive’s employment, net
of the maximum reduction in federal income taxes that would be obtained from
deduction of those state and local taxes.


 


(d)           As a result of the uncertainty in the
application of Section 4999 of the Code, it is possible that Gross-Up
Payments which will not have been made should have been made (“Underpayment”)
or Gross-Up Payments are made which should not have been made (“Overpayment”).  If it is determined that an Underpayment has
occurred, the accounting firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment (together with interest at the rate
provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid
to or for the benefit of Executive. 
Notwithstanding anything contained herein to the contrary, any such
Underpayment shall be paid no later than the end of the Executive’s taxable
year next following the Executive’s taxable year in which the Executive remits
the related taxes.  If the Gross-Up
Payment exceeds the amount necessary to reimburse the Executive for his Excise
Tax, the Accounting Firm shall determine the amount of the Overpayment that has
been made and any such Overpayment (together with interest at the rate provided
in Section 1274(b)(2) of the Code) shall be promptly paid by
Executive (to the extent he has received a refund if the applicable Excise Tax
has been paid to the Internal Revenue Service) to or for the benefit of the
Company; provided, however, that if the Company determines that such repayment
obligation would be or result in an unlawful extension of credit under Section 13(k) of
the Securities Exchange Act, repayment shall not be required.  The Executive shall cooperate, to the extent
his expenses are reimbursed in 


 


12

















 


accordance with this Section 10, with any reasonable requests by
the Company in connection with any contest or disputes with the Internal
Revenue Service in connection with the Excise Tax.


 


(e)           The Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment of an Underpayment. 
Such notification shall be given as soon as practicable but no later
than ten (10) business days after the Executive is informed in writing of
such claim and shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid.  The Executive shall not pay such claim prior
to the expiration of the thirty (30) day period following the date on which he
gives such notice to the Company (or such shorter period ending on the date
that any payment of taxes with respect to such claim is due).  If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall:


 


(i)            give
the Company any information reasonably requested by the Company relating to
such claim,


 


(ii)           take
such action in connection with contesting such claim as the Company shall
reasonably request in writing from time to time, including, without limitation,
accepting legal representation with respect to such claim by an attorney
reasonably selected by the Company,


 


(iii)          cooperate
with the Company in good faith in order effectively to contest such claim, and


 


(iv)                              permit the Company to
participate in any proceeding relating to such claim;


 


provided, however, that the Company shall pay or cause to be paid all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax (including
related interest and penalties) imposed as a result of such representation and
payment of costs and expenses no later than 60 days after the end of the
taxable year following the year in which the Executive incurs such costs and
expenses.  Without limitation on the foregoing
provisions of this Section 10(e), the Company shall control all
proceedings taken in connection with such contest and, at its sole option, may
pursue or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Executive agrees
to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate
courts, as the Company shall determine; provided, however, that if the Company
directs the Executive to pay such claim and sue for a refund, such payment shall
be advanced to the Executive, on an interest-free basis and the Executive shall
be indemnified and held harmless, on an after-tax basis, from any 


 


13

















 


Excise Tax or income tax (including related interest or penalties)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance.  The Company’s
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.


 


(f)            If, after the receipt by the Executive of
an amount advanced pursuant to Section 10(e), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive shall
(subject to the Company’s complying with the requirements of Section 10(e))
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto).  If, after the receipt by the Executive of an
amount advanced pursuant to Section 10(e) hereof, a
determination is made that the Executive shall not be entitled to any refund
with respect to such claim and the Company does not notify the Executive in
writing of its intent to contest such denial of refund prior to the expiration
of thirty (30) days after such determination, then such advance shall be
forgiven and shall not be required to be repaid.


 


11.           Definitions


 


Capitalized terms used in this Agreement but
not otherwise defined shall have the meanings set forth below:


 


“Business” means any business
conducted, or engaged in, by the Companies prior to the date hereof or at any
time during the Term of Employment.


 


“Cause”
is defined in Section 3(c).


 


“Change of Control” means any of the
following: (i) the closing of any merger, combination, consolidation or
similar business transaction involving the Company in which the holders of
Company Common Stock immediately prior to such closing are not the holders,
directly or indirectly, of a majority of the ordinary voting securities of the
surviving person in such transaction immediately after such closing, (ii) the
closing of any sale or transfer by the Company of all or substantially all of
its assets to an acquiring person in which the holders of Company Common Stock
immediately prior to such closing are not the holders of a majority of the
ordinary voting securities of the acquiring person immediately after such
closings, or (iii) the closing of any sale by the holders of Company
Common Stock of an amount of Company Common Stock that equals or exceeds a
majority of the shares of Company Common Stock immediately prior to such
closing to a person in which the holders of the Company Common Stock
immediately prior to such closing are not the holders of a majority of the
ordinary voting securities of such person immediately after such closing.


 


“Companies” means the Company and its
successors or any of its direct or indirect parents or direct or indirect
subsidiaries, now or hereafter existing.


 


14

















 


“Company”
is defined in the introduction.


 


“Competitive
Business” is defined in Section 8(a)(i).


 


“Confidential Information” means any
confidential information including, without limitation, any study, data,
calculations, software storage media or other compilation of information,
patent, patent application, copyright, trademark, trade name, service mark,
service name, “know-how”, trade secrets, customer lists, details of client or
consultant contracts, pricing policies, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition plans
or any portion or phase of any scientific or technical information, ideas,
discoveries, designs, computer programs (including source of object codes),
processes, procedures, formulas, improvements or other proprietary or
intellectual property of the Companies, whether or not in written or tangible
form, and whether or not registered, and including all files, records, manuals,
books, catalogues, memoranda, notes, summaries, plans, reports, records,
documents and other evidence thereof. 
The term “Confidential Information” does not include, and there
shall be no obligation hereunder with respect to, information that becomes
generally available to the public other than as a result of a disclosure by the
Executive not permissible hereunder.


 


“Executive”
means Edward N. Patrick, Jr. or his estate, if deceased.


 


“Market” means any state in the United
States of America and each similar jurisdiction in any other country in which
the Business was conducted by or engaged in by the Companies prior to the date
hereof or is conducted or engaged in, or in which the Companies are seeking
authorization to conduct Business at any time during the Term of Employment.


 


“Regulations”
is defined in Section 2(c).


 


“Restricted Period” means the date
commencing on the date of this Agreement and ending on the later of (x) the
date of termination of the Term of Employment or (y) the end of the
applicable severance period provided under Section 3(f); provided,
however, that the “Restricted Period” may be extended, in the sole
discretion of the Company, for an additional period of up to twenty-four (24)
months if the Company continues to pay or to cause to be paid to the Executive (i) the
full amounts to which he would be entitled as base compensation under Section 4(a) and
(ii) customary benefits, in each case during such extended period.


 


“Term of
Employment” is defined in Section 3(a).


 


12.           Notice


 


Any notice, request, demand or other
communication required or permitted to be given under this Agreement shall be
given in writing and if delivered personally, or sent 


 


15

















 


by certified or registered mail, return receipt requested, as follows
(or to such other addressee or address as shall be set forth in a notice given
in the same manner):


 


	
  If to Executive:

  	
   

  	
  Edward N. Patrick, Jr.

  
	
   

  	
   

  	
  c/o Safety Insurance Group, Inc.

  
	
   

  	
   

  	
  20 Custom House Street

  
	
   

  	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
   

  	
   

  
	
  If to Company:

  	
   

  	
  Safety Insurance Group, Inc.

  
	
   

  	
   

  	
  20 Custom House Street

  
	
   

  	
   

  	
  Boston, Massachusetts 02110

  
	
   

  	
   

  	
  Attention:  David
  Brussard

  



 


Any such notices shall be deemed to be given on the date personally
delivered or such return receipt is issued.


 


13.           Executive’s
Representation


 


Executive hereby warrants and represents to
the Company that Executive has carefully reviewed this Agreement and has
consulted with such advisors as Executive considers appropriate in connection
with this Agreement, and is not subject to any covenants, agreements or
restrictions, including without limitation any covenants, agreements or
restrictions arising out of Executive’s prior employment which would be
breached or violated by Executive’s execution of this Agreement or by Executive’s
performance of his duties hereunder.


 


14.           Other Matters


 


(a)           Executive agrees and acknowledges that the
obligations owed to Executive under this Agreement are solely the obligations
of the Company, and that none of the Companies’ stockholders, directors,
officers, affiliates, representatives, agents or lenders will have any
obligations or liabilities in respect of this Agreement and the subject matter
hereof.


 


(b)           Notwithstanding anything contained herein to
the contrary, the Companies may withhold from any amounts payable under, or
benefits provided pursuant to, this Agreement all federal, state, local, and
foreign taxes that are required to be withheld by applicable laws or
regulations.


 


(c)           In addition to any obligations imposed by
law upon any successor to the Company, 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
expressly assume 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.


 


16

















 


15.           Validity


 


If, for any reason, any provision hereof
shall be determined to be invalid or unenforceable, the validity and effect of
the other provisions hereof shall not be affected thereby.


 


16.           Severability


 


Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in
any jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or any other jurisdiction, but this Agreement will
be reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.  If
any court determines that any provision of Section 8 or any other
provision hereof is unenforceable and therefore acts to reduce the scope or
duration of such provision, the provision in its reduced form shall then be
enforceable.


 


17.           Waiver of Breach;
Specific Performance


 


The waiver by the Company or Executive of a
breach of any provision of this Agreement by the other party shall not operate
or be construed as a waiver of any other breach of such other party.  Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its respective
rights under this Agreement and to exercise all other rights existing in its
favor.  The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of Sections 7,  8 and 9 of this Agreement
and that any party (and third party beneficiaries) may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions in order to enforce or
prevent any violations of the provisions of this Agreement.  In the event either party takes legal action
to enforce any of the terms or provisions of this Agreement, the nonprevailing
party shall pay the successful party’s costs and expenses, including but not
limited to, attorneys’ fees, incurred in such action.  If the Executive prevails, the Company will
reimburse the Executive’s legal fees no later than 60 days after the end of the
taxable year following the year in which the Executive incurs such the costs
and expenses.


 


18.           Assignment; Third
Parties


 


Neither the Executive nor the Company may
assign, transfer, pledge, hypothecate, encumber or otherwise dispose of this
Agreement or any of his or its respective rights or obligations hereunder,
without the prior written consent of the other. 
The parties agree and acknowledge that each of the Companies and the
stockholders and investors therein are intended to be third party beneficiaries
of, and have rights and interests in respect of, Executive’s agreements set
forth in Sections 7, 8 and 9.


 


17

















 


19.           Amendment; Entire
Agreement


 


This Agreement may not be changed orally but
only by an agreement in writing agreed to by the party against whom enforcement
of any waiver, change, modification, extension or discharge is sought.  This Agreement embodies the entire agreement
and understanding of the parties hereto in respect of the subject matter of
this Agreement, and supersedes and replaces all prior agreements,
understandings and commitments with respect to such subject matter, including,
without limitation, the Prior Employment Agreement and that certain Employment
Agreement, dated October 16, 2001, between Executive and Safety Insurance
Company.


 


20.           Litigation


 


THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS, EXCEPT THAT NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO
APPLY ANY LAW OTHER THAN THAT OF MASSACHUSETTS, AND NO DEFENSE, COUNTERCLAIM OR
RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY OTHER STATE OR JURISDICTION,
OR ARISING OUT OF THE ENACTMENT, MODIFICATION OR REPEAL OF ANY LAW, REGULATION,
ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION, BE INTERPOSED IN ANY ACTION
HEREON.  EXECUTIVE AND THE COMPANY AGREE
THAT ANY ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT SHALL
BE COMMENCED IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS LOCATED IN
BOSTON, MASSACHUSETTS OR THE UNITED STATES DISTRICT COURTS IN BOSTON,
MASSACHUSETTS.  EXECUTIVE AND THE COMPANY
CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE PROPER IN SUCH COURTS
AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS.  THE
CHOICE OF FORUM SET FORTH IN THIS SECTION 20 SHALL NOT BE DEEMED TO
PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING
OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER JURISDICTION.


 


21.           Further Action


 


Executive and the Company agree to perform
any further acts and to execute and deliver any documents which may be
reasonable to carry out the provisions hereof.


 


22.           Counterparts


 


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


 


18

















 


23.           Section 409A


 


To the extent applicable, it is intended that
this Plan comply with, and should be interpreted consistent with, the
requirements of Section 409A.


 


IN WITNESS WHEREOF, this Agreement has been
executed as of the date first written above.


 


	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Edward N. Patrick, Jr.

  
	
   

  	
  Name: Edward
  N. Patrick, Jr.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SAFETY INSURANCE GROUP, INC.:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/David F. Brussard

  
	
   

  	
  Name: David
  F. Brussard

  
	
   

  	
  Title: President,CEO
  and Chairman of the

            Board

  



 


19