Exhibit 10.30
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 18th of December, 2003, between Infinity Property and Casualty Corporation,
an Ohio corporation (the "Company") and Roger Smith (the "Executive").
RECITALS
A. It is the desire of the Company to continue to retain the
services of the Executive as its Senior Vice President and Chief Financial
Officer as described in this Agreement.
B. The Executive desires to continue to provide his services to the
Company on the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
respective covenants and agreements set forth below, the parties hereto agree as
follows:
ARTICLE I.
SERVICES AND TERM
1.1 Term. The Company hereby employs the Executive and the Executive
accepts employment with the Company for a period commencing on the date hereof
(the "Effective Date") and expiring December 24, 2005 (the "Term").
1.2 Services. During the Term the Executive will serve as the
Company's Senior Vice President and Chief Financial Officer and will be
responsible for such other duties, commensurate with his position and authority,
as are reasonably determined, from time to time, by the Company's Chief
Executive Officer. The Executive shall devote his full business time and effort
to the performance of his duties hereunder and will render his services at the
Company's offices in Birmingham, Alabama ("Work Location"), except that the
Executive agrees to travel from time to time to the extent required for the
performance of his duties.
ARTICLE II.
COMPENSATION PACKAGE
2.1 Cash Compensation.
(a) Base Salary. During the Term, the Company will pay the
Executive an annual base salary of at least $275,000.00 for each twelve-month
period of the Term.
The Executive's base salary shall be payable in accordance with the
normal payroll procedures of the Company.
(b) Bonus Opportunity. The Company shall maintain an incentive
bonus compensation plan similar to the Company's 2003 Annual Bonus Plan. Such
plan will
include an annual base bonus target amount of at least $150,000.00 for
Executive; if any amount of such bonus is payable under the terms of a plan, it
shall be in addition to Executive's annual base salary. The actual amount of any
bonus payable to Executive in any year shall be determined by the Board based
upon performance criteria set forth in advance under the bonus plan and
Executive's achievement of such performance criteria.
(c) Withholding and Deferrals. All base salary and bonus
payable under this Section 2.1 shall be reduced by (i) any income tax or other
legally required withholding by the Company, (ii) any elective deferrals of such
amounts as contributions to qualified and non-qualified retirement plans or
deferred compensation plans of the Company, if any, and (iii) contributions
payable by Executive with respect to his participation in Company welfare
benefit and retirement and savings plans.
2.2 Benefits and Fringes and Other Fringe Benefits.
(a) Benefit Plans. During the Term, the Executive shall be
eligible to participate in such medical, dental, health, retirement, savings,
welfare and life and disability insurance plans (including supplemental
retirement and savings plans) generally made available from time to time to
senior executives of the Company (subject to their terms), and to receive other
fringe benefits on terms and conditions that are at least as favorable as the
fringe benefits generally provided to other senior executives of the Company at
the time such other fringe benefits, if any, are made available to them.
(b) Vacation and Other Paid Leave. During the Term, the
Executive shall be entitled to paid vacation time and other paid leaves, whether
for holidays, illnesses or similar purposes, in accordance with the plans,
practices, policies and programs applicable to other senior executives of the
Company.
(c) Business Expenses. The Company will promptly pay or
reimburse the Executive for all reasonable business-related expenses incurred by
him in connection with the performance of his duties hereunder upon presentation
of written documentation, subject, however, to the Company's reasonable policies
relating to business-related expenses as then in effect from time to time.
(d) Date of Hire. For determination of benefits to which the
Executive is entitled, including but not limited to those described in Sections
2.2(a) and 2.2(b), the Executive's Date of Hire shall be the first date of his
employment with a subsidiary of either the Company or American Financial Group,
Inc.
2.3 Indemnification. The Company shall indemnify Executive (and his
successors), to the extent permitted by applicable law and the Company's
regulations.
2.4 Current Incentive Plan. Nothing contained herein shall reduce in
any way payments to which Executive may be entitled under annual bonus plans
and/or long term incentive plans sponsored by the Company's current or former
affiliates.
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ARTICLE III.
TERMINATION OF SERVICES
3.1 Termination. Executive's employment with the Company hereunder
may be terminated by the Company or the Executive, as applicable, at any time
prior to the end of the Term for any of the following reasons:
(a) Disability. Upon the failure of the Executive to render
services to the Company for a continuous period of six (6) months because of the
Executive's physical or mental disability or illness ("Disability"), the Company
may terminate the Executive's employment hereunder, provided such termination
does not otherwise violate applicable law. If there should be a dispute between
the parties as to the Executive's physical or mental disability, such dispute
shall be settled by the opinion of an impartial reputable physician agreed upon
for such purpose by the parties or their representatives. The certificate of
such physician as to the matter in dispute shall be final and binding on the
parties.
(b) Cause. The Company may terminate this Agreement and the
Executive's employment hereunder for Cause. For purposes of this Agreement,
"Cause" shall mean: (i) the Executive's failure or refusal to materially perform
his duties under this Agreement; (ii) the Executive's failure or refusal to
follow material lawful directions of the Board or any other act of material
insubordination on the part of Executive; (iii) the engaging by the Executive in
misconduct, including but not limited to any type of sexual harassment which is
materially and demonstrably injurious to the Company or any of its divisions,
subsidiaries or affiliates, monetarily or otherwise; (iv) any conviction of, or
plea of guilty or nolo contendere to, the Executive with respect to a felony
(other than a traffic violation); or (v) the commission (or attempted
commission) of any act of fraud or dishonesty by the Executive which is
materially detrimental to the business or reputation of the Company or any of
its divisions, subsidiaries or affiliates.
(c) Without Cause.
(i) The Company may terminate the Executive's employment
hereunder without Cause upon thirty (30) days written notice to the
Executive.
(ii) The Executive may terminate his employment upon
thirty (30) days notice for Good Reason, as defined as follows:
"Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent), of any one of the following acts by the Company,
or failures by the Company to act:
(I) the assignment to the Executive of any duties
inconsistent with the Executive's status as an
executive officer of the Company (including by
reason of the Company becoming a subsidiary of
another company) or a substantial adverse
alteration in the nature or status of the
Executive's title or responsibilities from those
in effect as of the date hereof;
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(II) a reduction by the Company in the Executive's
annual base salary or target annual bonus
opportunity as set forth in the Agreement or as
the same may thereafter be increased from time to
time, or a failure to provide the Executive with
participation in any stock option or other
equity-based plan in which other employees of the
Company (and any parent, surviving or acquiring
company) participate on a basis that does not
unreasonably discriminate against the Executive as
compared to such other employees who have similar
levels of responsibility and compensation;
(III) the relocation of the Executive's principal place
of employment to a location more than 50 miles
from the Executive's principal place of employment
as of the date hereof, except for required travel
on the Company's business to an extent
substantially consistent with the Executive's
business travel obligations as of the date hereof;
(IV) any material breach by the Company of its
obligations under this Agreement.
The Executive's right to terminate the Executive's
employment for Good Reason shall not be affected by the Executive's incapacity
due to physical or mental illness. Except as provided above, the Executive's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason hereunder. The
Executive may resign for Good Reason only if such Executive provides Notice of
Termination to the Company within three months of the Executive becoming aware
that the basis for such Good Reason exists.
(d) Death. The Executive's employment hereunder shall
automatically terminate on the death of the Executive.
3.2 Payment on Termination with Cause. In the event that Executive's
employment is terminated by the Company with Cause, Executive shall be entitled
to receive the following payments not later than twenty business days after the
date of termination:
(a) payment of any earned but unpaid salary accrued through
and including the date of termination;
(b) payment of accrued, but unused, vacation time; and
(c) reimbursement of any unreimbursed business expenses
incurred prior to the date of termination.
3.3 Payment on Termination Without Cause. Subject to the Executive's
continuing compliance with the covenants contained in Article IV of this
Agreement (the "Covenants") and the execution by the Executive of a customary
binding general waiver and
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release of claims (the "Release"), in the event that the Executive's employment
is terminated by the Company without Cause or by the Executive for Good Reason,
then the Executive, or the Executive's estate in the event of his death, shall
be entitled to receive the following less any required withholdings:
(a) payment of any earned, but unpaid salary accrued through
and including the date of termination;
(b) payment of (i) any earned but unpaid annual bonus from a
previous calendar year and (ii) any earned but unpaid amounts that may be paid
under any company long term incentive plans to be paid according to the terms of
such plans;
(c) (i) payment of the Executive's target annual bonus amounts
pursuant to Section 2.1(b), pro-rated based on the actual number of days elapsed
in the year in which Executive's termination takes place; and (ii) payment of
two times the target annual bonus amount, such payments to be made in a lump sum
subject to federal, state and applicable withholding taxes and payments;
(d) a lump sum payment equal to two time his current base
salary;
(e) payment of accrued, but unused, vacation time;
(f) reimbursement any unreimbursed business expenses, or
automobile expenses incurred prior to the date of termination;
(g) for twenty-four (24) months (the "Post-Termination
Period"), the Company shall continue to provide, at its sole cost and expense,
Executive and his eligible dependents with all benefit plans and other fringe
benefits as described in Section 2.2(a) that were being provided to the
Executive immediately prior to his termination of employment upon the same terms
and conditions as provided to other senior executives; the Post-Termination
Period, Executive and his eligible dependents shall be eligible for COBRA
benefits for eighteen (18) months;
(h) immediate, 100% vesting of all stock options issued
pursuant to the Company's Stock Option Plan that have been granted to Executive
so that such options may be exercised within three (3) years of his termination
date; and
(i) immediate, 100% vesting of all restricted shares awarded
pursuant to the Company's Restricted Stock Plan.
3.4 Payment on Termination Due to Death or Disability. Company shall
make the following payments in the event of Executive's Death (to his estate) or
Disability (as defined in Section 3.1(a) of this Agreement): the payments set
forth in Sections 3.3(a), (b), (c) (d), (e) and (f). In the event of Death
following Disability, amounts remaining to be paid under this section shall be
paid to Executive's estate.
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ARTICLE IV.
COVENANTS
4.1 No Diversion. The Executive covenants and agrees that (i)
during the Term and (ii) the Post-Termination Period, he shall not divert or
attempt to divert or take advantage of or attempt to take advantage of any
actual or potential business opportunities of the Company (e.g., writing,
issuing, underwriting, selling, distributing or re-insuring personal property
and casualty insurance products, investment opportunities, and other similar
opportunities) which the Executive became aware of during his employment with
the Company.
4.2 Non-Recruitment. The Executive agrees that the Company has
invested substantial time and effort in assembling its present workforce.
Accordingly, the Executive covenants and agrees that during the Term and the
Post-Termination Period, he shall not directly or indirectly entice or solicit
(other than pursuant to general, non-targeted public media advertisements) or
seek to induce or influence any of the Company's Employees to leave their
employment.
4.3 Non-Disclosure. Prior to and in connection with this
Agreement, Executive has learned and will continue to learn trade secrets and
confidential information of Company, including but not limited to (i) financial
information, (ii) business methods and techniques, including but not limited to
sales methods, prospecting methods, methods of presentation, programs and other
materials used or to be used by Company in managing, marketing or furthering
it's business, (iii) insureds and agent's names, addresses and contact and other
information, (iv) all other information about Company's business that is not
known to the public and gives Company an opportunity to obtain an advantage over
competitors ("Confidential Information"). Executive acknowledges that Company
has invested substantial sums in the development of its Confidential
Information.
During the term of this Agreement, and after the termination of
Executive's employment for any reason, Executive covenants and agrees that he
will not, directly or indirectly, disclose or communicate to any person or
entity or otherwise use any Confidential Information of Company ("Non-Disclosure
Covenant") for any purpose other than for the direct benefit of Company. Upon
termination of Executive's employment, he shall promptly return to Company all
documents, records, notebooks, manuals, disks, software, hardware and other
information of Company.
This Non-Disclosure Covenant has no temporal, geographic or
territorial restrictions or limitations and applies no matter where Executive
may be located in the future.
4.4 Termination for Cause. Executive agrees that if his
employment is terminated pursuant to Section 3.1 (b), he shall be bound to the
covenants set forth in Sections 4.1, 4.2 and 4.3 for the duration of the
Post-Termination Period.
4.5 Remedies. The Executive acknowledges that should he
violate any of the Covenants, it will be difficult to determine the resulting
damages to the Company and, in addition to any other remedies it may have, and
notwithstanding the provisions of Section 5.4,
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the Company shall be entitled to temporary injunctive relief without being
required to post a bond and permanent injunctive relief without the necessity of
proving actual damage. The Company may elect to seek one or more of these
remedies at its sole discretion on a case by case basis. Failure to seek any or
all remedies in one case does not restrict the Company from seeking any remedies
in another situation. Such action by the Company shall not constitute a waiver
of any of its rights.
4.6 Severability and Modification of Any Unenforceable
Covenant. It is the parties' intent that each of the Covenants be read and
interpreted with every reasonable inference given to its enforceability.
However, without limiting the generality of Section 5.5 herewith, it is also the
parties' intent that if any term, provision or condition of the Covenants is
held to be invalid, void or unenforceable, the remainder of the provisions
thereof shall remain in full force and effect and shall in no way be affected,
impaired or invalidated. Finally, it is also the parties' intent that if it is
determined any of the Covenants are unenforceable because of over breadth, then
the covenant shall be modified so as to make it reasonable and enforceable under
the prevailing circumstances.
4.7 Tolling. In the event of the breach by Executive of any
Covenant the running of the period of restriction shall be automatically tolled
and suspended for the amount of time that the breach continues, and shall
automatically recommence when the breach is remedied so that the Company shall
receive the benefit of Executive's compliance with the Covenants. This paragraph
shall not apply to any period for which the Company is awarded and receives
actual monetary damages for breach by the Executive of a Covenant with respect
to which this paragraph applies.
ARTICLE V.
MISCELLANEOUS
5.1 Successors. This Agreement shall inure to the benefit of the
Company and its successors and assigns, as applicable and to the benefit of
Executive's personal or legal representatives, executors, administrators or
heirs. If the Company shall merge or consolidate with or into, or transfer
substantially all of its assets, including goodwill, to another corporation or
other form of business organization, this Agreement shall be binding on, and run
to the benefit of, the successor of the Company resulting from such merger,
consolidation, or transfer. The Executive shall not assign, pledge, or encumber
his interest in this Agreement, or any part thereof, without the prior written
consent of the Company, and any such attempt to assign, pledge or encumber any
interest in this Agreement shall be null and void and shall have no effect
whatsoever.
5.2 Governing Law. This Agreement is being made and executed in and
is intended to be performed in the State of Ohio and shall be governed,
construed, interpreted and enforced in accordance with the substantive laws of
the State of Ohio, without regard to the conflict of laws principles thereof.
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5.3 Entire Agreement. This Agreement comprises the entire agreement
between the parties hereto relating to the subject matter hereof and as of the
Commencement Date, supersedes, cancels and annuls all previous agreements
between the Company (and/or its predecessors) and the Executive, as the same may
have been amended or modified, and any right of the Executive thereunder other
than for compensation accrued thereunder as of the date hereof, and supersedes,
cancels and annuls all other prior written and oral agreements between the
Executive and the Company or any predecessor to the Company. The terms of this
Agreement are intended by the parties to be the final expression of their
agreement with respect to the employment of the Executive by the Company and may
not be contradicted by evidence of any prior or contemporaneous agreement.
5.4 Disputes.
(a) Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement, including any claims for
discrimination or other similar violation of federal law, shall be finally
determined and settled by arbitration in Hamilton County Ohio, in accordance
with the rules and procedures of the American Arbitration Association, and
judgment upon the award may be entered in any court having jurisdiction thereof.
(b) If any arbitration or other proceeding is brought for the
enforcement of this Agreement, or because of an alleged dispute, breach, default
or misrepresentation in connection with any of the provisions of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and
other costs incurred in that action or proceeding, in addition to any other
relief that may be granted.
5.5 Severability; Enforceability. If any provision of this
Agreement, or the application thereof to any person, place, or circumstance,
shall be held to be invalid, unenforceable, or void by the final determination
of a court of competent jurisdiction in any jurisdiction and all appeals
therefrom shall have failed or the time for such appeals shall have expired, as
to that jurisdiction and subject to this Section 5.5, such clause or provision
shall be deemed eliminated from this Agreement but the remaining provisions
shall nevertheless be given full force and effect. In the event this Agreement
or any portion hereof is more restrictive than permitted by the law of the
jurisdiction in which enforcement is sought, this Agreement or such portion
shall be limited in that jurisdiction only, and shall be enforced in that
jurisdiction as so limited to the maximum extent permitted by the law of that
jurisdiction.
5.6 Counterparts. This Agreement may be executed by facsimile and in
several counterparts, each of which shall be deemed to be an original, but all
of which together will constitute one and the same Agreement.
5.7 Amendments; Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, approved by the Board
and signed by the Executive and the Company. By an instrument in writing
similarly executed, the Executive or the Company may, with the approval of the
Board, waive compliance by the other party or parties with any provision of this
Agreement that such other party was or is obligated to comply with or perform;
provided, however, that such waiver shall not operate as a waiver of, or
estoppel
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with respect to, any other or subsequent failure. No failure to exercise and no
delay in exercising any right, remedy or power hereunder shall preclude any
other or further exercise of any other right, remedy or power provided herein or
by law or in equity.
5.8 No Inconsistent Actions. The parties hereto shall not
voluntarily undertake any action inconsistent with, or voluntarily undertake or
fail to undertake any action or course of action to avoid or evade, the
provisions or essential intent of this Agreement. Furthermore, it is the intent
of the parties hereto to act in a fair and reasonable manner with respect to the
interpretation and application of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
INFINITY PROPERTY AND CASUALTY EXECUTIVE
CORPORATION
By: ______________________________ ___________________________________
Name: James R. Gober Roger Smith
Title: Chief Executive Officer Senior Vice President and Chief
Financial Officer
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