Exhibit 10 (WW)
Employment Agreement
dated as of
May 22, 2003
between
State Auto Financial Corporation
and
Xxxxxx X. Xxxxx
EMPLOYMENT AGREEMENT
THIS AGREEMENT made effective as of the 22 day of May, 2003 by and between
State Auto Financial Corporation, an Ohio corporation, with its principal office
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("State Auto") and Xxxxxx X. Xxxxx,
residing at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx 00000 ("Executive").
Background Information
WHEREAS, Executive currently is employed by State Auto as the Chairman of the
Board, President and Chief Executive Officer of State Auto and its insurer
affiliates;
WHEREAS, State Auto desires to continue to employ Executive and secure for
itself the continued services of Executive upon the terms and conditions
specified herein; and
WHEREAS, Executive wishes to continue his employment by State Auto.
Statement of Agreement
NOW, THEREFORE, in consideration of such continued employment, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, INTENDING TO BE LEGALLY BOUND, hereby agree as
follows:
ARTICLE I DEFINITIONS.
Capitalized terms used herein which are not defined herein shall have such
meaning as is ascribed to such term as is set forth in the Executive Agreement
dated January 1, 2001 between State Auto and Executive, (the "Executive
Agreement") a copy of the form of which is attached hereto as Exhibit A and
incorporated herein by this reference.
ARTICLE II EMPLOYMENT DUTIES AND TERM.
(A) Duties.
Executive shall perform such duties as State Auto, through its Board of
Directors, ("Board") from time to time shall determine, provided, however, that
such duties shall be comparable to those currently performed by Executive and
ordinarily expected of executive officers of State Auto and its Subsidiaries and
affiliates. Executive shall devote his full time and attention and best efforts
to the performance of such duties. Executive shall serve as an officer of State
Auto and as an officer of any of its affiliate corporations, if duly elected at
any time or times during the term of this Agreement.
(B) Term.
Executive's employment and the initial term of this Agreement shall be for a
period commencing on the date hereof ("Commencement Date"), and ending on
December 31, 2005, unless terminated at an earlier date pursuant to an event
described in Article IV of this Agreement (referred to hereafter as the
"Employment Period"). This Agreement shall be renewed at the end of the term
hereof for one additional two year term,, commencing on January 1, 2006 with the
mutual consent of the parties hereto. It is understood and agreed that if
Executive desires to renew the Agreement at such time on terms substantially
similar to those set forth herein, but State Auto does not, that shall
constitute a termination without cause as defined in Article IV(E) below. It is
further understood and agreed that if State Auto desires to renew the Agreement
at
such time on terms substantially similar to those set forth herein but
Executive does not, that shall constitute a voluntary termination by Executive
under Article IV(C) below.
ARTICLE III COMPENSATION.
State Auto agrees to pay to Executive and Executive agrees to accept the
following amounts as compensation in full for his services in any capacity
hereunder or in the performance of other like duties assigned to him by the
Board of Directors of State Auto:
(A) Base Compensation.
During the initial term under this Agreement, State Auto shall pay to Executive
an Annual Base Salary in the amount equal to the current Annual Base Salary of
Executive, payable in equal bi-weekly installments plus such increased annual
base compensation that the Compensation Committee of the Board (the "Committee")
may authorize as provided herein (the "Minimum Annual Base Salary"). The
compensation of Executive shall be reviewed by the Committee no less often than
once each calendar year during the initial and renewal term and may be increased
by the Committee as it determines in the good faith exercise of its business
judgment based on such factors as the Committee deems appropriate. In no event
shall the Annual Base Salary be less than the Minimum Annual Base Salary
described above, provided, this limitation may be suspended by the Committee if
the Committee determines, on the basis of such commercially reasonable factors
as its deems appropriate in the good faith exercise of its business judgment,
that not imposing such suspension is not in the best interests of State Auto
("Exigent Circumstances").
(B) Participation in State Auto's Incentive Compensation Plans.
Executive currently participates in an Incentive Bonus Arrangement (the
"Arrangement") and State Auto's Quality Performance Bonus Plan ("QPB"). As
additional compensation, Executive shall continue to participate in an
Arrangement, the terms of which may be amended from time to time by the
Committee. Executive shall also participate in the QPB or any similar incentive
compensation plan provided to Executive (the "ICP"), so long as State Auto
continues to offer the ICP to other employees of State Auto. It is understood
and agreed that the bonus compensation potential from the Arrangement, as it may
be amended by the Committee, shall not be less than the bonus compensation
potential available to Executive under the Arrangement in effect for Executive
on the date of this Agreement, provided that this limitation may be suspended
due to Exigent Circumstances.
(C) Participation in Retirement Plan and Rights Under Other Agreements.
Executive shall be entitled to certain rights and benefits as in effect on the
date hereof under a) the State Auto Stock Purchase Plan (the "Stock Plan"), b)
the State Auto Insurance Companies Employee Retirement Plan, a noncontributory,
defined benefit retirement plan, qualified under Section 401(a) of the Internal
Revenue Code (the "Qualified Plan"), c) State Auto's nonqualified, unfunded,
non-contributory Supplemental Executive Retirement Plan (the "SERP"), and d) the
1991 Stock Option Plan or any successor or additional stock option plans (the
"Stock Option Plans") implemented by State Auto. Executive's rights and benefits
under such plans as described in Article III, section (C) shall continue in
effect and shall not in any manner be altered or affected by this Agreement
other than any increase in benefits as a result of the terms of this Agreement.
Notwithstanding any other provision contained in the Stock Option Plans, in the
event Executive's employment is terminated for any reason, he shall have a
period of not less than ninety (90) days in which to exercise any stock option
provided pursuant to the Stock Option Plans, provided, however, that the period
during which such options can be exercised
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will be such longer period as is provided under the terms of such Stock Option
Plans or any stock option agreements effected thereunder.
(D) Other Fringe Benefits.
In addition to the benefits provided for in Sections (B) and (C) of this Article
III, Executive shall receive and enjoy any and all other fringe benefits made
available to other employees of State Auto or its affiliates as described in
State Auto's Employee Reference Guide, in accordance with State Auto's regular
employment policies and practices. In addition, the Committee and the Board of
Directors of State Auto shall have the authority to grant such special
perquisites to Executive as each in its discretion deems appropriate. In
addition, Executive shall be entitled to reimbursement for all out-of-pocket
expenses incurred by Executive in the performance of his duties hereunder;
provided that such reimbursement shall be in accordance with State Auto's then
existing policy regarding the same.
(E) Participation in Future Compensation, Retirement, and Fringe Benefit Plans.
In addition to the benefits provided for in Sections (B), (C), and (D) of this
Article III, Executive shall participate in and shall also receive and enjoy
such other compensation, retirement, or fringe benefits which are now or in the
future made available to executives of State Auto.
(F) Deferred Compensation.
State Auto agrees that, if requested by Executive, it will enter into an
unfunded deferred compensation agreement acceptable to Executive providing for
the deferral at the election of Executive of certain compensation payable to
Executive.
ARTICLE IV TERMINATION.
(A) Disability.
If during the term of this Agreement Executive shall be unable to perform
substantially his duties hereunder because of illness or other incapacity
(referred to hereafter as "Disability"), and such Disability shall continue for
a period of more than six (6) consecutive months in any twelve month period,
State Auto shall thereafter have the right, on not less than forty-five (45)
days written notice to Executive, to terminate Executive's employment under this
Agreement, in which case the date of employment termination shall be not less
than the forty-fifth (45th) day following the date of written notice. In such
event, in addition to any other benefits to which Executive would be entitled,
State Auto shall be obligated to pay Executive his full compensation pursuant to
Sections (A) and (B) of Article III hereof up to the date of employment
termination. Thereafter, State Auto shall be obligated to pay Executive an
amount equal to twenty percent (20%) of the Executive's Annual Base Salary in
addition to any benefits Executive might be entitled to under State Auto's long
term disability plan described in State Auto's Employee Reference Guide as of
January 1, 2001. The compensation provided under this paragraph shall continue
for the full period of Disability or until Executive attains age 65, whichever
first occurs. A determination of Disability shall be subject to the
certification of a qualified medical doctor agreed to by State Auto and
Executive or, in the event of Executive's incapacity to designate a qualified
medical doctor, by Executive's legal representative. If State Auto and Executive
fail to agree upon a qualified medical doctor, each party shall nominate a
qualified medical doctor and the two doctors shall select a third doctor, who
shall make the determination as to Disability. In addition to the foregoing
disability compensation described in this Article IV Section (A), Executive
shall continue to receive such health insurance benefits or their equivalent as
he and his spouse receive on the effective date hereof, as well as such group
life insurance as Executive has in place on his life, as of the date of
Disability, pursuant to the terms of such
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plans as are generally made available to State Auto employees. Executive's
compensation and other benefits described in Article III shall be reinstated in
full upon his return to employment and the discharge of his full duties
hereunder.
(B) Death.
In the event of Executive's death during his employment hereunder, in addition
to any other benefits to which any person would be entitled upon Executive's
death, his biweekly compensation under Article III Section (A) shall continue
until the last day of the twelfth (12th) full calendar month following the month
in which his death occurs. A pro rata share of the compensation to which
Executive is entitled pursuant to Article III Section (B) hereof shall be paid
pursuant to the terms of Executive's Arrangement and the QPB, provided the bonus
contemplated by the Arrangement and the QPB is in fact earned under the terms of
the Arrangement and the QPB then in effect for the particular calendar year as
respects the Arrangement and for the calendar quarter as respects the QPB in
which Executive were to die. Said pro rata share of the bonus due under the
Arrangement shall be determined by dividing a numerator equal to the number of
whole months that have elapsed in the calendar year on the date of the
Executive's death by the denominator of 12. Said pro rata share of the QPB shall
be determined by dividing a numerator equal to the number of whole months that
have elapsed in the calendar quarter on the date of the Executive's death,
divided by a denominator of three (3). Executive's compensation for the period
following his death shall be paid to the beneficiary indicated on the
Beneficiary Designation attached hereto as Exhibit B. If either the QPB or the
bonus due under the Arrangement is earned under this Article IV Section (B),
said sums will be paid to the Beneficiary as soon as practicable following the
end of the calendar quarter or calendar year as the case may be following the
determination by State Auto that either the QPB or the bonus due under the
Arrangement has in fact been earned pursuant to the terms of each such bonus
opportunity. In addition to the foregoing, in the event of Executive's death
during his employment hereunder, Executive's spouse shall be entitled to
participate in State Auto's fringe benefit programs as would the spouse of any
other deceased State Auto employee in similar circumstances.
(C) Voluntary Termination.
Except as provided in the Executive Agreement, in the event Executive
voluntarily terminates his employment, including, without limitation, Retirement
initiated solely by Executive, he shall cease to receive compensation as of the
date of such termination of his employment, except that to which he may then be
entitled pursuant to the QPB and the Arrangement. It is understood and agreed
that as respects the Arrangement, Executive is not required to be employed by
State Auto on the date such amount is paid, if he had in fact earned such bonus
under the terms of the Arrangement in place as of the end of the calendar year
immediately preceding the termination of his employment.
(D) Termination for Cause.
(1) In the event that the Board determines that this Agreement and Executive's
employment should be terminated for Cause, as defined in (2) below, Executive
shall be entitled: (a) to receive the compensation to which he may be entitled
pursuant to the QPB and the Arrangement then in effect, and (b) to continue to
receive as severance pay the bi weekly installments as described in Article II
Section (A) for twelve (12) bi-weekly pay periods following the date of
termination. If State Auto decides to terminate this Agreement as provided in
this Section, State Auto will give Executive ten (10) days advance written
notice of its intention to terminate this Agreement. In the event of a
termination for Cause, Executive's employment shall cease on the date the above
described notice is delivered to Executive, but this Agreement
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will not terminate until the expiration of the notice period. It is further
understood and agreed that should Executive dispute the fact that Cause, as
defined herein, exists for such termination, Executive has the right to pursue a
claim in Arbitration under section 11 of the Executive Agreement, dated January
1, 2001, to which Executive is a party, for such benefits that would otherwise
have been due to him under Section (E) of this Article IV.
(2) For purposes of this Section D of Article IV, it is understood and agreed
that Cause shall mean the following: (i)the willful and continued failure of the
Executive to perform substantially the Executive's duties with State Auto (other
than any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is delivered to the
Executive by the Board which specifically identifies the manner in which the
Board believes that the Executive has not substantially performed the
Executive's duties, or (ii) the willful engaging by the Executive in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
State Auto, as determined by the Board. For purposes of this provision, no act
or failure to act, on the part of the Executive, shall be considered "willful"
unless it is done, or omitted to be done, by the Executive in bad faith or
without reasonable belief that the Executive's action or omission was in the
best interests of State Auto. Any act, or failure to act, based upon authority
given pursuant to a resolution duly adopted by the Board or upon the advice of
counsel for State Auto, shall be conclusively presumed to be done, or omitted to
be done, by the Executive in good faith and in the best interests of State Auto.
(E) Termination without Cause.
In the event that the Board of Directors determines that this Agreement and the
employment of Executive should be terminated for a reason other than death,
Disability, Retirement initiated solely by Executive, or for Cause (such reason
is hereafter referred to as a "Termination without Cause"), Executive, or his
designated beneficiary, shall be entitled to his then current Annual Base Salary
and benefits under Section (C) of Article III for twenty-four (24) months after
termination of employment. In addition, Executive shall be entitled to receive
the average of the annual aggregate ICP earned by the Executive in each of the
two calendar years immediately preceding the calendar year in which the
Termination without Cause occurs and the average of the amount earned under the
Executive's Arrangement in place in each of the two calendar years immediately
preceding the calendar year in which the Termination without Cause occurs. In
addition to the foregoing, in the event of Termination without Cause, Executive
shall be entitled to participate in State Auto's health insurance benefit plan
for himself and his spouse until such time as Executive and his spouse first
become eligible for Medicare pursuant to the terms of such plan as are generally
made available to State Auto employees.
(F) Change of Control.
In the event that State Auto shall have undergone a Change of Control, in lieu
of any compensation otherwise provided under this Agreement, Executive shall be
entitled to the benefits described in the Executive Agreement upon the
termination of his employment, either voluntarily by Executive or by State Auto
for any reason except Executive's Disability or death.
G. Mitigation.
In the event that Executive voluntarily terminates his employment, as set forth
in Article IV Section (C) herein, or Executive's employment pursuant to this
Agreement is terminated without Cause, as set forth in Article IV Section (E)
herein, or Executive is terminated pursuant to a Change of Control, as set forth
in Article IV Section (F) herein, Executive shall have no duty to mitigate his
damages by seeking other employment, and State Auto shall not be entitled to set
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off against amounts payable hereunder any compensation which he may receive from
future employment.
ARTICLE V EXECUTIVE'S RIGHTS UNDER CERTAIN PLANS.
Notwithstanding anything contained herein, State Auto agrees that the benefits
provided to Executive herein are not in lieu of any rights and privileges to
which Executive may be entitled as an employee of State Auto or its affiliates
under any retirement, pension, insurance, hospitalization, or other plan which
may now or hereafter be in effect, it being understood that, except to the
extent currently provided in such plans, Executive shall have the same rights
and privileges to participate in such plans or benefits as any other employee of
State Auto or its affiliates. If Executive shall be entitled to participate in
any retirement or fringe benefit plan pursuant to the terms of this Agreement
after the cessation of his employment and if the terms of any such retirement or
fringe benefit plan do not permit continued participation by Executive after
termination of employment, then State Auto will arrange for other coverage at
State Auto's expense providing substantially similar benefits.
ARTICLE VI CONFIDENTIAL INFORMATION.
Executive agrees to receive Confidential Information (as defined below) of State
Auto in confidence, and not to disclose to others, assist others in the
application of, or use for his own gain, such information, or any part thereof,
unless and until it has become public knowledge or has come into the possession
of such other or others by legal and equitable means and other than as a result
of disclosure by Executive. Executive further agrees that, upon termination of
his employment with State Auto, all documents, records, notebooks, and similar
repositories containing Confidential Information, including copies thereof, then
in Executive's possession, whether prepared by him or others, will be left with
State Auto. For purposes of this Article VI, "Confidential Information" means
information disclosed to Executive or known by State Auto, which is not
generally known in the business in which State Auto is or may become engaged,
including, but not limited to, information about State Auto's services, trade
secrets, financial information, customer lists, books, records, memoranda, and
other proprietary information of State Auto. Executive further agrees that
during the employment period he will devote substantially all of his time and
effort to the performance of his duties hereunder and will refrain from engaging
on his own behalf or on the behalf of a third party in any line of activities or
business in which State Auto is or may become engaged. Executive further agrees
that the obligation to maintain confidentiality created by this Article VI shall
continue in effect for the duration of this Agreement and for one year following
the termination of Executive's employment with State Auto, but that thereafter
this obligation shall expire. Executive further agrees that for a period of one
year following termination of Executive's employment with State Auto, Executive
will not engage in the property casualty insurance underwriting business as an
officer, director or employee of an insurer domiciled in the state of Ohio which
has direct written premium in excess of $500 million as of the end of the
calendar year immediately preceding the Executive's termination of employment
with State Auto.
ARTICLE VII PLACE OF PERFORMANCE.
In connection with his employment by State Auto, Executive shall not be required
to relocate or transfer his principal residence and shall not be required to
perform services which would make the continuance of his principal residence in
Westerville, Ohio, unreasonably difficult or inconvenient for him. State Auto
shall give Executive at least three months' advance notice of any relocation of
its principal executive offices to a location more than thirty-five miles from
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Executive's principal residence in Westerville, Ohio. In the event that
Executive shall thereupon elect to relocate his principal residence to within
thirty-five miles of the relocated principal executive offices of State Auto,
State Auto shall promptly pay (or reimburse Executive for) all reasonable
relocation expenses incurred by Executive relating to a change of his principal
residence in connection with any such relocation of State Auto's principal
executive offices. In the event that Executive shall not relocate his principal
residence, he shall make himself available for performance in Columbus, Ohio, of
the services described in Article I herein.
ARTICLE VIII SUCCESSORS.
(A) As to State Auto.
This Agreement shall inure to the benefit of and be binding upon State Auto, its
successors and assigns, including without limitation, any person, partnership,
or corporation which may acquire voting control of State Auto or all or
substantially all of State Auto's assets and business, or which may be a party
to any consolidation, merger, or other transaction that results in a Change of
Control of State Auto or State Automobile Mutual Insurance Company, the
controlling shareholder and parent of State Auto.
(B) As to Executive.
This Agreement shall also inure to the benefit of and be binding on Executive,
his heirs, successors, and legal representatives.
ARTICLE IX COBRA CONTINUATION COVERAGE.
Notwithstanding any provision of this Agreement to the contrary, in the event of
any qualifying event, as defined in Section 162(k) of the Internal Revenue Code
(the "Code"), Executive and his qualifying beneficiaries shall be entitled to
continuation of health care coverage, as provided under Section 162(k) of the
Code. The foregoing is intended as a statement of Executive's continuation
coverage rights and is in no way intended to limit any greater rights of
Executive or his qualified beneficiaries under this Agreement. If a greater
benefit is available to Executive or his qualifying beneficiaries under this
Agreement or otherwise, Executive or his qualified beneficiaries may forego
continuation coverage and elect instead such greater benefit.
ARTICLE X INDEMNIFICATION.
State Auto, as provided for in its Amended and Restated Articles of
Incorporation, its Amended and Restated Bylaws, and its Indemnification
Agreement with Executive, shall indemnify Executive to the full extent of the
general laws of the State of Ohio, now or hereafter in force, including the
advance of expenses under procedures provided by such laws.
ARTICLE XI GENERAL PROVISIONS.
(A) Entire Agreement.
This Agreement contains the entire agreement of the parties hereto with respect
to the employment of Executive by State Auto, and completely supersedes any
prior employment agreements or arrangements between the parties hereto. The
parties hereto agree that this Agreement cannot be hereafter amended, modified,
or supplemented in any respect, except by a subsequent written agreement signed
by both parties hereto.
(B) Applicable Law.
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This Agreement shall be governed in all respects by the laws of the State of
Ohio.
(C) Notices.
All notices under this Agreement shall be in writing, and will be duly sent if
sent by registered or certified mail to the respective parties' addresses shown
hereinabove, or such other addresses as the parties may hereafter designate in
writing for such purpose.
(D) Assignment.
Except as expressly provided herein, neither this Agreement nor any rights,
benefits, or obligations hereunder may be assigned by State Auto or Executive
without the prior written consent of the other.
(E) Waiver.
The failure by a party to exercise or enforce any of the terms or conditions of
this Agreement will not constitute or be deemed a waiver of that party's rights
hereunder to enforce each and every term of this Agreement. The failure by a
party to insist upon strict performance of any of the terms and provisions
herein will not be deemed a waiver of any subsequent default in the terms or
provisions herein.
(F) Rights and Remedies Cumulative.
All rights and remedies of the parties hereunder are cumulative.
(G) Divisibility.
The provisions of this Agreement are divisible. If any such provision shall be
deemed invalid or unenforceable, it shall not affect the applicability or
validity of any other provision of this Agreement, and if any such provision
shall be deemed invalid or unenforceable as to any periods of time, territory,
or business activities, such provision shall be deemed limited to the extent
necessary to render it valid and enforceable.
(H) Captions and Titles.
Captions and titles have been used in this Agreement only for convenience and in
no way define, limit, or describe the meaning of any Article or any part
thereof.
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IN WITNESS WHEREOF, the parties have signed this Agreement which is effective
immediately on the date and year first above written.
ATTEST State Auto Financial Corporation
/s/ Xxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxx
------------------------------ -----------------------------
Xxxx X. Xxxxxxx Xxxxxxx X. Xxxxx, Chairman of the
Compensation Committee
Executive
/s/ Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxx
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