EXHIBIT 10.15
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made by and between Vesta
Insurance Group, Inc. and J. Xxxxxx Xxxxxx, Inc., both Delaware corporations,
and Vesta Fire Insurance Corporation, an Alabama corporation (collectively, the
"Company"), and Xxxxxx X. Xxxxxxxx, an individual resident of Birmingham,
Alabama (the "Executive") effective the 30th day of September, 1999 (the
"Effective Date").
RECITALS:
A. The Company is a holding company for a group of property and casualty
insurance subsidiaries which offer primary insurance primarily on personal
risks;
B. The Executive serves as Senior Vice President, Secretary and General
Counsel of the Company and as a member of the Board of Directors of J. Xxxxxx
Xxxxxx, Inc. and Vesta Fire Insurance Corporation;
C. The Company wishes to assure itself of the continued services of the
Executive so that it will have the continued benefit of his ability, experience
and services, and the Executive is willing to enter into an agreement to that
end, upon the terms and conditions hereinafter set forth; and
D. Certain capitalized terms used in this Agreement shall have the
meanings given them in Section 16 hereof.
NOW, THEREFORE, in consideration of good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
covenant and agree as follows:
1. Employment.
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(a) The Company hereby agrees to continue to employ the Executive as Senior
Vice President, Secretary and General Counsel of the Company and any other
position agreed upon by the parties; the Company agrees to use its best efforts
to cause Executive to be elected as a member of the Board of Directors of J.
Xxxxxx Xxxxxx, Inc. and Vesta Fire Insurance Corporation and Executive hereby
agrees to serve the Company in the foregoing capacities, upon the terms and
conditions set forth herein. The Executive shall have such authority and
responsibilities consistent with his position that may be set forth in the
Company's Bylaws or assigned by the Board from time to time.
(b) The Executive agrees to devote such amount of his time, efforts and
skills as is reasonably necessary to the performance of his duties and
responsibilities under this Agreement; provided, however, that nothing in this
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Agreement shall preclude the Executive from devoting reasonable periods required
for (i) participating in professional, educational, philanthropic, public
interest, charitable, social or community activities, (ii) serving as a director
or member of an
advisory committee of any corporation or other entity that the Executive is
serving on or any other corporation or entity that is not in direct competition
with the Company, or (iii) managing his personal investments, provided that such
activities do not materially interfere with the Executive's regular performance
of his duties and responsibilities hereunder.
2. Term. Unless earlier terminated as provided herein, the Executive's
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employment under this Agreement shall be for a term (the "Term") of three (3)
years from the Effective Date. The Term shall be automatically extended for an
additional year on each anniversary of the Effective Date, unless written notice
of non-extension is provided by either party to the other party at least 90 days
prior to such anniversary.
3. Compensation and Benefits. In consideration of the services rendered
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by the Executive during the Term, the Company shall pay or provide to the
Executive the amounts and benefits set forth below.
(a) Salary. Executive shall receive an annual base salary of $207,000.
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The base salary shall be paid in accordance with the Company's normal payroll
practices. The Executive's base salary shall be reviewed at least annually by
the Compensation Committee for consideration of appropriate merit increases and,
once established, the base salary shall not be decreased during the Employment
Period.
(b) Executive Officer Incentive Compensation Plan. In addition to any
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bonus amounts granted or payable to the Executive under the Company's regular
executive compensation plans or practices, the Executive shall participate in
that certain Executive Officer Incentive Compensation Plan, a copy of which is
attached hereto as Exhibit A.
(c) Other Incentive Plans. The Executive shall participate in all annual
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and long-term bonus or incentive plans or arrangements in which other senior
executives of the Company of a comparable level are eligible to participate from
time to time, including, without limitation, the Company's Cash Bonus Plan. The
Executive's incentive compensation opportunities under such plans and
arrangements shall be determined from time to time by the Compensation
Committee.
(d) Equity Incentives. The Executive shall be given consideration, at
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least annually, by the Compensation Committee for the grant of options to
purchase shares of the common stock of the Company. In addition, the Executive
shall be entitled to receive awards under any stock option, stock purchase or
equity-based incentive compensation plan or arrangement adopted by the Company
from time to time for which senior executives of the Company of a comparable
level are eligible to participate. The Executive's awards under such plans and
arrangements shall be determined from time to time by the Compensation
Committee.
(e) Employee Benefits. The Executive shall be entitled to participate in
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all employee benefit plans, programs, practices or arrangements of the Company
in which other senior
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executives of the Company of a comparable level are eligible to participate from
time to time, including, without limitation, any qualified or non-qualified
pension, profit sharing and savings plans, any death benefit and disability
benefit plans, and any medical, dental, health and welfare plans. Without
limiting the generality of the foregoing, the Company shall provide the
Executive with the following:
(i) long-term disability insurance coverage in an amount and on
terms consistent with the coverage in place for the Executive on the
Effective Date;
(ii) continued provision of life insurance coverage in an amount and
on terms consistent with the coverage in place for the Executive on the
Effective Date; and
(iii) provision of the pension benefits provided under the Company's
Post-Retirement Benefits Plan.
(f) Fringe Benefits and Perquisites. The Executive shall be entitled to
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continuation of all fringe benefits and perquisites provided to the Executive on
the Effective Date, and to all fringe benefits and perquisites which are
generally made available to senior executives of the Company of a comparable
level from time to time. Without limiting the generality of the foregoing, the
Company shall provide the Executive with the following:
(i) provision of executive offices and secretarial staff;
(ii) vacation in accordance with the Company's policy for other
senior executives of a comparable level;
(iii) an automobile owned or leased by the Company of a make and
model appropriate for the Executive's position or, in lieu thereof,
provision of a non-accountable automobile allowance in an amount to be
determined from time to time by the Board or the Compensation Committee;
and
(iv) continued payment of initiation and other fees and annual dues
for one or more country clubs (but in no event less than one country club
membership of Executive's choice) and/or dining clubs which the Company was
paying for on the Effective Date, and payment of dues for any professional
associations of which Executive is a member in furtherance of his duties
hereunder;
(v) reimbursement of all reasonable travel and other business
expenses and disbursements incurred by the Executive in the performance of his
duties under this Agreement, upon proper accounting in accordance with the
Company's normal practices and procedures for reimbursement of business
expenses.
4. Termination.
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(a) The Executive's employment under this Agreement may be terminated prior
to the end of the Term only as follows:
(i) upon the resignation or death of the Executive;
(ii) by the Company due to the Disability of the Executive upon
delivery of a Notice of Termination to the Executive;
(iii) by the Company for Cause upon delivery of a Notice of
Termination to the Executive; and
(iv) by the Executive for Good Reason upon delivery of a Notice of
Termination to the Company after any occurrence of a Change in Control.
(b) If the Executive's employment with the Company shall be terminated
during the Term (i) by reason of the Executive's resignation or death, or (ii)
by the Company for Disability or Cause, the Company shall pay to the Executive
(or in the case of his death, the Executive's estate) within thirty (30) days
after the Termination Date a lump sum cash payment equal to the Accrued
Compensation and, if such termination is other than as a result of Executive's
resignation or by the Company for Cause, the Pro Rata Bonus.
(c) If the Executive's employment with the Company shall be terminated by
the Company in violation of this Agreement or by the Executive for Good Reason,
in addition to other rights and remedies available in law or equity, the
Executive shall be entitled to the following:
(i) the Company shall pay the Executive in cash within thirty (30)
days of the Termination Date an amount equal to all Accrued Compensation
and the Pro Rata Bonus;
(ii) the Company shall pay to the Executive in cash at the end of
each of the thirty-six consecutive 30-day periods following the Termination
Date an amount equal to one-twelfth of the sum of the Base Amount
(including any increases in base salary) plus the Bonus Amount (including
any increases in bonus amount) plus all benefits provided in Section 3
hereof, or in the alternative, the Executive may elect to receive a lump
sum equal to the present value of the payments due under this paragraph
(c)(ii), to be payable within thirty (30) days of such election; provided,
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however, that such lump sum amount shall be reduced to its net present
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value assuming an interest rate equal to six percent (6%) and 36 equal
monthly payments commencing on the Termination Date;
(iii) for the period from the Termination Date through the date that
Executive attains the age of sixty-five (65) (the "Continuation Period"),
the Company shall at its expense continue on behalf of the Executive and
his dependents and beneficiaries the life insurance, disability, medical,
dental and hospitalization benefits provided (x) in the case of
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a Change in Control, to the Executive at any time during the 90-day period
prior to the Change in Control or at any time thereafter or (y) in other
instances, to other similarly situated executives who continue in the
employ of the Company during the Continuation Period. The coverage and
benefits (including deductibles and costs) provided in this Section
4(c)(iii) during the Continuation Period shall be no less favorable to the
Executive and his dependents and beneficiaries than the most favorable of
such coverages and benefits during either of the periods referred to in
clauses (x) and (y) above; provided, however, the Company's obligation
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hereunder with respect to the foregoing benefits shall be limited to the
extent that the Executive obtains any such benefits pursuant to a
subsequent employer's benefit plans, in which case the Company may reduce
the coverage of any benefits it is required to provide the Executive
hereunder as long as the aggregate coverages and benefits of the combined
benefit plans are no less favorable to the Executive than the coverages and
benefits required to be provided hereunder; provided, further, subject to
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the last sentence of this Section 4(c), life insurance shall not be
continued longer than three years after the Termination Date, even if the
Executive has not obtained such other benefits under another employer's
benefit plan; and
(iv) the restrictions on any incentive awards whether now in effect
for, or hereafter granted to, the Executive under any stock option plan or
under any other incentive plan, deferred compensation plan, agreement or
arrangement of the Company of any of its affiliates shall lapse and such
incentive awards shall become 100% accrued and vested, so that, for
example, all stock options and stock appreciation rights granted to the
Executive shall be immediately exercisable and shall be 100% vested, all
restrictions on any restricted stock held by the Executive shall lapse such
that the Executive has full title to such shares, and any deferred
compensation payable under any plan, agreement or arrangement shall accrue
in total and be immediately due and payable in full. The period in which
Executive may exercise any option granted shall be the full term of such
option.
This Section 4(c) shall not be interpreted so as to limit any benefits to which
the Executive or his dependents or beneficiaries may be entitled under any of
the Company's employee benefit plans, programs or practices following the
Executive's termination of employment, including, without limitation, retiree
medical and life insurance benefits.
(d) The Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and no such payment shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent employment except as
provided in Section 4(c)(iii).
(e) In the event that any payment or benefit (within the meaning of Section
280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")) to the
Executive (or for his benefit) paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise in connection with, or
arising out of, his relationship with the Company or a change in ownership or
effective control of the Company or of a substantial portion of its assets (a
"Payment" or
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"Payments"), would be subject to the excise tax imposed by Section 4999 of the
Code or any interest or penalties are incurred by the Executive with respect to
any such excise or other taxes (such excise tax, together with any such interest
and penalties, are hereinafter collectively referred to as the "Excise Tax" and
any other tax together with any such interest and penalties are herein referred
to as "Other Taxes"), 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 Excise Taxes and Other Taxes on the Payments and All
Excise Taxes or Other Taxes imposed upon the Gross-Up Payment, the Executive
shall retain that portion of the Gross-Up Payment equal to the Excise Tax or
Other Taxes imposed upon the Payments.
5. Confidential Information. During the Term and at all times thereafter,
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the Executive agrees that he will not divulge to anyone (other than the Company
or any persons employed or designated by the Company) any knowledge or
information of a confidential nature relating to the business of the Company or
any of its subsidiaries or affiliates, including, without limitation, all types
of trade secrets (unless readily ascertainable from public or published
information or trade sources) and confidential commercial information, and the
Executive further agrees not to disclose, publish or make use of any such
knowledge or information without the consent of the Company.
6. Successors; Binding Agreement.
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(a) This Agreement shall be binding upon and shall inure to the benefit of
the Company (including each of its subsidiaries), its successors and assigns and
any person, firm, corporation or other entity which succeeds to all or
substantially all of the business, assets or property of 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, assets or property 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.
As used in this Agreement, the "Company" shall mean the Company as hereinbefore
defined and any successor to its business, assets or property as aforesaid which
executes and delivers an agreement provided for in this Section 6 or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts are due
and payable to him hereunder, all such amounts, unless otherwise provided
herein, shall be paid to the Executive's designated beneficiary or, if there be
no such designated beneficiary, to the legal representatives of the Executive's
estate.
7. Fees and Expenses. To induce the Executive to execute this Agreement
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and to provide the Executive with reasonable assurance that the purposes of this
Agreement will not be frustrated by the cost of its enforcement should the
Company fail to perform its obligations under
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this Agreement or should the Company or any subsidiary, affiliate or stockholder
of the Company contest the validity or enforceability of this Agreement, the
Company shall pay and be solely responsible for any attorneys' fees and expenses
and courts costs incurred by the Executive as a result of a claim that the
Company has breached or otherwise failed to perform this Agreement or any
provision hereof to be performed by the Company or as a result of the Company or
any subsidiary, affiliate or stockholder of the Company contesting the validity
or enforceability of this Agreement or any provision hereof to be performed by
the Company, in each case regardless of which party, if any, prevails in the
contest.
8. Notice. All notices and other communications provided for in this
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Agreement (including the Notice of Termination) shall be in writing and shall be
deemed to have been duly given upon personal delivery or receipt when sent by
certified mail, return receipt requested, postage prepaid, or a nationally
recognized overnight courier service that provides written proof of delivery,
addressed to the respective addresses last given by each party to the other;
provided, however, that all notices to the Company shall be directed to the
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attention of the Board of Directors with a copy to the Chief Executive Officer
and the General Counsel of the Company.
9. Settlement of Claims. The Company's obligation to make the payments
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provided for in this Agreement and to otherwise perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, recoupment, defense or other right which
the Company may have against the Executive or others. The Company may, however,
withhold from any benefits payable under this Agreement all federal, state, city
or other taxes as shall be required pursuant to any law or governmental
regulation or ruling.
10. Modification and Waiver. No provisions of this Agreement may be
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modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive and the Company. No waiver by
any party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be performed by
such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
11. Governing Law. This Agreement shall be governed by and construed and
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enforced in accordance with the laws of the State of Alabama without giving
effect to the conflict of laws principles thereof.
12. Severability. The provisions of this Agreement shall be deemed
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severable, and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
13. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto and supersedes all prior agreement, if any,
understandings and arrangements, oral or written, between the parties hereto
with respect to the subject matter hereof.
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14. Headings. The headings of Sections herein are included solely for
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convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
15. Counterparts. This Agreement may be executed in one or more
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counterparts, each shall be deemed an original but all of which together shall
constitute one and the same instrument.
16. Definitions. For purposes of this Agreement, the following terms
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shall have the following meanings:
(a) "Accrued Compensation" shall mean an amount which shall include all
amounts earned or accrued through the Termination Date but not paid as of the
Termination Date, including without limitation, (i) base salary, (ii) deferred
compensation accumulated under any plan, arrangement or agreement, (iii)
reimbursement for reasonable and necessary expenses incurred by the Executive on
behalf of the Company prior to Termination Date, and (iv) bonuses and incentive
compensation, including stock options (other than the Pro Rata Bonus).
(b) "Base Amount" shall mean the greater of the Executive's annual base
salary (i) at the rate in effect on the Termination Date or (ii) the highest
rate in effect at any time during the 90-day period prior to a Change in
Control, and shall include all amounts of his base salary that are deferred
under any plans, arrangements or agreements of the Company or any of its
affiliates.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "Bonus Amount" shall mean the greater of (i) the most recent annual
cash bonus paid or payable to the Executive, or, if greater, the annual cash
bonus paid or payable for the year ended prior to the fiscal year during which a
Change in Control occurred, or (ii) the average of the annual cash bonuses paid
or payable during the three full fiscal years ended prior to the Termination
Date or, if greater, the three full fiscal years prior to a Change in Control
(or, in each case, such lesser period for which annual bonuses were paid or
payable to the Executive). The Bonus Amount shall not include any amounts paid
or payable under the Executive Officer Incentive Compensation Plan.
(e) The termination of the Executive's employment shall be for "Cause" if
it is a result of any act that (A) constitutes, on the part of the Executive,
fraud, dishonesty gross malfeasance of duty and (B) is demonstrably likely to
lead to material injury to the Company; provided, however, that, such conduct
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shall not constitute Cause:
(x) unless (A) there shall have been delivered to the Executive a
written notice setting forth with specificity the reasons that the Board
believes the Executive's conduct meets the criteria set forth in clause
(i), (B) the Executive shall have been provided the opportunity to be heard
in person by the Board (with the assistance of the Executive's counsel if
the Executive so desires), and (C) after such hearing, the termination is
evidenced
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by a resolution adopted in good faith by two-thirds of the members of the
Board (other than the Executive); or
(y) if such conduct was believed by the Executive in good faith to
have been in or not opposed to the interests of the Company.
(f) A "Change in Control" shall mean the occurrence during the Term of any
of the following events:
(i) An acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by an "Person"
(as the term person is used for purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934 (the "1934 Act")) immediately after which
such Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the 0000 Xxx) of 20% or more of the combined voting power
of the Company's then outstanding Voting Securities; provided, however,
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that in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a "Non-Control Acquisition" (as
hereinafter defined) shall not constitute an acquisition which would cause
a Change in Control. A "Non-Control Acquisition" shall mean an acquisition
by (A) an employee benefit plan (or a trust forming a part thereof)
maintained by (x) the Company or (y) any corporation or other Person of
which a majority of its voting power or its equity securities or equity
interest is owned directly or indirectly by the Company (a "Subsidiary"),
(B) the Company or any 80% owned subsidiary, (C) Birmingham Investment
Group, LLC or any affiliate of Birmingham Investment Group, LLC, or (D) any
Person in connection with a "Non-Control Transaction" (as hereinafter
defined).
(ii) The individuals who, as of the date of this Agreement, are
members of the Board (the "Incumbent Board") cease for any reason to
constitute at least two-thirds of the Board; provided, however, that if the
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election, or nomination for election by the Company's stockholders, of any
new director was approved by a vote of at least two-thirds of the Incumbent
Board with no more than one (1) member of the Incumbent Board voting
against such new director, such new director shall, for purposes of this
Agreement, be considered as a member of the Incumbent Board; provided,
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further, that no individual shall be considered a member of the Incumbent
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Board if such individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the 0000 Xxx) or other actual or threatened solicitation
of proxies or consents by or on behalf of a Person other than the Board (a
"Proxy Contest") including by reason of any agreement intended to avoid or
settle any Election Contest or Proxy Contest; or
(iii) Approval by stockholders of the Company of:
(A) A merger, consolidation of reorganization involving the
Company, unless
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(1) the stockholders of the Company, immediately before such
merger, consolidation or reorganization, own, directly or
indirectly, immediately following such merger, consolidation or
reorganization, a least two-thirds of the combined voting power
of the outstanding voting securities of the corporation resulting
from such merger of consolidation or reorganization (the
"Surviving Corporation") in substantially the same proportion as
their ownership of the Voting Securities immediately before such
merger, consolidation or reorganization, and
(2) the individuals who were members of the Incumbent Board
immediately prior to the execution of the agreement providing for
such merger, consolidation or reorganization constitute at least
two-thirds of the members of the board of directors of the
Surviving Corporation.
(A transaction described in the immediately preceding clauses (1)
and (2) shall herein be referred to as a "Non-Control
Transaction.")
(B) A complete liquidation, or dissolution of the Company; or
(C) An agreement for the sale or other disposition of all or
substantially all of the assets of the Company to any Person.
(iv) Notwithstanding anything contained in this Agreement to the
contrary, if the Executive's employment is terminated prior to a Change in
Control and the Executive reasonably demonstrates that such termination (A)
was at the request of a third party who has indicated an intention or taken
steps reasonably calculated to effect a Change in Control and who
effectuates a Change in Control (a "Third Party") or (B) otherwise occurred
in connection with, or in anticipation of, a Change in Control which
actually occurs, then for all purposes of this Agreement, the date of a
Change in Control with respect to the Executive shall mean the date
immediately prior to the date of such termination of the Executive's
employment.
(g) "Compensation Committee" shall mean the Compensation Committee of the
Board.
(h) "Disability" shall mean the inability of the Executive to perform his
duties to the Company on account of physical or mental illness for a period of
six consecutive full months, or for a period of eight full months during any 12-
month period. The Executive's employment shall terminate in such a case on the
last day of the applicable period; provided, however, in no event shall the
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Executive be terminated by reason of Disability unless (i) the Executive is
eligible for the long-term disability benefits set forth in Section 3(e)(i)
hereof and (ii) the Executive receives written notice from the Company, at least
30 days in advance of such termination, stating its
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intention to terminate the Executive for reason of Disability and setting forth
in reasonable detail the facts and circumstances claimed to provide a basis for
such termination.
(i) "Effective Date" shall mean the day and year first above written.
(j) "Good Reason" shall mean the occurrence at any time within three (3)
years following a Change in Control of any of the events or conditions
described in subsections (i) through (viii) hereof:
(i) a change in the Executive's status, title, position or
responsibilities (including reporting responsibilities) which, in the
Executive's reasonable judgment, represents an adverse change from his
status, office, title, position or responsibilities as in effect at any
time within 90 days preceding the date of a Change in Control or at any
time thereafter the assignment to the Executive of any duties or
responsibilities which, in the Executive's reasonable judgment, are
inconsistent with his status, office, title, position or responsibilities
as in effect at any time within 90 days preceding the date of a Change in
Control or at any time thereafter; any removal of the Executive from, or
failure to reappoint or reelect him to, any such status, office, title,
position or responsibility; or any other change in condition or
circumstances that in the Executive's reasonable judgment makes it
materially more difficult for the Executive to carry out the duties and
responsibilities of his office that existed at any time within 90 days
preceding the date of a Change in Control or at any time thereafter;
(ii) a reduction in the Executive's base salary or any failure to pay
the Executive any compensation or benefits to which he is entitled within
five days of the date due;
(iii) the Company's requiring the Executive to be based at any place
outside a 30-mile radius from the executive offices occupied by the
Executive immediately prior to a Change in Control, except for reasonably
required travel on the Company's business which is not materially greater
than such travel requirements prior to the Change in Control;
(iv) the failure by the Company to (A) continue in effect (without
reduction in benefit level and/or reward opportunities) any material
compensation or employee benefit plan in which the Executive was
participating at any time within ninety (90) days preceding the date of a
Change in Control or at any time thereafter, unless such plan is replaced
with a plan that provides substantially equivalent compensation or benefits
to the Executive or (B) provide the Executive with compensation and
benefits, in the aggregate, at least equal (in terms of benefit levels
and/or reward opportunities) to those provided for under each other
employee benefit plan, program and practice in which the Executive was
participating at any time within 90 days preceding the date of a Change in
Control or at any time thereafter;
(v) the insolvency, or the filing by any person or entity, including
the Company or any of its subsidiaries, of a petition for bankruptcy of the
Company, or other relief under any other moratorium or similar law, which
petition is not dismissed within 60 days;
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(vi) any material breach by the Company of this Agreement;
(vii) any purported termination of the Executive's employment for
Cause by the Company which does not comply with the terms of this
Agreement; or
(viii) the failure of the Company to obtain an agreement,
satisfactory to the Executive, from any Successors and Assigns to assume
and agree to perform this Agreement, as required by Section 6(a) hereof.
Any event or condition described in clause (i) through (viii) above which occurs
prior to a Change in Control but which the Executive reasonably demonstrates (A)
was at the request of a Third Party, or (B) otherwise arose in connection with,
or in anticipation of, a Change in Control which actually occurs, shall
constitute Good Reason for purposes of this Agreement, notwithstanding that it
occurred prior to the Change in Control. The Executive's right to terminate his
employment for Good Reason shall not be affected by his incapacity due to
physical or mental illness.
(k) "Notice of Termination" shall mean a written notice of termination from
the Company or the Executive which specifies an effective date of termination,
indicates the specific termination provision in this Agreement relied upon, and
sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment.
(l) "Pro Rata Bonus" shall mean an amount equal to the Bonus Amount
multiplied by a fraction the numerator of which is the number of days in the
applicable year through the Termination Date and the denominator of which is
365.
(m) "Successors and Assigns" shall mean a corporation or other entity
acquiring all or substantially all the assets and business of the Company
(including this Agreement), whether by operation of law or otherwise.
(n) "Termination Date" shall mean, in the case of the Executive's death,
his date of death, and in all other cases, the date specified in the Notice of
Termination.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its officers thereunto duly authorized, and the Executive has signed and sealed
this Agreement, effective as of the date first above written.
VESTA INSURANCE GROUP, INC.
By:/s/ Xxxxx X. Xxxx
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Its: Executive Vice President
J. XXXXXX XXXXXX, INC.
By:/s/ Xxxxx X. Xxxx
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Its: Executive Vice President
VESTA FIRE INSURANCE CORPORATION
By:/s/ Xxxxx X. Xxxx
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Its: Executive Vice President
EXECUTIVE:
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxxx
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