Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into
this 24th day of December, 2002, between Infinity Property and Casualty
Corporation, an Ohio corporation (the "Company") and ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the
"Executive").
RECITALS
A. It is the desire of the Company to employ the Executive as its Chief
Executive Officer and President as described in this Agreement.
B. The Executive desires 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. Subject to the termination provisions set forth in Section
3.1, the Company will employ the Executive and the Executive accepts employment
with the Company for a period of two years (the "Term") commencing on completion
of the public offering of Company's stock (the "Effective Date").
1.2 SERVICES. During the Term the Executive will serve as the Company's
Chief Executive Officer and President and will be primarily responsible for
overseeing the implementation of the Company's business strategy and such other
duties, commensurate with his position and authority, as are reasonably
determined, from time to time, by the Company's Board of Directors (the
"Board"). 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 $550,000 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 establish an incentive
bonus compensation plan similar to the bonus plan of the Company's subsidiaries
or parent
company in place at the time the Company was incorporated; provided,
however, that such plan shall be based upon the Company's business plan (which
is subject to development) which will include consideration of the Company's
reported earnings per share as well as underwriting profitability of the
Company's insurance subsidiaries. Such plan will include an annual base bonus
target amount of at least $500,000 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 the Company.
2.3 RESTRICTED SHARES.
(a) On the Effective Date, the Company shall award Executive that
number of shares of Company common stock ("Restricted Shares") equal to the
result of
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dividing one million dollars ($1,000,000) by the price to the public in the
Company's initial public offering.
"Restricted Period" means a period commencing on the Effective Date
and ending on its first anniversary date with respect to 33 1/3% of the
Restricted Shares, its second anniversary date with respect to an additional 33
1/3% of the Restricted Shares, and its third anniversary date with respect to
the remaining 33 1/3% of the Restricted Shares.
During the Restricted Period, (i) Executive, his heirs,
administrators or executors may not sell, assign, transfer, pledge, hypothecate
or otherwise dispose of in any way the Restricted Shares; and (ii) Executive,
his heirs, administrators or executors may vote and receive dividends or other
distributions made with respect to the Restricted Shares.
If Executive's employment does not cease for any reason during the
Restricted Period, Executive shall become vested in and own the Restricted
Shares free of all restrictions imposed by this Agreement as follows:
DATE VESTED PERCENTAGE
First Anniversary Date of Effective Date 33 1/3%
Second Anniversary Date of Effective Date 33 1/3%
Third Anniversary Date of Effective Date 33 1/3%
In the event of (i) the dissolution or liquidation of the Company,
(ii) any merger, consolidation, exchange or other transaction in which the
Company is not the surviving corporation or in which shares of the Company's
common stock are converted into cash, other securities or other property or
(iii) thirty (30) calendar days prior to the scheduled consummation of a Change
of Control as defined in Section 2.4 of this Agreement; then the restrictions
imposed on the Restricted Shares shall lapse as of the date immediately prior to
such transaction, conversion or Change of Control.
(b) STOCK LEGEND. The Company and the Executive agree that all
certificates representing the Restricted Shares that at any time are subject to
the provisions of this Agreement will have endorsed upon them in bold-faced type
a legend in substantially the following form:
RESTRICTIONS ON THE OWNERSHIP RIGHTS OF THE STOCK REPRESENTED BY THIS
CERTIFICATE HAVE BEEN IMPOSED PURSUANT TO AN EMPLOYMENT AGREEMENT DATED
___________, 2002. A COPY OF THE EMPLOYMENT AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED WITHOUT CHARGE TO
THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN REQUEST
FROM THE HOLDER REQUESTING SUCH COPY.
(c) TAXES. To the extent the lapse of restrictions on the
Restricted Shares results in the receipt of compensation by the Executive for
tax purposes, the Company shall
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withhold from any cash compensation then or thereafter payable to the Executive
any tax required to be withheld by reason thereof. To the extent the Company
determines that such cash compensation is or may be insufficient to fully
satisfy such withholding requirement, the Executive shall deliver to the Company
cash in an amount determined by the Company to be sufficient to satisfy any such
withholding requirement. If the Executive makes the election authorized by
ss.83(b) of the Internal Revenue Code of 1986, as amended, the Executive shall
submit to the Company a copy of the statement filed by the Executive to make
such election.
(d) STOCK POWER AND RETENTION OF CERTIFICATES. The Company may
require the Executive to execute and deliver to the Company a stock power in
blank with respect to the unvested Restricted Shares and may, in its sole
discretion, determine to retain possession of or escrow the certificates for
unvested Restricted Shares. The Company shall have the right, in its sole
discretion, to exercise such stock power in the event that the Company becomes
entitled to Restricted Shares as a result of a termination of employment.
Notwithstanding retention of such certificates by the Company, the Executive
shall have all rights (including dividend and voting rights) with respect to the
unvested Restricted Shares represented by such certificates.
2.4 STOCK OPTIONS. In accordance with the provisions of the Company's
2002 Incentive Stock Option Plan (the "Plan") and the specific authorization of
the Board, the Company hereby grants to the Executive, subject to all of the
terms and conditions of the Plan and this Agreement, an incentive stock option
to acquire 125,000 shares (.5% of shares outstanding after the IPO) of the
Company's outstanding common stock ("Option Stock") at the price to the public
of the Company's initial public offering. The option to acquire the Option Stock
granted in this Section 2.4 shall vest in five (5) equal, consecutive annual
increments on each anniversary date of the Effective Time beginning with the
first anniversary date and ending with the fifth such anniversary date.
Notwithstanding anything to the contrary contained in this Agreement or the
Plan, all options to acquire Option Stock shall irrevocably vest thirty (30)
calendar days prior to the scheduled consummation of a Change of Control (as
defined hereinafter). If any change(s) in the federal income tax laws materially
affect the tax treatment of Employee with respect to an option or the Option
Stock, the parties agree to negotiate in good faith to reach an agreement that
will take advantage of, or minimize the disadvantages of, such changes.
As used in this Agreement, "Change of Control" shall mean the
occurrence of one (1) or more of the following events:
(1) After the Effective Date, any person or group of
persons becomes both a Beneficial Owner (as such term is defined in
Rule 13d-3 promulgated under the Securities Exchange Act of 1934)
directly or indirectly of securities (a) representing 40% or more
of the total number of votes that may be cast for the election of
directors of the Company, whether by open market purchases, by
tender offer or exchange offer, through issuance of new shares by
the Company or by merger or consolidation and (b) such person or
group of persons is the Beneficial Owner directly or indirectly of
a greater percentage of such securities than American Financial
Group, Inc.
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(2) Within two (2) years after a merger,
consolidation, liquidation or sale of assets involving the Company,
or a contested election of a Company director or directors, or any
combination of the foregoing, the individuals who were directors of
the Company immediately prior to the merger, consolidation,
liquidation, sale of assets or contested election shall cease to
constitute a majority of the Board; or
(3) Within two (2) years after a tender offer or
exchange offer for voting securities of the Company, the
individuals who were directors of the Company immediately prior to
the commencement of the tender offer or exchange offer shall cease
to constitute a majority of the Board.
2.5 INDEMNIFICATION. The Company shall indemnify Executive (and his
successors), to the extent permitted by the applicable law and the Company's
regulations, by Company and Executive entering into an agreement in
substantially the form set forth in Schedule A hereto.
2.6 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 shareholder or its
affiliates.
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
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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;
(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
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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 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 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
annual base bonus amount, such payment to be made in twenty-four (24) equal
monthly installments subject to federal, state and applicable withholding taxes
and payments; provided, however, that no such payment shall be made for the
first twelve (12) months of such period in the event that the Company's combined
operating ratio is 100% or more for the year in which Executive's termination
takes place; or for the second twelve (12) months of such period in the event
the Company's combined operating ratio is 100% or more for the year immediately
succeeding the year in which Executive's termination takes place;
(d) continued payment of his most recent salary for a period of
twenty- four (24) months from the date of termination;
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(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 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; after twenty-four (24) months, Executive and his eligible dependents
shall be eligible for COBRA benefits for eighteen (18) months;
(h) immediate, 100% vesting of any stock options of the
Company's parent 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 Section 2.3.
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.
ARTICLE IV.
COVENANTS
4.1 NON-COMPETITION. The Executive covenants and agrees that
(i) during the Term or (ii) for a period of twenty-four (24) months following a
termination of his employment by the Company pursuant to Section 3.1 (c) (the
"Post-Termination Period"), he shall not directly or indirectly own an interest
in, operate, join, control, advise, consult to, work for, serve as a director or
manager of, have a financial interest, or participate in any corporation,
partnership, proprietorship, firm, association, person, or other entity that
engages or is planning to be engaged in writing, issuing, underwriting, selling,
distributing or re-insuring personal property and casualty insurance products or
any other business in which the Company is engaged during the Term (the
"Business"). This Covenant applies to each, state or territory in which the
Company is doing business or is making an active effort to do business during
the Term and with respect to the Executive's covenants regarding the
Post-Termination Period at the time the Executive's employment with the Company
is terminated. This Covenant does not prohibit the passive ownership of less
than five percent (5%) of the outstanding stock or debt of any public
corporation as long as the Executive is not otherwise in violation of this
Covenant.
4.2 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
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property and casualty insurance products, investment opportunities, and other
similar opportunities) which the Executive became aware of during his employment
with the Company.
4.3 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.
4.4 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.
4.5 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 4.2, 4.3 and 4.4 for the duration of the
Post-Termination Period, and to the covenant set forth in Section 4.1 for a
duration of six months following his termination.
4.6 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, 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.
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4.7 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.
4.8 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.
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.
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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 ▇▇▇▇▇▇▇▇ 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 NOTICES. Any notice, request, claim, demand, document and
other communication hereunder to any party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or sent by
telex, telecopy, or certified or registered mail, postage prepaid, as follows:
If to the Company, c/o ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III, President, Great American
Insurance Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ or to such
other address or addresses as the Company may specify in writing from
time to time.
If to the Executive, to such address as he may designate to the Company
as his residence from time to time or to such other address or
addresses as the Executive may specify in writing from time to time.
5.7 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.
5.8 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
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with or perform; provided, however, that such waiver shall not operate as a
waiver of, or estoppel 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.
5.9 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: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman