Exhibit 10.53
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“Agreement”) is made as of March 1, 2009, by and
among State Auto Financial Corporation, an Ohio corporation
(“State Auto Financial”), State Auto Property and
Casualty Insurance Company, an Iowa domiciled insurance company
(“State Auto P&C”), State Automobile Mutual
Insurance Company, an Ohio domiciled mutual insurance company
(“State Auto Mutual”), and Robert P. Restrepo, Jr.
(“Executive”). State Auto Financial, State Auto
P&C, State Auto Mutual and each of their respective
subsidiaries and affiliates, present and future, are hereinafter
collectively referred to as “State Auto.”
Background
Information
WHEREAS, State Auto P&C is the
principal operating subsidiary of State Auto Financial and the
employer of record of all employees of State Auto, and State Auto
Financial is a majority owned subsidiary of State Auto Mutual,
while State Auto Mutual is the ultimate controlling entity in the
State Auto holding company system; and
WHEREAS, as a result of the
Executive’s dual role, as described below, in serving State
Auto Financial, State Auto Mutual and the other State Auto
companies, it is appropriate that this Employment Agreement be
entered into among State Auto P&C, State Auto Financial, State
Auto Mutual and Executive; and
WHEREAS, State Auto currently
employs Executive as the Chairman of the Board, Chief Executive
Officer and President of State Auto; and
WHEREAS, Executive desires to
continue such employment on the terms and conditions set forth
below.
Statement of
Agreement
NOW, THEREFORE, in consideration of
such 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 the meanings ascribed to such
terms in the Executive Agreement dated the same date as this
Agreement among State Auto Financial, State Auto Mutual 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 the duties
of the offices of Chairman of the Board, Chief Executive Officer
and President of State Auto as described in the Bylaws or the Code
of Regulations, as applicable, of each State Auto company, as well
as such other duties and services requested or directed by any
State Auto Board of Directors, consistent with Executive’s
offices herein. Executive shall devote the Executive’s full
time and attention and best efforts to the performance of such
duties. Executive shall serve as an officer of State Auto so long
as Executive shall be duly elected by the respective State Auto
Boards of Directors at any time or times during the term of this
Agreement.
(B) Term.
The term of this Agreement shall be
for a period commencing on March 1, 2009 (“Commencement
Date”), and ending on December 31, 2011, unless
terminated at an earlier date pursuant to an event described in
Article IV of this Agreement (referred to hereafter as the
“Employment Term”). State Auto shall provide Executive
notice or Executive shall provide State Auto with notice, in
writing, at least 90 days prior to the end of the Employment Term
of the Agreement’s termination; provided, however, that it is
understood and agreed that this Agreement shall terminate as of
December 31, 2011, regardless of whether such notice is given
and provided further that Executive’s notice, if given, under
this Section (B) shall not constitute a Voluntary Termination
as defined Section (C) of Article IV. It is further understood
that in the event State Auto and Executive agree that Executive is
to perform his duties for a period not to exceed 60 days following
the expiration of the Agreement, that shall not effect a waiver of
any right Executive might have to severance benefits otherwise
contemplated by the terms of this Agreement.
Article III
Compensation .
State Auto agrees to pay to
Executive and Executive agrees to accept the following amounts as
compensation in full for Executive’s services in any capacity
hereunder or in the performance of other like duties assigned to
Executive by the Board of Directors of State Auto:
(A) Base
Compensation.
At the outset of the Employment
Term, State Auto shall pay to Executive a base salary (the
“Base Salary”) in the amount of Seven Hundred Thirty
Thousand ($730,000.00) Dollars per year, payable in accordance with
State Auto’s general policies and procedures for payment of
compensation to its salaried personnel, plus such increases in
annual base compensation that the Compensation Committee of the
Board of Directors of State Auto Financial (the “STFC
Compensation Committee”) may authorize as provided herein.
The compensation of Executive shall be reviewed by the STFC
Compensation Committee no less often than once each calendar year
during the Employment Term and may be increased by the STFC
Compensation Committee as it determines in the good faith exercise
of its business judgment based on such factors as the STFC
Compensation Committee deems appropriate. In no event shall the
Base Salary be less than the Base Salary set forth above; provided,
however, that this restriction may be suspended by the STFC
Compensation Committee if the STFC Compensation Committee and
Executive mutually agree, on the basis of such commercially
reasonable factors as each deems appropriate in the good faith
exercise of their respective business judgment, that imposing such
suspension is in the best interests of State Auto Financial
(“Exigent Circumstances”). Any request by State Auto
for Executive’s agreement to a reduction or suspension of any
portion of his compensation, bonus or other payments will not
constitute grounds for a claim by Executive that he has suffered an
involuntary Termination Without Cause (as defined below). If,
however, Executive and the STFC Compensation Committee cannot reach
mutual agreement concerning any such reduction or suspension, the
Base Salary shall continue to not be less than the Base Salary set
forth above.
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(B) Short Term Incentive Cash Compensation
Plans.
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(1)
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Executive shall participate in
the State Auto Financial Corporation Leadership Bonus Plan (the
“LBP” with an incentive bonus target equal to no less
than 75% of the Executive’s then current Base Salary. It is
contemplated that a portion of the bonus opportunity under the LBP
shall be “performance-based compensation,” as such term
is used in Section 162(m) of the Internal Revenue Code of
1986, as amended (the “Code”), and payable based upon
the achievement of peer comparison and/or other performance goals
determined by the STFC Compensation Committee and any remaining
portion of the bonus opportunity shall be payable at the discretion
of the STFC Compensation Committee. Executive’s participation
in the LBP shall be according to the terms and conditions of the
LBP. It is understood and agreed that the bonus compensation
potential from the LBP, shall not be less than the bonus
compensation potential available to Executive under the LBP in
effect for Executive on the date of this Agreement, provided that
this restriction may be suspended due to Exigent Circumstances,
provided Executive and the STFC Compensation Committee mutually
agree that such Exigent Circumstances exist.
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(2)
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Executive shall participate in
the State Auto Quality Performance Bonus Plan (“QPB
Plan”) or any similar cash incentive compensation plan
generally made available to executives of State Auto, so long as
State Auto continues to offer the QPB Plan or a similar plan to
such executives. It is understood and agreed that the QPB Plan or
any similar cash incentive compensation plan may be amended,
suspended or terminated by State Auto at any time.
Executive’s participation in the QPB Plan shall be according
to the terms and conditions of the QPB Plan, including any offsets
applicable to bonus amounts earned under the LBP.
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(C) Long Term Incentive
Compensation Plan.
Executive shall participate in the
State Auto Financial Corporation Long-Term Incentive Program (the
“LTIP”) as applicable to Executive and certain other
executives of State Auto, per the terms and conditions of the
LTIP.
(D) Participation in Retirement
Plan and Rights Under Other Agreements.
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(1)
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Executive shall be entitled to
participate in the following plans: (a) any State Auto
employee stock purchase plan; (b) the State Auto Insurance
Companies Employee Retirement Plan, a noncontributory, defined
benefit retirement plan, qualified under Section 401(a) of the
Code; (c) the State Auto Insurance Companies Capital
Accumulation Plan, a defined contribution plan, qualified under
Section 401(k) of the Code; and (d) any successor or
similar stock purchase or retirement plans generally made available
to employees of State Auto, so long as State Auto continues to
offer such plans or similar plans to employees of State Auto. It is
understood and agreed that the foregoing plans or any successor or
similar plans may be amended, suspended, or terminated by State
Auto at any time.
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(2)
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Executive shall be entitled to
participate in State Auto’s nonqualified, unfunded,
non-contributory Supplemental Executive Retirement Plan
(“SERP”), or any successor or similar retirement plan
made available to executives of State Auto, so long as State Auto
continues to offer such plan or successor or similar plans to
executives of State Auto. It is understood and agreed that the
foregoing plan or any successor or similar plans may be amended,
suspended or terminated by State Auto at any time. The terms and
conditions of Executive’s supplemental retirement benefits
shall be controlled by the applicable SERP plan documents, and in
the event of any inconsistencies with this Agreement, or any prior
agreements between the parties, the provisions of the SERP plan
documents shall control.
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(3)
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Executive shall be entitled to
participate in the Amended and Restated Equity Incentive
Compensation Plan or any successor or additional equity based
compensation plans (the “Equity Plans”) implemented by
State Auto. Notwithstanding any other provision contained in the
Equity Plans, in the event Executive’s employment is
terminated for any reason, he shall have a period of not less than
90 days in which to exercise any equity based award made pursuant
to the Equity Plans, which has vested pursuant to the terms of such
Equity Plans, provided, however, that the period during which such
award can be exercised will be such longer period as is provided
under the terms of such equity based award agreement then
applicable. However, notwithstanding the foregoing, if such
exercise period spans two consecutive calendar years, such exercise
shall occur no later than March 15 th of the second calendar year. It
is understood and agreed that the Equity Plans may be amended,
suspended or terminated by the STFC Compensation Committee at any
time.
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(E) Other Fringe
Benefits.
In addition to the benefits provided
for in Article III, Executive shall receive and enjoy any and all
other fringe benefits generally made available to employees of
State Auto as described in State Auto’s Employee Reference
Guide, in accordance with State Auto’s regular employment
policies and practices. In addition, the STFC Compensation
Committee and the Boards of Directors of State Auto Financial and
State Auto Mutual shall have the authority to grant such additional
fringe benefits and 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 and further
provided that no reimbursement shall be made later than the end of
the calendar year following the calendar year in which such expense
was incurred. If such benefits are taxable, State Auto shall ensure
that terms of the benefits will comply with Section 409A of
the Code and the Treasury Regulations and other guidance
promulgated or issued thereunder.
(F) Participation in Future
Compensation, Retirement, and Fringe Benefit Plans.
In addition to the benefits provided
for in 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 generally made available to
executives of State Auto. If such benefits are taxable, State Auto
shall ensure that terms of the benefits will comply with
Section 409A of the Code and the Treasury Regulations and
other guidance promulgated or issued thereunder.
(G) Vacation.
Executive shall be entitled to four
weeks of paid vacation and such other personal absence days as
State Auto provides its other employees. After five years of
employment, Executive shall be entitled to an additional week of
paid vacation, consistent with State Auto’s employment
policies and practices then in place.
Article IV
Termination.
(A) Disability.
If during the
Employment Term Executive shall be unable to perform substantially
his duties hereunder because of illness or other incapacity
constituting a disability as defined in Section 409A of the
Code (referred to hereafter as “Disability”), and such
Disability shall persist for a period of at least six months in any
12 month period, State Auto shall thereafter have the right, on not
less than 45 days’ written notice to Executive, to terminate
Executive’s employment under this Agreement, in which case
the date of Executive’s separation from service (as defined
in Section 409A of the Code) shall be not less than the
45 th day following the date of
written
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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), (B), and (C) of Article III hereof accruing
through the date of such separation from service and per the terms
of the applicable plan or program. Thereafter, State Auto shall be
obligated to pay Executive an amount equal to 80% of the
Executive’s then-current Base Salary, less any benefits to
which Executive might be entitled under State Auto’s long
term disability plan described in State Auto’s Employee
Reference Guide that is current as of the date of such separation
from service. The compensation provided under this Section shall
continue for the full period of Disability or until Executive
attains age 65, whichever first occurs and shall be paid in
accordance with State Auto’s normal compensation practices
applicable to salaried employees. 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 (or his legal representative, as the case may be)
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 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, State Auto shall continue to pay his
then-current Base Salary for a period equal to the lesser of 12
full calendar months following the month in which his death occurs
or until Executive would have attained age 65. Such Base Salary
payments shall be made in accordance with State Auto’s normal
compensation practices applicable to salaried employees. A pro rata
share of the compensation to which Executive is entitled pursuant
to Article III Section (B) and (C) hereof shall be paid
pursuant to the terms of the LBP, the QPB Plan, and the LTIP
(collectively, the “Bonus Plans”), provided the bonus
contemplated by any of the Bonus Plans is in fact earned under the
terms of such Bonus Plan then in effect for tine particular period
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 any bonus due under the
QPB Plan 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. The pro-rata share of the payment due under the LTIP
shall be determined by dividing a numerator equal to the number of
whole months that have elapsed in the then current LTIP’s
measurement period on the date of the Executive’s death
divided by a denominator equal to the duration of the measurement
period. 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 the bonus due under
the LBP, or the LTIP is earned under Article III, said sums will be
paid to the Beneficiary as soon as practicable following the end of
the calendar year following the determination by State Auto that
the bonus due under the LBP or the LTIP has in fact been earned
pursuant to the terms of each such bonus opportunity, but no later
than March 15 following such calendar year. In addition to the
foregoing, in the event of Executive’s death during his
employment hereunder,