Exhibit 10.26
FIRST AMENDED AND
RESTATED
EXECUTIVE EMPLOYMENT
AGREEMENT
THIS FIRST
AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
(this
“Agreement”) is made and entered into as of the
30 th day of March, 2009 (the
“Effective Date”) by and between Affirmative Insurance
Holdings, Inc. (the “Company”) and Robert A. Bondi
(“Executive”).
PRELIMINARY
STATEMENTS
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A.
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The Company has
employed Executive as Executive Vice President: Chief Operating
Officer since November 27, 2006;
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B.
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In connection
with such employment, the Company and Executive entered into an
Executive Employment Agreement dated November 27, 2006 (the
“Anniversary Date”);
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C.
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The Company and
Executive desire to extend the Term of and amend other terms of the
Executive Employment Agreement; and
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D.
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Each party
desires to set forth in writing the terms and conditions of their
understandings and agreements.
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NOW, THEREFORE,
in consideration of the mutual
covenants and obligations contained herein, the Company hereby
agrees to employ Executive and Executive hereby accepts such
employment upon the terms and conditions set forth in this
Agreement:
STATEMENT OF
AGREEMENT
1. Position.
(a) The Company agrees to employ
Executive in the position of Executive Vice President: Chief
Operating Officer. Executive shall serve and perform the duties
which may from time to time be assigned to him by the
Company’s Chief Executive Officer (“CEO”) and the
Board of Directors (the “Board”).
(b) Executive agrees to serve as
Executive Vice President: Chief Operating Officer and agrees that
he will devote his best efforts and substantially all of his
business time and attention to all facets of the business of the
Company and will faithfully and diligently carry out the duties of
these positions; provided, however that Executive may devote
reasonable time to activities involving professional, charitable,
and similar types of organizations, speaking engagements and
memberships on the boards of directors of other organizations, so
long a such activities do not interfere with the performance of
Executive’s duties hereunder, and do not represent a conflict
of interest. Executive agrees to comply with all Company policies
in effect from time to time, and to comply with all laws, rules and
regulations applicable to the Company, including, but not limited
to, those established by the Department of Insurance, the
Securities and Exchange Commission, or any self-regulatory
organization having jurisdiction or authority over the Executive or
the Company.
(c) Executive agrees to travel as
reasonably necessary to perform his duties under this
Agreement.
(d) The Company, in its sole
discretion, may require that Executive be designated an employee of
one or more of the Company’s subsidiaries or affiliates for
such purposes as payroll and benefits administration. The
employment of Executive by any such subsidiary or affiliate to
facilitate the Company’s internal administrative purposes
shall be considered employment by the Company within the meaning of
this Agreement and shall not otherwise affect any of the rights or
responsibilities of the Company or Executive hereunder, including,
but not limited to, Executive’s level of
compensation.
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(e) The position of Executive Vice
President: Chief Operating Officer shall be located at the
Company’s corporate office in Chicago, Illinois.
2. Term .
(a) Extension of Initial
Term. The Initial Term of this Agreement shall be extended to
seven (7) years from the Anniversary Date (“Initial
Term”), unless otherwise terminated pursuant to
Section 5 of this Agreement. For the avoidance of doubt,
absent a termination pursuant to Section 5, the Initial Term
of this Agreement shall expire on November 26, 2013. The
Initial Term, and any further extension thereof shall be referred
to herein as the “Term.”
(b) Expiration of Term. This
Agreement will terminate automatically upon the expiration of the
Term, or any extension thereof. The Company shall provide notice of
its intention to renew or extend this Agreement to Executive at
least six (6) months before the last day of the Term. In the
event that the Company and the Executive do not agree to a renewal
or extension of this Agreement, then as of the last day of the
Term: (1) One hundred percent (100%) of Executive’s
then-unvested stock options will immediately vest, (2) One
hundred percent (100%) of Executive’s then-unvested
restricted stock will immediately vest, and (3) Executive
shall be entitled to an amount equal to the previous year’s
Bonus paid to Executive prorated on a daily basis for the number of
days employed in the year of expiration of the Term, through the
date of expiration of the Term.
3. Compensation and Benefits
.
(a) Base Salary. The Company shall
pay Executive an annual salary of at least Three Hundred Fifty
Thousand Dollars ($350,000), with such amounts to be paid on a
biweekly basis (“Base Salary”) pursuant to the
Company’s standard payroll practices. Executive’s Base
Salary shall be reviewed at least annually for consideration of
appropriate merit increases and, once established, the Base Salary
shall not be decreased during the Term without the consent of
Executive.
(b) Bonus Opportunities . In
addition to the Base Salary, Executive will be eligible to
participate in the Company’s bonus plan(s)
(“Bonus”) with eligibility for a target annual bonus of
50% of Base Salary. Annual bonus amount to be determined based on
achieving objectives as determined by the Board of Directors and
the Compensation Committee.
(c) Stock . Executive will
also be eligible to participate in the Company’s 2004 Amended
and Restated Stock Incentive Plan (“Stock Plan”), as
may be amended from time to time. Except as expressly provided
herein, nothing in this Agreement shall affect, alter or amend any
prior grants by the Company to Executive of restricted stock or
stock options pursuant to the Executive Employment
Agreement.
(d) Payment . Payment of all
compensation to Executive hereunder shall be made in accordance
with the terms of this Agreement and applicable Company policies in
effect from time to time, including normal payroll practices, and
shall be subject to all applicable withholdings and
taxes.
(e) Benefits Generally . The
Company shall make available to Executive, throughout the term of
this Agreement, benefits as are generally provided by the Company
to its executive officers, including but not limited to any group
life, health, dental, vision, disability or accident insurance,
401(k) plan, or other such benefit plan or policy which may
presently be in effect or which may hereafter be adopted by the
Company for its executive officers and key management personnel;
provided, however, that nothing herein contained shall be deemed to
require the Company to adopt or maintain any particular plan or
policy.
(f) Vacation/Sick Time .
Executive shall be entitled to paid time off (“PTO”)
accruing at 8.31 hours per period, or twenty seven (27) days
when annualized, consistent with the policies then applicable to
executive officers .
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4. Reimbursement of Expenses
. The Company shall reimburse Executive for all business expenses,
which are reasonable and necessary and are incurred by Executive
while performing his duties under this Agreement, upon presentation
of expense statements, receipts and/or vouchers, or such other
information and documentation as the Company may reasonably
require. The CEO reserves the right to deny any unreasonable
business expense.
5. Termination .
(a) Termination by the
Company .
(i) Without Cause . The
Company may terminate this Agreement for any reason or no reason
upon thirty (30) days written notice to Executive. If the
Company terminates this Agreement pursuant to this provision, the
Company will pay Executive: (1) all earned but unpaid Base
Salary and PTO (“Accrued Compensation”), (2) an
additional severance payment equal to one (1) year of the sum
of the Executive’s then-current (a) Base Salary and
(b) an amount equal to the previous year’s Bonus paid to
Executive (“Additional Severance Payment”); and
(3) Executive’s unvested stock options and restricted
stock awards will immediately vest, as provided in the Stock Option
and Restricted Stock Agreements. Upon termination of this Agreement
by the Company pursuant to Section 5(a)(i), the Company shall
pay the cost to Executive as such costs become due for continuation
coverage under COBRA (hereinafter referred to as the
“Termination COBRA Payments”) during the Continuation
Period (as hereafter defined). If and when the COBRA coverage
ceases during the Continuation Period, the Company will reimburse
Executive for comparable coverage as received under COBRA during
the reminder of the Continuation Period. The Continuation Period
shall be the period commencing on the date of termination of this
Agreement and end twelve (12) months after the date of
termination of this Agreement.
(ii) For Cause . The Company
may terminate this Agreement at any time for Cause. Upon
termination by the Company for Cause, Executive shall only be
entitled to all earned but unpaid Base Salary. “Cause”
means any of the following:
a) Executive’s commission of
theft, embezzlement, any other act of dishonesty relating to his
employment with the Company, or any material violation of Company
policies (including the Company’s ethics policies), or any
law, rules, or regulations applicable to the Company, including,
but not limited to, those established by the Department of
Insurance, the Securities and Exchange Commission, or any
self-regulatory organization having jurisdiction or authority over
Executive or the Company or any failure by the Executive to inform
the Company of any violation of any law, rule or regulation by the
Company or one of its direct or indirect subsidiaries of which the
Executive has actual knowledge;
b) Executive’s conviction of,
or pleading guilty or nolo contendere to, a felony or any lesser
crime having as its predicate element fraud, dishonesty,
misappropriation, or moral turpitude;
c) Executive’s neglect of
duties or failure to perform obligations under this Agreement
(other than due to disability) that materially causes harm to the
Company or that has materially damaged or interfered with the
Company’s relationships with its customers, suppliers,
employees or other agents; provided, however, that the Company
shall give the Executive written notice of any actions or omissions
alleged to constitute Cause under this subsection (c) and the
Executive shall have thirty (30) days to cure any such alleged
Cause;
d) Executive’s substance abuse
or illegal use of drugs that impairs Executive’s performance,
that materially causes harm to the Company or that, in the
reasonable judgment of the Board, has damaged or interfered with
the Company’s relationships with its customers, suppliers,
employees or other agents;
e) Executive’s commission of
an act or acts in the performance of his duties under this
Agreement amounting to gross negligence or willful misconduct;
or
f) Executive’s breach of
Sections 7 or 8 of this Agreement;
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The Company may place Executive on
paid administrative leave from work during any investigation by the
Company of a “cause” reason for Executive’s
termination, and may prohibit Executive from coming into work,
accessing the Company’s computer system, and contacting its
employees or customers during this time; provided, however, upon a
failure of the Board of Directors to find that Cause exists, such
placing of Executive on leave two times during the Term shall
constitute Good Reason under Section 5 below.
(iii) Change in Control . If
the Company terminates the Agreement following a Change in Control,
which results in a substantial diminution of Executive’s
duties and responsibilities or a material reduction of compensation
or benefits, the Company shall pay Executive: (1) Accrued
Compensation, and (2) the Additional Severance Payment, and
(3) Executive’s unvested stock options and restricted
stock awards will immediately vest, as provided in the Stock Option
and Restricted Stock Agreements. “Change in Control”
shall mean a transaction or event (or series of transactions or
events) as a result of which any “person” as such term
is used in Section 13(d) and 14(d) of the Exchange Act (other
than any Excluded Person, the Company or any Company employee
benefit plan, including its trustees) is or becomes the
“beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of all of the securities of
the Company held by New Affirmative LLC held immediately prior to
such transaction or event (or series of transactions or events) and
all director designees of New Affirmative LLC are no longer on the
Company’s Board; provided, however, that in no event shall
the distribution, sale, transfer, or acquisition of securities of
the Company held by New Affirmative LLC or any Excluded Persons (or
any successor thereof) to any Excluded Person trigger a
“Change in Control.” “Excluded Person”
shall mean any of New Affirmative LLC, Affirmative Investment LLC,
The Enstar Group, Inc. and any of their respective stockholders,
members, affiliates, subsidiaries, or any such persons under common
control.
(b) Termination by Executive
.
(i) No Good Reason .
Executive may terminate this Agreement for any reason upon
providing thirty (30) days written notice to the Company. If
Executive terminates this Agreement pursuant to this provision, the
Company will pay Executive all earned but unpaid Base
Salary.
(ii) For Good Reason . For
purposes of this Agreement, the term “Good Reason”
shall mean termination of Executive’s employment with the
Company by the Executive by giving at least thirty (30) days
advance written notice within thirty (30) days of the
occurrence of one of the following events:
a) Executive’s removal from
his position as Executive Vice President and Chief Operating
Officer, other than for Cause or by death or Disability, during the
term of this Agreement;
b) without Executive’s written
consent, a reduction in Executive’s Base Salary or Target
Bonus or any failure to pay Executive any compensation or benefits
to which he is entitled within five (5) days of the date due;
provided, however, that Executive shall give the Company written
notice of any actions or omissions alleged to constitute Good
Reason under this subsection (b) and the Company shall have
ten (10) business days to cure any such alleged Good
Reason;
c) in the event of a requirement
that Executive relocate Executive’s principal office to a
location that is more than forty (40) miles from the location
of the Company’s administrative offices in Chicago, Illinois;
provided, however, that travel as reasonably necessary to perform
duties under this Agreement shall not be deemed a violation of this
subsection (c);
d) a materially adverse change in
Executive’s duties and responsibilities or a material
reduction of compensation or benefits;
e) the Company’s material
breach of any provision of this Agreement or any of the covenants
contained herein that, if capable of being cured, remains uncured
after Executive has delivered a written notice of breach to the
Company and after the Company has had thirty (30) days after
receipt of such written notice to cure such breach; or
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f) the failure of the Company to
comply with and satisfy its obligations under Section 25
hereof.
Upon termination for “Good
Reason” pursuant to this provision, Executive shall be
entitled to all benefits and payments as provided in
Section 5(a)(i) hereof for a termination by the Company
without Cause. Executive shall only be required to give notice one
time under this Section 5(b)(ii) and shall not be required to
provide notice and a cure period for any breach or other action
that is not capable of cure.
(c) Disability . The Company
may terminate this Agreement at any time Executive shall be deemed
by the Board to have sustained a “disability.”
Executive shall be deemed to have sustained a
“disability” if he shall have been unable to perform
his duties for a period of more than ninety (90) days in any
twelve (12) month period. Upon termination of this Agreement
for disability, the Company shall pay Executive his Accrued
Compensation.
(d) Death . This Agreement
will terminate automatically upon Executive’s death. Upon
termination of this Agreement because of Executive’s death,
the Company shall pay Executive’s estate his Accrued
Compensation.
(e) Employment . Upon
termination of this Agreement for any reason, including expiration
of the Term, or a termination for a reason specified in this
Section 5, Executive’s employment shall also terminate
and cease, and Executive will voluntarily resign any Director or
Board positions he holds, unless otherwise requested by the
Company.
(f) Transition Period . Upon
termination of this Agreement, and for a period of thirty
(30) days thereafter (the “Transition Period”),
Executive agrees to make himself available to assist the Company
with transition projects assigned to him by the Board. Executive
will be paid at a daily rate of one-thousand five hundred and
no/100 ($1,500.00) dollars for any work performed for the Company
during the Transition Period.
(g) Severance Payment . Any
payment to Executive under this Section 5 will be payable in
monthly installments due on the first day of each month during the
course of the Non-Interference Period. Executive shall not be
entitled to, and the Company shall not pay, any severance under any
other plan, program or policy of the Company.
Notwithstanding the foregoing
severance provisions, if the Board (or its delegate) determines in
its or his discretion that Executive is a “Specified
Employee” (as defined in Section 409A of the United
States Internal Revenue Code of 1986, as amended (“Section
409A”)), as of the date of termination, and that
Section 409A applies with respect to any payment(s) to
Executive pursuant to any of the paragraphs of this Section 5,
such payment(s) shall not begin until the six-month anniversary of
the date of termination, and will continue in monthly installments
thereafter through completion of the Non-Interference Period (with
each monthly installment being paid in the gross sum of the full
payment divided by 6); provided, however, that if the Board (or its
delegate) determines in its or his discretion that Executive is not
a Specified Employee as of the date of termination (or that
Section 409A does not apply with respect to a payment to
Executive pursuant to Section 5), such payment shall be made
in accordance with the provisions of this Section 5, provided
that the requirements set forth in Section 6 have been met by
Executive.
6. Release . Notwithstanding
any other provision in this Agreement to the contrary, as a
condition precedent to receiving any payment set forth in
Section 5 of this Agreement, Executive agrees to execute (and
not revoke) a severance and release agreement acceptable to the
Company (the “Release”). If Executive fails to execute
and deliver the Release, or revokes the Release, Executive agrees
that he shall not be entitled to receive the above-stated severance
payments. For purposes of this Agreement, the Release shall be
considered to have been executed by Executive if it is signed by
his legal representative in the case of legal incompetence or on
behalf of Executive’s estate in the case of his death. No
payments shall be made under Section 5 until the period to
revoke the release has terminated.
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7. Nondisclosure .
(a) The Company shall, immediately
after executing this Agreement, provide Executive with some or all
of the Company’s various trade secrets and confidential or
proprietary information, including information he has not received
before, consisting of, but not limited to, all information: that is
non-public or proprietary to the Company, or its affiliates
including, but not limited to, information concerning its business
activities including, but not limited to, the present marketing and
administration of certain insurance business and processes,
including but not limited to any and all information concerning
non-standard automobile insurance business, financial information,
administrative procedures, pricing methods and policies, client
lists and information, business and marketing strategies, claims
and underwriting procedures and guidelines, claims and underwriting
files, utilization review and manuals, data format, data gathering
retrieval systems and methods, ideas about current and future
services. Confidential Information shall not include:
(i) information that Executive may furnish to third parties
regarding his obligations under Sections 7 and 8; or
(ii) information that becomes generally available to the
public by means other than Executive’s breach of
Section 7 (for example, not as a result of Executive’s
unauthorized release of marketing materials).
(b) Executive agrees that all
Confidential Information, whether prepared by Executive or
otherwise coming into his possession, shall remain the exclusive
property of the Company during Executive’s employment with
the Company and thereafter. Executive further agrees that he shall
not, without the prior written consent of the Company, use or
disclose to any third party any of the Confidential Information
described herein, directly or indirectly, either during
Executive’s employment with the Company or at any time
following the termination of Executive’s employment with the
Company, except as Executive may be required by Court Order. If
such Court Order is issued, Executive shall inform the Company
a