Exhibit 10.18
SENIOR EXECUTIVE
SEVERANCE
AND NON-COMPETITION
AGREEMENT
SENIOR EXECUTIVE
SEVERANCE AND NON-COMPETITION AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of November 25, 1996, is by
and between AMERICAN RE-INSURANCE COMPANY, a Delaware insurance company (the
"Company"), and the executive identified on the signature page hereof (the
"Executive").
RECITALS
A. As of the date hereof, the Company has been acquired by Munchener
Ruckversicherungs-Gesellschaft Aktiengesellschaft in Munchen ("Munich Re"). In
connection therewith, Munich Re desires that the Company retain and utilize the
talented employee and management team of the Company, including Executive, to
enhance its growth and profitability.
B. In connection therewith, Munich Re has directed the establishment of
certain salary and benefit programs by and on behalf of the Company to assist in
the retention of Executive and, as a further inducement to Executive to remain
in the employ of the Company, has proposed that the Company and Executive enter
into this Agreement.
C. Executive acknowledges that, while in the employ of the Company
and/or any Affiliate thereof (as defined below), and in order for the Company
and/or any Affiliate thereof to operate efficiently and profitably, Executive
will be exposed to, and
the Company must take reasonable steps to protect, ideas, methods, developments,
strategies, business plans and financial and other information of the Company
and/or any Affiliate thereof which are confidential and/or proprietary in nature
and which are of significant value to other persons or entities that operate in
the insurance and reinsurance industries.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Company and Executive hereby agree as
follows:
1. Definitions. The following terms shall have the meanings set
forth below:
"Affiliate" shall mean a person that directly or indirectly
through one or more intermediaries controls, is controlled by or is under common
control with the person specified.
"Board" shall mean the Board of Directors of the Company.
"Cause" shall mean that Executive shall have (i) been convicted
of a felony, (ii) willfully failed to perform the duties of his/her position,
(iii) stolen or embezzled property, or (iv) committed an act of willful
misconduct which is damaging or detrimental to the Company and/or any Affiliate
thereof.
"Competition" means (i) soliciting reinsurance or retrocession
business from any Customer of the Company and/or any affiliate thereof, or (ii)
interfering with any contractual relationships between the Company and/or any
affiliate thereof, and its Customers.
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"Constructive Discharge" shall be deemed to have occurred if (A)
the Company and/or any Affiliate thereof shall have (i) made a material adverse
change to Executive's title as set forth on the signature page hereof or
substantially reduced Executive's responsibilities, (ii) reduced Executive's
annual base salary to an amount that is less than Executive's annual base salary
for the 1997 calendar year, or (iii) required, as a condition to continued
employment with the Company and/or any Affiliate thereof, that Executive be
relocated and Executive shall have elected to terminate such employment in lieu
of relocating and (B) Executive shall have within thirty (30) days of such event
asserted in writing to the Company and/or any Affiliate thereof that such event
has occurred (and specifying same and the basis therefor) and that Executive is
terminating employment with the Company and/or any Affiliate thereof by reason
thereof; provided that the Company and/or any Affiliate thereof shall have
fifteen (15) days from receipt of such written notice from the Executive to cure
the event(s) that constituted such Constructive Discharge prior to such
termination becoming effective.
"Customer" shall mean, as of the date of Executive's termination
of employment, any insurance or reinsurance company, insurance or reinsurance
agent or broker, or other corporation, individual or consultant with which the
Company and/or any Affiliate thereof is doing business.
"Date of Termination" shall mean the date of Termination of
Employment.
"Non-Compete Triggering Event" shall mean a Termination of
Employment resulting from either (i) an involuntary termination by the Company
for Cause or (ii) a voluntary termination not resulting from a Constructive
Discharge.
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"Severance Benefits" shall mean the benefits set forth in Section
3 of this Agreement.
"Severance Period" shall mean the two (2) year period following
the Date of Termination.
"Severance Triggering Event" shall mean a Termination of
Employment resulting from either (i) an involuntary termination by the Company
not for Cause or (ii) a voluntary termination resulting from a Constructive
Discharge. "Termination of Employment" shall mean the time when the
employer-employee relationship between Executive and the Company and/or an
Affiliate thereof is terminated for any reason, with or without Cause.
2. Position. Executive hereby agrees to serve in such position as the Board
shall at any time designate on an "at-will" employment basis, which position
initially shall be as set forth on the signature page hereof; provided, however,
that Executive shall not be obligated to accept any position which would
constitute a Constructive Discharge. While in the employ of the Company and/or
any Affiliate thereof, Executive shall devote his best efforts and his full
business time and attention to the performance of the services customarily
incident to such office and to such other services of an executive nature as may
be reasonably requested by the Board and senior management.
3. Salary: Executive's annual base salary for 1997 shall be the amount set
forth on the signature page hereof. Thereafter, Executive's annual base salary
shall be such amount as is established from time to time by the Chief Executive
Officer or the Board of Directors of the Company; provided, however, that
Executive shall not be
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obligated to accept a reduced base salary that would constitute a Constructive
Discharge. Executive shall be eligible to participate in the Company's Annual
Incentive Compensation Plan (or any successer plan as may be established from
time to time) pursuant to which Executive's bonus, if any, shall be determined
by an evaluation of performance against expectations based on the Company's
performance versus financial and strategic objectives (it being understood that
catastrophic losses and reserve increases shall be excluded in determining
financial performance) and the Executive's performance versus personal
objectives, including, for 1996 and 0000, Xxxxxx Re transition/integration
goals; provided, however, that Executive's bonus for the 1996 performance year
shall not be less than the amount of Executive's bonus paid for the 1995
performance year as set forth on the signature page hereof, and Executive's
bonus for the 1997 performance year shall not be less than the amount of
Executive's bonus paid for the 1996 performance year. Executive shall also be
entitled to participate in the Company's Long-Term Incentive Plan (it being
understood that catastrophic losses and reserve increases will be included in
determining financial performance) and any and all other benefit plans generally
available to senior officers of the Company.
4. Severance Benefits. In the event of a Severance Triggering Event
occurring at any time on or before December 31, 2001, then, for the Severance
Period, the Company shall pay or provide to Executive, and Executive shall be
entitled to, the following benefits ("Severance Benefits"):
(A) continuation of salary at the then current annual rate of pay;
(B) an annual bonus (prorated for the final year in which the last day
of the Severance Period falls) equal to the greater of (i) the amount of the
most recent bonus
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paid to Executive prior to the Date of Termination and (ii) the amount of the
bonus paid to Executive for 1996;
(C) the amount accrued (whether or not vested) to the Date of
Termination under any Long-Term Incentive Plan of the Company in which Executive
is then a participant (to be determined and paid at the end of any relevant
performance period in which such Date of Termination occurs); and
(D) all other benefits to which Executive is entitled pursuant to the
"Personnel Policy Manual" of the Company and/or any Affiliate thereof in effect
as of the date of this Agreement, including without limitation, payments for
unused vacation days and benefits from the Company's life, medical and dental
insurance plans and pension and savings plans (if and to the extent Executive
was participating in such plans upon the Date of Termination), but excluding any
severance under the Company's Severance Pay Plan. Upon such payment of cash and
other benefits aforesaid, the Company's obligations hereunder shall terminate.
5. Release. The payment of the Severance Benefits hereunder are conditioned
upon and in consideration of Executive's execution of a general release of the
Company and its Affiliates from and against any and all claims which Executive
has or may have against the Company and its Affiliates and each officer,
director or "controlling" person of the Company and/or its Affiliates arising
out of or relating to Executive's employment by or termination of employment
with the Company and/or any Affiliate thereof or otherwise, such release to be
in a form reasonably acceptable to the Company; provided, however, that in no
event shall Executive be required or deemed to waive, relinquish or release any
of its rights under, and the Company shall remain fully
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obligated in accordance with the terms of, the American Re-Insurance Company
Senior Executive Special Deferred Compensation Plan.
6. No Right of Continued Employment; No Other Liability; Termination for
Cause. Nothing in this Agreement shall confer upon Executive any right to
continue in the employ of the Company and/or any Affiliate thereof or shall
interfere with or restrict in any way the rights of the Company and/or any
Affiliate thereof, which are hereby expressly reserved, to discharge Executive
at any time for any reason whatsoever, with or without Cause. Executive hereby
agrees that Executive's employment with the Company and/or any Affiliate thereof
may be terminated, without liability, except as provided in this Agreement and
without regard to (A) any general or specific policies (whether written or oral)
of the Company and/or any Affiliate thereof relating to the employment or
termination of its employees other than as set forth herein, or (B) any
statements made to Executive (whether written or oral) pertaining to Executive's
relationship with the Company and/or any Affiliate thereof. Executive further
agrees that neither the Company nor any of its Affiliates shall have any
liability for, and Executive shall not be entitled to, any severance benefits
upon the termination of Executive's employment with the Company and/or any
Affiliate thereof for Cause.
7. Covenant Not-to-Compete. In the event of a Non-Compete Triggering Event
occurring at any time on or before December 31, 2001, Executive hereby agrees
that, for a period of two (2) years following the Date of Termination, Executive
will not engage in any activity constituting Competition as defined in this
Agreement.
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8. Covenant of Confidentiality. Executive agrees to keep confidential, and
not to disclose to any third party, any ideas, methods, developments,
strategies, business plans and financial and other information about the
Company, its Affiliates and their employees or clients which is confidential
information of the Company and/or any Affiliate thereof. Confidential
information shall not include any information that becomes generally available
to the public other than as a result of a disclosure, directly or indirectly, by
Executive.
9. Certain Obligations. Upon termination of Executive's employment with the
Company and/or any Affiliate thereof, Executive shall be deemed to have resigned
from all offices and directorships then held with the Company and/or any
Affiliate of the Company.
10. Assignment; Successors and Assigns. Executive agrees that he will not
assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, any rights or obligations under this Agreement. Any purported
assignment, transfer, or delegation in violation of this Section shall be null
and void. Nothing in this Agreement shall prevent the merger or the
consolidation of the Company and/or any Affiliate thereof with any other entity,
or the sale by the Company and/or any Affiliate thereof of all or substantially
all of its properties or assets, or the assignment by the Company and/or any
Affiliate thereof of this Agreement and the performance of its obligations
hereunder to any successor in interest or any Affiliate. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the
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parties and their respective heirs, legal representatives, successors, and
permitted assigns, and shall not benefit any person or entity other than those
enumerated above.
11. Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to the other
shall be in writing and delivered in person or by courier, or mailed by
certified mail, postage prepaid, return receipt requested (such mailed notice to
be effective on the date of such receipt), as follows:
If to Executive, to the address set forth on the signature
page hereof
If to the Company:
Secretary - American Re-Insurance Company
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
or to such other place and with such other copies as any party may designate as
to itself by written notice to the other.
12. Entire Agreement. The terms and this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
employment of Executive by the Company and/or any Affiliate thereof and may not
be contradicted by evidence of any prior agreement, which such agreement or
agreements are expressly superseded and terminated hereby. The parties further
intend that this Agreement shall constitute the complete and exclusive statement
of its terms and that no extrinsic evidence whatsoever may be introduced in any
judicial, administrative, or other legal proceeding involving this Agreement.
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13. Amendment; Waivers. This Agreement may not be modified, amended, or
terminated except by an instrument in writing, signed by Executive and by a duly
authorized representative of the Company, and approved by the Board. By an
instrument in writing similarly executed, either party may waive compliance by
the other party with any provision of this Agreement; 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 operate as a waiver thereof, nor
shall any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
14. Limitation of Liability. No representative, stockholder, officer,
director, Affiliate, employee or agent of the Company shall be liable for any
debt, claim, demand, judgment, decree, liability or obligation of any kind,
against or with respect to the Company arising out of action taken or omitted
for or on behalf of the Company under or pursuant to this Agreement.
15. Withholding; Set-off. All amounts payable to Executive under this
Agreement shall be subject to applicable withholding of income, wage and other
taxes. Executive agrees that the Company and/or any Affiliate thereof shall have
the right to set off against the Severance Benefits any amounts that Executive
owes the Company and/or any Affiliate thereof at the time of his/her termination
of employment with the Company and/or any Affiliate thereof.
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16. Severability; Enforcement. If any provision of this Agreement, or the
application thereof to any person, place, or circumstance, shall be held by a
court of competent jurisdiction to be invalid, unenforceable, or void, the
remainder of this Agreement and such provisions as applied to other persons,
places, and circumstances shall remain in full force and effect. In the event
that the provisions of Section 7 shall be determined by any court of competent
jurisdiction to be unenforceable by reason of its extending for too great a
period of time or over too great a geographic area or by reason of its being too
extensive in any other respect, it shall be deemed amended automatically
(without execution of any documentation by the parties hereto) so that it may be
interpreted to extend only over the maximum period of time for which it may be
enforceable and/or over the maximum geographic area as to which it may be
enforceable and/or to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such action.
17. Discretion of Board. The Board, in its sole discretion, acting in good
faith, shall determine all matters and questions relating to Termination of
Employment, including, but not by way of limitation, whether a Termination of
Employment was voluntary or involuntary or resulted from a Constructive
Discharge or discharge for Cause, and all questions of whether particular leaves
of absence constitute Termination of Employment.
18. Remedies. Executive acknowledges that a breach of this Agreement will
cause irreparable damage to the Company, the exact amount of which will be
difficult to ascertain, and that the remedies at law for any such breach will be
inadequate.
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Accordingly, Executive agrees that, if Executive breaches this
Agreement, the Company shall be entitled to specific performance and injunctive
relief, without posting bond or other security, in addition to any other remedy
which may be available at law or in equity.
19. Governing Law. This Agreement will be governed by and interpreted in
accordance with the laws of the State of New Jersey, without reference to
conflicts of law rules thereof.
20. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed to be an original, and all such counterparts
together shall constitute one and the same instrument.
The parties have duly executed this Agreement as of the date first written
above.
AMERICAN RE-INSURANCE COMPANY EXECUTIVE
By: _________________________ ______________________________
Signature
Name: Name: ________________________
Title: Title: ________________________
1997 Base Salary: ________
1995 Bonus: ___________________
Address:
_________________________________
_________________________________
_________________________________
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