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EXHIBIT 10.22
SAFETY NATIONAL CASUALTY CORPORATION
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") has been entered into as of this
22nd day of December, 1995, by and between Safety National Casualty Corporation,
a Missouri stock insurance corporation (the "Company"), and X.X. Xxxxxx, an
individual and resident of the State of Missouri (the "Executive").
RECITALS
The Board of Directors of the Company (the "Board") has determined that it is in
the best interests of the Company and its sole shareholder to reinforce and
encourage the continued attention and dedication of the Executive to the Company
as a member of the Company's management and to assure that the Company will have
the continued dedication of the Executive. The Board desires to provide for the
continued employment of the Executive on the terms hereof, and the Executive is
willing to commit himself to continue to serve the Company. Therefore, in order
to accomplish these objectives, the Board has caused the Company to enter into
this Agreement.
IT IS AGREED AS FOLLOWS:
SECTION 1: DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, the following words and phrases, whether or not capitalized, shall
have the meanings specified below, unless the context plainly requires a
different meaning.
1.1(a) "BOARD" means the Board of Directors of the Company.
1.1(b) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
1.1(c) "CONTINUING MANAGEMENT" includes Xxxxx X. Hercules,
Xxxxxx X. Xxx, Xxxxxxxx X. Xxxxxxxxxxx, Xxxxxx X. Xxxxx, X.X. Xxxxxx and Xxxx X.
Xxxxxxx, or such of them as are then serving as executives or officers of the
Company, but, in the case of Sections 3.3 and 3.5, not the Executive.
1.1(d) "EMPLOYMENT PERIOD" means the period beginning on the
Effective Date and ending on December 31, 1998 subject to the options to renew
such Employment Period as described in Section 2.1 hereof.
1.1(e) "EFFECTIVE DATE" shall mean January 1, 1996.
1.1(f) "MERGER AGREEMENT" means that certain Agreement and
Plan of Merger among SIG Holdings, Inc., Delphi Financial Group, Inc.
("Delphi"), and SIG Holdings Acquisition Corporation dated as of October 5,
1995.
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1.1(g) "TERM" means the period that begins on the Effective
Date and ends on the earlier of: (i) the close of business on December 31, 1998
(the "Initial Term") or the close of business on the last day of the First
Renewal Term (as hereafter defined), if applicable, or the close of business on
the last day of any Subsequent Renewal Term (as hereinafter defined), if
applicable, or (ii) the DATE OF TERMINATION as defined in Section 3.7.
1.2 GENDER AND NUMBER. When appropriate, pronouns in this Agreement used
in the masculine gender include the feminine gender, words in the singular
include the plural, and words in the plural include the singular.
1.3 HEADINGS. All headings in this Agreement are included solely for ease
of reference and do not bear on the interpretation of the text. Accordingly, as
used in this Agreement, the term "Section" means the text that accompanies the
specified Section of this Agreement.
SECTION 2: TERMS AND CONDITIONS OF EMPLOYMENT.
2.1 PERIOD OF EMPLOYMENT. Throughout the Initial Term of this Agreement,
the Executive shall remain in the employ of the Company in accordance with the
terms and provisions of this Agreement. The Executive may, at his election by
written notice delivered to the Company prior to the end of the Initial Term
extend the period of employment hereunder until December 31, 1999 (the "First
Renewal Term"). After the expiration of the First Renewal Term, the Company and
the Executive may, with the prior written consent of Delphi, extend the period
of employment hereunder for additional one year periods (a "Subsequent Renewal
Term").
2.2 POSITIONS AND DUTIES.
2.2(a) Throughout the Term of this Agreement, the Executive's
position (including status, offices, titles and reporting requirements),
authority, duties and responsibilities shall be commensurate in all material
respects with those assigned to, or held and exercised by, the Executive on the
Effective Date of this Agreement.
2.2(b) Throughout the Term of this Agreement (but excluding
any periods of vacation and sick leave to which he is entitled), the Executive
shall devote full attention and time during normal business hours to the
business and affairs of the Company and shall use his best efforts to perform
faithfully and efficiently such responsibilities as are assigned to him under or
in accordance with this Agreement; provided that, it shall not be a violation of
this paragraph for the Executive to (i) serve on corporate, civic and charitable
boards or committees, (ii) deliver lectures or fulfill speaking engagements, or
(iii) manage personal investments, so long as such activities do not
significantly interfere with the performance of the Executive's responsibilities
as an employee of the Company in accordance with this Agreement.
2.3 SITUS OF EMPLOYMENT. Throughout the Term of this Agreement, the
Executive's services shall be performed at the headquarters and operations
center of the Company which shall be located in the office in St. Louis,
Missouri where the Executive was employed on the Effective Date.
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2.4 COMPENSATION. The Executive's annual compensation and other benefits
described in this Section 2.4, shall be provided by the Company.
2.4(a) ANNUAL BASE SALARY. For the first calendar year within
the Term of this Agreement, the Executive shall receive an annual base salary of
one hundred and thirty thousand dollars ($130,000.00), which shall be paid in
equal or substantially equal biweekly installments. During the Term of this
Agreement, the annual base salary payable to the Executive shall be reviewed
thereafter by the Board at least annually and may be adjusted upward as a result
of such review; provided, however that such annual base salary shall not be
reduced after any increase thereof. "Annual Base Salary" as used herein shall
mean the annual base salary for a then current year.
2.4(b) CHRISTMAS BONUS. In addition to the Annual Base Salary,
the Executive shall be awarded an Annual Christmas Bonus in an amount equal to
1/24th of the Annual Base Salary.
2.4(c) SPLIT DOLLAR LIFE INSURANCE PREMIUMS. Throughout the
Term of this Agreement (and thereafter, subject to Sections 4.1(e), 4.2, and 4.3
hereof), the Company shall pay in December of each of 1996, 1997 and 1998
premiums and advance premiums in the aggregate respective annual amounts of
$547,282, $482,419 and $477,724 to CNA Insurance Companies on a split-dollar
life insurance policy (Policy No. 02000552) issued as a last survivor joint
policy on the lives of the Executive and his spouse by Valley Forge Life
Insurance Company (the "Split-Dollar Policy").
2.4(d) INCENTIVE, SAVINGS AND RETIREMENT PLANS. Throughout the
Term of this Agreement, the Executive shall be entitled to participate in all
incentive, savings and retirement plans generally available to other peer
executives of the Company.
2.4(e) WELFARE BENEFIT PLANS. Throughout the Term of this
Agreement (and thereafter, subject to Section 4.1(c) hereof), the Executive
and/or the Executive's family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company or by Delphi with
respect to the employees of the Company (including, with limitation, medical,
prescription, dental, disability, salary continuance, employee life, group life,
accidental death and travel accident insurance plans and programs) to the extent
generally available to other peer executives of the Company.
2.4(f) EXPENSES. Throughout the Term of this Agreement, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the policies, practices
and procedures generally applicable to other peer executives of the Company.
2.4(g) FRINGE BENEFITS. Throughout the Term of this Agreement,
the Executive shall be entitled to such fringe benefits as generally are
provided as of the Effective Date to other peer executives of the Company,
including, without limitation, as of the date hereof reimbursement for the dues
incurred by the Executive in connection with professional associations,
societies and organizations which the Executive and the Company deem appropriate
for the performance of his duties hereunder.
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2.4(h) OFFICE AND SUPPORT STAFF. Throughout the Term of this
Agreement, the Executive shall be entitled to an office or offices of a size and
with furnishings and other appointments, and to secretarial and other assistance
at least equal to those generally provided to other peer executives of the
Company.
2.4(i) VACATION. Throughout the Term of this Agreement, the
Executive shall be entitled to paid vacation at least equal to the plans,
policies, programs and practices generally provided with respect to other peer
executives of the Company.
SECTION 3: TERMINATION OF EMPLOYMENT.
3.1 DEATH. The Executive's employment shall terminate automatically upon
the Executive's death during the Employment Period.
3.2 DISABILITY. If the Company determines in good faith that the
Disability of the Executive has occurred during the Employment Period (pursuant
to the definition of Disability set forth below), it may give to the Executive
written notice in accordance with Section 7.1 of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company shall terminate effective on the thirtieth (30th) day after receipt of
such notice by the Executive (the "Disability Effective Date"), provided that,
within the thirty (30) days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" shall have the meaning set forth in the Company's
then-current long-term disability policy or, if no such policy is then in
effect, "Disability" shall mean that the Executive has been unable to perform
the services required or the Executive hereunder on a full-time basis for a
period of one hundred eighty (180) consecutive business days by reason of a
physical and/or mental condition which has been certified by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative (such agreements as to acceptability not to be
withheld unreasonably).
3.3 TERMINATION FOR CAUSE. Upon the unanimous recommendation of the
Continuing Management, the Board may terminate the Executive's employment during
the Employment Period for "Cause," which shall mean termination based upon: (i)
the Executive's willful and continued failure to perform substantially his
duties with the Company (other than as a result of incapacity due to physical or
mental condition), after a demand for substantial performance is delivered to
him by the Continuing Management, which specifically identifies the manner in
which the Executive has not substantially performed his duties, (ii) the
Executive's willful commission of misconduct which is materially injurious to
the Company, monetarily or otherwise, (iii) the Executive's material breach of
any provision of this Agreement, (iv) the Department of Insurance of the State
of Missouri or the regulatory authority in any state in which the Company may
then be domiciled, issues a written recommendation, direction or order which
prohibits the Executive from continuing to serve as an executive officer of the
Company; or (v) the Executive's conviction of or plea of nolo contendere to a
felony, provided that any right of appeal has been exercised or has lapsed. For
purposes of this paragraph, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be done, without good
faith and without reasonable belief that the act or omission was in the best
interest of the Company. Notwithstanding the foregoing, the Executive shall not
be deemed to have been terminated for Cause unless and until (i) he receives a
Notice of Termination
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(as defined in Section 3.6) from the Continuing Management, (ii) he is given the
opportunity, with counsel, to be heard before the Continuing Management, and
(iii) the Continuing Management finds, in its good faith opinion, that the
Executive was guilty of the conduct set forth in the Notice of Termination.
3.4 GOOD REASON. The Executive may terminate his employment with the
Company for "Good Reason," which shall mean termination based upon:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities as
contemplated by Section 2.2 or any other action by the Company which results in
a material diminution in such position, authority, duties or responsibilities,
excluding for this purpose any action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii)(a) the failure by the Company or any affiliate of the
Company to continue in effect any benefit or compensation plan, stock ownership
plan, life insurance plan, health and accident plan or disability plan to which
the Executive is entitled as specified in Section 2.4 such that any or all of
such failures shall materially and adversely affect the Executive's benefits or
compensation hereunder taken as a whole unless any such discontinuation of any
such benefit or plan is applicable to all Company executives provided, however,
that the non-payment of premiums and advance premiums on the Split-Dollar Policy
shall constitute "Good Reason" thereby permitting the Executive to terminate his
employment hereunder", (b) the taking of any action by the Company which would
adversely affect the Executive's participation in, or materially reduce the
Executive's benefits under, any plans described in Section 2.4 such that the
taking of any such action or actions shall materially and adversely affect the
Executive's benefits or compensation hereunder taken as a whole unless any such
reduction in benefits is applicable to all plan participants; provided, however
that the non-payment of premiums and advance premiums on the Split-Dollar Policy
shall constitute "Good Reason" thereby permitting the Executive to terminate his
employment hereunder, or deprive the Executive of any material fringe benefit
enjoyed by the Executive as described in Section 2.4(f), or (c) the failure by
the Company to provide the Executive with the number of paid vacation days to
which the Executive is entitled as described in Section 2.4(h) such that any or
all of such failures shall materially and adversely affect the Executive's
benefits or compensation hereunder taken as a whole.
(iii) the Company's requiring the Executive to be based at any
office or location other than that described in Section 2.3;
(iv) a material breach by the Company of any provision of this
Agreement; or
(v) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this Agreement.
3.5 ANNUAL TERMINATION OPTION. With the unanimous consent of the
Continuing Management, the Board may terminate the Executive's employment
hereunder upon its determination that the Executive has failed to satisfactorily
perform his duties hereunder as an executive of the Company (the "Annual
Termination Option") by giving the Executive Notice of Termination (as
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defined in Section 3.6), which notice will be signed on behalf of the Board and
by each member of the Continuing Management and shall be given not more than
fifteen days prior to the first day of January of the then current year of the
Term and not less than ten days prior to such first day of January, which
termination shall become effective on December 31 of the then current year.
3.6 NOTICE OF TERMINATION. Any termination by the Company for Cause or
Disability, or by the Executive for Good Reason, shall be communicated by Notice
of Termination to the other party, given in accordance with Section 7.1. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which, except as otherwise provided for herein, (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth a reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated, and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the Date of
Termination (which date shall be not more than fifteen (15) days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company hereunder or preclude the Executive or the Company from asserting
such fact or circumstance in enforcing the Executive's or the Company's rights
hereunder.
3.7 DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the Date of Termination shall be the date of receipt
of the Notice of Termination or any later date specified therein, as the case
may be, (ii) if the Executive's employment is terminated by reason of Death or
Disability, the Date of Termination shall be the date of death of the Executive
or the Disability Effective Date, as the case may be, (iii) if the Executive's
employment is terminated pursuant to the Annual Termination Option, the Date of
Termination shall be December 31 of the then current year, or (iv) if the
Executive's employment is terminated by the Company other than for Cause, Death,
Disability or pursuant to the Annual Termination Option, the Date of Termination
shall be the date of receipt of the Notice of Termination.
SECTION 4: CERTAIN BENEFITS UPON TERMINATION.
4.1 TERMINATION FOR GOOD REASON, OR OTHER THAN FOR CAUSE OR OTHER THAN
PURSUANT TO THE ANNUAL TERMINATION OPTION. If, during the Employment Period: (i)
the Company shall terminate the Executive's employment other than for Cause or
other than pursuant to the Annual Termination Option, or (ii) the Executive
shall terminate employment with the Company for Good Reason, the Executive shall
be entitled to the benefits provided below:
4.1(a) "ACCRUED OBLIGATIONS": Within five (5) business days
after the Date of Termination, the Company shall pay to the Executive the sum of
(i) the Executive's Annual Base Salary through the Date of Termination to the
extent not previously paid, (ii) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon), and (iii) an
accrued vacation pay; in each case to the extent not previously paid.
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4.1(b) "LUMP SUM PAYMENT": Within five (5) business days after
the Date of Termination, the Company shall make a lump-sum cash payment to the
Executive in an amount equal to the Executive's base salary that the Executive
would be entitled to receive from the Company for the longer of: (i) the
remainder of the Employment Period (including the First Renewal Term, whether or
not the Executive has elected to renew at the Date of Termination) or (ii) 18
months, at the rate of the then-current Annual Base Salary of the Executive.
4.1(c) "WELFARE BENEFIT CONTINUATION": For at least the longer
of: (i) the remainder of the Employment Period (including any First Renewal
Term, whether or not the Executive has elected to renew at the Date of
Termination) or (ii) 18 months after the Date of Termination, or for such longer
period as any plan, program, practice or policy may provide or as otherwise set
forth herein, the benefits to the Executive and/or the Executive's family at
least equal to those which would have been provided to them in accordance with
the plans, programs, practices and policies described in Section 2.4(d) shall
continue as if the Executive's employment had not been terminated, in accordance
with the plans, practices, programs or policies of the Company as those provided
generally to other peer executives and their families; provided, however, that
if the Executive becomes reemployed with another employer and is eligible to
receive medical or other welfare benefits under another employer-provided plan,
the medical and other welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable period of
eligibility. For purposes of determining eligibility of the Executive for
retiree benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until the end of the
Employment Period (including any First Renewal Term, whether or not the
Executive has elected to renew at the Date of Termination) and to have retired
on the last day of such period.
4.1(d) "OTHER BENEFITS": To the extent not previously paid or
provided, the Company shall timely pay or provide to the Executive and/or the
Executive's family any other amounts or benefits required to be paid or provided
for which the Executive and/or the Executive's family is currently participating
and is eligible to receive pursuant to this Agreement and under any plan,
program, policy or practice or contract or agreement of the Company as those
provided generally to other peer executive and their families.
4.1(e) The Company shall continue to pay all remaining
premiums and advance premiums, when due, with respect to the Split-Dollar Policy
as set forth in 2.4(c).
4.2 DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of Accrued Obligations (as defined in
Section 4.1(a) (which shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within five (5) days of the Date of
Termination), (ii) payment, when due, of all remaining premiums and advance
premiums with respect to the Split-Dollar Policy as set forth in Section 2.4(c),
and (iii) the timely payment or provision of Other Benefits (as defined in
Section 4.1(d)), including death benefits pursuant to the terms of any plan,
policy, or arrangement of the Company.
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4.3 DISABILITY. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for (i)
payment of Accrued Obligations (as defined in Section 4.1(a)) (which shall be
paid to the Executive in a lump sum in cash within five (5) days of the Date of
Termination), (ii) payment when due of all remaining premiums and advance
premiums with respect to the Split-Dollar Policy as set forth in Section 2.4(c),
and (iii) the timely payment or provision of Other Benefits (as defined in
Section 4.1(d)) including disability benefits pursuant to the terms of any plan,
policy or arrangement of the Company.
4.4 TERMINATION FOR CAUSE PURSUANT TO THE ANNUAL TERMINATION OPTION OR
OTHER THAN GOOD REASON. If the Executive's employment shall be terminated for
Cause or pursuant to the Annual Termination Option during the Employment Period,
this Agreement shall terminate without further obligations to the Executive
other than the obligation to pay to the Executive Accrued Obligations (as
defined in Section 4.1(a)). If the Executive terminates his employment with the
Company during the Employment Period (excluding a termination for Good Reason),
this Agreement shall terminate without further obligations to the Executive,
other than for Accrued Obligations (as defined in Section 4.1(a)) and the timely
payment or provision of Other Benefits (as defined in Section 4.1(d)). In such
cash, all Accrued Obligations shall be paid to the Executive in a lump sum in
cash within thirty (30) days of the Date of Termination. If the Executive's
employment shall terminate for the reasons stated in this Section, the
provisions of Section 5 shall continue to apply.
4.5 NON-EXCLUSIVITY OF RIGHTS. Except as provided in Section 4.1(c)
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company or an affiliate of the Company and for which the Executive may qualify,
nor shall anything herein limit or otherwise affect such rights as the Executive
may have under any other contract or agreement with the Company. Amounts which
are vested benefits of which the Executive is otherwise entitled to receive
under any plan, program, policy or practice of, or any contract or agreement
with, the Company or an affiliate of the Company at or subsequent to the Date of
Termination, shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this
Agreement.
4.6 FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others.
4.7 RESOLUTION OF DISPUTES. If there shall be any dispute between the
Company and the Executive (i) in the event of any termination of the Executive's
employment by the Company, whether such termination was for Cause or pursuant to
the Annual Termination Option, or (ii) in the event of any termination of
employment by the Executive, whether Good Reason existed, then, unless and until
there is a final, nonappealable judgement by a court of competent jurisdiction
declaring that such termination was for Cause or pursuant to the Annual
Termination Option or that the determination by the Executive of the existence
of Good Reason was not made in good faith, the Company shall pay into an escrow
account with a financial institution selected by the Executive (which escrowed
funds shall not be withdrawn until such a final, nonappealable judgment is
rendered with respect thereto) all amounts that the Company would be required to
pay or provide pursuant to Section 4.1 as though
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such termination were by the Company other than for Cause or other than pursuant
to the Annual Termination Option or by the Executive with Good Reason, and the
Company shall provide all benefits (or cause the provision thereof), to the
Executive and/or the Executive's family or other beneficiaries, as the case may
be, that the Company or Delphi would be required to pay or provide pursuant to
Section 4.1 as though such termination were by the Company other than for Cause
and other than pursuant to the Annual Termination Option or by the Executive
with Good Reason.
SECTION 5: NON-COMPETITION; CONFIDENTIAL INFORMATION; INJUNCTIVE RELIEF.
5.1 NON-COMPETE AGREEMENT. It is agreed that either: (i) during the Term
of this Agreement and for a period ending two years thereafter; or (ii) if the
Executive's employment is terminated during the Term of this Agreement with
Cause or for other than Good Reason by the Executive, then until the date two
years after the Date of Termination, the Executive shall not, without the prior
written approval of the Board, directly or indirectly, compete in any way with
the business of the Company. For the purpose of this Section, the term "compete
in any way with the business of the Company" shall mean the entering into or
attempting to enter into any business competitive with the excess workers'
compensation, excess unemployment compensation or excess workers' compensation
surety business of the Company in any geographic area where the Company conducts
business during the Employment Period. The words "directly or indirectly" as
they modify the word "compete" shall include acting as a director, officer,
agent, representative, employee or consultant of any enterprise which so
competes and includes any direct or indirect participation in such competing
enterprise as a material creditor, owner, lender, partner, limited partner,
joint venturer or stockholder (except as a stockholder holding less than one
percent interest in a corporation whose shares are traded on a national
securities exchange or quoted on the National Association of Securities Dealers
Automated Quotation System).
5.2 CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company which shall have been obtained by the
Executive during the Executive's employment by the Company and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement) (the
"Confidential Information"). After termination of the Executive's employment
with the Company, the Executive shall not, without the prior written consent of
the Company, or as may otherwise be required by law or legal process,
communicate or divulge any Confidential Information to anyone other than the
Company and those designated by it. In addition, upon termination of the
Executive's employment, the Executive shall return to the Company all
Confidential Information in the Executive's possession or control and shall not
retain any such materials or make and retain any copies thereof.
5.3 INJUNCTIVE RELIEF. The Executive acknowledges that it would be
difficult to measure the damage to the Company from any breach by the Executive
of the terms set forth in Section 5.1 or Section 5.2, that injury to the Company
from any such breach would be incalculable and irremediable, and that monetary
damages would therefore be an inadequate remedy for any such breach.
Accordingly, the Executive agrees that if he breaches Section 5.1 or Section
5.2, the Company shall be entitled, in addition to the other remedies it may
have, to a preliminary and permanent injunction to restrain any such breach by
the Executive. Upon the determination of a final, nonappealable judgement by a
court of competent jurisdiction declaring that the Executive has breached
Section 5.1
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or Section 5.2, he shall indemnify the Company and hold the Company harmless
against any loss, cost, liability or expense incurred by the Company by reason
of the breach or nonfulfillment of any agreement, representation or warranty
contained in Section 5.1 or Section 5.2.
SECTION 6: MERGERS AND CONSOLIDATIONS; ASSIGNABILITY.
If the Company is merged or consolidated into or with any other entity or
entities, or in the event that substantially all of the assets of the Company or
any such entity are sold or otherwise transferred to another entity, the
provisions of this Agreement shall be binding upon and shall inure to the
benefit of the continuing entity or the entity resulting from such merger,
conversion or consolidation or the entity to which such assets are sold or
transferred. In addition, this Agreement shall be binding upon the company and
its subsidiaries, if any, and any successor entity including any receiver,
rehabilitation, liquidator or regulator. Except as provided in the immediately
preceding sentence, this Agreement shall not be assignable by the Company or any
such entity. This Agreement shall not be assignable by the Executive, but in the
event of his death it shall be binding upon and inure to the benefit of the
Executive's legal representatives, heirs and executors to the extent required to
effectuate its terms. This Agreement shall be binding upon and shall inure to
the benefit of the Company and any successor or assignee of the Company. For the
purposes of this Agreement, the term "successor" shall include any person, firm,
corporation or other business entity which at any time, whether by merger,
purchase or otherwise, shall acquire all or substantially all of the assets or
business of the Company.
SECTION 7: MISCELLANEOUS.
7.1 NOTICE. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by certified or
registered mail, return receipt requested, postage prepaid, addressed to the
respective addresses as set forth below or to such other address as one party
may have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
Notice to Executive:
Xx. X.X. Xxxxxx
00 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000
Notice to Company:
Safety National Casualty Corporation
0000 Xxxxxxxx Xxxxxxx
Xx. Xxxxx, XX 00000
Attn: President
7.2 VALIDITY. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
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7.3 WITHHOLDING. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
7.4 WAIVER. The Executive's or the Company's failure to insist upon
strict compliance with any provision hereof or any other provision of the
Agreement or the failure to assert any right the Executive or the Company may
have hereunder shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement.
7.5 INDEMNIFICATION OF EXECUTIVE. If the Company breaches any section of
this Agreement, the Executive shall be entitled to pursue his remedies at law,
and the Company agrees to indemnify the Executive and hold the Executive
harmless against any loss, cost, liability or expense incurred by the Executive
by reason of the breach or non-fulfillment of any agreement, representation or
warranty contained in this Agreement.
7.6 APPLICABLE LAW; ENTIRE AGREEMENT. This Agreement shall be governed by
and construed in accordance with the laws of the State of Missouri, without
reference to its conflict of law principles. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes any and all other agreements regarding the same whether oral or in
writing.
IN WITNESS WHEREOF, the Executive and the Company have caused this
Agreement to be executed as of the day and year first above written.
SAFETY NATIONAL CASUALTY CORPORATION
By: /s/ XXXXXXXX X. XXXXXXXXXXX
-----------------------------------
Name: Xxxxxxxx X. Xxxxxxxxxxx
Title: President
By: /s/ X.X. XXXXXX
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Executive: X.X. Xxxxxx
