EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made this 2nd day of February, 1999, between Capital
Re Corporation, a Delaware corporation with offices at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxxxx X.X. Xxxxxxxx
(the "Executive").
The Executive is presently employed as Executive Vice President of the
Company.
The Board of Directors of the Company (the "Board") recognizes that the
Executive's contribution to the growth and success of the Company has been
substantial. The Board desires to provide for the continued employment of the
Executive and to make certain changes in the Executive's employment arrangements
with the Company which the Board has determined will reinforce and encourage the
continued attention and dedication to the Company of the Executive as a member
of the Company's management, in the best interest of the Company and its
shareholders. The Executive is willing to commit himself to continue to serve
the Company, on the terms and conditions herein provided.
In order to effect the foregoing, the Company and the Executive wish to
enter into an employment agreement on the terms and conditions set forth below.
Accordingly, in consideration of the premises and the respective covenants and
agreements of the parties herein contained, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Employment. The Company hereby agrees to continue to employ the
Executive, and the Executive hereby agrees to continue to serve the
Company, on the terms and conditions set forth herein.
2. Term. The employment of the Executive by the Company as provided in
Section 1 will commence on the date hereof and end at the close of business
on January 31, 2001, unless further extended or sooner terminated as
hereinafter provided. Commencing on January 31, 2001, the term of the
Executive's employment shall automatically be extended for one additional
year to January 31, 2002, unless, not later than the November 30
immediately preceding such January 31, the Executive shall have given
written notice to the Company that it does not wish to extend this
Agreement. Commencing on January 31, 2002, and on each January 31
thereafter, the term of the Executive's employment shall automatically be
extended for one additional year to January 31, 2003, and each January 31
thereafter, unless, not later than the November 30 preceding such January
31, the Company or the Executive shall have given written notice to the
other that it does not wish to extend this Agreement.
3. Position and Duties. The Executive shall serve as Executive Vice
President of the Company and shall have such responsibilities, duties and
authority as he may have as of the date hereof (or any position to which he
may be promoted after the date hereof) and as may from time to time be
assigned to the Executive by the Board that are consistent with such
responsibilities, duties and authority. The Executive shall devote
substantially all his working time and efforts to the business and affairs
of the Company.
4. Place of Performance. In connection with the Executive's employment
by the Company, the Executive shall be based at the principal executive
offices of the Company in New York City, except for required travel on the
Company's business to an extent substantially consistent with present
business travel obligations.
5. Compensation and Related Matters.
(a) Salary and Annual Bonus. During the period of the Executive's
employment hereunder, the Company shall pay to the Executive an annual base
salary at a rate not less than the rate in effect as of the date hereof or
such higher rate as may from time to time be determined by the Board. This
salary may be increased from time to time in accordance with normal
business practices of the Company and, if so increased, shall not
thereafter during the term of this Agreement be decreased. The Executive
will participate in the Company's Annual Incentive Plan. In the event the
Company amends or terminates the Annual Incentive Plan, the Company shall
provide the Executive with an annual bonus program that will provide him
with an opportunity to realize an annual bonus which is not less than the
proportion of base salary which his target percentage under the Annual
Incentive Plan represents at the time the Annual Incentive Plan is amended
or terminated, which opportunity shall be reasonably comparable to the
Executive's opportunity under the Annual Incentive Plan as of the date
hereof. Compensation of the Executive by salary or bonus payments shall not
be deemed exclusive and shall not prevent the Executive from participating
in any other compensation or benefit plan of the Company. The salary and
bonus payments (including any increased payments) hereunder shall not in
any way limit or reduce any other obligation of the Company hereunder, and
no other compensation, benefit or payment hereunder shall in any way limit
or reduce the obligation of the Company to pay the Executive's salary or
bonus hereunder.
(b) Special Signing Bonus; Retention Bonuses. The Company will pay the
Executive $75,000 on the date of execution of this Agreement as a Special
Signing Bonus. In addition, the Executive will receive additional payments
of (i) $250,000 on January 1, 2000 if, in the good faith judgment of the
Compensation Committee of the Board of Directors of the Company (a) the
Company has maintained key Capital Re group ratings in categories that do
not result in a material impairment of the business and (b) the 1999
Capital Plan approved by the Board of Directors has been successfully
executed; and (ii) $225,000 on January 31, 2001, provided, however, that,
in the case of both of the
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bonuses referred to in clauses (i) and (ii), except as otherwise provided
in Section 8(d)(ii), the Executive remains employed by the Company on the
date designated for payment above.
(c) Expenses. During the term of the Executive's employment hereunder,
the Executive shall be entitled to receive prompt reimbursement for all
reasonable and customary expenses incurred by the Executive in performing
services hereunder, including all expenses of travel and living expenses
while away from home on business or at the request of and in the service of
the Company, provided that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the Company.
(d) Other Benefits. The Company shall maintain in full force and
effect, and the Executive shall be entitled to continue to participate in,
all of the employee benefit plans and arrangements and enjoy all of the
perquisites in effect on the date hereof in which the Executive
participates, provided that the Company may make any changes in such plans,
arranges or perquisites that are permitted under the terms thereof or that
would not adversely affect the Executive's rights or benefits thereunder.
The Executive shall be entitled to participate in or receive benefits under
any employee benefit plan, arrangement or perquisite made available by the
Company in the future to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans, arrangements and perquisites. Nothing paid to
the Executive under any plan, arrangement or perquisite presently in effect
or made available in the future shall be deemed to be in lieu of the salary
and bonus payable to the Executive pursuant to paragraph (a) of this
Section. Any payments or benefits payable to the Executive hereunder in
respect of any year during which the Executive is employed by the Company
for less than the entire such year shall, unless otherwise provided in the
applicable plan or arrangement or otherwise hereunder, be prorated in
accordance with the number of days in such year during which he is so
employed.
(e) Vacations. The executive shall be entitled to the number of weeks
of vacation each year as may be determined in accordance with the Company's
vacation policy as in effect on the date hereof, or such greater amount as
may be established by Company policy from time to time. The Executive shall
also be entitled to all paid holidays and personal days given by the
Company to its executives.
(f) Stock Option Grants. The Executive will be entitled to participate
as an executive level employee in the Company's 1997 Employee Stock Option
Plan. Specifically, the Executive has received a grant on January 15, 1999
of options to purchase 140,000 shares under that Plan, and acknowledges
that such grant will be in lieu of any grant that the Board would otherwise
ordinarily consider in the Year 2000.
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(g) Services Furnished. The Company shall furnish the Executive with
office space, stenographic assistance and such other facilities and
services as shall be suitable to the Executive's position adequate for the
performance of his duties as set forth in Section 3 hereof.
6. Service as an Officer and Director of Subsidiary. Subject to
Sections 3 and 4, the Executive agrees to serve without additional
compensation, if elected or appointed thereto as an officer or a director
of any subsidiary of the Company, provided that the Executive is
indemnified for serving in such capacity on a basis no less favorable than
is currently provided by the Company to any other person serving in such
capacity.
7. Termination. The Executive's employment hereunder may be terminated
without any breach of this Agreement only under the following
circumstances:
(a) Death. The Executive's employment hereunder shall terminate upon
his death.
(b) Disability. If, under any applicable Company Disability Plans (as
defined below) the Executive is deemed permanently disabled or, if no such
plan is in effect, in the written opinion of a qualified physician selected
by the Company, the Executive is unable to perform his duties hereunder due
to physical or mental illness for a period of at least 180 days, the
Company may terminate the Executive's employment hereunder.
(c) Cause. The Company may terminate the Executive's employment
hereunder for Cause. For purposes of this Agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder for the
Executive's (i) gross negligence or willful misconduct in connection with
the performance of his duties, (ii) conviction of a criminal offense (other
than minor traffic offenses); or (iii) material breach of this Agreement or
any other material agreement between the Executive and the Company. 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, by
him not in good faith and without reasonable belief that his action or
omission was in the best interest of the Company.
(d) Termination by the Executive. The Executive may terminate his
employment hereunder only for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean (A) the Company's material breach of this
Agreement or any other material agreement between the Executive and the
Company, or (B) the assignment to the Executive of any duties substantially
inconsistent with the Executive's status as Executive Vice President of the
Company or a substantial adverse alteration in the nature or status of the
Executive's responsibilities.
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(e) Any termination of the Executive's employment by the Company or by
the Executive (other than termination pursuant to subsection (a) or (b)
hereof) shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 12. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated.
(f) "Date of Termination" shall mean (i) if the Executive's employment
is terminated by his death, the date of his death, (ii) if the Executive's
employment is terminated pursuant to subsection (b) above, the date as of
which the physician's written opinion is received by the Company, (iii) if
the Executive's employment is terminated for any other reason, the date
specified in the Notice of Termination. It is understood that in no event
will such Date of Termination be deemed to occur solely for purposes of the
Company's 1992 Stock Option Plan until the Executive has had a reasonable
opportunity (no greater than one business day) to exercise any vested
options held by the Executive on that date.
8. Compensation Upon Termination, Death or During Disability.
(a) During any period that the Executive fails to perform his duties
hereunder as a result of incapacity due to physical or mental illness
("disability period"). the Executive shall continue to receive his full
salary at the rate then in effect for such period (and shall not be
eligible for payments under the disability plans, programs and policies
maintained by the Company or in connection with employment by the Company
("Disability Plans")) until his employment is terminated pursuant to
Section 7(b) hereof, and upon such termination, the Executive shall, within
ten (10) days of such termination, be entitled to all amounts to which the
Executive is entitled pursuant to short-term Disability Plans. The
Executive's rights under any long-term Disability Plan shall be determined
in accordance with the provisions of such plan.
(b) If the Executive's employment is terminated by his death, the
Company shall within ten (10) days following the date of the Executive's
death, pay any amounts due to the Executive under Section 5 through the
date of his death, together with any other amounts to which the Executive
is entitled pursuant to death benefit plans, programs and policies.
(c) If the Executive's employment shall be terminated by the Company
for Cause pursuant to Section 7(c) or by the Executive for other than Good
Reason, the Company shall pay the Executive his full salary through the
Date of Termination at the rate in effect at the time Notice of Termination
is given and the Company shall have no further obligations to the Executive
under this Agreement.
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(d) If (A) in breach of this Agreement, the Company shall terminate
the Executive's employment (it being understood that a purported
termination for disability pursuant to Section 7(b) or for Cause which is
disputed and finally determined not to have been proper shall be a
termination by the Company in breach of this Agreement) or (B) the
Executive shall terminate his employment for Good Reason, then
(i) the Company shall pay the Executive any earned and accrued
but unpaid installment of base salary through the Date of Termination
at the rate in effect at the time Notice of Termination is given and
all other unpaid and pro rata amounts to which the Executive is
entitled under any compensation plan or program of the Company in
effect on the Date of Termination, and all accrued vacation time; such
payments to be made in a lump sum on or before the tenth day following
the Date of Termination;
(ii) in lieu of any further salary or bonus payments to the
Executive for periods subsequent to the Date of Termination, the
Company shall pay as liquidated damages to the Executive an amount
equal to the sum of (A) Executive's annual salary in effect as of the
Date of Termination for a period equal to the remaining term of this
Agreement (but not less than one year) and any bonus amounts that
would have been payable to the Executive under the Company's Annual
Incentive Plan for the year in which termination occurs (assuming for
purposes of that Plan that target performance levels are reached) and
(B) any unpaid amounts of the Retention Bonuses specified in Section
5(b), such payment to be made in a lump sum on or before the fifth day
following the Date of Termination; and
(iii) if termination of the Executive's employment arises out of
a breach by the Company of this Agreement, the Company shall pay all
other damages to which the Executive may be entitled as a result of
such breach, including damages for any and all loss of benefits to the
Executive under the Company's employee welfare benefit plans and
perquisite programs which the Executive would have received if the
Company had not breached this Agreement and had the Executive's
employment continued for the balance of the employment term hereunder.
9. "Gross-Up Payment." In the event that it shall be determined at any
time that the payment provided under paragraph 8(d) above (the "Contract
Payment") or any other payment or distribution by the Company to the
Executive (including deemed payments arising from accelerated vesting of
stock options) is subject to the tax (the "Excise Tax") imposed by section
4999 of the Internal Revenue Code of 1986, as amended, Section 11.5 of the
Company's 1997 Employee Stock Option Plan or similar "parachute payment"
limitations under any other agreement between the Company and the Executive
that are in effect shall not apply, and the Company shall pay the Executive
an additional amount (the "Gross-
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Up Payment") such that the net amount retained by the Executive, after
deduction of any Excise Tax on the Contract Payment and such other Total
Payments (as defined below) and any federal and state and local income tax
and Excise Tax upon the payment provided for by this paragraph, shall be
equal to the Contract Payment and such other Total Payments. For purposes
of determining whether any of the payments will be subject to the Excise
Tax and the amount of such Excise Tax, (i) any other payments or benefits
received or to be received by the Executive in connection with a change in
control of the Company or the Executive's termination of employment,
whether payable pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, its successors, any person whose
actions result in a change in control of the Company or any corporation
affiliated (or which, as a result of the completion of a transaction
causing a change in control, will become affiliated) with the Company
within the meaning of Section 1504 of the Code (together with the Contract
Payment, the "Total Payments") shall be treated as "parachute payments"
within the meaning of section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of section 280G(b)(1) shall be
treated as subject to the Excise Tax, unless in the opinion of tax counsel
selected by the Company's independent auditors and acceptable to the
Executive the Total Payments (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or in part)
represent reasonable compensation for services actually rendered within the
meaning of section 280G(b)(4) of the Code either in their entirety or in
excess of the base amount within the meaning of section 280G(b)(3) of the
Code, or are otherwise not subject to the Excise Tax, (ii) the amount of
the Total Payments that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the total amount of the Total Payments or (B)
the amount of excess parachute payments within the meaning of section
280G(b)(1) (after applying clause (i), above), and (iii) the value of any
non-cash benefits or any deferred payment or benefit shall be determined by
the Company's independent auditors in accordance with the principles of
sections 280G(b)(3) and (4) of the Code. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to pay
federal income taxes at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation
in the state and locality of the Executive's residence on the date of
determination, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes. In the
event that the Excise Tax is subsequently determined to be less than the
amount taken into account hereunder at the time of payment of the Gross-Up
Payment, the Executive shall repay to the Company at the time that the
amount of such reduction in Excise Tax is finally determined the portion of
the Gross-Up Payment attributable to such reduction (plus the portion of
the Gross-Up Payment attributable to the Excise Tax and federal and state
and local income tax imposed on the Gross-Up Payment being repaid by the
Executive if such repayment results in a reduction in Excise Tax and/or a
federal state and local income tax deduction) plus interest on the amount
of such repayment at the rate provided in section
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1274(d) of the Code. In the event that the Excise Tax is determined to
exceed the amount taken into account hereunder at the time of the payment
of the Gross-Up Payment (including by reason of any payment the existence
or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional Gross-Up Payment in respect
of such excess (plus any interest payable with respect to such excess) at
the time that the amount of such excess is finally determined.
10. Non-Competition and Non-Solicitation Covenants.
(a) Covenants of the Executive. The Executive acknowledges that (i)
the principal current businesses of the Company are the insurance and
reinsurance of financial guarantees, the provision of mortgage guaranty
insurance and reinsurance and ancillary businesses (the "Present
Business"); (ii) the Company constitutes one of a limited number of firms
that have developed and carry on the Present Business; (iii) the
Executive's work for the Company has given and shall continue to give him
access to the confidential affairs and proprietary information of the
Company not readily available to the public; and (iv) the agreements and
covenants of the Executive contained in this Section 10 are essential to
the business and goodwill of the Company. Accordingly, in consideration of
the benefits being provided by the this Agreement, the Executive is subject
to the agreements and covenants set forth in this Section 10.
(b) Covenant Against Competition. While the Executive is employed by
the Company and for a period of two years after the Date of Termination
(whether or not termination constitutes a breach of this Agreement) or from
the entry by a court of competent jurisdiction of a final judgment
enforcing these restrictions, whichever is later (such period commencing on
the date hereof is hereinafter referred to as the "Restricted Period"), the
Executive shall not, directly or indirectly, own, manage, operate, join or
control, or participate in the ownership, management, operation or control
of, or be a proprietor, director, officer, stockholder, member, partner or
an employee or agent of, or a consultant to, any business, firm,
corporation, partnership or other entity now or hereafter which engages in
(A) the Present Business, or (B) any other principal line of business
developed by the Company after the date hereof but prior to the Date of
Termination (a "New Business") in any state or country in which the Company
has conducted business during the term of this Agreement. For purposes of
the foregoing, entities that currently engage in the Present Business and
therefore fall within the covenants contained herein include, but are not
limited to, Enhance Re, RamRe, AXA Re, AMBAC, FGIC, ACA, CGA, FSA, MBIA,
PMI, CMAC, GE Mortgage, MGIC, Triad Republic and United Guaranty, as well
as any other business, firm, corporation, partnership or other entity for
which any present or former chief executive officer of the Company serves
in an executive officer, partner, manager or similar senior position.
Notwithstanding the foregoing, however, the Executive may own, directly or
indirectly, solely as an investment, securities of any business, firm,
corporation, partnership or other entity which are traded on any
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national securities exchange or the Nasdaq National Market if the Executive
(A) is not a controlling person of, or a member of a group which controls,
such entity and (B) does not, directly or indirectly, own 1% or more of any
class of securities of such entity.
(c) Solicitations of Customers. During the Restricted Period, the
Executive shall not, directly or indirectly, for his own account or as
proprietor, stockholder, member, partner, director, officer, employee,
agent or otherwise for or on behalf of any person, business, firm,
corporation, partnership or other entity other than the Company, sell,
offer to sell, or contact or solicit any business from any person,
corporation or other entity which was a customer or prospective customer of
the Company at any time during the term of this Agreement. For purposes of
this Agreement, "customers of the Company" means and includes (i) any and
all persons, businesses, corporations, partnerships or other entities which
(A) have done business with the Company as a customer during the relevant
time period, (B) have been contacted by the Company for the purpose of
doing business with the Company or (C) have preexisting business
relationships and/or dealings with the Executive when his employment with
the Company terminates and (ii) all persons, businesses, corporations,
partnerships or other entities which control, or are controlled by, the
same person, business, corporation, partnership or other entity which
controls, any such customer of the Company. For purposes of this Agreement,
"customers" includes prospective customers and referral sources of
customers.
(d) Agreement Not to Hire Employees and Former Employees. During the
Restricted Period, the Executive shall not, directly or indirectly, for his
own account or as proprietor, stockholder, partner, director, officer,
employee, agent or otherwise for or on behalf of any person, business,
firm, corporation, partnership or other entity other than the Company,
solicit any person (i) who is an employee of the Company or (ii) who has
left the employment of the Company for a period of one year following the
termination of such employee's employment, for employment with any person,
business, firm, corporation, partnership or other entity other than the
Company, or hire any officer or other professional employee of the Company
either directly or for or on behalf of any person, business, firm,
corporation, partnership or other entity other than the Company.
(e) Confidential Information. From and after the date of this
Agreement, the Executive shall not at any time, directly or indirectly,
disclose to any person, business, firm, corporation, partnership or other
entity any confidential or proprietary information concerning the Company,
its business or its customers. All information, whether written or
otherwise, that is not otherwise in the public domain and is regarding the
Company's business, including but not limited to, information regarding
customers, customer lists, costs, prices, earnings, systems, operating
procedures, prospective and executed contracts and other business
arrangements, is presumed to be confidential information of the Company for
purposes of this Agreement. The Executive shall return to the Company all
books, records, lists and other written, typed, printed or electronically
stored materials, whether furnished by
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the Company or prepared by the Executive, which contain any information
relating to the Company, its business or its customers, promptly upon
termination of the Executive's employment, and the Executive shall neither
make nor retain any copies of such material without the prior written
consent of the Company.
(f) Cumulative Provisions. The covenants and agreements contained in
this Section 10 are independent of each other and are cumulative.
(g) Acknowledgments. The Executive acknowledges the broad scope of the
covenants contained in this Section 10, but agrees that such covenants are
reasonable in light of the scope of the Executive's duties and knowledge of
the Company. The Executive further acknowledges and agrees that the
covenants contained in this Section 10 do not unreasonably restrict his
employment opportunities or unduly burden or deprive him of a means of
earning a livelihood.
(h) Remedies for Breach. The Executive acknowledges and agrees that
his obligations to the Company are unique and that any breach or threatened
breach of such obligations may result in irreparable harm and substantial
damages to the Company. Accordingly, in the event of a breach or threatened
breach by the Executive of any of the provisions of this Section 10, the
Company shall have the right, in addition to exercising any other remedies
at law or equity which may be available to it under this Agreement or
otherwise, to obtain ex parte, preliminary, interlocutory, temporary or
permanent injunctive relief, specific performance and other equitable
remedies in any court of competent jurisdiction, to prevent the Executive
from violating such provision or provisions or to prevent the continuance
of any violation thereof, together with an award or judgment for any and
all damages, losses, liabilities, expenses and costs incurred by the
Company as a result of such breach or threatened breach including, but not
limited to, attorneys' fees incurred by the Company in connection with, or
as a result of, the enforcement of these covenants. The Executive expressly
waives any requirement based on any statute, rule or procedure or other
source that the Company post a bond as a condition of obtaining any of the
above-described remedies.
(i) Divisibility. The Executive agrees that the provisions of this
Section 10 are divisible and separable so that if any provision or
provisions hereof shall be held to be unreasonable, unlawful or
unenforceable, such holding shall not impair the remaining provisions
hereof. If any provision hereof is held to be unreasonable, unlawful or
unenforceable in duration, geographical scope or character of restriction
by any court of competent jurisdiction, such provision shall be modified to
the extent necessary in order that any such provision or portion thereof
shall be legally enforceable to the fullest extent permitted by law, and
the parties hereto do hereby expressly authorize any court of competent
jurisdiction to enforce any such provision or portion thereof or to modify
any such provision or portion thereof in order that any such provision or
portion thereof shall be enforced by such court to the fullest extent
permitted by applicable law.
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11. Successors; Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. Failure of the Company to obtain such
assumption and agreement prior to the effectiveness of any such succession
shall be a breach of this Agreement and shall entitle the Executive to
compensation from the Company in the same amount and on the same terms as
he would be entitled to hereunder if he terminated his employment for Good
Reasons, except that for purposes of implementing the foregoing, the date
on which any such succession becomes effective shall be deemed the Date of
Termination. As used in this Agreement, "Company" shall mean the Company as
herein before defined and any successor to its business and/or assets as
aforesaid which executes and delivers the agreement provided for in this
Section 11 or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If the Executive should die while any
amounts would still be payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid in
accordance with the terms of this Agreement to the Executive's devisee,
legatee, or other designee or, if there be no such designee, to the
Executive's estate.
12. Notice. For the purposes of this Agreement, notices, demands 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 (unless
otherwise specified) sent by United States certified or registered mail or
overnight delivery service, addressed as follows:
If to the Executive:
Xxxxxxxx X.X. Xxxxxxxx
Executive Vice President
c/o Capital Re Corporation
1325 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
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If to the Company:
Capital Re Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
13. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is
agreed to in writing signed by the Executive and the Company. No waiver by
either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been
made by either party which are not set forth expressly in this Agreement.
The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without
regard to its conflicts of law principles.
14. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain
in full force and effect.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall deemed to be in an original but all of
which together will constitute one and the same instrument.
16. No Mitigation. In the event of a termination of the Executive's
employment arising out of a breach by the Company of this Agreement or if
the Executive shall terminate this Agreement for Good Reason, the Executive
shall be under no obligation to seek other employment or otherwise mitigate
the obligations of the Company under this Agreement.
17. Resolution of Disputes. Any claim arising out of or relating to
this Agreement or the Executive's employment with the Company or the
termination thereof shall be resolved by binding confidential arbitration,
to be held in New York, New York, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
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18. Entire Agreement. This Agreement sets forth the entire agreement
of the parties hereto in respect of the subject matter contained herein and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by
any officer, employee or representative of any party hereto; and any prior
agreement of the parties hereto in respect of the subject matter contained
herein shall, with respect to the Executive, be of no further force and
effect.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
CAPITAL RE CORPORATION
Attest:
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: CEO, Chairman
EXECUTIVE
Attest:
By: /s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X.X. Xxxxxxxx
------------------------------- --------------------------------------
Xxxxxxxx X.X. Xxxxxxxx
Executive Vice President
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