Exhibit 10.16
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EMPLOYMENT AGREEMENT
BY AND BETWEEN
AMERICAN RE-INSURANCE COMPANY
AND
[FIRSTNAME] [MI] [LASTNAME]
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement"), dated as of September 1, 1998
(the "Effective Date"), 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. The Company desires to acknowledge the value of the Executive and
assure itself of the services of Executive by engaging Executive to perform such
services under the terms hereof;
B. Executive desires to commit himself to serve the Company on the terms
herein provided;
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 corporation or other entity that directly
or indirectly through one or more intermediaries controls, is controlled by, or
is under common control with the corporation or other entity specified.
"Annual Incentive Compensation Award" for any period shall be
Executive's total award paid during such period under all Annual Incentive
Compensation Plans.
"Annual Incentive Compensation Plan" shall mean The American
Re-Insurance Company Group Senior Executive Incentive Compensation Plan, The
American Re-Insurance Company Group Executive Compensation Plan, any other
similar annual bonus plan, and any successor to any of them.
"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 position, (iii)
stolen or embezzled
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property, or (iv) committed an act of willful misconduct which is damaging or
detrimental to the Company and/or any Affiliate thereof.
"Competition" means directly or indirectly (i) soliciting
reinsurance or retrocession business from any Customer, (ii) interfering with
any contractual relationships between the Company and/or any Affiliate thereof,
and any Customer, or (iii) otherwise engaging in, having an interest in, or
managing any person, firm, corporation, partnership or business (whether as a
director, officer, employee, agent, representative, partner, consultant or
otherwise) that engages in any business which competes with any business of the
Company or any Affiliate thereof.
"Constructive Discharge" shall be deemed to have occurred if (i) the
Company and/or any Affiliate thereof shall have (A) made a material adverse
change to Executive's title as set forth on the signature page hereof or
Executive's responsibilities, (B) failed to comply with its obligation set forth
in the first sentence of Section 4 hereof, or (C) required, as a condition to
continued employment with the Company and/or any Affiliate thereof, that
Executive's principal work location be relocated to a location that is more than
75 miles from its location as of the Effective Date and (ii) Executive shall
have within thirty 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 all Affiliates thereof by reason thereof; provided that the Company and/or
such Affiliate thereof shall have fifteen 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.
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"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.
"Final Year Employment Fraction" in the event of Executive's
Termination of Employment shall mean the ratio of (i) the number of full
calendar months for which Executive was employed hereunder in the final calendar
year of Executive's employment, to (ii) 12.
"LTIP" shall mean the American Re Corporation Long-Term Incentive
Plan and any successor thereto.
"Non-Competition Period" is defined in Section 7.
"Re-employment" shall mean full-time employment for compensation by
any person or entity but shall not include self-employment.
"Release" shall mean 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 employee, 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, substantially in the form
attached hereto.
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"Severance Benefits" is defined in Section 5.
"Severance Period" is defined in Section 5.
"Solicitation" shall mean directly or indirectly, through any other
person or entity, soliciting or otherwise inducing any person to leave the
employ of the Company or any Affiliate thereof or otherwise interfering with the
relationship between any such employee and the Company or any Affiliate thereof.
"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. Term. This Agreement shall govern Executive's employment by the Company
and its Affiliates for the period commencing on the Effective Date and
terminating on the fifth anniversary thereof. To the extent applicable, the
provisions of Sections 5, 7, 8, 10, 11, 13, 14, 15, 16, 17, 18 and 19 shall
continue to apply beyond such date in accordance with their terms.
3. Position. Executive hereby agrees to serve in the position set forth on
the signature page hereof with the powers and duties customarily associated with
such position at the Company. 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.
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4. Compensation and Benefits: Executive's cash compensation shall be
determined by the Company from time to time, provided that the total of
Executive's cash compensation for any calendar year from 1998 through and
including 2002 shall not be less than the amount set forth on the signature page
hereto as the "Guaranteed Amount." For purposes of the foregoing sentence, total
cash compensation for any calendar year shall be the sum of the Executive's
annual rate of base salary in effect as of April 15 of each such year and the
Annual Incentive Compensation Award and/or any other bonus payment or award paid
to Executive with respect to such year on or before March 31 of the following
year. Executive shall be eligible to participate in the Annual Incentive
Compensation Plans. So long as awards thereunder are generally granted to
officers of the Company, Executive shall also be entitled to participate in the
LTIP in accordance with the terms thereof. Executive shall also be entitled to
participate in any and all other benefit plans generally available to officers
of the Company.
5. Severance Benefits. In the event that Executive's employment hereunder
is terminated by the Company not for Cause or by the Executive by reason of a
Constructive Discharge, then, provided Executive executes a Release, for the
period commencing on the Date of Termination and ending on the earlier of the
second anniversary thereof or Executive's Re-employment (the "Severance Period")
the Company shall pay or provide to Executive, and Executive shall be entitled
to, the following benefits ("Severance Benefits"):
(a) bi-weekly payments commencing on the two week anniversary of the
commencement of the Severance Period with each such payment equal to the ratio
of
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(i) the sum of (A) the Executive's annual rate of base salary in effect on the
Date of Termination and (B) the payment received on the last annual payment date
prior to the Date of Termination under each Annual Incentive Compensation Plan
in which Executive participates as of the Date of Termination, to (ii) 26;
(b) following conclusion of each performance cycle of the LTIP in
which falls the Executive's Date of Termination, a payment equal to the product
of (i) the payment to which Executive would have been entitled under the LTIP
had Executive remained employed for the entirety of such performance period (and
satisfied any other conditions for receiving such award) and (ii) the fraction
equal to (A) the number of full calendar months in such performance period in
which Executive was employed by the Company and its Affiliates, divided by (B)
the number of full calendar months in such performance period; and
(c) to the extent permitted by law, the Severance Period shall be
treated as a period of employment by the Company for purposes of any of the
following benefit programs in which Executive was participating as of the date
of Executive's Date of Termination: American Re-Insurance Company Employees'
Pension Plan, American Re-Insurance Company Savings Plan, and the Company's
medical, dental, life and accidental death and dismemberment insurance programs.
To the extent that such treatment is not permitted by law, the Company shall
provide Executive with equivalent benefits, in cash or in kind, outside the
applicable plan or program. Upon such payment of cash and other benefits, the
Company's obligations hereunder shall terminate.
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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 if Executive's employment with the Company and/or any Affiliate
thereof is terminated for Cause, then neither the Company nor any of its
Affiliates shall have any liability for, and Executive shall not be entitled to,
any benefits payable with respect to the termination of Executive's employment
with the Company and/or any Affiliate under the Company's Severance Pay Plan (or
any successor thereto) or otherwise.
7. Non-Competition; Non-Solicitation. Executive will not engage in any
activity constituting Competition for the period consisting of (a) the period of
his employment hereunder, (b) any Severance Period and (c) in the event that
Executive's employment hereunder is terminated by the Company for Cause or by
the Executive other than by reason of a Constructive Discharge, for a period of
six months following
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the Date of Termination (the Non-Competition Period"). In addition, for the
duration of the Non-Competition Period and one year thereafter, Executive shall
not engage in any activity constituting Solicitation.
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
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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 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 (including, but not limited
to, any Senior Executive or Executive Severance and Non-Competition 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
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that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding involving this Agreement.
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
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any Affiliate thereof at the time of his/her termination of employment with the
Company and/or any Affiliate thereof.
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.
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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. 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:
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Signature
Name: Dr. jur. Xxxx-Xxxxxx Xxxxxxxxx Name: [FIRSTNAME] [MI] [LASTNAME]
Title: Chairman of the Board of
Directors American Re Corporation Title: Executive Vice President
American Re-Insurance Company
By:
---------------------------------
Guaranteed Amount: $ [TOTAL
COMPENSATION]
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President and Address: [STREET]
Chief Executive Officer [CITY], [STATE] [ZIP]
American Re-Insurance Company
RELEASE AGREEMENT
This Release (hereafter referred to as ("Release Agreement"), made this ________
day of ________, in the State of New Jersey, between:
American Re-Insurance Company
(A Delaware Corporation)
with principal place of business at
P. 0. Xxx 0000
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
And
______________________________________
(hereinafter referred to as "Executive")
(Address)
______________________________________
______________________________________
______________________________________
For good and valuable consideration, as set forth in the Employment
Agreement dated September 1, 1998, by and between American Re-Insurance Company
and ___________________________, Executive does hereby fully, finally, and
forever release and discharge American Re-Insurance Company, its predecessors,
successors, divisions, affiliates, representatives, officers, directors,
shareholders, agents, employees, attorneys and assigns (collectively, the
"Company"), of and from all claims, demands, actions, causes of action, suits,
damages, losses, and expenses, of any and every nature whatsoever, whether known
or not known, from the beginning of time to the date of this Release Agreement,
including but not limited to all such claims arising out of or relating to the
employment of Executive by American Re-Insurance Company and its affiliates, and
including, but not limited to, any and all acts that have been or could have
been alleged to have violated Executive's rights under Federal, State or local
law, including but not limited to the following: Civil Rights Acts of 1866,
1871, 1964 and 1991; the Age Discrimination in Employment Act of 1967, as
amended ("ADEA"); the Older Workers Benefit Protection Act; the Americans with
Disabilities Act of 1990; the New Jersey Law Against Discrimination; the New
Jersey Conscientious Employee Protection Act; the Employee Retirement Income
Security Act ("ERISA"),State and Federal Family and Medical Leave Acts, and any
contract of employment, express or implied; and any provision of any other law
whatsoever, common or statutory, including but not limited to any law of the
United States, New Jersey, or any other State or Government entity.
For good and valuable consideration set forth herein, Executive
acknowledges that he is voluntarily signing this Release Agreement and that by
signing this Release Agreement he understands that he is releasing the Company
from any claims that he might have prior to, following, or otherwise arising as
a result of his separation from the Company, pursuant to the ADEA. Said waiver
of ADEA rights applies only to claims that he has as of the date of this Release
Agreement.
This Release Agreement shall not in any way be construed as an admission
by the Company of any acts of wrongdoing against the Executive or any other
person or that the Executive has any claim, whatsoever, against the Company.
The undersigned Executive acknowledges that he has been advised by
American Re-Insurance Company to consult with an attorney of his choosing before
executing this Release Agreement; that he has been given at least TWENTY-ONE
(21) DAYS to consider whether or not to execute this Release Agreement; he
further acknowledges that he has been advised that for a period of SEVEN (7)
DAYS following execution of this Release Agreement, he may revoke it by notice
delivered within the SEVEN (7) DAY period to Xxxxxx X. Xxxxx, American
Re-Insurance Company. American Re Plaza, 555 College Road East, X.X. Xxx 0000,
Xxxxxxxxx, Xxx Xxxxxx 00000-0000, and that upon doing so this Release Agreement
shall thereupon become null and void. If at the expiration of SEVEN (7) DAYS
following execution of this Release Agreement. Executive has not revoked it,
this Release Agreement and all of its terms shall become effective and binding
on the parties hereto. Executive affirms that the terms stated in this Release
Agreement and in the Employment Agreement dated September 1, 1998, by and
between American Re-Insurance Company are the only consideration for his signing
this Release Agreement and that no other premise or agreement of any kind has
been made to or with him by any person or entity whomsoever to cause him to
execute this instrument. Furthermore, Executive states that he fully understands
the meaning and intent of this Release Agreement.
IN WITNESS WHEREOF, the parties have executed this Release Agreement as of
the date first written above.
AMERICAN RE-INSURANCE COMPANY EXECUTIVE
By:
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Signature
Name: Name:
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Title:
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