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EXHIBIT 10.16
CONSULTING AND NON-COMPETITION AGREEMENT
THIS CONSULTING AND NON-COMPETITION AGREEMENT (the "Agreement") dated as of
June 1, 1997, by and between EXECUTIVE RISK INC., a Delaware corporation (the
"Company"), and XxXxx X. Xxxxxx Xxxxxx ("Xxxxxx Xxxxxx").
WHEREAS, the Company and Xxxxxx Xxxxxx have entered into a Retirement
Agreement, dated as of the date hereof (the "Retirement Agreement"), pursuant
to which the parties have made mutual promises and agreements in connection
with Xxxxxx Xxxxxx'x retirement from the Company;
WHEREAS, the Company desires to have Xxxxxx Xxxxxx available upon request
to assist in the Company's operations, and Xxxxxx Xxxxxx desires to remain
available to provide such consulting services to the Company;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein and in the Retirement Agreement, the parties
hereby covenant and agree as follows:
1. Engagement. Xxxxxx Xxxxxx shall be available upon request to advise and
counsel management and/or the Board of Directors of the Company at such times
as the Chief Executive Officer, Chairman and/or the Board of Directors of the
Company and Xxxxxx Xxxxxx may reasonably agree, by telephone, letter or in
person, wherever Xxxxxx Xxxxxx may be.
During the time that Xxxxxx Xxxxxx is performing services for the Company
under this Agreement, and for all purposes hereunder, the status of Xxxxxx
Xxxxxx shall be that of an independent contractor of the Company and Xxxxxx
Xxxxxx shall not have the benefits, rights and privileges ordinarily accorded
to an employee of the Company.
2. Term. The period of engagement of Xxxxxx Xxxxxx hereunder shall
commence on June 1, 1997 and shall terminate on August 31, 1999. During the
term of this Agreement as provided herein, Xxxxxx Xxxxxx may engage in any
business and perform any service for his own account, provided that such
business or service shall not violate any provision of this Agreement.
3. Expenses. During the term of this Agreement, Xxxxxx Xxxxxx may be
required to incur business expenses in connection with the performance of his
duties hereunder. All such business expenses must be previously authorized by
the Company in writing, and the Company shall reimburse Vander
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Putten for all such expenses that are reasonable and are appropriately
documented in accordance with the Company's policies.
4. Noncompetition; Nondisclosure; Nonsolicitation. Xxxxxx Xxxxxx
hereby agrees that from the date hereof through August 31, 1999 he shall not:
i) engage or participate, directly or indirectly, as an officer,
director, employee, partner or consultant with primary responsibility for
activities in the fields of directors and officers or errors and omissions
liability insurance or reinsurance in the United States of America (a
"Competing Activity"), or in any business which is, or as a result of Xxxxxx
Xxxxxx'x engagement or participation would become, a Competing Activity;
ii) divulge, furnish, or make accessible to anyone (other than in
the ordinary course of his provision of consulting services pursuant to the
Consulting Agreement) any knowledge or information (x) with respect to
confidential or secret business plans, new products, policy forms,
insurance-related technology or other proprietary information of the Company
or any of its Subsidiaries, or (y) with respect to any confidential or
secret development or research work of the Company or any of its
Subsidiaries which, if disclosed, would have a material adverse effect upon
the business or operations of the Company and its Subsidiaries taken as a
whole;
iii) solicit or recruit any officer or employee of the Company or
any of its Subsidiaries to join any other company to engage in a Competing
Activity, or solicit or recruit a substantial number of employees to work
with any company with whom Xxxxxx Xxxxxx is associated if the departure of
the solicited or recruited employees from the Company or any of its
Subsidiaries would materially harm the Company and its Subsidiaries taken as
a whole; or
iv) engage in or participate in, directly or indirectly, any
business conducted under a name that shall be the same as or similar to the
name of, or any trade name used by, the Company or any of its Subsidiaries.
Xxxxxx Xxxxxx acknowledges that irreparable damage would result to
the Company if the provisions of this Section 4 are not specifically enforced,
and agrees that the Company shall be entitled to any appropriate legal,
equitable or other remedy, including injunctive relief, in respect of any
failure to comply with the provisions of this Section 4.
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For purposes of this Section 4, the term "Subsidiary" shall mean (i)
a corporation of which shares of stock having ordinary voting power (other than
stock having such power only by reason of the happening of a contingency) to
elect 50% or more of the board of directors or other managers of such
corporation are at the time owned, directly or indirectly, through one or more
intermediaries, by the Company, or (ii) in the case of unincorporated entities,
any such entity with respect to which the Company has the power, directly or
indirectly, to designate 50% or more of the individuals exercising functions
similar to a board of directors.
5. Fees. Xxxxxx Xxxxxx shall be entitled to receive from the Company a
fee at the rate of $300,000 per annum, payable in arrears not less frequently
than monthly for the term of this Agreement or until his date of death should
he die during such term.
6. Miscellaneous.
A. Complete Agreement. This Agreement constitutes the entire
agreement between the parties and cancels and supersedes all other agreements
and understandings, whether written or oral, between the parties and between
the Company and Xxxxxx Xxxxxx which may have related to the subject matter
contained in this Agreement, it being expressly understood that this Agreement
does not cancel or supersede any provision of the Retirement Agreement.
B. Modification; Amendment; Waiver. No modification, amendment
or waiver of any provisions of this Agreement shall be effective unless
approved in writing by both parties. The failure at any time to enforce any of
the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of either party thereafter to
enforce each and every provision hereof in accordance with its terms.
C. Governing Law; Jurisdiction. This Agreement and performance
under it, and all proceedings that may ensue from its breach, shall be
construed in accordance with and under the laws of the State of Connecticut,
and the parties submit to the jurisdiction of the courts of the State of
Connecticut for purposes of any actions or proceedings that may be required to
enforce this Agreement.
D. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be held to
be prohibited by or invalid under applicable law, such provision
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shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining
provisions of this Agreement.
E. Assignment. The rights and obligations of the parties under
this Agreement shall be binding upon and inure to the benefit of their
respective successors, assigns, executors, administrators and heirs; provided,
however, that neither the Company nor Xxxxxx Xxxxxx may assign any duties under
this Agreement without the prior written consent of the other.
F. Notices. All notices and other communications under this
Agreement shall be in writing and shall be given in person or by telefax or
first class mail, certified or registered with return receipt requested, and
shall be deemed to have been duly given when delivered personally or three days
after mailing or one day after transmission of a confirmed telefax, as the case
may be, to the respective persons named below:
If to the Company: Chairman
Executive Risk Inc.
00 Xxxxxxxxx Xxxxxx
Post Office Box 2002
Simsbury, Connecticut 06070-7683
Telefax: 000-000-0000
If to Xxxxxx Xxxxxx: XxXxx X. Xxxxxx Xxxxxx
0000 Xxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
Telefax: 000-000-0000
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
Executive Risk Inc.
By /s/ Xxxxxx X. Xxxxxx
Its Chairman
/s/ XxXxx X. Xxxxxx Xxxxxx
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XxXxx X. Xxxxxx Xxxxxx
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