Exhibit 10.2.8.1
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), is made as of the 10th
day of March, 2003 by and among Xxxx Xxxxxxx Life Insurance Company, a
Massachusetts corporation ("JHLI"), Xxxx Xxxxxxx Financial Services, Inc., a
Delaware corporation ("JHFS," and together with JHLI, the "Company"), and Xxxxx
X. Xxxx ("Executive").
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive and Executive desires to be
employed by the Company in accordance with the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. Definitions.
(a) "Accrued Obligations" shall have the meaning set forth in Section 6(a)(i).
(b) "Affiliate" shall mean any corporation, partnership, limited liability
company, trust or other entity which, directly or indirectly, through one or
more intermediaries, controls, or is controlled by, the Company.
(c) "Base Salary" shall mean the annual salary provided for in Section 4(a)
below or any increased salary granted to Executive pursuant to Section 4(a).
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean:
(i) Executive's conviction or plea of nolo contendere to a felony or related to
fraud or dishonesty; or
(ii) in carrying out his duties, Executive (A) engages in conduct that
constitutes gross neglect or gross misconduct, (B) commits any material breach
of this Agreement, (C) engages in conduct that constitutes a material violation
of applicable Company rules or policies, which amounts to gross neglect or gross
misconduct, or (D) fails to abide or follow specific directives from the Chief
Executive Officer of the Company.
(f) "Change of Control" shall mean an event or occurrence as set forth in
Section 2(d) of that certain Employment Continuation Agreement (as defined
below).
(g) "Confidential Information" shall mean information belonging to the Company
which is of value to the Company in the course of conducting its business and
the disclosure of which could result in a competitive or other disadvantage to
the Company. Confidential Information includes, without limitation, financial
information, reports, and forecasts; inventions; improvements and other
intellectual property; trade secrets; know how; designs, processes or formulae;
software; market or sales information or plans; or customer lists and business
plans, prospects and opportunities (such as possible acquisitions or
dispositions of businesses or facilities) which have been discussed or
considered by the management of the Company. Confidential Information includes
information developed by Executive in the course of Executive's employment by
the Company as well as other information to which Executive may have access in
connection
with Executive's employment. Confidential Information also includes the
confidential information of others with which the Company has a business
relationship. Notwithstanding the foregoing, Confidential Information does not
include information in the public domain, unless due to breach of Executive's
duties under Section 7(a).
(h) "Disability" shall be defined and determined as set forth in the
supplemental executive disability plan made available to senior officers of the
Company.
(i) "Effective Date" shall mean March 10, 2003.
(j) "Employment Continuation Agreement" shall mean that certain Amended and
Restated Employment Continuation Agreement by and among Xxxx Xxxxxxx Life
Insurance Company, Xxxx Xxxxxxx Financial Services, Inc. and Executive, dated as
of January 1, 2003, attached hereto as Exhibit A, as may be amended from time to
time.
(k) "Good Reason" shall mean termination of Executive's employment, after
written notice to the Company within 30 days following the occurrence of any of
the following events without his consent:
(i) a reduction in Executive's then current Base Salary or target annual bonus
under the Company's incentive compensation program; provided that such reduction
to Executive's target annual bonus percentage is disproportionate to any
reduction to any other Policy Committee member's target annual bonus percentage;
(ii) the failure of the Company to obtain the assumption in writing of its
obligation to perform the Employment Continuation Agreement by any successor to
all or substantially all of the assets of the Company prior to a merger,
consolidation, sale or similar transaction; or
(iii) a material breach of this Agreement by the Company.
Following written notice from Executive, as described above, the Company shall
have 15 days in which to cure any of the aforementioned events. If the Company
fails to cure, Executive's termination shall become effective on the 16th day
following the written notice.
(l) "Noncompetition Period" shall have the meaning set forth in Section 8(b).
(m) "Potential Change of Control" shall mean an event or occurrence as set forth
in Section 2(i) of the Employment Continuation Agreement.
(n) "Related Entity" shall have the meaning set forth in Section 8(b).
(o) "Restricted Activity" shall have the meaning set forth in Section 8(b).
(p) "Severance Bonus" shall have the meaning set forth in Section 6(a)(i).
(q) "Stock" shall mean the common stock of the Company.
(r) "Termination Date" shall mean in the case of either a voluntary or
involuntary termination, the last day upon which Executive is actively at work.
In the event of Executive's death, the Termination Date is the date of death. In
the case of a Disability, the Termination Date is the date upon which Executive
receives written notice from the Chief Executive Officer of the Company that he
has been deemed to have a Disability, but in no event before Executive is
determined to have a Disability (as the term is defined in Section 1(h)).
(s) "Voluntary Retirement" shall mean the voluntary termination of employment by
the Executive when the Executive (i) is entitled to commence receipt of a
retirement annuity pursuant to the provisions of the JHFS Pension Plan in effect
prior to such Plan's conversion to a cash balance formula (the "Pre-Conversion
Plan") or (ii) would have
been entitled by reason of age and service to a retirement annuity under the
provisions of the Pre-Conversion Plan if the conversion to a cash balance
formula had not occurred.
2. Term of Employment. Subject to the provisions of Section 6, the term of
employment pursuant to this Agreement (the "Term") shall be for a period of
three (3) years from the Effective Date, and shall be extended automatically for
periods of one (1) year commencing at the first anniversary of the Effective
Date and on each subsequent anniversary thereafter.
3. Position, Duties and Responsibilities.
(a) During the Term, Executive shall work for the Company, as and with the title
of Executive Vice President and General Counsel of the Company.
(b) Executive, in carrying out his duties under this Agreement, shall report
directly to the Chief Executive Officer of the Company.
(c) In the event Executive's employment terminates during the Term for any
reason, Executive shall immediately resign in writing as an officer and director
of the Company, where applicable, and as an officer and director, as the case
may be, of each of the Company's Affiliates.
(d) Nothing herein shall be deemed to prevent or limit Executive from (i)
serving on the boards of directors of a reasonable number of other non-competing
corporations, subject to the approval of the Chief Executive Officer of the
Company in each case, (ii) serving on the boards of a reasonable number of trade
associations and/or charitable organizations, subject to the approval of the
Chief Executive Officer of the Company in each case, (iii) engaging in
charitable activities, community affairs, or other non-profit activities, and
(iv) managing his personal investments and affairs; provided that such
activities set forth in this Section 3(d) do not materially interfere with the
proper performance of his duties and responsibilities hereunder.
(e) Executive agrees to abide by any employment rules or policies applicable to
Company's employees generally, or Policy Committee members specifically, that
the Company currently has or may adopt, amend or implement from time to time or
at any time during Executive's employment with the Company.
4. Compensation and Benefits. In consideration of Executive's services
hereunder, the Company shall provide Executive the following benefits during the
Term:
(a) Base Salary. The Company shall pay Executive an annual Base Salary of five
hundred thousand dollars ($500,000), subject to annual upward (but not downward)
adjustments in the sole discretion of the Compensation Committee. Such Base
Salary shall be subject to applicable withholding, shall be payable in
accordance with the policies and practices of the Company in the payment of
salaries to its salaried employees and shall be pro-rated for partial months.
(b) Bonus. Executive shall be entitled to participate in an annual incentive
program established by the Compensation Committee with such terms as may be
determined annually in the sole discretion of the Compensation Committee.
(c) Restricted Stock and Stock Option Awards. Executive shall be entitled to
participate in the 1999 Long-Term Stock Incentive Plan, and such successor
and/or complementary plans which may be established by the Company from time to
time, upon such terms and conditions as may be determined annually in the sole
discretion of the Compensation Committee.
(d) Regular Benefits. Executive shall also be entitled to participate in any
employee benefit plans, medical insurance plans, life insurance plans,
disability income plans, retirements plans, vacation plans, expense
reimbursement plans, post-retirement benefit plans and other benefit plans
including, without limitation, but not limited to, any split-dollar life
insurance arrangements, which the Company may from time to time have in effect
for all or most of its members of the Policy Committee. Such participation shall
be subject to the terms of the applicable plan documents, applicable policies of
the Company, applicable law or the reasonable interpretation of applicable law
and the discretion of the Board, the Compensation Committee or any
administrative or other committee provided for in or contemplated by any such
plan. Nothing contained in this Agreement shall be construed to create any
obligation on the part of the Company to establish any such plan or to maintain
the effectiveness of any such plan which may be in effect from time to time.
(e) Additional Benefits. The Company shall provide the following additional
benefits to Executive:
(i) Perquisites. During the Term, Executive shall be entitled to participate in
all of the Company's executive perquisites in accordance with the terms and
conditions of such arrangements as are in effect from time to time for
Executive's position, subject to any necessary limitation to such perquisites or
requirement to discontinue any such perquisite as a result of a reasonable
interpretation of applicable law.
(ii) Reimbursement of Business and Other Expenses. Executive is authorized to
incur reasonable expenses in carrying out his duties and responsibilities under
this Agreement, and the Company shall promptly reimburse him for such expenses,
subject to documentation in accordance with the Company's policy.
5. Change of Control. Notwithstanding any other provision of this Agreement, in
the event a Change of Control occurs during the Term, the terms and provisions
of the Employment Continuation Agreement shall apply in lieu of, and shall
expressly supersede, the terms and provisions of this Agreement as of the
effective date of the Employment Continuation Agreement; provided, however, if
Executive is terminated during the Term after a Potential Change of Control but
before a Change of Control occurs, the provisions of Section 8 of this Agreement
shall remain in full force and effect for a period of 18 months following the
Termination Date.
6. Termination of Employment.
(a) Termination Due to Death. In the event that Executive's employment is
terminated due to his death, his estate or his beneficiaries, as the case may
be, shall be entitled to the following benefits:
(i) the sum of (A) Executive's Base Salary through the end of the month during
which the Termination Date occurs, (B) a pro-rata annual cash incentive award
for the year in which Executive's death occurs (the "Severance Bonus") and (C)
the amount of any accrued vacation pay through the Termination Date, in each
case to the extent not previously paid (the sum of the amounts described in
clauses (A), (B) and (C) shall be hereinafter referred to as the "Accrued
Obligations"); and
(ii) such rights as are in effect at the time with respect to stock options,
restricted stock, retirement benefits and other benefits in accordance with
applicable plan documents.
(b) Termination Due to Voluntary Retirement. In the event that Executive's
employment is terminated due to his Voluntary Retirement (and other than
termination for Good Reason), he shall be entitled to the following benefits:
(i) the Accrued Obligations; and
(ii) such rights as are in effect at the time with respect to stock options,
restricted stock, retirement benefits and other benefits in accordance with
applicable plan documents, provided that, if Executive is age 65 or older at the
time of such Voluntary Retirement, he shall be entitled to the enhanced
retirement benefits described in Section 7(b-2) of the Employment Continuation
Agreement in lieu of the retirement benefits that would otherwise be payable.
(c) Termination Due to Disability. In the event that Executive's employment is
terminated by either party due to his Disability, he shall be entitled to the
following benefits:
(i) disability benefits in accordance with the long-term disability plan then in
effect for senior executives of the Company;
(ii) the Accrued Obligations; and
(iii) such rights as are in effect at the time with respect to stock options,
restricted stock, retirement benefits and other benefits in accordance with
applicable plan documents.
In no event shall a termination of Executive's employment for Disability occur
until the party terminating his employment gives written notice to the other
party in accordance with Section 20 below, and until Executive is determined to
have a Disability as defined in Section 1(h).
(d) Termination by the Company for Cause. In the event the Company terminates
Executive's employment for Cause, he shall be entitled to the following
benefits:
(i) the sum of the Base Salary through the Termination Date and any accrued
vacation payable through the Termination Date; and
(ii) such rights with respect to stock options, restricted stock, retirement
benefits and other benefits in accordance with applicable plan documents.
(e) Termination for Good Reason or other than for Cause. In the event
Executive's employment is terminated by the Company other than for Cause or by
Executive with Good Reason, he shall be entitled to the following benefits:
(i) the Company shall pay Executive in equal monthly installments, over the
period specified below, beginning 30 days after the Termination Date, the sum of
the following amounts the: (A) Severance Bonus and (B) Termination Payment
Amount; provided, however, if Executive so elects, such sum shall be payable in
a single lump sum payment on the 30th day following the Termination Date. The
Termination Payment Amount shall mean the sum of:
(A) the Base Salary multiplied by the number of full years remaining in the Term
after the Termination Date plus the pro-rata amount of the Base Salary for the
remainder of the year during which the Termination Date occurred;
(B) the average of the annual incentive bonus awarded to Executive for the three
(3) years (or such shorter period as the Executive has been in the employ of the
Company)
preceding the Termination Date (not including the Severance Bonus) multiplied by
the number of full years remaining in the Term after the Termination Date; and
(C) an amount equal to the long term incentive award granted to Executive with
respect to the performance period commencing in the calendar year 2000, as
reflected in the Statement of Long Term Incentives maintained by the Company,
multiplied by the number of full years remaining in the Term after the
Termination Date less the value as of the date of grant of any restricted stock
(other than restricted stock issued as a restricted stock match under any
incentive plan) that has vested as of the Termination Date, as such value is
reflected in the Statement of Long Term Incentives maintained by the Company;
provided, however, that in determining the value of restricted stock that has
vested as of the Termination Date, restricted stock that has vested on an
accelerated basis in connection with the payment of amounts owed under the Stock
Ownership Loan Program shall not be taken into account until such time as the
restrictions on such stock would have lapsed in the absence of such
acceleration;
(ii) for the full period remaining in the Term after the Termination Date, the
Company shall continue to provide medical and dental benefits to Executive and
Executive's family at least equal to those which would have been provided to
them if Executive's employment had not been terminated, in accordance with the
applicable medical and dental benefit plans in effect on the Termination Date
and in which Executive participated as of such date or, if more favorable to
Executive and his family, in effect generally at any time thereafter with
respect to other peer executives of the Company and its Affiliates; provided,
however, that if Executive becomes reemployed with another employer and is
eligible to receive medical and dental benefits from such employer on terms at
least as favorable to Executive and his family as those being provided by the
Company, then the Company shall no longer be required to provide those
particular benefits to Executive and his family;
(iii) such enhanced retirement benefits as set forth in Section 7(b-2) of the
Employment Continuation Agreement; and
(iv) such rights as are in effect at the time with respect to stock options,
restricted stock, and other benefits, including, but not limited to, any
split-dollar life insurance arrangement applicable to Executive, subject to any
necessary limitation to such benefits or requirement to discontinue any such
benefits as a result of a reasonable interpretation of applicable law.
(f) Voluntary Termination. A termination of employment by Executive on his own
initiative, other than a termination for Good Reason or due to Voluntary
Retirement, shall have the same consequences as provided in Section 6(d) for a
termination for Cause. A voluntary termination under this Section 6(f) shall be
effective upon 30 days prior written notice to the Company.
(g) Other Benefits. To the extent not previously paid or provided, the Company
shall timely pay or provide to Executive any other amounts or benefits,
including, but not limited to any deferred compensation amounts, otherwise
required to be paid or provided or which Executive is eligible to receive
following Executive's termination of employment under any plan, program, policy,
practice, contract or agreement of the Company and its Affiliates.
(h) Nature of Payments. Any amounts due under this Section 6 are in the nature
of severance payments considered to be reasonable by the Company and are not in
the nature of a penalty.
(i) No Mitigation; No Offset. Executive shall not be required to mitigate the
amount of any payment or benefit provided in this Section 6 by seeking other
employment otherwise. Further, except as provided in Section 6(e)(ii), the
amount of any payment or benefits provided for in this Section 6 shall not be
reduced by any compensation earned by Executive as a result of employment by
another employer or be offset by any amount claimed to be owed by Executive to
the Company.
(j) Discharge of the Company's Obligations. Except as expressly provided in the
last sentence of this Section 6(j), the amounts payable to Executive pursuant to
this Section 6 following the termination of his employment shall be in full and
complete satisfaction of Executive's rights under this Agreement and any other
claims he may have in respect of his employment by the Company or any of its
Affiliates. Such amounts shall constitute liquidated damages with respect to any
and all such rights and claims and, upon Executive's receipt of such amounts,
the Company and its Affiliates shall be released and discharged from any and all
liability to Executive in connection with this Agreement or otherwise in
connection with Executive's employment with the Company or any of its
Affiliates. Nothing in this Section 6(j) shall be construed to release the
Company from its commitment to (i) indemnify Executive and hold Executive
harmless from and against any claim, loss or cause of action arising from or out
of Executive's performance as an officer, director or employee of the Company or
any of its Affiliates or in any other capacity, including any fiduciary
capacity, in which Executive served at the request of the Company or any of its
Affiliates to the maximum extent permitted by applicable law and the Certificate
of Incorporation and By-Laws of the Company, as the case may be; or (ii) provide
any payments or benefits to which Executive may be entitled pursuant to the
terms of the Employment Continuation Agreement.
7. Confidentiality and Cooperation.
(a) Confidentiality. Executive understands and agrees that Executive's
employment creates a relationship of confidence and trust between Executive and
the Company with respect to all Confidential Information. At all times, both
during Executive's employment with the Company and after its termination,
Executive will keep in confidence and trust all such Confidential Information,
and will not use or disclose any such Confidential Information without the prior
written consent of the Company, except as may be necessary in the ordinary
course of performing Executive's duties to the Company.
(b) Documents, Records, etc. All documents, records, data, apparatus, equipment
and other physical property, including any electronic or paper copies of such
materials, whether or not pertaining to Confidential Information, which are
furnished to Executive by the Company or are produced by Executive in connection
with Executive's employment will be and remain the sole property of the Company.
Executive will return to the Company all such materials and property as and when
requested by the Company, and in connection therewith confirm in writing that
Executive has not retained any such materials and/or property. In any event,
Executive will return all such materials and property immediately upon
termination of Executive's employment for any reason, and in connection
therewith confirm in writing that Executive has not retained any such
materials and/or property. Executive will not retain any such material or
property or any copies thereof after such termination.
8. Noncompetition; Nonsolicitation; Non-Disparagement.
(a) Executive acknowledges (i) that in the course of his employment with the
Company he will become familiar with trade secrets and customer lists of, and
other confidential information concerning, the Company and its Affiliates,
customers, and clients and (ii) that his services will be of special, unique and
extraordinary value to the Company.
(b) Executive agrees that for a period of 18 months following the Termination
Date (the "Noncompetition Period") he shall not in any manner, directly or
indirectly, through any person, firm, corporation or enterprise, alone or as a
member of a partnership or as an officer, director, stockholder, investor or
employee of or advisor or consultant to any person, firm, corporation or
enterprise or otherwise, engage or be engaged, or assist any other person, firm,
corporation or enterprise in engaging or being engaged (collectively,
"Restricted Activity"), in any Competitive Activity, unless such Competitive
Activity has been previously approved by the Board in writing. A Competitive
Activity shall mean a business that (i) is being conducted by the Company or any
Affiliate at the time in question, including, without limitation, but not
limited to, insurance or financial services competitive with services provided
by the Company, and (ii) was being conducted, or was under active consideration
to be conducted, by the Company or any Affiliate, at the date of the termination
of Executive's employment; provided that Competitive Activity shall not include
a business of the Company contributing less than one percent (1%) of the
Company's revenues for the year in question and provided further that an
activity shall not be deemed to be a Competitive Activity if the activity
contributes less than one percent (1%) of the revenues for the year in question
of the business by which Executive is employed or with which he is otherwise
associated; and provided further that it is agreed and understood that the
prohibitions provided for in this Section 8(b) shall not restrict Executive from
engaging in Restricted Activity for any subsidiary, division or affiliate or
unit of a company (collectively, a "Related Entity") if that Related Entity is
not engaged in Competitive Activity, irrespective of whether some other Related
Entity of that company engages in what would otherwise be considered to be
Competitive Activity (as long as Executive does not engage in Restricted
Activity for such other Related Entity).
(c) Executive further agrees that during the Noncompetition Period, he shall
not, unless previously permitted by the Board in writing, (i) in any manner,
directly or indirectly, hire or cause to be hired any (A) employee in
classification E-2 or higher of the Company, (B) any officer of the Company or
its Affiliates, (C) any member of the Policy Committee of the Company or (D) any
employee of the Company that is in a substantively similar or comparable
position as those provided in subparts (A), (B) or (C), or (ii) in connection
with any business to which Section 8(b) applies, call on, service, solicit or
otherwise do business with any customer of the Company or any of its Affiliates.
(d) Executive further agrees that during the Noncompetition Period, he shall not
make or cause to be made, directly or indirectly, any statement to any person
criticizing or disparaging the Company or any of its Affiliates, stockholders,
directors, officers or employees or commenting unfavorably or falsely on the
character, business judgment,
business practices or business reputation of the Company or any of its
Affiliates, stockholders, directors, officers or employees.
(e) Nothing in this Section 8 shall prohibit Executive from being a passive
owner of not more than one percent (1%) of the outstanding common stock, capital
stock and equity of any firm, corporation or enterprise so long as Executive has
no active participation in the management of business of such firm, corporation
or enterprise.
(f) If the restrictions stated herein are found by a court to be unreasonable,
the parties hereto agree that the maximum period, scope or geographical area
reasonable under such circumstances shall be substituted for the stated period,
scope or area and that the court shall revise the restrictions contained herein
to cover the maximum period, scope and area permitted by law.
9. Resolution of Disputes. In the event of any dispute or controversy arising
under or in connection with this Agreement, the parties shall first promptly try
in good faith to settle such dispute or controversy by mediation under the
applicable rules of the American Arbitration Association before resorting to
arbitration. In the event such dispute or controversy remains unresolved in
whole or in part for a period of 60 days after it arises, the parties will
settle any remaining dispute or controversy by binding arbitration, to be held
in Boston, Massachusetts, in accordance with the Employment Dispute Resolution
Rules of the American Arbitration Association. Judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Costs of the mediation, arbitration or litigation including, without limitation,
reasonable attorneys' fees of both parties, shall be borne by the Company.
Pending the resolution of the dispute, the Company shall continue payment of all
amounts due and provisions of all benefits to which Executive is entitled, which
amounts shall be subject to repayment to the Company if the Company prevails.
10. Litigation and Regulatory Cooperation. During and after Executive's
employment, Executive shall cooperate fully with the Company in the defense or
prosecution of any claims or actions now in existence or which may be brought in
the future against or on behalf of the Company which relate to events or
occurrences that transpired while Executive was employed by the Company.
Executive's full cooperation in connection with such claims or actions shall
include, but not be limited to, being available to meet with counsel to prepare
for discovery or trial and to act as a witness on behalf of the Company at
mutually convenient times. During and after Executive's employment, Executive
also shall cooperate fully with the Company in connection with any investigation
or review of any federal, state or local regulatory authority as any such
investigation or review relates to events or occurrences that transpired while
Executive was employed by the Company. The Company shall reimburse Executive for
any reasonable out of pocket expenses incurred in connection with Executive's
performance of obligations pursuant to this Section 10 and, to the extent that
Executive is not then an employee of the Company or any of its Affiliates, shall
reasonably compensate Executive for such services.
11. Remedies. Each of the parties to this Agreement shall be entitled to enforce
its rights under this Agreement specifically, to recover damages and costs
(including reasonable attorneys' fees) caused by any breach of any provision of
this Agreement and to exercise all other rights existing in its favor. The
parties hereto agree and acknowledge that money damages would not be an adequate
remedy for any breach of the provisions
of this Agreement and that any party may in its sole discretion apply to any
court of law or equity of competent jurisdiction (without posting any bond or
deposit) for specific performance and/or other injunctive relief in order to
enforce or prevent any violations of the provisions of this Agreement. Nothing
in this paragraph is intended to prevent the parties from raising any and all
defenses with respect to the necessity for, and scope of, such injunctive or
equitable relief.
12. Indemnification. During and after the Term, the Company shall indemnify
Executive and hold Executive harmless from and against any claim, loss or cause
of action arising from or out of Executive's performance as an officer, director
or employee of the Company or any of its Affiliates or in any other capacity,
including any fiduciary capacity, in which Executive serves at the request of
the Company, to the maximum extent permitted by applicable law and the
Certificate of Incorporation and By-Laws of the Company, as the case may be.
13. Assignability; Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors, heirs (in
the case of Executive) and assigns. No rights or obligations of Executive under
this Agreement may be assigned or transferred by Executive other than his rights
to compensation and benefits, which may be transferred only by will or operation
of law.
14. Representations.
(a) The Company represents and warrants that it is fully authorized and
empowered to enter into this Agreement and that the performance of its
obligations under this Agreement will not violate any agreement between it and
any other person, firm or organization. Executive represents that he knows of no
agreement between him and any other person, firm or organization that would be
violated by the performance of his obligations under this Agreement.
(b) Executive hereby represents and warrants that he is not bound by the terms
of any agreement with any previous employer or other party to refrain from
competing, directly or indirectly, with the business of such previous employer
or any other party. Executive further represents and warrants that Executive's
performance of all the terms of this Agreement and as an employee of the Company
does not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by Executive in confidence or in trust
prior to Executive's employment with the Company. Executive will not disclose to
the Company or induce the Company to use any confidential or proprietary
information or material belonging to any previous employer or others. Executive
will not hereafter grant anyone any rights inconsistent with the terms of this
Agreement.
15. Entire Agreement. This Agreement and the Exhibits attached hereto contain
the entire understanding and agreement between the parties concerning the
subject matter hereof and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between the
parties with respect thereto. This is an integrated document.
16. Amendment or Waiver. No provision in this Agreement may be amended unless
such amendment is agreed to in writing and signed by Executive and an authorized
officer of the Company. No waiver by either party of any breach by the other
party of any condition or provision contained in this Agreement to be performed
by such other party shall be deemed a waiver of a similar or dissimilar
condition or provision at the
same or any prior or subsequent time. Any waiver must be in writing and signed
by Executive or an authorized officer of the Company, as the case may be.
17. Severability. In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by law
so as to achieve the purposes of this Agreement.
18. References. In the event of Executive's death or a judicial determination of
his incompetence, reference in this Agreement to Executive shall be deemed,
where appropriate, to refer to his beneficiary, estate or other legal
representative.
19. Governing Law/Jurisdiction. This Agreement shall be governed in accordance
with the laws of the Commonwealth of Massachusetts without reference to
principles of conflict of laws.
20. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (a) delivered
personally, (b) sent by certified or registered mail, postage prepaid, return
receipt requested or (c) delivered by overnight courier (provided that a written
acknowledgment of receipt is obtained by the overnight courier) to the party
concerned at the address indicated below or to such changed address as such
party may subsequently give notice of:
If to the Company: Xxxx Xxxxxxx Financial Services, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Corporate Secretary
Copy: Chairman, Compensation Committee
If to Executive: at the home address of Executive on the records of the Company
21. Headings. The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
22. Gender Neutral. Whenever used herein, a pronoun in the masculine gender
shall be considered as including the female gender unless the context clearly
indicates otherwise.
23. Counterparts. This Agreement may be executed in two or more counterparts.
[Signature Page Follows Next]
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
XXXX XXXXXXX FINANCIAL SERVICES, INC.
By:
Name: Xxxxx X. X'Xxxxxxxxxx
Title: Chief Executive Officer and
Chairman
XXXX XXXXXXX LIFE INSURANCE COMPANY
By:
Name: Xxxxx X. X'Xxxxxxxxxx
Title: Chief Executive Officer and
Chairman
EXECUTIVE
Xxxxx X. Xxxx
