EXHIBIT 10.24
EXECUTION COPY
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ("Agreement"), dated as of February 10, 2003, is
made and entered into by and between Scottish Annuity & Life Holdings, Ltd., a
Cayman Islands, British West Indies company ("Company") and Xxxxxxx X. Xxxxxx
("Executive").
W I T N E S S E T H:
WHEREAS, the Company desires to ensure that it retains the Executive's
management and executive services by directly engaging Executive as its Chief
Executive Officer;
WHEREAS, in order to induce the Executive to continue to serve in such
position, the Company desires to provide the Executive with compensation and
other benefits on the terms and conditions set forth in this Agreement; and
WHEREAS, the Executive is willing to accept such employment and perform
services for the Company, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements and covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. CERTAIN DEFINED TERMS.
In addition to terms defined elsewhere herein, the following terms have the
following meanings when used in this Agreement with initial capital letters:
(a) "Act" means the Securities Exchange Act of 1934, as amended.
(b) "Board" means the Board of Directors of the Company.
(c) "Change in Control" means the occurrence during the Term of any of the
following events:
(i) the acquisition by any individual, entity or group, within the
meaning of Section 13(d)(3) or 14(d)(2) of the Act (a
"Person"), including as a result of a Business Combination (as
defined in Section 1(c)(iii)), of beneficial ownership, within
the meaning of Rule 13d-3 promulgated under the Act, of 25% or
more of the combined voting power of the then outstanding
Voting Stock of the Company; provided, however, that for
purposes of this Section 1(c)(i), the following acquisitions
shall not constitute a Change in Control: (A) any acquisition
by the Company of Voting
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Stock of the Company, or (B) any acquisition of Voting Stock of
the Company by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any Subsidiary; or
(ii) individuals who, as of the date hereof, constitute the Board
(the "Incumbent Board," (as modified by this Section 1(c)(ii)))
cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a
Director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was
approved by a vote of at least two-thirds of the Directors then
comprising the Incumbent Board (either by a specific vote or by
approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to
such nomination) shall be deemed to have been a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest (within the
meaning of Rule 14a-11 of the Act) with respect to the election
or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) consummation of a reorganization, merger or consolidation, a
sale or other disposition of all or substantially all of the
assets of the Company, or other transaction (each, a "Business
Combination"), unless, in each case, immediately following such
Business Combination, either (A)(I) the individuals and
entities who were the beneficial owners of Voting Stock of the
Company immediately prior to such Business Combination
beneficially own in the aggregate, directly or indirectly, more
than 50% of the combined voting power of the then outstanding
shares of Voting Stock of the entity resulting from such
Business Combination (including, without limitation, an entity
which as a result of such transaction owns the Company or all
or substantially all of the Company's assets either directly or
through one or more subsidiaries), (II) no Person (other than
the Company, such entity resulting from such Business
Combination, or any employee benefit plan (or related trust)
sponsored or maintained by the Company, any Subsidiary or such
entity resulting from such Business Combination) beneficially
owns, directly or indirectly, 25% or more of the combined
voting power of the then outstanding shares of Voting Stock of
the entity resulting from such Business Combination, and (III)
at least a majority of the members of the Board of Directors of
the entity
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resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board providing for such
Business Combination, or (B) the same as Section 1(c)(iii)(A),
except in clause (I), substituting "one-third" for "50%," and
in clause (III), substituting "two-thirds" for "a majority";
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company, except pursuant to a
Business Combination that complies with clause (A) or (B) of
Section 1(c)(iii); or
(v) a sale or other disposition of (A) shares of Voting Stock of
the Company representing at least 50% of the combined voting
power of the then outstanding shares of Voting Stock of the
Company, or (B) all or substantially all of the assets of the
Company, unless, in either case, the individuals and entities
who were the beneficial owners of Voting Stock of the Company
immediately prior to such sale or disposition beneficially own
in the aggregate, directly or indirectly, more than 50% of the
combined voting power of the then outstanding shares of Voting
Stock of the entity acquiring such Voting Stock or assets of
the Company.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Competitive Activity" means the Executive's participation, without
the written consent of the Board, in the management of any business
enterprise if such enterprise engages in substantial and direct
competition with the Company and if such enterprise's sales of any
product or service competitive with any product or service of the
Company amounted to 10% of such enterprise's net sales for its most
recently completed fiscal year and if the Company's net sales of said
product or service amounted to 10% of the Company's net sales for its
most recently completed fiscal year. "Competitive Activity" shall not
include (i) the mere ownership of securities in any such enterprise
and the exercise of rights appurtenant thereto or (ii) participation
in the management of any such enterprise other than in connection with
the competitive operations of such enterprise.
(f) "Director" means a member of the Board.
(g) "Ordinary Shares" means the ordinary shares, par value $0.01 per
share, of the Company.
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(h) "Subsidiary" means an entity in which the Company directly or
indirectly beneficially owns 50% or more of the outstanding Voting
Stock.
(i) "Total Cash Compensation" means the sum of the (i) highest annual Base
Salary in effect during the Term; (ii) highest annual Housing
Allowance in effect during the Term; and (iii) highest annual
Incentive Bonus (as set forth in Section 6(b)) earned during the Term.
(j) "Voting Stock" means securities entitled to vote generally in the
election of directors.
2. EMPLOYMENT.
The Company hereby agrees to employ Executive, and Executive hereby agrees
to be employed with the Company for the Term, upon the terms and conditions
herein set forth.
3. TERM.
The term of employment under this Agreement (the "Initial Term") shall
commence on February 10, 2003 ("Commencement Date") and subject to earlier
termination pursuant to Section 7, expire on the third anniversary of the
Commencement Date; this Agreement will automatically be renewed for successive
one-year periods (the "Additional Term"), subject to earlier termination
pursuant to Section 7, unless either party provides written notice of
non-renewal to the other pursuant to Section 15 at least ninety (90) days prior
to the end of the Initial Term or any Additional Term. The Initial Term and
Additional Term shall be referred to under this Agreement as the "Term";
provided, however, that if a Change in Control occurs during the Term (as
determined without regard to this clause), then the Term shall include the
period ending on the second anniversary of the first occurrence of the Change in
Control.
4. POSITIONS AND DUTIES.
(a) During the Term, Executive will serve in the position of Chief
Executive Officer of the Company, or such other position as may be
agreed upon by the Company and the Executive, and will have such
duties, functions, responsibilities and authority as are (i)
reasonably assigned to him by the Board, consistent with Executive's
position as the Company's Chief Executive Officer or (ii) assigned to
his office in the Company's Articles of Association. Executive will
report directly to the Board.
(b) During the Term, Executive will be the Company's full-time employee
and, except as may otherwise be approved in advance in writing by the
Board, and except during vacation periods and reasonable periods of
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absence due to sickness, personal injury or other disability,
Executive will devote substantially all of his business time and
attention to the performance of his duties to the Company.
Notwithstanding the foregoing, Executive may (i) subject to the
approval of the Board, serve as a director of a company, provided such
service does not constitute a Competitive Activity, (ii) serve as an
officer, director or otherwise participate in purely educational,
welfare, social, religious and civic organizations, (iii) serve as an
officer, director or trustee of, or otherwise participate in, any
organizations and activities with respect to which Executive's
participation was disclosed to the Company in writing prior to the
date hereof and (iv) manage personal and family investments.
5. PLACE OF PERFORMANCE.
In connection with his employment during the Term Executive will be
provided appropriate office facilities at the Company's principal executive
offices and any other location that the Company reasonably deems necessary to
have an office in order for the Executive to perform his duties to the Company.
Executive agrees and acknowledges that in view of the nature of Company's
business operations, Executive may be required in the performance of his duties
to undertake substantial travel on behalf of the Company.
6. COMPENSATION AND RELATED MATTERS.
As compensation and consideration for the performance by Executive of his
obligations pursuant to this Agreement, Executive shall be entitled to the
following:
(a) BASE SALARY. During the Term, the Company shall pay Executive an
annual base salary ("Base Salary") of US $600,000, payable at the
times and in the manner consistent with the Company's policies
regarding compensation of executive employees. The Company agrees to
review such compensation not less frequently than annually during the
Term. Once increased, the Base Salary may not be decreased. The Base
Salary as increased from time to time shall be referred to herein as
"Base Salary".
(b) INCENTIVE BONUS. For each calendar year that begins during the Term,
the Company shall pay a cash bonus to Executive based upon
pre-established performance goals established by the Board (the
"Incentive Bonus"). Any Incentive Bonus shall be payable at the times
and in the manner consistent with the Company's policies regarding
compensation of executive employees.
(c) HOUSING ALLOWANCE. The Company hereby agrees to pay the Executive a
monthly housing allowance consistent with the Company's policy
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regarding housing allowances. Such housing allowance shall be for use
by Executive in his sole discretion.
(d) CLUB DUES AND EXPENSES. The Company hereby agrees to reimburse
Executive for club dues and expenses up to US $5,000 per calendar year
in accordance with the Company's policy regarding substantiation of
expenses.
(e) EXECUTIVE BENEFITS. During the Term, the Company will make available
to Executive and his eligible dependents, participation in all
Company-sponsored employee benefit plans including all employee
retirement income and welfare benefit policies, plans, programs or
arrangements in which senior executives of the Company participate,
including any stock option, stock purchase, stock appreciation,
savings, pension, supplemental executive retirement or other
retirement income or welfare benefit, disability, salary continuation,
and any other deferred compensation, incentive compensation, group
and/or executive life, health, medical/hospital or other insurance,
expense reimbursement or other employee benefit policies, plans,
programs or arrangements, including without limitation financial
counseling services or any equivalent successor policies, plans,
programs or arrangements that may now exist or be adopted hereafter by
the Company.
(f) EXPENSES. The Company will promptly reimburse Executive for all
reasonable business expenses Executive incurs in order to perform his
duties to the Company under this Agreement in a manner commensurate
with Executive's position and level of responsibility with the
Company, and in accordance with the Company's policy regarding
substantiation of expenses.
(g) VACATION AND HOLIDAYS. Executive shall be entitled to four (4) weeks
of paid vacation per annum, in accordance with the Company's vacation
policy.
(h) INDEMNIFICATION. The Executive shall be offered an opportunity to
enter into the Company's Indemnification Agreement substantially in
the form attached hereto as EXHIBIT A effective as of the Commencement
Date.
7. TERMINATION.
(a) TERMINATION BY THE COMPANY WITH CAUSE. The Company shall have the
right to terminate Executive's employment at any time with Cause by
providing a Notice of Termination to Executive in accordance with
Section 7(g) not more than sixty (60) days after the Board's actual
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knowledge of the Cause event, and such termination shall not be deemed
to be a breach of this Agreement. For purposes of this Agreement,
"Cause" shall mean: (i) habitual drug or alcohol use which impairs
Executive's ability to perform his or her duties hereunder; (ii)
Executive's conviction during the Term by a court of competent
jurisdiction, or a pleading of "no contest" or guilty to an arrestable
criminal offense resulting in the imposition of a custodial sentence;
(iii) Executive's engaging in fraud, embezzlement or any other illegal
conduct with respect to the Company which acts are materially harmful
to, either financially, or to the business reputation of the Company;
(iv) Executive's willful breach of Section 10 hereof; (v) Executive's
willful and continued failure or refusal to perform his duties
hereunder (other than such failure caused by Executive's Disability),
after a written demand for performance is delivered to Executive by
the Board that specifically identifies the manner in which the Board
believes that Executive has failed or refused to perform his duties;
or (vi) Executive otherwise breaches any material provision of this
Agreement which is not cured, if curable, within thirty (30) days
after written notice thereof. No act or failure to act on the part of
Executive shall be deemed "intentional" if it was due primarily to an
error in judgment or negligence, but shall be deemed "intentional"
only if done or omitted to be done by Executive not in good faith and
without reasonable belief that his action or omission was in the best
interest of the Company.
(b) DEATH. In the event Executive dies during the Term, his employment
shall automatically terminate effective on the date of his death, such
termination shall not be deemed to be a breach of this Agreement, and
the Company shall pay or provide to the Executive's beneficiaries or
estate, as appropriate, as soon as practicable after the Executive's
death, the amounts and benefits provided for in Section 8(d).
(c) DISABILITY. In the event Executive shall suffer from a mental or
physical disability which shall have prevented him from performing his
material duties hereunder for a period of at least one-hundred eighty
(180) non-consecutive days within any 365 day period, the Company
shall have the right to terminate Executive's employment for
"Disability," such termination to be effective upon the giving of
notice thereof to the Executive in accordance with Section 7(g)
hereof, such termination shall not be deemed to be a breach of this
Agreement, and the Company shall provide to the Executive the amounts
and benefits provided for in Section 8(d). Executive's employment
hereunder shall terminate effective on the 30th day after receipt of
such notice by Executive (the "Disability Effective Date"); provided
that Executive shall not have returned to full-time
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performance of his duties hereunder within thirty (30) days following
receipt of such notice.
(d) GOOD REASON.
(i) Executive may terminate his employment with the Company for
"Good Reason" and such termination shall not be deemed to be a
breach of this Agreement. Executive shall have Good Reason if
Executive has knowledge that one of the events described in
Section 7(d)(ii) has occurred without Executive's written
consent and (A) if the event is not curable, Executive gives a
Notice of Termination to the Company pursuant to Section 7(g)
within sixty (60) days after having knowledge of the event, or
(B) if the event is curable, (I) Executive gives written notice
to the Company thereof in accordance with Section 15 within
sixty (60) days after having knowledge of the event, (II) such
event has not been cured within thirty (30) days after the
Executive gives notice of the event to the Company, and (III)
Executive gives a Notice of Termination to the Company in
accordance with Section 7(g) within thirty (30) days after the
expiration of the Company's 30-day cure period.
(ii) For purposes of this Agreement, "Good Reason" shall mean (A)
prior to a Change in Control, (I) a failure by the Company to
comply with any material provision of this Agreement; (II) the
liquidation, dissolution, merger, consolidation or
reorganization of the Company or all of its business and/or
assets, unless the successor(s) assume all duties and
obligations of the Company pursuant to Section 14(a); (III) any
material and adverse change to Executive's duties or authority
which are inconsistent with his title and position set forth
herein; (IV) a diminution of Executive's title or position; (V)
the relocation of Executive's office; (VI) a reduction in
Executive's Base Salary; (VII) a material reduction of
Executive's benefits provided pursuant to Section 6 other than
a reduction permitted under terms and conditions of the
applicable Company policy or benefit plan; (VIII) upon the
provision of notice by the Company under Section 3 of
non-renewal of the Agreement; (IX) on or after MARCH 23, 2008,
for any reason, or without reason, and (B) on or after a Change
in Control, for any reason, or without reason.
(e) WITHOUT GOOD REASON. Executive may voluntarily terminate his
employment with the Company without Good Reason by giving written
notice to the Company as provided in Section 7(g). Such notice must be
provided to the Company at least thirty (30) days prior to such
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termination. Such termination shall not be deemed to be a breach of
this Agreement.
(f) WITHOUT CAUSE. This Company shall have the right to terminate
Executive's employment hereunder without Cause by providing written
notice to Executive as provided in Section 7(g), and such termination
shall not be deemed to be a breach of this Agreement. "Without Cause"
shall mean for any reason other than Cause, Death or Disability, as
provided in Sections 7(a), 7(b) and 7(c).
(g) NOTICE OF TERMINATION.
(i) Any termination of Executive's employment by the Company
pursuant to Section 7(a), 7(c) or 7(f), or by Executive
pursuant to Section 7(d) or 7(e), shall be communicated by a
Notice of Termination to the other party hereto in accordance
with this Section 7(g) and Section 15. For purposes of this
Agreement, a "Notice of Termination" means a written notice
that (A) indicates the specific termination provision in this
Agreement relied upon, (B) to the extent applicable, sets 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 and (C) if the Date of
Termination (as defined in Section 7(h)) is other than the date
of receipt of such notice, specifies the Date of Termination.
The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance that contributes
to a showing of Good Reason or Cause shall not waive any right
of the Executive or the Company, respectively, hereunder or
preclude the Executive or the Company, respectively, from
asserting such fact or circumstance in enforcing the
Executive's or Company's rights hereunder.
(ii) Any Notice of Termination by the Company for Cause shall be
ratified by a resolution duly adopted by the affirmative vote
of not less than two-thirds of the Board then in office
(excluding, for this purpose, the Executive, if the Executive
is then a member of the Board) at a meeting of the Board called
and held for such purpose, after reasonable notice to the
Executive and an opportunity for the Executive, together with
his counsel (if the Executive chooses to have counsel present
at such meeting), to be heard before the Board, finding that,
in the good faith opinion of the Board, the Executive had
committed an act constituting "Cause" as defined in Section
7(a) and specifying the particulars thereof in detail.
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(h) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause or by
the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein (but not more than
thirty (30) days thereafter), as the case may be (although such Date
of Termination shall retroactively cease to apply if the circumstances
providing the basis of termination for Cause or Good Reason are cured
in accordance with Section 7(a) or 7(d) of this Agreement, as the case
may be), (ii) if Executive's employment is terminated by the Company
other than for Cause or Disability, the Date of Termination shall be
the date set forth in the Notice of Termination (iii) if Executive's
employment is terminated by Executive without Good Reason, the Date of
Termination shall be the date set forth in the Notice of Termination,
but no sooner than thirty (30) days after such Notice of Termination
is received by the Company and (iv) if Executive's employment is
terminated by reason of death or Disability, the Date of Termination
shall be the date of the Executive's death or the Disability Effective
Date, as the case may be.
8. COMPENSATION UPON TERMINATION.
If the Company or Executive terminates the Executive's employment during
the Term, the Company shall pay to the Executive the amount(s) set forth below
in a lump sum in cash upon the later of (i) five (5) business days after the
Date of Termination or date of expiration of this Agreement, as the case may be,
(ii) the effective date of a release (if a release is required by this Section
8) or (iii) at the Executive's option, a date later than the dates specified in
clauses (i) and (ii).
(a) COMPENSATION UPON TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. In the
event of termination of Executive's employment by the Company for
Cause or by the Executive without Good Reason, or by reason of
expiration of the Term (if applicable), the Company shall pay the
Executive his accrued, but unpaid Base Salary, accrued vacation pay
and unpaid business expenses through the Date of Termination (the
"Compensation Payments"), and the Executive shall be entitled to no
other compensation, except as otherwise due to the Executive under
applicable law. The Executive shall not be entitled to the payment of
any bonus or other incentive compensation for any portion of the
fiscal year in which such termination occurs.
(b) COMPENSATION UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR UPON
TERMINATION BY THE EXECUTIVE FOR GOOD REASON. Subject to Section 8(c),
in the event of the termination of the Executive's employment by the
Company without Cause or upon termination of the Executive's
employment by the Executive for Good Reason, the Company shall pay
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the Executive the Compensation Payments. In addition, conditioned upon
receipt of the Executive's release of claims substantially in the form
attached hereto as EXHIBIT B, subject to such changes as may be
required to preserve the intent thereof for changes in applicable law,
the Company shall pay or provide to the Executive (i) as severance
pay, an amount equal to the sum of the Total Cash Compensation that
Executive would have received during the remaining Term of the
Agreement, such amount to be calculated from the date the Executive's
employment was terminated to the date that is the third anniversary of
the Commencement Date (the "Severance Calculation Period"), (ii)
earned, but unpaid Incentive Bonus for the year of termination, as
determined in the good faith opinion of the Board based upon the
relative achievement of performance targets through the Date of
Termination (the "Termination Bonus"), and (iii) the welfare benefits
set forth in Section 8(f). Notwithstanding the foregoing provisions of
this Section 8(b), (x) where the Severance Calculation Period is for
thirty-six (36) calendar months or less, the Company shall pay the
Executive under Section 8(b)(i) an amount equal to the sum of three
(3) full years' Total Cash Compensation, and (y) any right of the
Executive to receive termination payments and benefits under Section
8(b) shall be forfeited to the extent of any amounts payable or
benefits to be provided after a material breach of any covenant set
forth in Section 10.
(c) COMPENSATION UPON TERMINATION IN CONNECTION WITH A CHANGE IN CONTROL
OF THE COMPANY. If, within the period of time commencing on the date
of the first occurrence of a Change in Control and continuing until
the second anniversary of such occurrence of a Change in Control or,
if earlier, until the Executive's death or the end of the Term, the
Executive's employment is terminated by the Company without Cause or
by the Executive for Good Reason, then the provisions of Section 8(b)
shall be applicable, except that an amount equal to the sum of the
Total Cash Compensation that Executive would have received during the
Severance Calculation Period or 300% of the Executive's Total Cash
Compensation, whichever is greater, shall be substituted in lieu of
the amount set forth in Section 8(b)(i). For purposes of the preceding
sentence, if a Change in Control occurs and not more than one-hundred
eighty (180) days prior to the date on which the Change in Control
occurs, the Executive's employment is terminated by the Company
without Cause, such termination of employment shall be deemed a
termination of employment after a Change in Control if the Executive
has reasonably demonstrated that such termination of employment (i)
was at the request of a third party who has taken steps reasonably
calculated to effect a Change in Control,
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or (ii) otherwise arose in connection with or in anticipation of a
Change in Control.
(d) COMPENSATION UPON DEATH OR DISABILITY. In the event of the Executive's
death or the termination of employment due to Disability, the Company
shall pay to the Executive (or beneficiaries, or estate, as the case
may be) an amount equal to the sum of (i) the Compensation Payments
and (ii) the Termination Bonus. Executive shall be entitled to any
other rights, compensation and/or benefits as may be due to Executive
in accordance with the terms and provision of any agreements, plans or
programs of the Company.
(e) SET-OFF, COUNTERCLAIM OR LATE PAYMENT. There shall be no right of
set-off or counterclaim in respect of any claim, debt or obligation
against any payment to or benefit for the Executive provided for in
this Agreement. Without limiting the rights of the Executive at law or
in equity, if the Company fails to make any payment required to be
made hereunder on a timely basis, the Company shall pay interest on
the amount or value thereof at an annualized rate of interest equal to
the "prime rate" as set forth from time to time during the relevant
period in THE WALL STREET JOURNAL "Money Rates" column, plus four
(4)%. Such interest shall be payable as it accrues on demand. Any
change in such prime rate shall be effective on and as of the date of
such change.
(f) WELFARE BENEFITS. If the Executive becomes entitled to the benefits
provided by Section 8(b) or 8(c), then in addition to such benefits,
for a period following the Date of Termination equal to the greater of
the remaining Term or twenty four (24) months (the "Continuation
Period"), the Company shall arrange to provide the Executive with
health insurance, life insurance, and other medical benefits
substantially similar to those that the Executive was receiving or
entitled to receive immediately prior to the Date of Termination. If
and to the extent that any benefit described in this Section 8(f) is
not or cannot be paid or provided under any policy, plan, program or
arrangement of the Company, then the Company will itself pay or
provide for the payment to the Executive, his dependents and
beneficiaries, of such benefits along with, in the case of any benefit
described in this Section 8(f) that is subject to tax because it is
not or cannot be paid or provided under any such policy, plan, program
or arrangement of the Company, an additional amount such that after
payment by the Executive, or his dependents or beneficiaries, as the
case may be, of all taxes so imposed, the recipient retains an amount
equal to such taxes. Notwithstanding the foregoing, or any other
provision of the Agreement, for purposes of determining the period of
continuation coverage to which the Executive or any of his dependents
is entitled
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pursuant to Section 4980B of the Code under the Company's medical,
dental and other group health plans, or successor plans, the
Executive's "qualifying event" will be the termination of the
Continuation Period and the Executive will be considered to have
remained actively employed on a full-time basis through that date.
(g) SCOPE AND NONDUPLICATION. The provision or payment of termination
benefits under this Section 8 shall not affect any rights the
Executive may have pursuant to any agreement, plan, policy, program or
arrangement of the Company providing employee benefits, which rights
shall be governed by the terms thereof or by the release described in
Section 8; provided, however, that to the extent, and only to the
extent, a payment or benefit that is paid or provided under this
Section 8 would also be paid or provided under the terms of any
applicable plan, program, or arrangement, including, without
limitation, any severance program, such applicable plan, program,
agreement or arrangement shall be deemed to have been satisfied by the
payment made or benefit provided under this Agreement.
(h) MITIGATION. In the event of the termination of the Executive by the
Company without Cause, or by the Executive with Good Reason, the
Executive shall not be required to mitigate damages by seeking other
employment or otherwise as a condition to receiving termination
payments or benefits under this Agreement. No amounts earned by the
Executive after the Executive's termination by the Company without
Cause or by the Executive with Good Reason, whether from
self-employment, as a common law employee, or otherwise, shall reduce
the amount of any payment or benefit under any provision of this
Agreement. Notwithstanding the foregoing, the Executive's coverage
under the Company's group medical insurance as provided in Section
8(f) shall be reduced to the extent comparable welfare benefits are
actually received by the Executive as soon as the Executive becomes
covered under any group medical plan made available by another
employer. The Executive shall report to the Company any such coverage
actually received by the Executive.
(i) RESIGNATIONS. Except to the extent requested by the Company, upon any
termination of the Executive's employment with the Company, the
Executive shall immediately resign all positions and directorships
with the Company and each of its subsidiaries and affiliates.
(j) RELOCATION EXPENSES. If the Executive becomes entitled to the benefits
provided by Section 8(b), 8(c) or 8(d), the Company shall reimburse
the
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Executive for his reasonable relocation costs in accordance with the
Company's Relocation Policy.
9. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(a) Anything in this Agreement to the contrary notwithstanding, in the
event that it shall be determined (as hereafter provided) that any
payment (other than the Gross-Up payments provided for in this Section
9) or distribution by the Company or any of its affiliates to or for
the benefit of the Executive, whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise
pursuant to or by reason of any other agreement, policy, plan, program
or arrangement, including without limitation any stock option,
performance share, performance unit, stock appreciation right or
similar right, or the lapse or termination of any restriction on or
the vesting or exercisability of any of the foregoing (a "Payment"),
would be subject to the excise tax imposed by Section 4999 of the Code
by reason of being considered "contingent on a change in ownership or
control" of the Company, within the meaning of Section 280G of the
Code or to any similar tax imposed by state or local law, or any
interest or penalties with respect to such tax (such tax or taxes,
together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment"); provided; however, that no
Gross-up Payment shall be made with respect to the Excise Tax, if any,
attributable to (i) any incentive stock option, as defined by Section
422 of the Code ("ISO") granted prior to the execution of this
Agreement, or (ii) any stock appreciation or similar right, whether or
not limited, granted in tandem with any ISO described in clause (i).
The Gross-Up Payment shall be in an amount such that, after payment by
the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including any Excise Tax imposed
upon the Gross-Up Payment, the Executive retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payment. For
purposes of determining the amount of the Gross-Up Payment, the
Executive will be considered to pay (x) federal income taxes at the
highest rate in effect in the year in which the Gross-Up Payment will
be made and (y) state and local income taxes at the highest rate in
effect in the state or locality in which the Gross-Up Payment would be
subject to state or local tax, net of the maximum reduction in federal
income tax that could be obtained from deduction of such state and
local taxes.
(b) Subject to the provisions of Section 9(f), all determinations required
to be made under this Section 9, including whether an Excise Tax is
payable by the Executive and the amount of such Excise Tax and whether
a Gross-Up
Page 14 of 27
Payment is required to be paid by the Company to the Executive and the
amount of such Gross-Up Payment, if any, shall be made by a nationally
recognized accounting firm (the "Accounting Firm") selected by the
Executive in his sole discretion. The Executive shall direct the
Accounting Firm to submit its determination and detailed supporting
calculations to both the Company and the Executive within thirty (30)
calendar days after the Date of Termination, if applicable, and any
such other time or times as may be requested by the Company or the
Executive. If the Accounting Firm determines that any Excise Tax is
payable by the Executive, the Company shall pay the required Gross-Up
Payment to the Executive within five (5) business days after receipt
of such determination and calculations with respect to any Payment to
the Executive. If the Accounting Firm determines that no Excise Tax is
payable by the Executive with respect to any material benefit or
amount (or portion thereof), it shall, at the same time as it makes
such determination, furnish the Company and the Executive an opinion
that the Executive has substantial authority not to report any Excise
Tax on his federal, state or local income or other tax return. As a
result of the uncertainty in the application of Section 4999 of the
Code and the possibility of similar uncertainty regarding applicable
state or local tax law at the time of any determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made (an
"Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts or fails to pursue
its remedies pursuant to Section 9(f) and the Executive thereafter is
required to make a payment of any Excise Tax, the Executive shall
direct the Accounting Firm to determine the amount of the Underpayment
that has occurred and to submit its determination and detailed
supporting calculations to both the Company and the Executive as
promptly as possible. Any such Underpayment shall be promptly paid by
the Company to, or for the benefit of, the Executive within five (5)
business days after receipt of such determination and calculations.
(c) The Company and the Executive shall each provide the Accounting Firm
access to and copies of any books, record and documents in the
possession of the Company or the Executive, as the case may be,
reasonably requested by the Accounting Firm, and otherwise cooperate
with the Accounting Firm in connection with the preparation and
issuance of the determinations and calculations contemplated by
Section 9(b). Any determination by the Accounting Firm as to the
amount of the Gross-Up Payment shall be binding upon the Company and
the Executive.
Page 15 of 27
(d) The federal, state and local income or other tax returns filed by the
Executive shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax
payable by the Executive. The Executive shall report and make proper
payment of the amount of any Excise Tax, and at the request of the
Company, provide to the Company true and correct copies (with any
amendments) of his federal income tax return as filed with the
Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority,
and such other documents reasonably requested by the Company,
evidencing such payment. If prior to the filing of the Executive's
federal income tax return, or corresponding state or local tax return,
if relevant, the Accounting Firm determines that the amount of the
Gross-Up Payment should be reduced, the Executive shall within five
(5) business days pay to the Company the amount of such reduction.
(e) The fees and expenses of Accounting Firm for its services in
connection with the determinations and calculations contemplated by
Section 9(b) shall be borne by the Company. If such fees and expenses
are initially paid by the Executive, the Company shall reimburse the
Executive the full amount of such fees and expenses within five (5)
business days after receipt from the Executive of a statement therefor
and reasonable evidence of his payment thereof.
(f) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by the Company of a Gross-Up
Payment. Such notification shall be given as promptly as practicable
but no later than thirty (30) business days after the Executive
actually receives notice of such claim and the Executive shall further
apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid (in each case, to the extent known
by the Executive). The Executive shall not pay such claim prior to the
earlier of (i) the expiration of the 30-calendar-day period following
the date on which he gives such notice to the Company and (ii) the
date that any payment of amount with respect to such claim is due. If
the Company notified the Executive in writing prior to the expiration
of such period that it desires to contest such claim, the Executive
shall:
(i) provide the Company with any written records or documents in
his possession relating to such claim reasonably requested by
the Company;
Page 16 of 27
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to
time, including without limitation accepting legal
representation with respect to such claim by an attorney
competent in respect of the subject matter and reasonably
selected by the Company;
(iii) cooperate with the Company in good faith in order effectively
to contest such claim; and
(iv) permit the Company to participate in any proceedings relating
to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including interest and penalties) incurred in
connection with such contest and shall indemnify and hold harmless the
Executive, on an after-tax basis, for and against any Excise Tax or
income or other tax, including interest and penalties with respect
thereto, imposed as a result of such representation and payment of
costs and expenses. Without limiting the foregoing provisions of this
Section 9(f), the Company shall control all proceedings taken in
connection with the contest of any claim contemplated by this Section
9(f) and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim (provided, however, that the
Executive may participate therein at his own cost and expense) and
may, at its option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs the Executive to pay
the tax claimed and xxx for a refund, the Company shall advance the
amount of such payment to the Executive on an interest-free basis and
shall indemnify and hold the Executive harmless, on an after-tax
basis, from any Excise Tax or income or other tax, including interest
or penalties with respect thereto, imposed with respect to such
advance; and provided further, however, that any extension of the
statute of limitations relating to payment of taxes for the taxable
year of the Executive with respect to which the contested amount is
claimed to be due is limited solely to such contested amount.
Furthermore, the Company's control of any such contested claim shall
be limited to issues with respect to which a Gross-Up Payment would be
payable hereunder and the Executive shall be entitled to settle or
contest as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
Page 17 of 27
(g) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(f), the Executive receives any refund
with respect to such claim, the Executive shall (subject to the
Company's complying with the requirements of Section 9(f)) promptly
pay to the Company the amount of such refund (together with any
interest paid or credited thereon after any taxes applicable thereto).
If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 9(f), a determination is made that the
Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in writing of its
intent to contest such denial or refund prior to the expiration of
thirty (30) calendar days after such determination, then such advance
shall be forgiven and shall not be required to be repaid and the
amount of any such advance shall offset, to the extent thereof, the
amount of Gross-Up Payment required to be paid by the Company to the
Executive pursuant to this Section 10.
(h) Notwithstanding any provision of this Agreement to the contrary, but
giving effect to any redetermination of the amount of Gross-Up
Payments otherwise required by this Section 9, if (i) but for this
sentence, the Company would be obligated to make a Gross-Up Payment to
the Executive and (ii) the aggregate "present value" of the "parachute
payments" to be paid or provided to the Executive under this Agreement
or otherwise does not exceed three times the Executive's "base amount"
by more than $50,000, then the payments and benefits to be paid or
provided under this Agreement will be reduced (or repaid to the
Company, if previously paid or provided) to the minimum extent
necessary so that no portion of any payment or benefit to the
Executive, as so reduced or repaid, constitutes an "excess parachute
payment." For purposes of this Section 9(h), the terms "excess
parachute payment," "present value," "parachute payment," and "base
amount" will have the meanings assigned to them by Section 280G of the
Code. The determination of whether any reduction in or repayment of
such payments or benefits to be provided under this Agreement is
required pursuant to this Section 9(h) will be made at the expense of
the Company, if requested by the Executive or the Company, by the
Accounting Firm. Appropriate adjustments shall be made to amounts
previously paid to Executive, or to amounts not paid pursuant to this
Section 9(h), as the case may be, to reflect properly a subsequent
determination that the Executive owes more or less Excise Tax than the
amount previously determined to be due. In the event that any payment
or benefit intended to be provided under this Agreement or otherwise
is required to be reduced or repaid pursuant to this Section 9(h), the
Executive shall be entitled to designate the payments and/or benefits
to be so reduced or repaid in order to give
Page 18 of 27
effect to this Section 9(h). The Company shall provide the Executive
with all information reasonably requested by the Executive to permit
the Executive to make such designation. In the event that the
Executive fails to make such designation within 10 business days prior
to the Date of Termination or other due date, the Company may effect
such reduction or repayment in any manner it deems appropriate.
10. COMPETITIVE ACTIVITY; CONFIDENTIALITY; NON-SOLICITATION.
(a) Executive acknowledges that during the course of his employment with
the Company the Executive will learn business information valuable to
the Company and will form substantial business relationships with the
Company's clients. To protect the Company's legitimate business
interests in preserving its valuable confidential business information
and client relationships, the Executive shall not without the prior
written consent of the Company, which consent shall not be
unreasonably withheld, (i) engage in any Competitive Activity during
the Term and (ii) if the Executive shall have received or shall be
receiving benefits under Section 8(b) or 8(c), engage in any
Competitive Activity for a period ending on the first anniversary of
the earlier of the Date of Termination or the date of expiration of
this Agreement.
(b) During the Term, and in consideration for the Executive's agreement to
enter into this Agreement, the Company agrees that it will disclose to
Executive its Confidential or Proprietary Information (as defined in
this Section 10(b)) to the extent necessary for Executive to carry out
his obligations to the Company. The Executive hereby acknowledges the
Company has a legitimate business interest in protecting its
Confidential or Proprietary Information and hereby covenants and
agrees that he will not without the prior written consent of the
Company, during the Term or thereafter (i) disclose to any person not
employed by the Company, or use in connection with engaging in
competition with the Company, any Confidential or Proprietary
Information of the Company or (ii) remove, copy or retain in his
possession any Company files or records. For purposes of this
Agreement, the term "Confidential or Proprietary Information" will
include all information of any nature and in any form that is owned by
the Company and that is not publicly available (other than by
Executive's breach of this Section 10(b)) or generally known to
persons engaged in businesses similar or related to those of the
Company. Confidential or Proprietary Information will include, without
limitation, the Company's financial matters, customers, employees,
industry contracts, strategic business plans, product development (or
other proprietary product data), marketing plans, and all other
secrets and all other information of a confidential or proprietary
nature. Confidential or
Page 19 of 27
Proprietary Information shall not be deemed to have become public for
purposes of this Agreement where it has been disclosed or made public
by or through anyone acting in violation of a contractual, ethical, or
legal responsibility to maintain its confidentiality. The foregoing
obligations imposed by this Section 10(b) shall not apply (x) during
the Term, in the course of the business of and for the benefit of the
Company, (y) if such Confidential or Proprietary Information will have
become, through no fault of the Executive, generally known to the
public or (z) if the Executive is required by law to make disclosure
(after giving the Company notice and an opportunity to contest such
requirement).
(c) The Executive hereby covenants and agrees that during the Term and for
one (1) year after the Date of Termination Executive will not, without
the prior written consent of the Company, which consent shall not
unreasonably be withheld, on behalf of Executive or on behalf of any
person, firm or company, directly or indirectly, attempt to influence,
persuade or induce, or assist any other person in so persuading or
inducing, any employee of the Company to give up employment or a
business relationship with the Company, and the Executive shall not
directly or indirectly solicit or hire employees of the Company for
employment with any other employer.
(d) The Executive agrees that on or before the Date of Termination the
Executive shall return all Company property, including without
limitation all credit, identification and similar cards, keys and
documents, books, records and office equipment. The Executive agrees
that he shall abide by, through the Date of Termination, the Company's
policies and procedures for worldwide business conduct.
(e) Executive and the Company agree that the covenants contained in this
Section 10 are reasonable under the circumstances, and further agree
that if in the opinion of any court of competent jurisdiction any such
covenant is not reasonable in any respect, such court will have the
right, power and authority to excise or modify any provision or
provisions of such covenants as to the court will appear not
reasonable and to enforce the remainder of the covenants as so
amended. Executive acknowledges and agrees that the remedy at law
available to the Company for breach of any of his obligations under
this Section 10 would be inadequate and that damages flowing from such
a breach may not readily be susceptible to being measured in monetary
terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies that the Company may have
at law, in equity or under this Agreement, upon adequate proof of his
violation of any such provision of this Agreement, the Company will be
entitled to immediate injunctive
Page 20 of 27
relief and may obtain a temporary order restraining any threatened or
further breach, without the necessity of proof of actual damage.
(f) REPRESENTATIONS OF THE EXECUTIVE. The Executive represents and
warrants to the Company that:
(i) (A) There are no restrictions, agreements or understandings
whatsoever to which the Executive is a party that would prevent
or make unlawful the Executive's execution of this Agreement or
the Executive's employment under this Agreement, or that is or
would be inconsistent, or in conflict with this Agreement or
the Executive's employment under this Agreement, or would
prevent, limit or impair in any way the performance by the
Executive of the obligations under this Agreement; and (B) the
Executive has disclosed to the Company all restraints,
confidentiality commitments or other employment restrictions
that the Executive has with any other employer, person or
entity.
(ii) Upon and after the Executive's termination or cessation of
employment with the Company, and until such time as no
obligations of the Executive to the Company hereunder exist,
the Executive: (A) shall provide a complete copy of this
Agreement to any prospective employer or other person, entity
or association in a competing business with whom or which the
Executive proposes to be employed, affiliated, engaged,
associated or to establish any business or remunerative
relationship prior to the commencement thereof, provided that
Executive shall first cause the compensation amounts hereunder
to be deleted or not disclosed; and (B) shall notify the
Company of the name and address of any such person, entity or
association prior to the Executive's employment, affiliation,
engagement, association or the establishment of any business or
remunerative relationship.
11. LEGAL FEES AND EXPENSES.
If it should appear to Executive that the Company has failed to comply with
any of its obligations under this Agreement or in the event that the Company or
any other person takes or threatens to take any action to declare this Agreement
void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Executive the benefits provided
or intended to be provided to Executive hereunder, the Company irrevocably
authorizes Executive from time to time to retain counsel of Executive's choice
at the expense of the Company as hereafter provided, to advise and represent
Executive in connection with any such interpretation, enforcement or defense,
including without limitation the initiation or defense of any
Page 21 of 27
litigation or other legal action, whether by or against the Company or any
Director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to Executive's entering into an attorney-client relationship with such
counsel, and in that connection the Company and Executive agree that a
confidential relationship shall exist between Executive and such counsel.
Without respect to whether Executive prevails, in whole or in part, in
connection with any of the foregoing, the Company will pay and be solely
financially responsible for any and all attorneys, and related fees and expenses
incurred by Executive in connection with any of the foregoing; provided that, in
regard to such matters, the Executive has not acted in bad faith or with no
colorable claim of success. Such payments shall be made within five (5) business
days after delivery of Executive's written requests for payment, accompanied by
such evidence of fees and expenses incurred as the Company may reasonably
require. Notwithstanding the foregoing provisions of this Section 11, the
obligations of the Company under this Section 11 shall not exceed, in the
aggregate, $100,000.00.
12. WITHHOLDING OF TAXES.
The Company may withhold from any amounts payable under this Agreement all
applicable taxes that the Company is required to withhold pursuant to any
applicable law, regulation or ruling.
13. DISPUTE RESOLUTION.
Any dispute between the parties under this Agreement shall be resolved
(except as provided below) through informal arbitration by an arbitrator
selected under the rules of the American Arbitration Association for arbitration
of employment disputes (located in New York City) and the arbitration shall be
conducted in that location under the rules of said Association. Each party shall
be entitled to present evidence and argument to the arbitrator. The arbitrator
shall have the right only to interpret and apply the provisions of this
Agreement and may not change any of its provisions, except as expressly provided
in Section 17 and only in the event the Company has not brought an action in a
court of competent jurisdiction to enforce the covenants in Section 10. The
arbitrator shall permit reasonable pre-hearing discovery of facts, to the extent
necessary to establish a claim or a defense to a claim, subject to supervision
by the arbitrator. The determination of the arbitrator shall be conclusive and
binding upon the parties and judgment upon the same may be entered in any court
having jurisdiction thereof. The arbitrator shall give written notice to the
parties stating the arbitrator's determination, and shall furnish to each party
a signed copy of such determination. The expenses of arbitration shall be borne
equally by the Company and the Executive or as the arbitrator equitably
determines consistent with the application of state or federal law; provided,
however, that the Executive's share of such expenses shall not exceed the
maximum permitted by law. Any arbitration or action pursuant to
Page 22 of 27
this Section 13 shall be governed by and construed in accordance with the
substantive laws of the State of New York and, where applicable, federal law,
without giving effect to the principles of conflict of laws of such State.
Notwithstanding the foregoing, the Company shall not be required to seek or
participate in arbitration regarding any actual or threatened breach of the
Executive's covenants in Section 10, but may pursue its remedies, including
injunctive relief, for such breach in a court of competent jurisdiction in New
York City, or in the sole discretion of the Company, in a court of competent
jurisdiction where the Executive has committed or is threatening to commit a
breach of the Executive's covenants, and no arbitrator may make any ruling
inconsistent with the findings or rulings of such court.
14. SUCCESSORS AND BINDING AGREEMENT.
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all
or substantially all of the business or assets of the Company, by
agreement in form and substance reasonably satisfactory to Executive,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent the Company would be required to perform
if no such succession had taken place. This Agreement will be binding
upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any persons acquiring directly
or indirectly all or substantially all of the business or assets of
the Company whether by purchase, merger, consolidation, reorganization
or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), but will not otherwise
be assignable, transferable or delegable by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 14(a) and 14(b). Without limiting the
generality or effect of the foregoing, Executive's right to receive
payments hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest, or otherwise,
other than by a transfer by Executive's will or by the laws of descent
and distribution and, in the event of any attempted assignment or
transfer contrary to this Section 14(c), the Company shall have no
liability to pay any amount so attempted to be assigned, transferred
or delegated.
Page 23 of 27
15. NOTICES.
For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
when hand delivered or dispatched by electronic facsimile transmission (with
receipt thereof orally confirmed), or five (5) business days after having been
mailed by United States registered or certified mail, return receipt requested,
postage prepaid, or three (3) business days after having been sent by an
internationally recognized overnight courier service, addressed to the Company
(to the attention of the Chief Executive Officer of the Company) at its
principal executive office and to Executive at his principal residence, or to
such other address as any party may have furnished to the other in writing and
in accordance herewith, except that notices of changes of address shall be
effective only upon receipt.
16. GOVERNING LAW.
The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive
laws of the State of New York and federal law, without giving effect to the
principles of conflict of laws, except as expressly provided herein. In the
event the Company exercises its discretion under Section 10(e) to bring an
action to enforce the covenants contained in Section 10 in a court of competent
jurisdiction where the Executive has breached or threatened to breach such
covenants, and in no other event, the parties agree that the court may apply the
law of the jurisdiction in which such action is pending in order to enforce the
covenants to the fullest extent permissible. Notwithstanding the foregoing, to
the extent that Bermuda law restricts the ability of the Company to fully comply
with the express terms of this Agreement, the Company may modify this Agreement
to the extent necessary to comply with such law and such modification shall not
be deemed to be a breach of this Agreement by the Company.
17. VALIDITY.
Any provision of this Agreement that is deemed invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective, to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal or unenforceable in any other jurisdiction. If any covenant in
Section 10 should be deemed invalid, illegal or unenforceable because its time,
geographical area, or restricted activity, is considered excessive, such
covenant shall be modified to the minimum extent necessary to render the
modified covenant valid, legal and enforceable.
Page 24 of 27
18. MISCELLANEOUS.
No provision 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 or compliance with any condition or provision
of this Agreement to be performed by such other party will 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, expressed
or implied with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement. The headings used in
this Agreement are intended for convenience or reference only and shall not in
any manner amplify, limit, modify or otherwise be used in the construction or
interpretation of any provision of this Agreement. References to Sections are
references to Sections of this Agreement. Any reference in this Agreement to a
provision of a statute, rule or regulation shall also include any successor
thereto.
19. SURVIVAL.
Notwithstanding any provision of this Agreement to the contrary, the
parties' respective rights and obligations under Sections 8, 9, 10, 11, 12, 13,
14(b) and 15 will survive any termination or expiration of this Agreement or the
termination of the Executive's employment for any reason whatsoever.
20. BENEFICIARIES.
The Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death,
and may change such election, in either case by giving the Company written
notice thereof in accordance with Section 15. In the event of the Executive's
death or a judicial determination of the Executive's incompetence, reference in
this Agreement to the "Executive" shall be deemed, where appropriate, to be the
Executive's beneficiary, estate or other legal representative.
21. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same agreement.
22. ENTIRE AGREEMENT.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the Executive's employment by the
Company and may not be contradicted by evidence of any prior or contemporaneous
Page 25 of 27
agreement. The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceedings to vary the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first written above.
EXECUTIVE:
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XXXXXXX X. XXXXXX
SCOTTISH ANNUITY & LIFE HOLDINGS, LTD.
By:
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Name:
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Title:
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Page 27 of 27
