Exhibit 10.9
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated [_______________], 2006, to take
effect as of the Closing Date referred to in Section 1 hereof, between
Castlewood Holdings Limited, a Bermuda corporation ("Company"), Castlewood (US)
Inc., a Delaware corporation ("Castlewood (US)"), and Xxxx X. Xxxx
("Executive").
BACKGROUND
Company and Castlewood (US) desire to employ Executive, and Executive
desires to be an employee of Company and Castlewood (US), on the terms and
conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein and intending to be legally bound hereby, the
parties hereto agree as follows:
TERMS
1. CAPACITY AND DUTIES
1.1 EMPLOYMENT; ACCEPTANCE OF EMPLOYMENT. Company and Castlewood (US)
hereby employ Executive and Executive hereby agrees to be employed by Company
and Castlewood (US) for the period and upon the terms and conditions hereinafter
set forth. Effective on the Closing Date, as defined in the Agreement and Plan
of Merger, dated on or about May 23, 2006 (the "Merger Agreement"), among
Company, CWMS Merger Corp., a Georgia corporation and a direct wholly-owned
subsidiary of Company, and The Enstar Group, Inc. ("Enstar"), a Georgia
corporation, the Employment Agreement between Enstar and Executive dated March
2, 2000 and any other employment agreements between Executive and Enstar or any
affiliate thereof are hereby terminated and the rights and obligations of each
party shall be governed by this Agreement. For the avoidance of doubt, the
consummation of the transactions contemplated in the Merger Agreement shall not
be a "Change in Control" for purposes of this Agreement. In the event the Merger
Agreement is terminated pursuant to the provisions thereof, this Agreement shall
become void and shall have no effect, and the terms of the Employment Agreement,
as dated March 2, 2000 and as in effect immediately prior to the execution of
this Agreement shall continue in full force and effect.
1.2 CAPACITY AND DUTIES.
(a) Executive shall serve as Executive Chairman of Company, and shall
perform such duties and shall have such authority consistent with his position
as may from time to time be specified by the Board of Directors of Company.
Executive shall report directly to the Board of Directors of Company and his
principal place of business shall be Company's office in Bermuda. It is
recognised that extensive travel may be necessary or appropriate in connection
with the performance of Executive's duties as Executive Chairman of Company.
Executive shall not conduct any business in the United States in his capacity as
Executive Chairman of the Company.
Executive shall also serve as Executive Chairman of Castlewood (US),
and shall perform such duties and shall have such authority consistent with his
position as may from time to time be specified by the Board of Directors of
Castlewood (US). Executive shall report directly to the Board of Directors of
Castlewood (US) and his principal place of business shall be Company's office in
New York City.
(b) Executive shall devote 50% of his full working time (at least 70
hours per month including travel time and including paid vacation as provided in
Section 3.4), energy, skill and best efforts to the performance of his duties
hereunder, in a manner that will comply with Company's and Castlewood (US)'s
rules and policies and will faithfully and diligently further the business and
interests of Company and Castlewood (US). Executive shall not be employed by or
participate or engage in or in any manner be a part of the management or
operation of any business enterprise other than Company and Castlewood (US)
without the prior written consent of Company and Castlewood (US), which consent
may be granted or withheld in the reasonable discretion of the Board of
Directors of Company and Castlewood (US). Notwithstanding anything herein to the
contrary, nothing shall preclude Executive from (i) serving on the boards of
directors of a reasonable number of other corporations or the boards of a
reasonable number of trade associations and/or charitable organizations, (ii)
serving as an officer or director of X.X. Xxxxxxx & Co. LLC and its affiliates,
(iii) engaging in charitable, community and other business affairs, and (iv)
managing his personal investments and affairs, provided that such activities do
not materially interfere with the proper performance of his responsibilities and
duties hereunder.
2. TERM OF EMPLOYMENT
2.1 TERM. The term of Executive's employment hereunder shall be five years
commencing on the Closing Date, as further extended or unless sooner terminated
in accordance with the other provisions hereof (the "Term"). Except as
hereinafter provided, on the fifth anniversary of the commencement date and on
each subsequent anniversary thereof, the Term shall be automatically extended
for one year unless either party shall have given to the other party written
notice of termination of this Agreement at least 120 days prior to such
anniversary. If written notice of termination is given as provided above,
Executive's employment under this Agreement shall terminate on the last day of
the Term.
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3. COMPENSATION
3.1 BASIC COMPENSATION. As compensation for Executive's services, during
the first twelve months of the Term, Castlewood (US) shall pay to Executive a
salary at the annual rate of $282,500 payable in periodic installments in
accordance with Castlewood (US)'s regular payroll practices in effect from time
to time. For each subsequent twelve-month period of Executive's employment
hereunder, Executive's salary shall be in the amount of his initial annual
salary with such increases as may be established by the Board of Directors of
Castlewood (US) in consultation with Executive, provided that the increase in
base salary with respect to each subsequent twelve-month period shall not be
less than the product of Executive's base salary multiplied by the annual
percentage increase in the retail price index (expressed as a decimal) for the
United States, as reported in the most recent report of the U.S. Department of
Labor for the preceding twelve-month period. The resulting base salary will be a
percentage of the annual base salary of the Chief Executive Officer of the
Company with the guideline for such percentage being 50% but this can be varied
by the Compensation Committee of the Company. Once increased, Executive's annual
salary cannot be decreased without the written consent of Executive. Executive's
annual salary, as determined in accordance with this Section 3.1, is hereinafter
referred to as his "Base Salary."
3.2 PERFORMANCE BONUS. Executive shall, following the completion of each
fiscal year of Company during the Term, be eligible for a performance bonus in
accordance with the performance bonus plan established by Company; it being
understood that Executive's performance bonus opportunity will be a percentage
of the performance bonus opportunity of the Chief Executive Officer of the
Company with the guideline for this percentage being 50% but this can be varied
by the Compensation Committee of the Company. Executive shall also be eligible
for additional equity and other incentive awards, at a level commensurate with
his position of Executive Chairman and in accordance with the policies and
practices of Company; it will be a percentage of the equity and other incentive
award opportunity afforded the Chief Executive Officer of the Company with the
guideline for this percentage being 50% but this can be varied by the
Compensation Committee of the Company.
3.3 EMPLOYEE BENEFITS. During the Term, Executive shall be entitled to
participate in Castlewood (US)'s 401(k) plan and to receive the medical, dental
and long term disability coverage under Castlewood (US)'s benefit plans, as
Castlewood (US) may provide from time to time, and such other benefits that
Castlewood (US) makes available to its senior management and, to the extent
Executive's entitlement does result in a duplication of benefits, Company makes
available to its senior management. In addition, during the Term Executive shall
be entitled to and Castlewood (US) shall provide or cause to be provided to
Executive the following:
(a) a life insurance policy in the amount of five times Executive's
Base Salary, provided that Executive assists Company in the procurement of such
policy
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(including, without limitation, submitting to any required physical examinations
and completing accurately any applicable applications and or questionnaires);
(b) fully comprehensive medical and dental coverage under Castlewood
(US)'s benefit plan for Executive, his spouse and dependents and an annual
medical examination for same;
(c) long term disability coverage, including coverage for serious
illness, and full compensation paid by Castlewood (US) during the period up to
and until Executive begins receiving benefits under such long term disability
plan. In the event that the generally applicable group long-term disability plan
contains a limitation on benefits that would result in Executive's being
entitled to benefit payments under such plan which are less than 50% of his
salary, Castlewood (US) shall provide Executive with an individual disability
policy paying a benefit amount that, when coupled with the group policy benefit
payable, would provide Executive with aggregate benefits in connection with his
long-term disability equal to 50% of such salary (provided that, if an
individual policy can not be obtained for such amount on commercially reasonable
rates and on commercially reasonable terms, Castlewood (US) shall provide
Executive with a policy providing for the greatest amount of individual coverage
that is available on such standard terms and rates). Provision of any individual
disability policy will also be contingent upon Executive being able to be
insured at commercially reasonable rates and on commercially reasonable terms
and upon Executive assisting Castlewood (US) in the procurement of such policy
(including, without limitation, submitting to any required physical examinations
and completing accurately any applicable applications and or questionnaires);
and
(d) payment from Castlewood (US) of an amount equal to 10% of
Executive's Base Salary, less an amount, if any, equal to non-elective employer
contributions made to Castlewood (US)'s 401(k) plan for the benefit of
Executive, each year to Executive as contribution to his pension plans.
3.4 VACATION. During the Term, Executive shall be entitled to a paid
vacation of 15 days per year (including 15 days during 2006).
3.5 EXPENSE REIMBURSEMENT. Castlewood (US) shall reimburse Executive for
all reasonable out-of-pocket expenses incurred by him in connection with the
performance of his duties under this Agreement in accordance with its regular
reimbursement policies as in effect from time to time.
4. TERMINATION OF EMPLOYMENT
4.1 DEATH OF EXECUTIVE. If Executive dies during the Term, and for the year
in which Executive dies, Company achieves the performance goals established in
accordance with any incentive plan in which Executive participates, Castlewood
(US) shall pay Executive's estate on the date set forth in such plan an amount
equal to the bonus that Executive would have received had he been employed by
Company or one of
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its affiliates for the full year, multiplied by a fraction, the numerator of
which is the number of calendar days Executive was employed in such year and the
denominator of which is 365. In addition, Executive's spouse and dependents (if
any) shall be entitled for a period ending on December 31 of the second calendar
year commencing on the date of termination, to continue to receive medical
benefits coverage (as described in Section 3.3) at Castlewood's expense if and
to the extent Castlewood (US) was paying for such benefits for Executive's
spouse and dependents at the time of Executive's death.
4.2 DISABILITY. If Executive is or has been materially unable for any
reason to perform his duties hereunder for 120 days during any period of 150
consecutive days, Company and Castlewood (US) shall have the right to terminate
Executive's employment upon 30 days' prior written notice to Executive at any
time during the continuation of such inability. In the event of termination
under this Section 4.2, (a) Castlewood (US) shall thereafter be obligated to
continue to pay Executive's Base Salary for a period of 36 months, periodically
in accordance with Castlewood (US)'s regular payroll practices, unless Executive
is at such time a "specified employee" for purposes of Section 409A ("Section
409A") of the Internal Revenue Code of 1986, as amended, in which event payment
shall not commence until the first business day after the six month anniversary
of such termination of employment, at which time the amounts that would
otherwise have been paid during such six months shall be paid in a lump sum, and
(b) Castlewood (US), on the 10th day following the date of termination, shall
pay any other amounts (including salary, bonuses, expense reimbursement, etc.)
that have been fully earned by, but not yet paid to, Executive under this
Agreement as of the date of such termination. The amount of payments to
Executive under disability insurance policies paid for by Castlewood (US) shall
be credited against and shall reduce the Base Salary otherwise payable by
Castlewood (US) following termination of employment. If, for the year in which
Executive's employment is terminated pursuant to this Section 4.2, Company
achieves the performance goals established in accordance with any incentive plan
in which Executive participates, Castlewood (US) shall pay Executive an amount
equal to the bonus that Executive would have received had he been employed by
Company and Castlewood (US) for the full year, multiplied by a fraction, the
numerator of which is the number of calendar days Executive was employed in such
year and the denominator of which is 365; such amount shall be paid on the date
set forth in such bonus plan or, if later and if required to comply with Section
409A, on the first business day after the six month anniversary of such
termination of employment. Executive shall be entitled for a period ending on
December 31 of the second calendar year commencing on the date of termination,
to continue to receive at Castlewood (US)'s expense medical benefits coverage
(as described in Section 3.3) for Executive and Executive's spouse and
dependents (if any) if and to the extent Castlewood (US) was paying for such
benefits to Executive and Executive's spouse and dependents at the time of such
termination.
4.3 TERMINATION FOR CAUSE. Executive's employment hereunder shall terminate
immediately upon notice that the Board of Directors of Company is terminating
Executive for Cause (as defined herein), in which event Company and Castlewood
(US) shall not thereafter be obligated to make any further payments hereunder
other than amounts (including salary, expense reimbursement, etc.) that have
been fully earned by,
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but not yet paid to, Executive under this Agreement as of the date of such
termination. "Cause" shall mean (a) fraud or dishonesty in connection with
Executive's employment that results in a material injury to Company, (b)
conviction of any felony or crime involving fraud or misrepresentation or (c)
after Executive has received written notice of the specific material and
continuing failure of Executive to perform his duties hereunder (other than
death or disability) and has failed to cure such failure within 30 days of
receipt of the notice, or (d) material and continuing failure to follow
reasonable instructions of the Board of Directors of Company or Castlewood (US)
after Executive has received prior written notice of the specific material and
continuing failure to follow instructions and has failed to cure such failure
within 30 days of receipt of the notice.
4.4 TERMINATION WITHOUT CAUSE OR FOR GOOD REASON.
(a) If (1) Executive's employment is terminated by Company or
Castlewood (US) for any reason other than Cause or the death or disability of
Executive, or (2) Executive's employment is terminated by Executive for Good
Reason (as defined herein):
(i) Castlewood (US) shall pay Executive any amounts (including
salary, bonuses, expense reimbursement, etc.) that have been fully earned by,
but not yet paid to, Executive under this Agreement as of the date of such
termination;
(ii) Castlewood (US) shall pay Executive a lump sum amount equal
to three times the Base Salary payable to him on the 10th day following the date
of such termination or if Executive is at such time a "specified employee" for
purposes of Section 409A, on the first business day following the six month
anniversary of such termination;
(iii) Executive shall be entitled to continue to receive medical
benefits coverage (as described in Section 3.3) for Executive and Executive's
spouse and dependents (if any) at Castlewood (US)'s expense for a period ending
on December 31 of the second calendar year commencing on the date of
termination;
(iv) Anything to the contrary in any other agreement or document
notwithstanding, each outstanding equity incentive award granted to Executive
before, on or within three years after the Closing Date shall become immediately
vested and exercisable on the date of such termination; and
(v) In addition, if, for the year in which Executive is
terminated, Company achieves the performance goals established in accordance
with any incentive plan in which Executive participates, Castlewood (US) shall
pay an amount equal to the bonus that Executive would have received had he been
employed by Company or Castlewood (US) for the full year; such amount shall be
paid on the date set forth in such bonus plan or, if later and if required to
comply with Section 409A, on the first business day after the six month
anniversary of such termination of employment.
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(b) Upon making the payments described in this Section 4.4, Company
and Castlewood (US) shall have no further obligation to Executive under this
Agreement.
(c) "Good Reason" shall mean the following:
(i) material breach of Company's or Castlewood (US)'s obligations
hereunder, provided that Executive shall have given written notice thereof to
Company or Castlewood (US), as applicable, and Company and Castlewood (US) shall
have failed to remedy the circumstances within 30 days;
(ii) in respect of Company, the relocation of Executive's
principal business office outside of Bermuda without the Executive's prior
agreement and, in respect of Castlewood (US), the relocation of Executive's
principal business office outside of New York City without the Executive's prior
agreement; or
(iii) any material reduction in Executive's duties or authority.
4.5 CHANGE IN CONTROL.
(a) If, during the Term, there should be a Change of Control (as
defined herein), and within 1 year thereafter either (i) Executive's employment
should be terminated for any reason other than for Cause or (ii) Executive
terminates his employment for Good Reason (as defined in Section 4.4):
(i) Castlewood (US) shall pay Executive any amounts (including
salary, bonuses, expense reimbursement, etc.) that have been fully earned by,
but not yet paid to, Executive under this Agreement as of the date of such
termination;
(ii) Castlewood (US) shall pay Executive a lump sum amount equal
to three times Executive's then current Base Salary on the 10th day following
the date of such termination or if Executive is at such time a "specified
employee" for purposes of Section 409A, on the first business day after the six
month anniversary of such termination;
(iii) Executive shall be entitled to continue to receive medical
benefits coverage (as described in Section 3.3) for Executive and Executive's
spouse and dependents (if any) at Castlewood (US)'s expense for a period of
ending on December 31 of the second calendar year commencing on the date of
termination;
(iv) Anything to the contrary in any other agreement or document
notwithstanding, each outstanding equity incentive award granted to Executive
before, on or after the date hereof shall become immediately vested and
exercisable on the date of such termination; and
(v) In addition, if, for the year in which Executive is
terminated, Company achieves the performance goals established in accordance
with any
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incentive plan in which Executive participates, Castlewood (US) shall pay an
amount equal to the bonus that Executive would have received had he been
employed by Company or Castlewood (US) for the full year; such amount shall be
paid on the date set forth in such bonus plan or, if later and if required to
comply with Section 409A, on the first business day after the six month
anniversary of such termination of employment.
(b) Upon making the payments described in this Section 4.5, Company
and Castlewood (US) shall have no further obligation to Executive under this
Agreement.
(c) A "Change in Control" shall mean:
(i) the acquisition by any person, entity or "group" required to
file a Schedule 13D or Schedule 14D-1 under the Securities Exchange Act of 1934
(the "1934 Act") (excluding, for this purpose, Company, its subsidiaries, any
employee benefit plan of Company or its subsidiaries which acquires ownership of
voting securities of Company, and any group that includes Executive) of
beneficial ownership (within the meaning of Rule 13d-3 under the 0000 Xxx) of
50% or more of either the then outstanding ordinary shares or the combined
voting power of Company's then outstanding voting securities entitled to vote
generally in the election of directors;
(ii) the election or appointment to the Board of Directors of
Company, or resignation of or removal from the Board, of directors with the
result that the individuals who as of the date hereof constituted the Board (the
"Incumbent Board") no longer constitute at least a majority of the Board,
provided that any person who becomes a director subsequent to the date hereof
whose appointment, election, or nomination for election by Company's
shareholders, was approved by a vote of at least a majority of the Incumbent
Board (other than an appointment, election or nomination of an individual whose
initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of Company) shall be,
for purposes of this Agreement, considered as though such person were a member
of the Incumbent Board; or
(iii) approval by the shareholders of Company of: (i) a
reorganization, merger or consolidation by reason of which persons who were the
shareholders of Company immediately prior to such reorganization, merger or
consolidation do not, immediately thereafter, own more than 50% of the combined
voting power of the reorganized, merged or consolidated company's then
outstanding voting securities entitled to vote generally in the election of
directors, or (ii) a liquidation or dissolution of Company or the sale,
transfer, lease or other disposition of all or substantially all of the assets
of Company (whether such assets are held directly or indirectly).
5. RESTRICTIVE COVENANTS
5.1 RESTRICTIVE COVENANTS.
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(a) Executive acknowledges that he is one of a small number of key
executives and that in such capacity, he will have access to confidential
information of Company and its affiliates and will engage in key client
relationships on behalf of Company and that it is fair and reasonable for
protection of the legitimate interests of Company and the other key executives
of Company that he should accept the restrictions described in Exhibit A hereto.
(b) Promptly following Executive's termination of employment, Executive
shall return to Company all property of Company, and all documents, accounts,
letters and papers of every description relating to the affairs and business of
Company or any of its subsidiaries, and copies thereof in Executive's possession
or under his control.
(c) Executive acknowledges and agrees that the covenants and obligations of
Executive in Exhibit A and this Section 5.1 relate to special, unique and
extraordinary matters and that a violation of any of the terms of such covenants
and obligations will cause Company irreparable injury for which adequate
remedies are not available at law. Therefore, Executive agrees that Company
shall be entitled to an injunction, restraining order or such other equitable
relief (without the requirement to post bond) restraining Executive from
committing any violation of the covenants and obligations contained in Exhibit A
and this Section 5.1. These injunctive remedies are cumulative and are in
addition to any other rights and remedies Company may have at law or in equity.
(d) Executive agrees that if he applies for, or is offered employment by
(or is to provide consultancy services to) any other person, firm, company,
business entity or other organization whatsoever (other than an affiliate of
Company) during the restriction periods set forth in Exhibit A, he shall
promptly, and before entering into any contract with any such third party,
provide to such third party a full copy of Exhibit A and this Section 5.1 in
order to ensure that such other party is fully aware of Executive's obligations
hereunder.
5.2 INTELLECTUAL PROPERTY RIGHTS. Executive recognizes and agrees that
Executive's duties for Company or Castlewood (US) may include the preparation of
materials, including written or graphic materials for Company, Castlewood (US)
or their affiliates, and that any such materials conceived or written by
Executive shall be done within the scope of his employment as a "work made for
hire." Executive agrees that because any such work is a "work made for hire,"
Company (or the relevant affiliate of Company) will solely retain and own all
rights in said materials, including rights of copyright. Executive agrees to
disclose and assign to Company his entire right, title and interest in and to
all inventions and improvements related to Company's business or to the business
of Company's affiliates (including, but not limited to, all financial and sales
information), whether patentable or not, whether made or conceived by him
individually or jointly with others at any time during his employment by Company
or Castlewood (US) hereunder. Such inventions and improvements are to become and
remain the property of Company and Executive shall take such actions as are
reasonably necessary to effectuate the foregoing.
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6. MISCELLANEOUS
6.1 KEY EMPLOYEE INSURANCE. Company and Castlewood (US) shall each have the
right at their own expense to purchase insurance on the life of Executive, in
such amounts as it shall from time to time determine, of which either Company or
Castlewood (US), as applicable, shall be the beneficiary. Executive shall submit
to such physical examinations as may reasonably be required and shall otherwise
cooperate with Company in obtaining such insurance.
6.2 INDEMNIFICATION/LITIGATION. Company and Castlewood (US) shall indemnify
and defend Executive against all claims arising out of Executive's activities as
an officer or employee of Company, Castlewood (US) or their affiliates to the
fullest extent permitted by law and under Company's and Castlewood (US)'s
organizational documents. At the request of Company, Executive shall during and
after the Term render reasonable assistance to Company in connection with any
litigation or other proceeding involving Company or any of its affiliates.
Company shall provide reasonable compensation to Executive for such assistance
rendered after the Term.
6.3 NO MITIGATION. In no event shall Executive be required to seek other
employment or take any other action by way of mitigation of the amounts payable
to Executive under this Agreement, and such amounts shall not be reduced whether
or not Executive obtains other employment after termination of his employment
hereunder.
6.4 SEVERABILITY. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof.
6.5 ASSIGNMENT; BENEFIT. This Agreement shall not be assignable by
Executive, and shall be assignable by Company and Castlewood (US) only with
Executive's consent and only to any person or entity which may become a
successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company or Castlewood (US) in the business or substantially all of
the business presently operated by it. Any Change in Control is deemed an
assignment. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.6 NOTICES. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by facsimile, receipt acknowledged, addressed as set forth below or
to such other person and/or at such other address as may be furnished in writing
by any party hereto to the other. Any such notice shall be deemed to have been
given as of the date received, in the case of personal delivery, or on the date
shown on the receipt or confirmation therefor, in all other cases. Any and all
service of process and any other notice in any action, suit or proceeding shall
be effective against any party if given as provided in this Agreement; provided
that
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nothing herein shall be deemed to affect the right of any party to serve process
in any other manner permitted by law.
(a) If to Company:
Castlewood Holdings Limited
X.X. Xxx XX 0000
Xxxxxxx Xxxxx, 0xx Xxxxx
18 Queen Street
Xxxxxxxx, XX JX
Bermuda
Attention: Xxxx X'Xxxx
(b) If to Castlewood (US):
Castlewood (US) Inc.
[Insert Address]
Attention: [________________]
with a copy to:
Castlewood Holdings Limited
X.X. Xxx XX 0000
Xxxxxxx Xxxxx, 0xx Xxxxx
18 Queen Street
Xxxxxxxx, XX JX
Bermuda
Attention: Xxxx X'Xxxx
(b) If to Executive:
Xxxx X. Xxxx
[Insert Address]
Facsimile No.: [__________________]
6.7 ENTIRE AGREEMENT; MODIFICATION; ADVICE OF COUNSEL.
(a) This Agreement constitutes the entire agreement between the
parties hereto with respect to the matters contemplated herein and supersedes
all prior
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agreements and understandings with respect thereto. No addendum, amendment,
modification, or waiver of this Agreement shall be effective unless in writing.
Neither the failure nor any delay on the part of any party to exercise any right
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy preclude any other or further exercise
of the same or of any other right or remedy with respect to such occurrence or
with respect to any other occurrence.
(b) Executive acknowledges that he has been afforded an opportunity to
consult with his counsel with respect to this Agreement.
(c) Company, Castlewood (US) and Executive recognize that certain
amounts that may become payable under this Agreement are or may be subject to
Section 409A, that final guidance under Section 409A has not been issued but is
anticipated in the near future, and that failure to comply with Section 409A may
result in adverse tax consequences to Executive. Therefore, Company, Castlewood
(US) and Executive shall use their best efforts to amend this Agreement
following the issuance of such final guidance to the extent necessary with
respect to amounts that may become payable hereunder either to provide for the
exemption of such amounts from the requirements of Section 409A or to comply
with the requirements of Section 409A.
6.8 GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of Delaware, to the extent
applicable, without giving effect to otherwise applicable principles of
conflicts of law.
6.9 HEADINGS; COUNTERPARTS. The headings of paragraphs in this Agreement
are for convenience only and shall not affect its interpretation. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
an original and all of which, when taken together, shall be deemed to constitute
the same Agreement.
6.10 FURTHER ASSURANCES. Each of the parties hereto shall execute such
further instruments and take such additional actions as the other party shall
reasonably request in order to effectuate the purposes of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
CASTLEWOOD HOLDINGS LIMITED
By:________________________________________
Name:
Title:
CASTLEWOOD (US) INC.
By:________________________________________
Name:
Title:
__________________________________________
Xxxx X. Xxxx
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EXHIBIT A
RESTRICTIVE COVENANTS
A. Noncompetition. During the Term and, if Executive fails to remain employed
through the fifth anniversary of the Closing Date, for a period of eighteen
(18) months after Executive's employment terminates (the "Restriction
Period"), Executive shall not, without the prior written permission of the
Board of Company, directly or indirectly engage in any Competitive
Activity. The term "Competitive Activity" shall include (i) entering the
employ of, or rendering services to, any person, firm or corporation
engaged in the insurance and reinsurance run-off or any other business in
which Company or any of its affiliates has been engaged at any time during
the last twelve months of the Term and to which Executive has rendered
services or about which Executive has acquired Confidential Information or
by which Executive has been engaged at any time during the last twelve
months of his period of employment hereunder and in each case in any
jurisdiction in which Company or any of its affiliates has conducted
substantial business (hereinafter defined as the "Business"); (ii) engaging
in the Business for Executive's own account or (becoming interested in any
such Business, directly or indirectly, as an individual, partner,
shareholder, member, director, officer, principal, agent, employee,
trustee, consultant, or in any other similar capacity; provided, however,
nothing in this Paragraph A shall prohibit Executive from owning, solely as
a passive investment, 5% or less of the total outstanding securities of a
publicly-held company, or any interest held by Executive in a
privately-held company as of the date of this Agreement; provided further
that the provisions of this Paragraph A shall not apply in the event
Executive's employment with Company is terminated without Cause or with
Good Reason.
B. Confidentiality. Without the prior written consent of Company, except to
the extent required by an order of a court having competent jurisdiction or
under subpoena from an appropriate regulatory authority, Executive shall
not disclose and shall use his best endeavours to prevent the disclosure of
any trade secrets, customer lists, market data, marketing plans, sales
plans, management organization information (including data and other
information relating to members of the Board and management), operating
policies or manuals, business plans or financial records, or other
financial, commercial, business or technical information relating to
Company or any of its subsidiaries or affiliates or information designated
as confidential or proprietary that Company or any of its subsidiaries or
affiliates may receive belonging to clients or others who do business with
Company or any of its subsidiaries or affiliates (collectively,
"Confidential Information") to any third person unless such Confidential
Information has been previously disclosed to the public by Company or any
of its subsidiaries or affiliates or is in the public domain (other than by
reason of Executive's breach of this Paragraph B). In the event that
Executive is required to
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disclose Confidential Information in a legal proceeding, Executive shall
provide Company with notice of such request as soon as reasonably
practicable, so that Company may timely seek an appropriate protective
order or waive compliance with this Paragraph B, except if such notice
would be unlawful or would place Executive in breach of an undertaking he
is required to give by law or regulation.
C. Non-Solicitation of Employees. During the Restriction Period, Executive
shall not, without the prior written permission of the Board of Company,
directly or indirectly induce any Senior Employee of Company or any of its
affiliates to terminate employment with such entity, and shall not directly
or indirectly, either individually or as owner, agent, employee, consultant
or otherwise, offer employment to or employ any Senior Employee unless such
person shall have ceased to be employed by Company or any affiliate for a
period of at least six (6) months. For the purpose of this Paragraph C,
"Senior Employee" shall mean a person who, at any time during the last
twelve months of Executive's period of employment hereunder:
(i) is engaged or employed (other than in a clerical, secretarial or
administrative capacity) as an employee, director or consultant of
Company or its affiliates; and
(ii) is or was engaged in a capacity in which he obtained Confidential
Information; and
(iii) had personal dealings with Executive.
D. Non-Disparagement. Executive shall not do or say anything adverse or
harmful to, or otherwise disparaging of, Company or its subsidiaries and
their respective goodwill. Company shall not, and shall use reasonable
efforts to ensure that its officers, directors, employees and subsidiaries
do not do or say anything adverse or harmful to, or otherwise disparaging
of, Executive and his goodwill; provided that no action by either party in
connection with the enforcement of its rights hereunder shall be construed
as a violation of this Paragraph D.
E. Definition. In this Exhibit A, "directly or indirectly" (without prejudice
to the generality of the expression) means whether as principal or agent
(either alone or jointly or in partnership with any other person, firm or
company) or as a shareholder, member or holder of loan capital in any other
company or being concerned or interested in any other person, firm or
company and whether as a director, partner, consultant, employee or
otherwise.
F. Severability. Each of the provisions contained in this Exhibit A is and
shall be construed as separate and severable and if one or more of such
provisions is held to be against the public interest or unlawful or in any
way an unreasonable restraint of trade or unenforceable in whole or in part
for any reason, the
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remaining provisions of this Exhibit A or part thereof, as appropriate,
shall continue to be in full force and effect.
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