EXHIBIT 10.6
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is dated May 23, 2006, to take effect as
of the Closing Date referred to in Section 1 hereof, between Castlewood Holdings
Limited, a Bermuda corporation ("Company"), and Xxxx X'Xxxx ("Executive").
BACKGROUND
Company desires to employ Executive, and Executive desires to be an
employee of Company, 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 hereby employs
Executive and Executive hereby agrees to continue employment by Company 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 Enstar
Group, Inc., a Georgia corporation, 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. As of the Closing Date,
the Employment Agreement between Company and Executive dated November 29, 2001
and any other employment agreements between Executive and Company or any
affiliate thereof are hereby terminated. 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 entered
into on November 29, 2001 and as in effect immediately prior to the Closing Date
shall continue in full force and effect.
1.2 CAPACITY AND DUTIES.
(a) Executive shall serve as an Executive Vice President of Company.
Executive shall also serve as President and Chief Executive Officer of
Castlewood Limited, a wholly-owned subsidiary of Company. Executive shall
perform such duties and shall have such authority consistent with his position
as may from time to time be specified by the Chief Executive Officer of Company.
Executive shall report directly to the Chief Executive Officer of Company and
his 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 hereunder.
(b) Executive shall devote his full working time (at least 140 hours
per month including travel time), energy, skill and best efforts to the
performance of his duties hereunder, in a manner that will comply with Company's
rules and policies and will faithfully and diligently further the business and
interests of Company. 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 without the prior written consent of
Company, which consent may be granted or withheld in the reasonable discretion
of the Board of Directors of Company. 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)
engaging in charitable, community and other business affairs, and (iii) 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.
3. COMPENSATION
3.1 BASIC COMPENSATION. As compensation for Executive's services, from
April 1, 2006 and through the first twelve months of the Term, Company shall pay
to Executive a salary at the annual rate of $440,000 payable in periodic
installments in accordance with Company'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 Company 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. 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 Company's performance bonus plan. Executive shall also be
eligible for additional equity and other incentive awards, at a level
commensurate with his position and in accordance with the policies and practices
of the Company.
3.3 EMPLOYEE BENEFITS. During the Term, Executive shall be entitled to
participate in such of Company's employee benefit plans and benefit programs, as
may from time to time be provided by Company. In addition, during the Term,
Executive shall be entitled to the following:
(a) a housing allowance equal to $8,500 per month;
(b) a life insurance policy in the amount of five times the
Executive's Base Salary, provided that Executive assists Company in the
procurement of such policy (including, without limitation, submitting to any
required physical examinations and completing accurately any applicable
applications and or questionnaires);
(c) fully comprehensive medical and dental coverage on a worldwide
basis for the Executive, his spouse and dependents and an annual medical
examination for same;
(d) long term disability coverage, including coverage for serious
illness, and full compensation paid by Company 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, Company
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, Company 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 Company
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
(e) payment from the company of an amount equal to 10% of
Executive's Base Salary 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 30 days per year (including 30 days during 2006).
3.5 EXPENSE REIMBURSEMENT. Company shall reimburse Executive for all
reasonable out-of-pocket expenses incurred by him in connection with the
performance of his duties hereunder 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, Company
shall pay Executive's estate an amount equal to the bonus that Executive would
have received had he been employed by Company 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 of 36
months, to continue to receive medical benefits coverage (as described in
Section 3.3) at Company's expense if and to the extent Company 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 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 which event Company shall thereafter be
obligated to continue to pay Executive's Base Salary for a period of 36 months,
periodically in accordance with Company's regular payroll practices and, within
30 days of such notice, 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
Company shall be credited against and shall reduce the Base Salary otherwise
payable by Company following termination of employment. If, for the year in
which Executive's employment is terminated pursuant to this Section, Company
achieves the performance goals established in accordance with any incentive plan
in which Executive participates, Company shall pay Executive an amount equal to
the bonus that Executive would have received had he been employed by Company 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. Executive shall be entitled for a period of 36 months, to continue to
receive at Company'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 Company 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
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, 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 after Executive has
received at least 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 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) Company 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) Company shall pay Executive a lump sum amount equal to
three times the Base Salary payable to him;
(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 Company's expense for a period of
36 months;
(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, Company shall pay an
amount equal to the bonus that Executive would have received had he been
employed by Company for the full year.
(b) Upon making the payments described in this Section 4.4,
Company shall have no further obligation to Executive under this Agreement.
(c) "Good Reason" shall mean the following:
(i) material breach of Company's obligations hereunder,
provided that Executive shall have given written notice thereof to Company, and
Company shall have failed to remedy the circumstances within 30 days;
(ii) the relocation of Executive's principal business office
outside of Bermuda 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) Company 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) Company shall pay Executive a lump sum amount equal to
three times Executive's then current Base Salary;
(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 Company's expense for a period of
36 months;
(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 incentive plan in which Executive participates, Company shall pay an
amount equal to the bonus that Executive would have received had he been
employed by Company for the full year.
(b) Upon making the payments described in this Section 4.5,
Company shall have no further obligation to Executive under this Agreement.
(c) A "Change in Control" of Company 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.
(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 the Company and will engage in key client relationships on behalf
of the Company and that it is fair and reasonable for protection of the
legitimate interests of the Company and the other key executives of the Company
that he should accept the restrictions described in Exhibit A hereto.
(b) Promptly following Executive's termination of employment, Executive
shall return to the Company all property of the Company, and all documents,
accounts, letters and papers of every description relating to the affairs and
business of the 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 the Company irreparable injury for which adequate
remedies are not available at law. Therefore, Executive agrees that the 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 the 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 the
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 the Company may include the preparation of materials,
including written or graphic materials for the Company or its affiliate, 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," the Company (or the relevant
affiliate of the Company) will solely retain and own all rights in said
materials, including rights of copyright. Executive agrees to disclose and
assign to the Company his entire right, title and interest in and to all
inventions and improvements related to the Company's business or to the business
of the 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 the
Company hereunder. Such inventions and improvements are to become and remain the
property of the Company and Executive shall take such actions as are reasonably
necessary to effectuate the foregoing.
6. MISCELLANEOUS
6.1 KEY EMPLOYEE INSURANCE. Company shall have the right at its expense
to purchase insurance on the life of Executive, in such amounts as it shall from
time to time determine, of which Company 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 shall indemnify and defend
Executive against all claims arising out of Executive's activities as an officer
or employee of Company or its affiliates to the fullest extent permitted by law
and under Company'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 only with the 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 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 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: Xxxxxxx X. Xxxxxxxxx
(b) If to Executive:
Xxxx X'Xxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00
Xxxxxxx
Xxxxxxxxx No.: 1 441 292 6603
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 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.
6.8 GOVERNING LAW. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the laws of Bermuda, 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
CASTLEWOOD HOLDINGS LIMITED
By: ____________________________________
Name:
Title:
________________________________________
Xxxx X'Xxxx
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, 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 the 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 the 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 the Company is terminated without Cause
or with Good Reason.
B. Confidentiality. Without the prior written consent of the 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 the Company or any of its subsidiaries or affiliates or
information designated as confidential or proprietary that the Company or
any of its subsidiaries or affiliates may receive belonging to clients or
others who do business with the 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 the 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
disclose Confidential Information in a legal proceeding, Executive shall
provide the Company with notice of such request as soon as reasonably
practicable, so that the 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, directly or
indirectly induce any Senior Employee of the 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 the 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
the 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, the Company or its subsidiaries
and their respective goodwill. The 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 remaining provisions of this Exhibit A or part thereof, as
appropriate, shall continue to be in full force and effect.
