Exhibit 10(a)
SEPARATION AGREEMENT
AND
GENERAL RELEASE
THIS AGREEMENT is made as of the 15th day of April, 2002.
BETWEEN:
Overseas Partners Ltd., One Victoria Street, Xxxxxxxx (the "Company")
- and -
Xxxx X. Xxxxxxxx (the "Executive")
WHEREAS the Executive is employed by the Company; and
WHEREAS the Executive's employment with the Company shall end on the date
specified herein;
THEREFORE the Company and the Executive agree that:
1) The Executive's employment with the Company will end on April 15th,
2002 ("the Termination Date").
2) Subject to the Executive's compliance with her obligations under this
Agreement, the Company will pay to the Executive within ten (10) days
of the Termination Date, an amount calculated in accordance with
clause 5 c) of the employment agreement dated September 27, 2001 made
between the Company and the Executive (the "Employment Agreement") and,
to the extent permitted by law, the Company will provide continued
participation in the benefit plans referred to in clauses 4 (e) and
(g) of the Employment Agreement,or if not permitted by law the Company
will provide equivalent coverage, until the earlier of (x) the end of
the twelve (12) month period following the Termination Date and (y)
the date the Executive receives equivalent coverage and benefits under
plans and programs of a subsequent employer. Further, all outstanding
grants of restricted stock, stock options and stock appreciation
rights previously granted to the Executive shall vest in accordance
with clause 5 d) of the Employment Agreement. Save as otherwise
provided herein, the provision of this Agreement shall not affect the
Executive's rights with respect to the stock
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appreciation rights granted pursuant to the stock appreciation rights
award certificates between the Executive and the Company dated March
31, 2001 and August 15, 2001, nor with respect to the restricted stock
grants made pursuant to the Restricted Stock Grant Award Agreements
between the Executive and the Company dated August 15, 2001 nor with
respect to the option grants made pursuant to the Option Award
Agreement made between the Executive and the Company dated August 15,
2001. Except as specifically provided otherwise herein, the Executive
shall not be entitled to receive any amounts described in the
Employment Agreement, and hereby waives any rights she otherwise may
have to receive any such amounts.
3)a)The Executive agrees that without the express written consent of an
executive officer of the Company, including but not limited to the
Company's Chief Executive Officer (that is, the Chief Executive
Officer who replaces the Executive in that office or any subsequently
appointed Chief Executive Officer) and Chief Financial Officer, or as
otherwise provided herein, the Executive shall, for a period of two
years following the Termination Date, keep confidential all
"Confidential Information" as defined herein and shall not disclose
such Confidential information to any person. The term "Confidential
Information" means for the purposes hereof (a) all oral, visual,
electronic and/or written information concerning the clients, business
partners, operations, properties, contracts and finance of the Company
and its parent, affiliates and subsidiaries that is non-public,
confidential or proprietary in nature and, (b) the provisions of this
Agreement and the terms and conditions of the termination of the
Executive's employment with the Company including without limitation,
any payments made or to be made to the Executive in connection
herewith but shall not include information which (i) at the time of
disclosure is generally available to the public (other than as a
result of its disclosure by the Executive), and (ii) was or becomes
available to the Executive on a non-confidential basis from a source
other than the Company its parent, affiliates, subsidiaries or their
advisors or agents provided that the source is not known by the
Executive to be bound by any contractual, legal or fiduciary
obligation of confidentiality to the Company or any other party.
b) In the event that the Executive is required by law to disclose any
Confidential Information, the Executive will promptly notify the
Company so that the Company
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may seek an appropriate protective order and/or waive compliance with
the provisions of this Agreement. If, in the absence of a protective
order or other remedy or the receipt by the Executive of a waiver
hereunder, the Executive is compelled to disclose Confidential
Information, the Executive may disclose only that portion of the
Confidential Information that the Executive is legally required to
disclose.
c) The Executive agrees that for a period of two years from the date
hereof, the Executive will not, directly or indirectly, solicit for
employment or hire any employee of the Company or any of its
affiliates, provided however, that this clause will not prevent the
Executive from employing any such person who (i) contacts the
Executive on his or her own initiative without any direct solicitation
by the Executive or (ii) who responds to any general solicitation or
advertisement for employment.
4) The Executive agrees to cooperate with the Company in respect of any
reasonable requests by the Company, made within a reasonable period
after the Termination Date, for information or assistance relating to
any part of the Company's business or transactions in respect of which
the Executive has knowledge or was involved during the period of the
Executive's employment with the Company.
5) The Executive represents and confirms that the Executive has returned
or undertakes to return to the Company on or before the Termination
Date all lists of clients or customers, correspondence and all other
documents, papers and records which may have been prepared by the
Executive or have come into the Executive's possession in the course
of the Executive's employment with the Company, and that the Executive
has not retained and will not retain any copies thereof, without the
written consent of an executive officer of the Company, including but
not limited to the Company's Chief Executive Officer (as described in
clause 3) a) above) and Chief Financial Officer.
6) Nothing in this Agreement shall limit the provisions of Section 4 k),
the second paragraph of Section 5 c) and Section 13 of the Employment
Agreement, which provisions shall survive the termination of the
Executive's employment with the Company and the termination of the
Employment Agreement.
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7) The terms of this Agreement are in full and final settlement of all
claims (if any) whether contractual, tortious, statutory or otherwise,
howsoever arising, that the Executive has or may have against the
Company or any Successor Employer (as defined in Overseas Partners
Ltd's Severance Plan (the "Plan")) or any of its associated companies
or their respective shareholders, directors, officers or Executives
arising out of or relating to the Executive's employment or the
termination thereof. The Company has satisfied all its obligations to
the Executive under the Bermuda Employment Act 2000 and the
Executive's terms of employment, and the Executive has no further
rights vis a vis the Company or any Successor Employer (as defined in
the Plan).
8) The Executive represents and warrants that the Executive has had an
opportunity to obtain independent legal advice from a qualified lawyer
as to the terms and effect of this Agreement.
9) The Executive undertakes not to make or publish any statement or to do
any act or thing which it might reasonably be expected would damage
the business, interests or reputation of the Company.
10) In the event that any provision or covenant or portion thereof
contained in this Agreement should be unenforceable or be declared
invalid for any reason whatsoever, such unenforceability or invalidity
shall not affect the enforceability or validity of the remaining
portions of the provisions or covenants and such unenforceable or
invalid portions shall be severable from the remainder of this
Agreement.
11) The Executive and the Company agree that no statements shall be made
to the public or the media with respect to the Executive's employment
or termination of employment that are not mutually agreed upon by the
parties hereto.
12) The Company will reimburse the Executive for legal fees and expenses
incurred in connection with the negotiation, execution and delivery of
this Agreement for an amount up to US $8,000.
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13) The Company will pay to the Executive, on the same date as payments
are made to the Executive by the Company pursuant to clause 2) hereof,
relocation expenses in the maximum amount provided in clause 4 i) of
the Employment Agreement in connection with the Executive's relocation
to the United States.
14) This Agreement sets out the entire agreement between the Executive and
the Company and supersedes all prior discussions between them or their
advisors and all statements, representations, terms and conditions,
warranties, guarantees, proposals, communications, and understandings
whenever given and whether orally or in writing.
15) This Agreement is governed by the laws of Bermuda and the parties
submit to the jurisdiction of the Bermuda courts.
IN WITNESS WHEREOF the parties hereto have set their hands and seals the date
first written above.
SIGNED by ) /s/ Xxxx X. Xxxxxxx
on behalf of the Company ) /s/ Xxxxxxx X. Xxxxxxx
in the presence of: )
SIGNED by the Executive ) /s/ Xxxx X. Xxxxxxxx
in the presence of: ) /s/ Xxxxxxx X. Xxxxxxx