Exhibit 10.44
EMPLOYMENT AGREEMENT
This Agreement, dated as of March 31, 2005, is by and between Xxxxx Xxxx
Wax ("Executive") and SeaBright Insurance Company, an Illinois domiciled
insurance company ("Employer"), a wholly owned subsidiary of SeaBright Insurance
Holdings, Inc., a Delaware corporation ("Holdings").
1. PERIOD OF EMPLOYMENT. Employer shall employ Executive to render services
to Employer in the position and with the duties and responsibilities described
in Section 2 for the period (the "Period of Employment") commencing on the date
of this Agreement and ending on the date upon which the Period of Employment is
terminated in accordance with Section 4.
2. POSITION AND RESPONSIBILITIES.
(a) Position. Executive accepts employment with Employer as General
Counsel, Sr. Vice President and Corporate Secretary and shall perform all
services appropriate to that position, as well as such other services as may be
assigned by Employer. Executive shall devote her best efforts and full-time
attention to the performance of her duties. Executive shall be subject to the
direction of Employer, which shall retain full control of the means and methods
by which she performs the above services and of the place(s) at which all
services are rendered. Executive shall be expected to travel if necessary or
advisable in order to meet the obligations of her position.
(b) Other Activity. Except upon the prior written consent of Employer,
Executive (during the Period of Employment) shall not (i) accept any other
employment; or (ii) engage, directly or indirectly, in any other business,
commercial, or professional activity (whether or not pursued for pecuniary
advantage) that is competitive with Employer, creates a conflict of interest
with Employer, or otherwise interferes with the business of Employer or any
Affiliate (and shall immediately cease any such ongoing activity that becomes so
competitive, begins to create such a conflict or begins to interfere with the
business of Employer or any Affiliate). An "Affiliate" shall mean any person or
entity that directly or indirectly controls, is controlled by, or is under
common control with Employer.
3. COMPENSATION AND BENEFITS.
(a) Salary. In consideration of the services to be rendered under this
Agreement, Employer shall pay Executive $200,000 per year ("Base Salary"),
payable in regular installments in accordance with Employer's general payroll
policies for salaried employees, in effect from time to time. All compensation
and comparable payments to be paid to Executive under this Agreement shall be
less all applicable withholdings required by law. Executive's Base Salary will
be reviewed for market and performance adjustments within thirty (30) days of
the beginning of each calendar year during the Period of Employment by
Employer's Board of Directors (the "Board") and may be adjusted after such
review in the Board's sole discretion.
(b) Bonus. Executive will be eligible to receive an annual bonus in a
target amount equal to 40% of her Base Salary for each calendar year during the
Period of Employment based upon achievement by Executive and achievement by
Employer of performance criteria and other goals established by the Board (after
consultation with Employer) on an annual basis prior to the commencement of each
calendar year or as soon as reasonably practicable thereafter, except that the
performance criteria and other goals for the calendar year ending December 2005
shall be established within 45 days following the date hereof. The bonus payable
in respect of any given year during the Period of Employment shall be paid
within thirty (30) days following the delivery of Employer's annual audited
statutory financial statements for such year. Executive must be employed by
Employer on the last day of the calendar year for which any bonus relates in
order to receive any such bonus hereunder. The target amount of Executive's
bonus as set forth above will be reviewed for market and performance adjustments
within thirty (30) days of the beginning of each calendar year during the Period
of Employment by the Board and may be adjusted after such review in the Board's
sole discretion.
(c) Benefits. Executive shall be entitled to vacation leave in
accordance with Employer's standard policies for salaried employees, in effect
from time to time. As Executive becomes eligible, she shall have the right to
participate in and to receive benefits from all present and future benefit plans
specified in Employer's policies and generally made available to salaried
employees of Employer from time to time. The amount and extent of benefits
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to which Executive is entitled shall be governed by the specific benefit plan,
as amended. Executive also shall be entitled to any benefits or compensation
tied to termination as described in Section 4. Employer reserves the ability, in
its sole discretion, to adjust benefits provided to Executive in connection with
the adjustment of benefits to salaried employees. No statement concerning
benefits or compensation to which Executive is entitled shall alter in any way
the term of this Agreement, any renewal thereof, or its termination.
(d) Expenses. Employer shall reimburse Executive for reasonable travel
and other business expenses incurred by Executive in the performance of her
duties, subject to reasonable documentation thereof and in accordance with
Employer's policies in effect from time to time.
(e) Stock Options. Employer shall grant Executive an option to acquire
7,650 shares of Common Stock on the terms and conditions set forth in a Stock
Option Grant Agreement , and pursuant to the Company's 2005 Long-Term Equity
Incentive Plan (the "Plan") which are attached to and incorporated into this
agreement in Exhibit B. In connection with such grant, Executive shall execute
and deliver to Holdings a counterpart to the Stock Option Grant Agreement, in
form and substance as set forth in Exhibit B attached hereto, to be entered into
by and among Holdings and all of its stock optionees.
(f) Withholding. Any and all payments made pursuant to this Agreement
shall be subject to all withholding required in accordance with applicable
federal, state or local law.
4. TERMINATION OF EMPLOYMENT.
(a) By Employer Without Cause. At any time, Employer may terminate
Executive without Cause (as defined below), effective as of the date specified
in a written notice from Employer to Executive. Employer may discipline or
demote Executive with or without Cause and with or without prior notice.
Employer may discipline, demote, or dismiss Executive as provided in this
Section 4 notwithstanding anything to the contrary contained in or arising from
any statements, policies, or practices of Employer relating to the employment,
discipline, or termination of its employees. If Executive's employment with
Employer is terminated by Employer without Cause, Executive shall be entitled to
continue to receive her Base Salary payable in regular installments as special
severance payments from the date of termination for a period of twelve (12)
months thereafter, or until Executive obtains other employment (but with it
being understood that Executive shall be under no duty to seek alternative
employment during the Severance Period), whichever first occurs (the "Severance
Period"), if and only if Executive has executed and delivered to Employer the
General Release substantially in form and substance as set forth in Exhibit A
attached hereto and only so long as Executive has not revoked or breached the
provisions of the General Release or breached the provisions of this Agreement
or any Ancillary Agreement (as defined below) and does not apply for
unemployment compensation chargeable to Employer during the Severance Period,
and Executive shall not be entitled to any other salary, compensation or
benefits after termination of the Period of Employment, except as specifically
provided for in Employer's employee benefit plans or as otherwise expressly
required by applicable law (such as COBRA). Notwithstanding anything to the
contrary contained in this Section 4(a), in the event Executive breaches the
provisions of this Agreement or any Ancillary Agreement, the severance amounts
payable by Employer under this Section 4(a) shall not terminate unless and until
more than ten (10) days have elapsed from and after the date written notice of
such breach has been delivered to Executive without such breach having been
cured during such 10-day period.
(b) By Employer For Cause. At any time, and without prior notice (except
as otherwise provided in the definition of Cause set forth below), Employer may
terminate Executive for Cause. Employer shall pay Executive all compensation
then due and owing; thereafter, all of Employer's obligations under this
Agreement shall cease. Termination shall be for "Cause" if Executive: (i) is
continuously inattentive to her lawful duties after at least one written notice
has been provided to Executive and Executive has failed to cure the same within
a 30-day period thereafter; (ii) reports to work under the influence of alcohol
or illegal drugs, or uses illegal drugs (whether or not at the workplace) or
engages in other conduct causing the Employer substantial public disgrace or
disrepute or economic harm; (iii) breaches her duty of loyalty to Employer or
engages in any acts of dishonesty or fraud with respect to Employer or any of
its business relations; (iv) is convicted of a felony or any crime involving
dishonesty, breach of trust, or physical or emotional harm to any person (or
enters a plea of guilty or nolo contendere with respect thereto); (v) breaches
any material term of this Agreement or any other agreement between Executive and
Employer or any of its Affiliates and such breach (if capable of cure) is not
cured within thirty (30) days following
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written notice thereof from Employer or (vi) is terminated for substandard
performance. For purposes of this Agreement, "substandard performance" shall be
determined by a majority of the Board as provided herein. The Board shall give
Executive written notice of the Board's concern over Executive's performance,
and Executive shall have thirty (30) days to prepare for a meeting with the
Board, at which time Executive may present any information on market competitive
conditions and any other factors bearing on her and Employer's performance.
After consideration of these and such other factors as the Board may deem
relevant, if a majority of the Board determines in good faith that Employer's
future performance would be best served by a change in management, the Board may
terminate Executive's employment for "substandard performance" following the
expiration of such 30-day period.
(c) Voluntary Termination By Executive. At any time, Executive may
terminate her employment for any reason, with or without cause, by providing
Employer at least thirty (30) days' advance written notice. Employer shall have
the option, in its complete discretion, to make Executive's termination
effective at any time prior to the end of such notice period. On the date of
such termination, Employer shall pay Executive all compensation then due and
owing through such date; and, thereafter, all of Employer's obligations under
this Agreement shall cease.
(d) Termination Upon Death or Permanent Disability. Executive's
employment with Employer shall also terminate upon Executive's death or
permanent mental or physical disability or other incapacity (as determined by
the Board in its good faith judgment). Upon any such termination, Employer shall
pay Executive (or Executive's estate or legal representative or guardian) all
compensation then due and owing; thereafter, all of Employer's obligations under
this Agreement shall cease.
(e) Termination of Compensation. Except as otherwise expressly provided
herein, all of Executive's rights to salary, bonuses, employee benefits and
other compensation hereunder which would have accrued or become payable after
the termination or expiration of the Period of Employment shall cease upon such
termination or expiration, other than those expressly required under applicable
law (such as COBRA).
(f) Termination Obligations.
(i) Executive agrees that all property, including, without
limitation, all equipment, tangible Proprietary Information (as defined
below), documents, books, records, reports, notes, contracts, lists,
computer disks (and other computer-generated files and data), and copies
thereof, created on any medium and furnished to, obtained by, or prepared
by Executive in the course of or incident to her employment, belongs to
Employer and shall be returned promptly to Employer upon termination of
the Period of Employment.
(ii) All employee and other benefits to which Executive is
otherwise entitled shall cease upon Executive's termination, unless
explicitly continued either under this Agreement or under any specific
written policy or benefit plan of Employer.
(iii) Upon termination of the Period of Employment, Executive
shall be deemed to have resigned from all offices and directorships then
held with Employer or any Affiliate.
(iv) The representations and warranties contained in this
Agreement and Executive's obligations under this Section 4(g) shall
survive the termination of the Period of Employment and the expiration of
this Agreement.
(g) For sixty (60) days following any termination of the Period of
Employment, Executive shall cooperate in a reasonable manner with Employer in
all matters relating to the winding up of pending work on behalf of Employer and
the orderly transfer of work to other employees of Employer. At all times
following any termination of the Period of Employment, Executive shall also
cooperate in the defense of any action brought by any third party against
Employer that relates in any way to Executive's acts or omissions while employed
by Employer; provided that Employer shall reimburse Executive for her reasonable
out-of-pocket expenses after being provided with reasonable documentation of
such expenses.
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5. NONCOMPETITION. Executive acknowledges and agrees with Employer that
Executive's services to Employer are unique in nature and that Employer would be
irreparably damaged if Executive were to provide similar services to any person
or entity competing with Employer or engaged in a similar business. Executive
accordingly covenants and agrees with Employer that during the period commencing
with the Effective Date and ending on the twelfth (12) month following the date
of the termination of Executive's employment with Employer (the "Noncompetition
Period"), Executive shall not, directly or indirectly, either for himself or for
any other individual, corporation, partnership, joint venture or other entity,
participate in any business (including, without limitation, any division, group
or franchise of a larger organization) anywhere in the world which engages or
which proposes to engage in the promotion, service, underwriting, issuance or
sale of insurance policies providing United States Longshoremen and Harbor
Workers coverage or other coverage under the Xxxxx Act or related workers
compensation or similar insurance or reinsurance or any alternative dispute
resolution insurance or of any other business hereafter conducted by Employer or
its Affiliates prior to Executive's termination (collectively, the "USL&H
Business"). For purposes of this Agreement, the term "participate in" shall
include, without limitation, having any direct or indirect interest in any
corporation, partnership, joint venture or other entity, whether as a sole
proprietor, owner, stockholder, partner, joint venturer, creditor or otherwise,
or rendering any direct or indirect service or assistance to any individual,
corporation, partnership, joint venture and other business entity (whether as a
director, officer, manager, supervisor, employee, agent, consultant or
otherwise). Without limiting the generality of the foregoing, Executive agrees
that during the Noncompetition Period she will not, directly or indirectly,
either for himself or for any other individual, corporation, partnership, joint
venture or other entity, form or acquire any insurance company licensed to write
or service USL&H Business. If, at the time of enforcement of this Section 5, a
court shall hold that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographic area reasonable under such circumstances
shall be substituted for the stated period, scope or area and that the court
shall be allowed and directed to revise the restrictions contained herein to
cover the maximum period, scope and area permitted by law. In the event of an
alleged breach or violation by Executive of this Section 5, the Non-Competition
Period shall be tolled until such breach or violation has been duly cured.
Executive agrees that the restrictions contained in this Section 5 are
reasonable and that Executive has received adequate and valuable consideration
in exchange therefor.
6. NONSOLICITATION. Executive acknowledges that she is familiar with the
trade secrets of Employer and its Affiliates and with other proprietary
information concerning Employer and its Affiliates, including, without
limitation, all (a) inventions, technology and research and development of
Employer and its Affiliates, (b) customers and suppliers and customer and
supplier lists of Employer and its Affiliates, (c) products and services of
Employer and its Affiliates (including, without limitation, those under
development) and related costs and pricing structures, (d) accounting and
business methods and practices of Employer and its Affiliates and (e) similar
and related proprietary information of Employer and its Affiliates. Executive
further acknowledges that her services have been and shall be of special, unique
and extraordinary value to Employer, that Executive has been substantially
responsible for the growth and development of Employer and the creation and
preservation of Employer's goodwill. During the period commencing with the
Effective Date and ending twelve (12) months after the date of termination of
Executive's employment with Employer (the "Restriction Period"), Executive shall
not (i) induce or attempt to induce any employee of Employer or any of its
Affiliates to leave the employ of Employer or such Affiliate, or in any way
interfere with the relationship between Employer or any of its Affiliates and
any employee thereof, (ii) hire directly or through another entity any person
who was an employee of Employer or any of its Affiliates at any time during the
Restriction Period, or (iii) call on, solicit or service any customer, supplier,
licensee, licensor or other business relation of Employer or any of its
Affiliates in order to induce or attempt to induce such person or entity to
cease doing business with Employer or any such Affiliate or in any way
materially interfere with the relationship between any such customer, supplier,
licensee, licensor or business relation and Employer or any of its Affiliates
(including, without limitation, making any negative statements or communications
concerning Employer or any of its Affiliates), or enter into any transaction,
contract or arrangement with any such customer, supplier, licensee, licensor or
business relation relating, directly or indirectly, to the USL&H Business.
7. NONDISCLOSURE AND NONUSE OF PROPRIETARY INFORMATION.
(a) Executive shall not disclose or use at any time, either during her
employment with Employer or thereafter, any Proprietary Information (as defined
below) of which Executive is or becomes aware, whether or not such information
is developed by him, except to the extent that such disclosure or use is
directly related to and required by Executive's performance of duties assigned
to Executive by Employer. Executive shall take all
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appropriate steps to safeguard Proprietary Information and to protect it against
disclosure, misuse, espionage, loss and theft. The foregoing shall not, however,
prohibit disclosure by Executive of Proprietary Information that has been
published in a form generally available to the public prior to the date
Executive proposes to disclose such information. Information shall not be deemed
to have been published merely because individual portions of the information
have been separately published, but only if all material features comprising
such information have been published in combination.
(b) As used in this Agreement, the term "Proprietary Information" means
all information of a confidential or proprietary nature (whether or not
specifically labeled or identified as "confidential"), in any form or medium,
that relates to or results from the business, historical or projected financial
results, products, services or research or development of Employer or its
Affiliates or their respective suppliers, distributors, customers, independent
contractors or other business relations. Proprietary Information includes, but
is not limited to, the following: (i) internal business information (including,
without limitation, historical and projected financial information and budgets
and information relating to strategic and staffing plans and practices,
business, training, marketing, promotional and sales plans and practices, cost,
rate and pricing structures and accounting and business methods); (ii)
identities of, individual requirements of, specific contractual arrangements
with, and information about, Employer's and its Affiliates' suppliers,
distributors, customers, independent contractors or other business relations and
their confidential information; (iii) trade secrets, technology, know-how,
compilations of data and analyses, techniques, systems, formulae, research,
records, reports, manuals, flow charts, documentation, models, data and data
bases relating thereto; (iv) computer software, including, without limitation,
operating systems, applications and program listings; (v) inventions,
innovations, ideas, devices, improvements, developments, methods, processes,
designs, analyses, drawings, photographs, reports and all similar or related
information (whether or not patentable and whether or not reduced to practice);
(vi) copyrightable works; (vii) intellectual property of every kind and
description; and (viii) all similar and related information in whatever form.
8. EMPLOYER'S OWNERSHIP OF INTELLECTUAL PROPERTY.
(a) In the event that Executive during the term of her employment by
Employer generates, authors, conceives, develops, acquires, makes, reduces to
practice or contributes to any idea, discovery, trade secret, invention,
innovation, improvement, development, method of doing business, process,
program, design, analysis, drawing, report, data, software, firmware, logo,
device, method, product or any similar or related information (whether or not
patentable or reduced to practice or comprising Proprietary Information), any
copyrightable work (whether or not comprising Proprietary Information) or any
other form of Proprietary Information (collectively, "Intellectual Property"),
Executive acknowledges that such Intellectual Property is and shall be the
exclusive property of Employer. Any copyrightable work prepared in whole or in
part by Executive shall to be deemed "a work made for hire" to the maximum
extent permitted under Section 201(b) of the 1976 Copyright Act as amended, and
Employer shall own all of the rights comprised in the copyright therein. Without
limiting the generality of the foregoing, Executive hereby assigns her entire
right, title and interest in and to all Intellectual Property to Employer.
Executive shall promptly and fully disclose all Intellectual Property to
Employer and shall cooperate with Employer to protect Employer's interests in
and rights to such Intellectual Property (including, without limitation,
providing reasonable assistance in securing patent protection and copyright
registrations and executing all documents as reasonably requested by Employer,
whether such requests occur prior to or after termination of Executive's
employment with Employer).
(b) Notwithstanding the foregoing, however, Employer shall not own and
Executive shall have no obligation to assign to Employer any invention otherwise
falling within the definition of Intellectual Property for which no equipment,
supplies, facility, or trade secret information of Employer was used and that
was developed entirely on Executive's own time, unless: (i) such Intellectual
Property relates (A) to Employer's business or (B) to their actual or
demonstrably anticipated research or development, or (ii) the Intellectual
Property results from any work performed by him for them under this Agreement.
Executive has identified and described in detail on an attachment hereto
initialed by each of the undersigned party's or their authorized
representatives, all Intellectual Property that is or was owned by him or was
written, discovered, made, conceived or first reduced to practice by him alone
or jointly with another person prior to her employment under this Agreement. If
no such Intellectual Property is listed, Executive represents to Employer that
she does not now nor has she ever owned, nor has she made, any such Intellectual
Property.
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9. ARBITRATION.
(a) Arbitrable Claims. To the fullest extent permitted by law, all
disputes between Executive (and her attorneys, successors, and assigns) and
Employer (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys, and assigns) of any kind whatsoever, including,
without limitation, all disputes relating in any manner to the employment or
termination of Executive, and all disputes arising under this Agreement
("Arbitrable Claims") shall be resolved by arbitration. All persons and entities
specified in the preceding sentence (other than Employer and Executive) shall be
considered third-party beneficiaries of the rights and obligations created by
this Section on Arbitration. Arbitrable Claims shall include, but are not
limited to, contract (express or implied) and tort claims of all kinds, as well
as all claims based on any federal, state, or local law, statute, or regulation,
excepting only claims under applicable workers' compensation law and
unemployment insurance claims. By way of example and not in limitation of the
foregoing, Arbitrable Claims shall include (to the fullest extent permitted by
law) any claims arising under Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Americans with Disabilities Act, and the
Rev. Code of Washington Sections 49.45.010 et. seq. and 49.60.010 et.seq., as
well as any claims asserting wrongful termination, harassment, breach of
contract, breach of the covenant of good faith and fair dealing, negligent or
intentional infliction of emotional distress, negligent or intentional
misrepresentation, negligent or intentional interference with contract or
prospective economic advantage, defamation, invasion of privacy, and claims
related to disability.
(b) Procedure. Arbitration of Arbitrable Claims shall be in accordance
with the National Rules for the Resolution of Employment Disputes of the
American Arbitration Association, as amended ("AAA Employment Rules"), as
augmented in this Agreement. Arbitration shall be initiated as provided by the
AAA Employment Rules, although the written notice to the other party initiating
arbitration shall also include a statement of the claim(s) asserted and the
facts upon which the claim(s) are based. Arbitration shall be final and binding
upon the parties and shall be the exclusive remedy for all Arbitrable Claims.
Either party may bring an action in court to compel arbitration under this
Agreement and to enforce an arbitration award. Otherwise, neither party shall
initiate or prosecute any lawsuit or administrative action in any way related to
any Arbitrable Claim. Notwithstanding the foregoing, either party may, at its
option, seek injunctive relief pursuant to chapter 7.40 of the Revised Code of
Washington. All arbitration hearings under this Agreement shall be conducted in
Los Angeles County. The decision of the arbitrator shall be in writing and shall
include a statement of the essential conclusions and findings upon which the
decision is based. THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY
JURY IN REGARD TO ARBITRABLE CLAIMS, INCLUDING WITHOUT LIMITATION ANY RIGHT TO
TRIAL BY JURY AS TO THE MAKING, EXISTENCE, VALIDITY, OR ENFORCEABILITY OF THE
AGREEMENT TO ARBITRATE.
(c) Arbitrator Selection and Authority. All disputes involving
Arbitrable Claims shall be decided by a single arbitrator. The arbitrator shall
be selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties cannot
agree on an arbitrator, then the complaining party shall notify the AAA and
request selection of an arbitrator in accordance with the AAA Employment Rules.
The arbitrator shall have only such authority to award equitable relief,
damages, costs, and fees as a court would have for the particular claim(s)
asserted. The fees of the arbitrator shall be paid by the non-prevailing party.
If the allocation of responsibility for payment of the arbitrator's fees would
render the obligation to arbitrate unenforceable, the parties authorize the
arbitrator to modify the allocation as necessary to preserve enforceability. The
arbitrator shall have exclusive authority to resolve all Arbitrable Claims,
including, but not limited to, whether any particular claim is arbitrable and
whether all or any part of this Agreement is void or unenforceable.
(d) Confidentiality. All proceedings and all documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the subject matter thereof shall not be disclosed to any person
other than the parties to the proceedings, their counsel, witnesses and experts,
the arbitrator, and, if involved, the court and court staff. All documents filed
with the arbitrator or with a court shall be filed under seal. The parties shall
stipulate to all arbitration and court orders necessary to effectuate fully the
provisions of this subsection concerning confidentiality.
(e) Continuing Obligations. The rights and obligations of Executive and
Employer set forth in this Section 9 shall survive the termination of
Executive's employment and the expiration of this Agreement.
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10. EXECUTIVE'S REPRESENTATIONS. Executive hereby represents and warrants to
Employer that (i) the execution, delivery and performance of this Agreement by
Executive does not and shall not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which Executive is a party or by which she is bound, (ii) Executive is not a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by Employer, this Agreement shall be
the valid and binding obligation of Executive, enforceable in accordance with
its terms.
11. NOTICES. Any notice or other communication under this Agreement must be in
writing and shall be effective upon delivery by hand, or three (3) business days
after deposit in the United States mail, postage prepaid, certified or
registered, and addressed to Employer or to Executive at the corresponding
address below. Executive shall be obligated to notify Employer in writing of any
change in her address. Notice of change of address shall be effective only when
done in accordance with this Section.
Employer's Notice Address:
SeaBright Insurance Company f/k/a
Xxxxxx Employers Insurance Company
0000 0xx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: President
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxx X. Xxxx, P.C.
Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Executive's Notice Address:
Xx. Xxxxx Xxxx Wax
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
12. ACTION BY EMPLOYER. All actions required or permitted to be taken under
this Agreement by Employer, including, without limitation, exercise of
discretion, consents, waivers, and amendments to this Agreement, shall be made
and authorized only by the chief executive officer of Holdings or Employer.
13. INTEGRATION. This Agreement is intended to be the final, complete, and
exclusive statement of the terms of Executive's employment by Employer. This
Agreement supersedes all other prior and contemporaneous agreements and
statements, whether written or oral, express or implied, pertaining in any
manner to the employment of Executive, and it may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To the extent
that the practices, policies, or procedures of Employer, now or in the future,
apply to Executive and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control.
14. AMENDMENTS; WAIVERS. This Agreement may not be amended except by an
instrument in writing, signed by each of the parties. No failure to exercise and
no delay in exercising any right, remedy, or power under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity.
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15. ASSIGNMENT; SUCCESSORS AND ASSIGNS. Executive agrees that she will not
assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily
or involuntarily, or by operation of law, any rights or obligations under this
Agreement. Any such purported assignment, transfer, or delegation shall be null
and void. Nothing in this Agreement shall prevent the consolidation of Employer
with, or its merger into, any other entity, or the sale by Employer of all or
substantially all of its assets, or the assignment by Employer of any rights or
obligations under this Agreement. Subject to the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the parties and their
respective heirs, legal representatives, successors, and permitted assigns, and
shall not benefit any person or entity other than those specifically enumerated
in this Agreement
16. SEVERABILITY. If any provision of this Agreement, or its application to
any person, place, or circumstance, is held by an arbitrator or a court of
competent jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced to the greatest extent permitted by law, and the remainder of
this Agreement and such provision as applied to other persons, places, and
circumstances shall remain in full force and effect.
17. ATTORNEYS' FEES. In any legal action, arbitration, or other proceeding
brought to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys' fees and costs.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the law of the State of Washington.
19. INTERPRETATION. This Agreement shall be construed as a whole, according to
its fair meaning, and not in favor of or against any party. By way of example
and not in limitation, this Agreement shall not be construed in favor of the
party receiving a benefit nor against the party responsible for any particular
language in this Agreement. Captions are used for reference purposes only and
should be ignored in the interpretation of the Agreement.
20. EMPLOYEE ACKNOWLEDGMENT. Executive acknowledges that she has had the
opportunity to consult legal counsel in regard to this Agreement, that she has
read and understands this Agreement, that she is fully aware of its legal
effect, and that she has entered into it freely and voluntarily and based on her
own judgment and not on any representations or promises other than those
contained in this Agreement.
The parties have duly executed this Agreement as of the date first written
above.
/s/ Xxxxx Xxxx Wax
--------------------------------
XXXXX XXXX WAX
SEABRIGHT INSURANCE COMPANY
/s/ Xxxx X. Xxxxxxxxxxx
--------------------------------
By: Xxxx X. Xxxxxxxxxxx
Its: President and CEO
8
Exhibit A
GENERAL RELEASE
I, Xxxxx Xxxx Wax, in consideration of and subject to the performance by
SeaBright Insurance Company, an Illinois domiciled insurance company (together
with its subsidiaries, the "Company"), of its obligations under the Employment
Agreement, dated as of March 25, 3005 (the "Agreement"), do hereby release and
forever discharge as of the date hereof the Company and its affiliates and all
present and former directors, officers, agents, representatives, employees,
successors and assigns of the Company and its affiliates and the Company's
direct or indirect owners (collectively, the "Released Parties") to the extent
provided below.
1. I understand that any payments or benefits paid or granted to me under
Section 4(a) of the Agreement represent, in part, consideration for
signing this General Release and are not salary, wages or benefits to
which I was already entitled. I understand and agree that I will not
receive the payments and benefits specified in Section 4(a) of the
Agreement unless I execute this General Release and do not revoke this
General Release within the time period permitted hereafter or breach this
General Release. Such payments and benefits will not be considered
compensation for purposes of any employee benefit plan, program, policy or
arrangement maintained or hereafter established by the Company or its
affiliates. I also acknowledge and represent that I have received all
payments and benefits that I am entitled to receive (as of the date
hereof) by virtue of any employment by the Company.
2. Except as provided in paragraph 4 below and except for the provisions of
my Employment Agreement which expressly survive the termination of my
employment with the Company, I knowingly and voluntarily (for myself, my
heirs, executors, administrators and assigns) release and forever
discharge the Company and the other Released Parties from any and all
claims, suits, controversies, actions, causes of action, cross-claims,
counter-claims, demands, debts, compensatory damages, liquidated damages,
punitive or exemplary damages, other damages, claims for costs and
attorneys' fees, or liabilities of any nature whatsoever in law and in
equity, both past and present (through the date this General Release
becomes effective and enforceable) and whether known or unknown,
suspected, or claimed against the Company or any of the Released Parties
which I, my spouse, or any of my heirs, executors, administrators or
assigns, may have, which arise out of or are connected with my employment
with, or my separation or termination from, the Company (including, but
not limited to, any allegation, claim or violation, arising under: Title
VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of
1991; the Age Discrimination in Employment Act of 1967, as amended
(including, without limitation, the Older Workers Benefit Protection Act);
the Equal Pay Act of 1963, as amended; the Americans with Disabilities Act
of 1990; the Family and Medical Leave Act of 1993; the Worker Adjustment
Retraining and Notification Act; the Employee Retirement Income Security
Act of 1974; any applicable Executive Order Programs; the Fair Labor
Standards Act; or their state or local counterparts; or under any other
federal, state or local civil or human rights law, or under any other
local, state, or federal law, regulation or ordinance; or under any public
policy, contract or tort, or under common law; or arising under any
policies, practices or procedures of Employer; or any claim for wrongful
discharge, breach of contract, infliction of emotional distress,
defamation; or any claim for costs, fees, or other expenses, including
(without limitation) attorneys' fees incurred in these matters) (all of
the foregoing collectively referred to herein as the "Claims").
3. I represent that I have made no assignment or transfer of any right,
claim, demand, cause of action, or other matter covered by paragraph 2
above.
4. I agree that this General Release does not waive or release any rights or
claims that I may have under the Age Discrimination in Employment Act of
1967 which arise after the date I execute this General Release. I
acknowledge and agree that my separation from employment with the Company
in compliance with the terms of the Agreement shall not serve as the basis
for any claim or action (including, without limitation, any claim under
the Age Discrimination in Employment Act of 1967).
5. In signing this General Release, I acknowledge and intend that it shall be
effective as a bar to each and every one of the Claims hereinabove
mentioned or implied. I expressly consent that this General Release shall
be given full force and effect according to each and all of its express
terms and provisions, including, without limitation, those relating to
unknown and unsuspected Claims (notwithstanding any state statute that
expressly
A-1
limits the effectiveness of a general release of unknown, unsuspected and
unanticipated Claims), if any, as well as those relating to any other
Claims hereinabove mentioned or implied. I acknowledge and agree that this
waiver is an essential and material term of this General Release and that
without such waiver the Company would not have agreed to the terms of the
Agreement. I further agree that in the event I should bring a Claim
seeking damages against the Company, or in the event I should seek to
recover against the Company in any Claim brought by a governmental agency
on my behalf, this General Release shall serve as a complete defense to
such Claims. I further agree that I am not aware of any pending charge or
complaint of the type described in paragraph 2 as of the execution of this
General Release.
6. I represent that I am not aware of any claim by me other than the claims
that are released by this Agreement.
7. I agree that neither this General Release, nor the furnishing of the
consideration for this General Release, shall be deemed or construed at
any time to be an admission by the Company, any Released Party or myself
of any improper or unlawful conduct.
8. I agree that I will forfeit all amounts payable by the Company pursuant to
the Agreement if I challenge the validity of this General Release. I also
agree that if I violate this General Release by suing the Company or the
other Released Parties, I will pay all costs and expenses of defending
against the suit incurred by the Released Parties, including (without
limitation) reasonable attorneys' fees, and return all payments received
by me pursuant to the Agreement.
9. I agree that this General Release is confidential and agree not to
disclose any information regarding the terms of this General Release,
except to my immediate family and any tax, legal or other counsel I have
consulted regarding the meaning or effect hereof or as required by law,
and I will instruct each of the foregoing not to disclose the same to
anyone.
10. Any non-disclosure provision in this General Release does not prohibit or
restrict me (or my attorney) from responding to any inquiry about this
General Release or its underlying facts and circumstances by the
Securities and Exchange Commission (SEC), the National Association of
Securities Dealers, Inc. (NASD), any other self-regulatory organization or
governmental entity.
11. I agree to reasonably cooperate with the Company in any internal
investigation or administrative, regulatory, or judicial proceeding. I
understand and agree that my cooperation may include, but not be limited
to, making myself available to the Company upon reasonable notice for
interviews and factual investigations; appearing at the Company's request
to give testimony without requiring service of a subpoena or other legal
process; volunteering to the Company pertinent information; and turning
over to the Company all relevant documents which are or may come into my
possession all at times and on schedules that are reasonably consistent
with my other permitted activities and commitments. I understand that in
the event the Company asks for my cooperation in accordance with this
provision, the Company will reimburse me solely for reasonable travel
expenses, including, without limitation, lodging and meals, upon my
submission of receipts.
12. I agree not to disparage the Company, its past and present investors,
officers, directors or employees or its affiliates and to keep all
confidential and proprietary information about the past or present
business affairs of the Company and its affiliates confidential unless a
prior written release from the Company is obtained. I further agree that
as of the date hereof, I have returned to the Company any and all
property, tangible or intangible, relating to its business, which I
possessed or had control over at any time (including, but not limited to,
company-provided credit cards, building or office access cards, keys,
computer equipment, manuals, files, documents, records, software, customer
data base and other data) and that I shall not retain any copies,
compilations, extracts, excerpts, summaries or other notes of any such
manuals, files, documents, records, software, customer data base or other
data.
13. Notwithstanding anything in this General Release to the contrary, this
General Release shall not relinquish, diminish, or in any way affect any
rights or claims (i) arising out of any breach by the Company or by any
Released Party of the Agreement after the date hereof (ii) to
indemnification for which I may be entitled to as a former officer or
director of the Company under their respective charter and/or bylaws
and/or other constituent documents so long as I am otherwise entitled to
be indemnified as authorized thereunder.
A-2
14. Whenever possible, each provision of this General Release shall be
interpreted in, such manner as to be effective and valid under applicable
law, but if any provision of this General Release is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule
in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision or any other jurisdiction, but this General
Release shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been
contained herein.
BY SIGNING THIS GENERAL RELEASE, I REPRESENT AND AGREE THAT:
(i) I HAVE READ IT CAREFULLY;
(ii) I UNDERSTAND ALL OF ITS TERMS AND KNOW THAT I AM GIVING UP
IMPORTANT RIGHTS, INCLUDING BUT NOT LIMITED TO, RIGHTS UNDER
THE AGE DISCRIMINATION IN EMPLOYMENT ACT OF 1967, AS AMENDED,
TITLE VII OF THE CIVIL RIGHTS ACT OF 1964, AS AMENDED; THE
EQUAL PAY ACT OF 1963, THE AMERICANS WITH DISABILITIES ACT OF
1990; AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED;
(iii) I VOLUNTARILY CONSENT TO EVERYTHING IN IT;
(iv) I HAVE BEEN ADVISED TO CONSULT WITH AN ATTORNEY BEFORE
EXECUTING IT AND I HAVE DONE SO OR, AFTER CAREFUL READING AND
CONSIDERATION I HAVE CHOSEN NOT TO DO SO OF MY OWN VOLITION;
(v) I HAVE HAD AT LEAST 21 DAYS FROM THE DATE OF MY RECEIPT OF
THIS RELEASE SUBSTANTIALLY IN ITS FINAL FORM ON March 25,
2005 TO CONSIDER IT AND THE CHANGES MADE SINCE THE March 25,
2005 VERSION OF THIS RELEASE ARE NOT MATERIAL AND WILL NOT
RESTART THE REQUIRED 21-DAY PERIOD;
(vi) THE CHANGES TO THE AGREEMENT SINCE March 25, 2005 EITHER ARE
NOT MATERIAL OR WERE MADE AT MY REQUEST.
(vii) I UNDERSTAND THAT I HAVE SEVEN DAYS AFTER THE EXECUTION OF
THIS RELEASE TO REVOKE IT AND THAT THIS RELEASE SHALL NOT
BECOME EFFECTIVE OR ENFORCEABLE UNTIL THE REVOCATION PERIOD
HAS EXPIRED;
(viii) I HAVE SIGNED THIS GENERAL RELEASE KNOWINGLY AND VOLUNTARILY
AND WITH THE ADVICE OF ANY COUNSEL RETAINED TO ADVISE ME WITH
RESPECT TO IT; AND
(ix) I AGREE THAT THE PROVISIONS OF THIS GENERAL RELEASE MAY NOT
BE AMENDED, WAIVED, CHANGED OR MODIFIED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY AN AUTHORIZED REPRESENTATIVE
OF THE COMPANY AND BY ME.
DATE: _____________ _____________________________
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