EXHIBIT 10.26
EMPLOYMENT AGREEMENT
This Employment Agreement, dated as of October 16, 2001 (this "AGREEMENT"),
is by and between Xxxxx X. Xxxxxxxx (the "EXECUTIVE") and Safety Insurance
Company, a Massachusetts corporation (the "COMPANY");
W I T N E S S E T H:
WHEREAS, the Company wishes to obtain the future services of the Executive
for the Company;
WHEREAS, the Executive is willing upon the terms and conditions herein set
forth, to provide services hereunder; and
WHEREAS, the Company wishes to secure the Executive's non-interference,
upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. NATURE OF EMPLOYMENT
Subject to SECTION 3 and effective as of the Closing Date, the Company
hereby employs Executive, and Executive agrees to accept such employment, during
the Term of Employment (as defined in SECTION 3(a)), as President and Chief
Executive Officer of the Company to undertake such duties and responsibilities
as may be reasonably assigned to Executive from time to time by the Board of
Directors of the Company.
2. EXTENT OF EMPLOYMENT
(a) During the Term of Employment, the Executive shall perform his
obligations hereunder faithfully and to the best of his ability at the principal
executive offices of the Company, under the direction of the Board of Directors
of the Company, and shall abide by the rules, customs and usages from time to
time established by the Company.
(b) During the Term of Employment, the Executive shall devote all of his
business time, energy and skill as may be reasonably necessary for the
performance of his duties, responsibilities and obligations hereunder (except
for vacation periods and reasonable periods of illness or other incapacity),
consistent with past practices and norms in similar positions.
(c) Nothing contained herein shall require Executive to follow any
directive or to perform any act which would violate any laws, ordinances,
regulations or rules of any governmental, regulatory or administrative body,
agent or authority, any court or judicial authority, or any public, private or
industry regulatory authority (collectively, the "REGULATIONS"). Executive shall
act in good faith in accordance with all Regulations.
3. TERM OF EMPLOYMENT; TERMINATION
(a) The "TERM OF EMPLOYMENT" shall commence on the date hereof and shall
continue until December 31, 2006 (the "INITIAL TERM"); PROVIDED, that, (i) such
term shall continue for the twelve month period following such Initial Term, and
for each twelve month period thereafter (each, an "ADDITIONAL TERM"), unless at
least 180 days prior to the scheduled expiration date of the Initial Term or any
Additional Term, either the Executive or the Company notifies the other of its
decision not to continue such term and (ii) should the Executive's employment by
the Company be earlier terminated pursuant to SECTION 3(b) or by the Executive
pursuant to SECTION 3(c), the Term of Employment shall end on the date of such
earlier termination.
(b) Subject to the payments contemplated by SECTION 3(f), the Term of
Employment may be terminated at any time by the Company:
(i) upon the death of Executive;
(ii) in the event that because of physical or mental disability
Executive is unable to perform, and does not perform, in the view of the
Company and as certified in writing by a competent medical physician, his
duties hereunder for a continuous period of three consecutive months or any
sixty working days out of any consecutive six month period;
(iii) for Cause (as defined in SECTION 3(d)) or Material Breach (as
defined in SECTION 3(e));
(iv) upon the continuous poor or unacceptable performance of the
Executive's duties to the Company (other than due to a physical or mental
disability), which has remained uncured for a period of 90 days after
delivery of notice by the Company to the Executive of such dissatisfaction
with Executive's performance, which notice shall describe in reasonable
detail the areas of dissatisfaction; or
(v) for any other reason or no reason, it being understood that no
reason is required.
Executive acknowledges that no representations or promises have been made
concerning the grounds for termination or the future operation of the Company's
business, and that nothing contained herein or otherwise stated by or on behalf
of the Company modifies or amends the right of the Company to terminate
Executive at any time, with or without Material Breach or Cause. Termination
shall become effective upon the delivery by the Company to the Executive of
notice specifying such termination and the reasons therefor (i.e., SECTION
3(b)(i)-(v)), subject to the requirements for advance notice and an opportunity
to cure provided in this Agreement, if and to the extent applicable.
(c) Subject to the payments contemplated by SECTION 3(f), the Term of
Employment may be terminated at any time by the Executive:
(i) upon the death of Executive;
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(ii) in the event that because of physical or mental disability the
Executive is unable to perform, and does not perform, in the view of the
Company, and as certified by a competent medical physician, his duties
hereunder for a continuous period of three consecutive months or any sixty
working days out of any consecutive six month period;
(iii) as a result of a material reduction in Executive's authority,
perquisites, position or responsibilities (other than such a reduction in
perquisites which affects all of the Company's senior executives on a
substantially equal or proportionate basis), the relocation of the
Company's primary place of business or the relocation of Executive by the
Company to another Company office more than 75 miles from Boston,
Massachusetts, or the Company's willful, material violation of its
obligations under this Agreement, in each case, after 60 days' prior
written notice to the Company and its Board of Directors and the Company's
failure thereafter to cure such reduction or violation; or
(iv) as a result of the Company's willful and material violation of
this Agreement, the Management Subscription Agreement, the Stockholders
Agreement, the 2001 Restricted Stock Plan or the Restricted Stock Award
Agreement.
(d) For the purposes of this SECTION 3, "CAUSE" shall mean any of the
following:
(i) Executive's commission or conviction of any crime or criminal
offense involving monies or other property, or any felony;
(ii) Executive's commission or conviction of fraud or embezzlement;
(iii) Executive's material and knowing violation of any obligations
imposed upon Executive, personally, as opposed to upon the Company, whether
as a stockholder or otherwise, under this Agreement, the Merger Agreement,
the Management Subscription Agreement, the Stockholders Agreement, the
Pledge Agreement, the Recourse Promissory Note, any other agreement between
the Executive, on the one hand, and the Company or its affiliates, on the
other hand, the Certificate of Incorporation or By-Laws of the Company;
PROVIDED, that the Executive has been given written notice describing any
such violation in reasonable detail and fails to cure the violation within
90 days from such notice; or
(iv) Executive engages in egregious misconduct involving serious moral
turpitude to the extent that Executive's credibility and reputation no
longer conform to the standard of the Company's executives.
(e) For the purposes of this SECTION 3, "MATERIAL BREACH" shall mean any of
the following:
(i) Executive's breach of any of his fiduciary duties to the Company
or its stockholders or making of a willful misrepresentation or omission
which breach, misrepresentation or omission would reasonably be expected to
materially adversely affect the business, properties, assets, condition
(financial or other) or prospects of the Company;
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(ii) Executive's willful, continual and material neglect or failure to
discharge his duties, responsibilities or obligations prescribed by this
Agreement, any other agreement between the Executive and the Company (other
than arising solely due to physical or mental disability);
(iii) Executive's habitual drunkenness or substance abuse which
materially interferes with Executive's ability to discharge his duties,
responsibilities or obligations prescribed by this Agreement or any other
agreement between the Executive and the Company; and
(iv) Executive's willful and material violation of any
non-competition, non-disparagement, or confidentiality agreement with the
Company, including without limitation, those set forth in SECTIONS 7, 8 and
9 of this Agreement, or any other agreements with the Company.
in each case, for purposes of clauses (i) through (iv), after the Company or the
Board of Directors has provided Executive with 60 days' written notice
describing such circumstances and the possibility of a Material Breach in
reasonable detail, and Executive fails to cure such circumstances and Material
Breach within those 60 days. No act or omission shall be deemed willful if done,
or omitted to be done, in good faith by the Executive based upon a resolution
duly adopted by the Company's Board of Directors.
(f) In the event Executive's employment is terminated by the Company under
any circumstances described in SECTION 3(b(v) or by Executive under the
circumstances described in SECTION 3(c)(iii) or (iv), the Company will pay to
Executive the full amounts to which he would be entitled as base compensation
under SECTION 4(a) and customary benefits through the Term of Employment prior
to the application of any early termination provision of Sections 3(b) or (c).
In the event Executive's employment is terminated by the Company under the
circumstances described in SECTION 3(b)(iv), the Company will pay to Executive
(i) the full amounts to which he would be entitled as base compensation under
SECTION 4(a) and (ii) customary benefits, in each case for the period from the
effectiveness of termination through the date six months after the date of such
termination. In the event Executive's employment is terminated by the Company
under the circumstances described in SECTION 3(b)(i) or (ii) or by the Executive
under SECTION 3(c)(i) OR (ii), the Company will pay to the Executive the full
amounts to which he would be entitled as base compensation under SECTION 4(a)
and customary benefits for the period from the effectiveness of termination
through (y) the first anniversary of the date of such termination, or (z) the
third anniversary of the date of this Agreement, whichever is greater. In the
event Executive's employment is terminated by the Company under any
circumstances described in SECTION 3(b)(iii) or by Executive as a result of
resignation or voluntary termination due to any circumstance other than the
material reductions, violations or relocation described in SECTION 3(c)(iii)
above, there will be no amounts owing by the Company to the Executive, under
SECTION 4 or any other part of this Agreement, from and after the effectiveness
of termination. If the Company makes the payments required by this SECTION 3(f),
such payments will constitute severance and liquidated damages, and the Company
will not be obligated to pay any further amounts to Executive under this
Agreement or otherwise be liable to Executive in connection with any
termination.
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(g) All determinations pursuant to this SECTION 3 shall be made by the
Company's Board of Directors (not including Executive) in good faith.
(h) Termination of the Term of Employment will not terminate SECTIONS 7
through 9 and 11 through 21, or any other provisions not associated specifically
with the Term of Employment.
(i) In the event the Term of Employment is terminated, the Executive will
not be required to seek or obtain alternative employment or to mitigate damages
under this agreement. Payments from, or benefits in connection with, alternative
employment shall not reduce any payment or benefit obligations hereunder;
PROVIDED, HOWEVER, if Executive obtains alternative employment and is provided
medical coverage in connection therewith, the medical coverage the Company
provides pursuant to Section 3(f), shall be secondary to the medical coverage
provided in connection with the alternative employment; and, PROVIDED, FURTHER,
that, any provision herein to the contrary notwithstanding, if Executive is
employed by or engaged in a Competitive Business then from and after the date of
such employment or engagement, the Company shall have no further payment or
benefit obligations hereunder.
(j) In the event the Term of Employment is terminated and the Company is
obligated to make payments pursuant to SECTION 3(f), Executive hereby waives any
and all claims against the Company, and its officers, directors, employees,
agents, or representatives, stockholders and affiliates relating to this
Agreement and to his employment during the term hereof other than any payments
to be made pursuant to SECTION 3(f), the Management Subscription Agreement, the
Company's 2001 Restricted Stock Plan, and any Company employee benefit plan.
4. COMPENSATION. The Company shall pay compensation to Executive as
follows:
(a) During the Term of Employment, the Company shall pay to Executive as
base compensation for his services hereunder, in monthly installments, a base
salary at a rate of $500,460 per annum, as increased on an annual basis to
reflect the increase in the United States Cost of Living Index for All Urban
Consumer (CPI-U) for the Boston, Massachusetts area (the "CPI-U INDEX"). The
January 2001 CPI-U Index shall provide the basis for calculations of such
increases. Notwithstanding the minimum increase set forth above, the Board of
Directors, in its sole discretion, may establish a higher compensation level.
(b) During the Term of Employment, the Company shall pay to Executive an
annual bonus based on the performance of the Company and Executive based on
performance targets, as determined and approved by the Board of Directors in its
sole discretion; provided that, for any year as to which such bonus is paid,
such bonus shall not be less than 35% of the total amount of bonuses paid for
such year to the officers of the Company who, on the date hereof, hold the
position of vice president or higher. Except as set forth in the proviso to the
preceding sentence, such bonus will be at the full discretion of the Board of
Directors, and may not be paid at all. Any bonus will be paid within 30 days
after the issuance of audited financial statements for the Company. The Board of
Directors in its sole discretion may establish a higher bonus level based on the
performance of Executive.
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(c) Contingent upon the consummation of the transactions contemplated by
the Merger Agreement, on March 31, 2002, the Company shall pay Executive a
transaction bonus of $217,863, and, on March 31, 2003, the Company shall pay
Executive a further transaction bonus of $200,000.
5. REIMBURSEMENT OF EXPENSES
During the Term of Employment, the Company shall reimburse Executive for
documented travel, entertainment and other expenses reasonably incurred by
Executive in connection with the performance of his duties hereunder and, in
each case, in accordance with the rules, customs and usages promulgated by the
Company from time to time in effect.
6. BENEFITS
(a) During the Term of Employment, the Executive shall be entitled to
perquisites, paid vacations and benefits (including health, short and long term
disability, pension and life insurance benefits consistent with past practice,
or as increased from time to time) established from time to time, by the Board
of Directors for executives of the Company, subject to the policies and
procedures in effect regarding participation in such benefits.
(b) In recognition of the use of an automobile for the efficient and
expeditious performance of the Executive's duties and obligations on behalf of
the Company, the Company, at its cost, shall supply to the Executive for such
use an automobile of such make and model and upon such terms and conditions as
the Board of Directors shall determine from time to time.
(c) Executive shall receive an award of common stock of the Company equal
to 4% of the Company's common stock on a fully-diluted basis as of the date
hereof under the Company's 2001 Restricted Stock Plan. Shares awarded under this
SECTION 6(c) shall be subject to the terms and conditions, including, without
limitation, vesting and buy-back rights, set forth in the 2001 Restricted Stock
Plan.
7. CONFIDENTIAL INFORMATION
(a) During and after the Term of Employment, Executive will not, directly
or indirectly in one or a series of transactions, disclose to any person, or use
or otherwise exploit for the Executive's own benefit or for the benefit of
anyone other than the Companies, any Confidential Information, whether prepared
by Executive or not; PROVIDED, HOWEVER, that any Confidential Information may be
disclosed to officers, representatives, employees and agents of the Companies
who need to know such Confidential Information in order to perform the services
or conduct the operations required or expected of them in the Business.
Executive shall use his best efforts to prevent the removal of any Confidential
Information from the premises of the Companies, except as required in his normal
course of employment by the Company. Executive shall use commercially reasonable
efforts to cause all persons or entities to whom any Confidential Information
shall be disclosed by him hereunder to observe the terms and conditions set
forth herein as though each such person or entity was bound hereby. Executive
shall have no obligation hereunder to keep confidential any Confidential
Information if and to the extent disclosure of any thereof is specifically
required by law; PROVIDED, HOWEVER, that in the event disclosure is required by
applicable law, the Executive shall provide the Companies with
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prompt notice of such requirement, prior to making any disclosure, so that the
Companies may seek an appropriate protective order. At the request of the
Companies, Executive agrees to deliver to the Companies, at any time during the
Term of Employment, or thereafter, all Confidential Information which he may
possess or control. Executive agrees that all Confidential Information of the
Companies (whether now or hereafter existing) conceived, discovered or made by
him during the Term of Employment exclusively belongs to the Companies (and not
to Executive). Executive will promptly disclose such Confidential Information to
the Companies and perform all actions reasonably requested by the Companies to
establish and confirm such exclusive ownership.
(b) The terms of this SECTION 7 shall survive the termination of this
Agreement regardless of who terminates this Agreement, or the reasons therefor.
8. NON-INTERFERENCE
(a) Executive acknowledges that the services to be provided give him the
opportunity to have special knowledge of the Companies and their Confidential
Information and the capabilities of individuals employed by or affiliated with
the Companies and that interference in these relationships would cause
irreparable injury to the Companies. In consideration of this Agreement,
Executive covenants and agrees that:
(i) During the Restricted Period (which shall not be reduced by any
period of violation of this Agreement by Executive or period which is
required for litigation to enforce the rights hereunder), Executive will
not, without the express written approval of the Board of Directors of the
Company, anywhere in the Market, directly or indirectly, in one or a series
of transactions, own, manage, operate, control, invest or acquire an
interest in, or otherwise engage or participate in, whether as a
proprietor, partner, stockholder, lender, director, officer, employee,
joint venturer, investor, lessor, supplier, customer, agent, representative
or other participant, in any business which competes, directly or
indirectly, with the Business in the Market ("COMPETITIVE BUSINESS")
without regard to (A) whether the Competitive Business has its office,
manufacturing or other business facilities within or without the Market,
(B) whether any of the activities of the Executive referred to above occur
or are performed within or without the Market or (C) whether the Executive
resides, or reports to an office, within or without the Market; PROVIDED,
HOWEVER, that (x) the Executive may, anywhere in the Market, directly or
indirectly, in one or a series of transactions, own, invest or acquire an
interest in up to five percent (5%) of the capital stock of a corporation
whose capital stock is traded publicly, or that (y) Executive may accept
employment with a successor company to the Company.
(ii) During the Restricted Period (which shall not be reduced by any
period of violation of this Agreement by Executive or period which is
required for litigation to enforce the rights hereunder), Executive will
not without the express prior written approval of the Board of Directors of
the Company (A) directly or indirectly, in one or a series of transactions,
recruit, solicit or otherwise induce or influence any proprietor, partner,
stockholder, lender, director, officer, employee, sales agent, joint
venturer, investor, lessor, supplier, customer, agent, representative or
any other person which has a
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business relationship with the Companies or had a business relationship
with the Companies within the 24 month period preceding the date of the
incident in question, to discontinue, reduce or modify such employment,
agency or business relationship with the Companies, or (B) employ or seek
to employ or cause any Competitive Business to employ or seek to employ any
person or agent who is then (or was at any time within 24 months prior to
the date the Executive or the Competitive Business employs or seeks to
employ such person) employed or retained by the Companies. Notwithstanding
the foregoing, nothing herein shall prevent the Executive from providing a
letter of recommendation to an employee with respect to a future employment
opportunity.
(iii) The scope and term of this SECTION 8 would not preclude Executive
from earning a living with an entity that is not a Competitive Business.
(b) In the event that Executive breaches his obligations in any material
respect under SECTION 7, this SECTION 8 or SECTION 9, the Company, in addition
to pursuing all available remedies under this Agreement, at law or otherwise,
and without limiting its right to pursue the same shall cease all payments to
the Executive under this Agreement or any other agreement.
(c) The terms of this SECTION 8 shall survive the termination of this
Agreement regardless of who terminates this Agreement, or the reasons therefor.
9. NON-DISPARAGEMENT. During and after the Term of Employment, the
Executive agrees that he shall not make any false, defamatory or disparaging
statements about the Companies or the officers or directors of the Companies.
During and after the Term of Employment, the Company agrees, on behalf of the
Companies that neither the officers nor the directors of the Companies shall
make any false, defamatory or disparaging statements about the Executive.
10. DEFINITIONS. Capitalized terms used in this Agreement but not otherwise
defined shall have the meanings set forth below:
"BUSINESS" means any business conducted, or engaged in, by the Companies
prior to the date hereof or at any time during the Term of Employment.
"CAUSE" is defined in SECTION 3(c).
"CLOSING DATE" means the Closing Date, under and as defined in the Merger
Agreement.
"COMPANIES" means the Company and its successors or any of its direct or
indirect parents or direct or indirect subsidiaries, now or hereafter existing.
"COMPANY" is defined in the introduction.
"COMPETITIVE BUSINESS" is defined in Section 8(a)(i).
"CONFIDENTIAL INFORMATION" means any confidential information including,
without limitation, any study, data, calculations, software storage media or
other compilation of information, patent, patent application, copyright,
trademark, trade name, service xxxx, service
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name, "know-how", trade secrets, customer lists, details of client or consultant
contracts, pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisition plans or any
portion or phase of any scientific or technical information, ideas, discoveries,
designs, computer programs (including source of object codes), processes,
procedures, formulas, improvements or other proprietary or intellectual property
of the Companies, whether or not in written or tangible form, and whether or not
registered, and including all files, records, manuals, books, catalogues,
memoranda, notes, summaries, plans, reports, records, documents and other
evidence thereof. The term "CONFIDENTIAL INFORMATION" does not include, and
there shall be no obligation hereunder with respect to, information that becomes
generally available to the public other than as a result of a disclosure by the
Executive not permissible hereunder.
"EXECUTIVE" means Xxxxx X. Xxxxxxxx or his estate, if deceased.
"MANAGEMENT SUBSCRIPTION AGREEMENT" means the Management Subscription
Agreement, dated as of the date hereof, by and between Safety Holdings, Inc. and
the management investors signatory thereto.
"MARKET" means any county in the United States of America and each similar
jurisdiction in any other country in which the Business was conducted by or
engaged in by the Companies prior to the date hereof or is conducted or engaged
in, or in which the Companies are seeking authorization to conduct Business at
any time during the Term of Employment.
"MERGER AGREEMENT" means the Merger Agreement, dated as of May 31, 2001, by
and among Safety Holdings, Inc., Safety Merger Co., Inc., Xxxxxx Xxxxx
Corporation and the shareholders of Xxxxxx Xxxxx Corporation, as amended,
restated or otherwise modified from time to time.
"PLEDGE AGREEMENT" means the Pledge Agreement, dated as of the date hereof,
by the Executive in favor of Safety Holdings, Inc.
"RECOURSE PROMISSORY NOTE" means the Recourse Promissory Note, dated as of
the date hereof, by the Executive in favor of Safety Holdings, Inc. in the
principal amount of $144,875.00.
"REGULATIONS" is defined in Section 2(c).
"RESTRICTED PERIOD" means the date commencing on the date of this Agreement
and ending on the later of (x) the date of termination of the Term of Employment
or (y) the end of any severance period provided under SECTION 3(f); PROVIDED,
HOWEVER, that the "Restricted Period" may be extended, in the sole discretion of
the Company, for an additional period of up to twenty-four (24) months if the
Company continues to pay to the Executive (i) the full amounts to which he would
be entitled as base compensation under SECTION 4(a) and (ii) customary benefits,
in each case during such extended period.
"STOCKHOLDERS AGREEMENT" means the Stockholders Agreement, dated as of the
date hereof, by and between Safety Holdings, Inc. and the stockholders signatory
thereto.
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"TERM OF EMPLOYMENT" is defined in Section 3(a).
11. NOTICE
Any notice, request, demand or other communication required or permitted to
be given under this Agreement shall be given in writing and if delivered
personally, or sent by certified or registered mail, return receipt requested,
as follows (or to such other addressee or address as shall be set forth in a
notice given in the same manner):
If to Executive: Xxxxx X. Xxxxxxxx
c/o Safety Insurance Company
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
If to Company: Safety Insurance Company
00 Xxxxxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
and a copy to: Safety Holdings, Inc.
c/o The Jordan Company LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: A. Xxxxxxx Xxxxxx, Xx.
Any such notices shall be deemed to be given on the date personally delivered or
such return receipt is issued.
12. EXECUTIVE'S REPRESENTATION
Executive hereby warrants and represents to the Company that Executive has
carefully reviewed this Agreement and has consulted with such advisors as
Executive considers appropriate in connection with this Agreement, and is not
subject to any covenants, agreements or restrictions, including without
limitation any covenants, agreements or restrictions arising out of Executive's
prior employment which would be breached or violated by Executive's execution of
this Agreement or by Executive's performance of his duties hereunder.
13. OTHER MATTERS
Executive agrees and acknowledges that the obligations owed to Executive
under this Agreement are solely the obligations of the Company, and that none of
the Companies' stockholders, directors, officers, affiliates, representatives,
agents or lenders will have any obligations or liabilities in respect of this
Agreement and the subject matter hereof.
14. VALIDITY
If, for any reason, any provision hereof shall be determined to be invalid
or unenforceable, the validity and effect of the other provisions hereof shall
not be affected thereby.
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15. SEVERABILITY
Whenever possible, each provision of this Agreement will be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Agreement 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 will not affect any other provision
or any other jurisdiction, but this Agreement will be reformed, construed and
enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein. If any court determines that any
provision of SECTION 8 or any other provision hereof is unenforceable and
therefore acts to reduce the scope or duration of such provision, the provision
in its reduced form shall then be enforceable.
16. WAIVER OF BREACH; SPECIFIC PERFORMANCE
The waiver by the Company or Executive of a breach of any provision of this
Agreement by the other party shall not operate or be construed as a waiver of
any other breach of such other party. Each of the parties (and third party
beneficiaries) to this Agreement will be entitled to enforce its respective
rights under this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of SECTIONS 7, 8 and 9 of this
Agreement and that any party (and third party beneficiaries) may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief, including temporary restraining
orders, preliminary injunctions and permanent injunctions in order to enforce or
prevent any violations of the provisions of this Agreement. In the event either
party takes legal action to enforce any of the terms or provisions of this
Agreement, the nonprevailing party shall pay the successful party's costs and
expenses, including but not limited to, attorneys' fees, incurred in such
action.
17. ASSIGNMENT; THIRD PARTIES
Neither the Executive nor the Company may assign, transfer, pledge,
hypothecate, encumber or otherwise dispose of this Agreement or any of his or
its respective rights or obligations hereunder, without the prior written
consent of the other. The parties agree and acknowledge that each of the
Companies and the stockholders and investors therein are intended to be third
party beneficiaries of, and have rights and interests in respect of, Executive's
agreements set forth in SECTIONS 7, 8 and 9.
18. AMENDMENT; ENTIRE AGREEMENT
This Agreement may not be changed orally but only by an agreement in
writing agreed to by the party against whom enforcement of any waiver, change,
modification, extension or discharge is sought. This Agreement embodies the
entire agreement and understanding of the parties hereto in respect of the
subject matter of this Agreement, and supersedes and replaces all prior
Agreements, understandings and commitments with respect to such subject matter.
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19. LITIGATION
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT THAT NO DOCTRINE OF
CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF NEW YORK, AND NO
DEFENSE, COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY
OTHER STATE OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT, MODIFICATION OR
REPEAL OF ANY LAW, REGULATION, ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION,
BE INTERPOSED IN ANY ACTION HEREON. EXECUTIVE AND THE COMPANY AGREE THAT ANY
ACTION OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT SHALL BE
COMMENCED IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS LOCATED IN BOSTON,
MASSACHUSETTS OR THE UNITED STATES DISTRICT COURTS IN BOSTON, MASSACHUSETTS.
EXECUTIVE AND THE COMPANY CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE
PROPER IN SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION 19 SHALL NOT BE DEEMED TO PRECLUDE
THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH FORUM OR THE TAKING OF ANY
ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY OTHER JURISDICTION.
20. FURTHER ACTION
Executive and the Company agree to perform any further acts and to execute
and deliver any documents which may be reasonable to carry out the provisions
hereof.
21. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
22. EFFECTIVENESS
Any provision to the contrary herein notwithstanding, this Agreement shall
become effective on the Closing Date and shall impose no obligations upon
Executive at any time prior to the Closing Date. If for any reason the Merger
Agreement shall terminate prior to Closing Date, this Agreement shall
automatically terminate and be without any further force or effect.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
written above.
EXECUTIVE:
/s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
SAFETY INSURANCE COMPANY
By /s/ A. Xxxxxxx Xxxxxx, Xx.
-----------------------------------------
Name: A. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
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