EXHIBIT 99.6
February 26, 1997
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ADT LIMITED
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- and -
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XXXXXXX X. XXXXXX
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made on February 27, 1997 BETWEEN:
(1) ADT LIMITED whose registered office is at Cedar House, 41 Cedar Avenue,
Xxxxxxxx, Bermuda (the "Company"); and
(2) XXXXXXX X. XXXXXX of 0000 Xx. Xxxx'x Xxx, Xxxx Xxxxx, XX 00000
IT IS AGREED as follows:
1. Interpretation
(1) In this agreement, unless otherwise expressly stated, in addition to
terms defined elsewhere herein:
"Associated Company" means:
(a) a company ("first company") whose equity share capital is owned as
to at least 20 per cent by a different company ("second company")
or one of the second company's Subsidiaries, and which first
company is not a Subsidiary of the second company; and
(b) A Subsidiary of a first company within (a) above;
"Board" means the Board of Directors of the Company;
"Group" means the Company and its Subsidiaries and Associated Companies for
the time being and "Group Company" means any one of them;
"Subsidiary" means a subsidiary company as defined by section 86 of the
Companies Act 1981 of Bermuda (as amended);
"Termination for Cause" means a termination of the employment of the Executive
by the Company as described in paragraphs (3) to (5) of clause 13 below;
"Termination upon Disability" means a termination of the employment by the
Executive by the Company as described in paragraph (1) of clause 13 below:
"Termination for Good Reason" means a termination of his employment by the
Executive as described in paragraph (1) of clause 14 below.
(2) References in this agreement to persons include bodies corporate and
unincorporated associations and references to companies include any
bodies corporate.
(3) Any reference in this agreement to a statutory provision includes any
statutory modification or re-enactment for the time being in force.
(4) Paragraphs (1) to (3) above apply unless the contrary intention appears
and the headings in this agreement do not affect its interpretation.
2. Conditional agreement
(1) This entire agreement and the respective rights and obligations of the
parties to this agreement are conditional upon ratification of this
agreement by resolutions of the Remuneration Committee of the Board and
of the Board itself, the terms of which ratification shall be
unconditional and without qualification. In the event that the
foregoing condition is not satisfied in full on or before midnight on
February 27, 1997, this entire agreement shall never become effective
and shall be null and void absolutely and neither the Executive nor
the Company nor any of the directors or officers of the Company shall
be under any liability arising out of or in connection with this
agreement.
(2) The existing oral employment arrangements between the Executive and the
Company shall not cease to have effect unless and until the condition
set out in paragraph (1) above has been satisfied in full.
3. Term of the agreement
Subject to clauses 13 and 14 below, the term of employment of the Executive
under this agreement (the "Term") shall be as follows:
(a) the Term shall commence on March 1, 1997 and, subject to (b)
below, shall terminate on February 28, 1999; and
(b) commencing on March 1, 1999 and on each March 1 thereafter (each a
"Renewal Date"), the Term shall be automatically extended for an
additional period of twenty-four months, unless not less than 90
days immediately preceding any such Renewal Date, either the
Company or the Executive shall have given notice that it or he
does not wish to extend the Term for such additional period in
which event the Term shall terminate without such extension.
4. Duties of the Executive
(1) The Executive shall be employed by a subsidiary of the Company in the
United States procured by it, as the Company's Chief Financial Officer
and as the President of the Company's subsidiaries ADT Security
Services, Inc., ADT Operations, Inc. and ADT, Inc. on the terms set out
in this agreement and shall perform his duties and exercise his powers
in a manner consistent with such offices. Unless prevented by
ill-health, accident or disability, the Executive shall devote such time
(both inside and outside of normal business hours) to the affairs of the
Group as is necessary for the proper fulfilment of his duties.
(2) The Executive shall report directly and exclusively to the Board and its
Chairman and shall comply with the proper instructions of the Board and
its Chairman.
5. Salary
(1) The Executive shall receive a base salary of US$694,500 per annum
subject to such adjustment as may be made pursuant to this clause 5.
(2) On April 1, 1997, and on each April 1 thereafter the Executive's base
salary shall be reviewed by the Board which may, in its discretion,
adjust his base salary based upon relevant circumstances. The Company
shall not, without the Executive's prior written consent, reduce the
Executive's base salary unless such reduction:
(a) occurs only once during the Term and does not exceed 15% of the
Executive's base salary current at that time; and
(b) comprises part of a general reduction in base salaries of
executive directors of the Company
(3) The Executive's base salary shall accrue from day to day by equal
installments in arrears on the last day of every month and shall be
inclusive of any fees receivable by the Executive as a director of any
Group Company.
6. Incentive bonus payments
(1) In respect of each fiscal year of the Company, the Executive shall be
entitled to receive such incentive bonus payment as may be determined by
the Remuneration Committee of the Board.
(2) In the event that there is any combination of the Company with another
company or any capital restructuring of the Company which occurrence is
not contemplated by the terms of a bonus incentive as so determined, or
any other occurrence similar to any of the foregoing, and as a result
thereof the amount or value of any incentive bonus payment referred to
above would be, or might reasonably be expected to be, significantly
affected thereby, appropriate adjustment(s) will, at the request of
either party hereto, be negotiated to establish amended or alternative
terms to such schedule to yield an equitable and comparable result.
(3) The foregoing is without prejudice to the existing rights of the
Executive under the bonus plan approved by the Remuneration Committee of
the Board in November 1996, under which Executive is to receive certain
payments related to the price of the Company's common shares, which
shall remain in effect in accordance with its terms.
7. Stock Options
(1) Save to the extent prohibited by applicable laws, the Executive shall be
eligible to participate in all compensation and benefit plans of the
Company, whether or not presently in existence, relating to the grant
of equity-related incentives to executives of the Company including,
without limitation, the ADT Senior Executive Share Option Plan, the
ADT Long Term Incentive Plan and any other stock option plan of the
Company (together the "ADT Option Plans"). The foregoing shall not
entitle the Executive to a grant of options or similar rights under
any such plan unless otherwise agreed by the Board and the Executive
(whether in this agreement, or otherwise).
(2) The foregoing is without prejudice to the existing rights of the
Executive under the ADT Option Plans.
8. Pension and related benefits payments
(1) The Executive shall be entitled to participate in any pension or similar
programs maintained for senior management personnel by the subsidiary of
the Company by which he is actually employed or as may be agreed by the
parties from time to time.
(2) The foregoing is without prejudice to the existing rights of the
Executive under any pension or similar programs.
9. Other Benefits
Save for pension and related benefits, the Executive shall be entitled to
receive all other benefits generally made available to executives of the
Company as agreed with the Chairman.
10. Reimbursement for expenses
The Company shall reimburse (or procure a Subsidiary to reimburse) the
Executive (on production of such evidence as may be required by any relevant
regulatory authority) the amount of all traveling and other expenses properly
and reasonably incurred by him in the discharge of his duties.
11. Holidays
The Executive shall be entitled a reasonable period of holiday with pay in
every year at times convenient to the Company, as agreed with the Chairman.
12. Gratuities and Codes of Conduct
(1) The Executive shall not directly or indirectly accept any commission,
rebate, discount or gratuity, in cash or in kind, from any person who
has or is likely to have a business relationship with any Group Company.
(2) The Executive shall comply with all codes of conduct and with all
applicable rules and regulations of any relevant regulatory authority,
in each case from time to time adopted by the Board.
13. Termination of the employment by the Company
(1) The Company may terminate the employment (but without prejudice to any
other rights of the Company) upon (i) the death of the Executive or (ii)
upon the Executive attaining the age of 60 or (iii) if he is unable
properly to perform his duties by reason of ill-health (mental or
physical), accident or other disability for a period or periods
aggregating at least 180 days in any period of 12 consecutive months
and, in the case of (iii) above, within 90 days after a written notice
has been served upon the Executive notifying him of his lack of proper
performance as aforesaid, he shall not have returned to the proper
performance of his duties.
(2) Any question as to the existence of any ill-health, accident or other
disability referred to in (iii) of paragraph (1) above upon which the
Company and the Executive cannot agree shall be determined by a
qualified independent physician selected by the Executive (or, if the
Executive is unable to make such selection, it shall be made in writing
to the Company and to the Executive shall be by any adult member of the
immediate family of Executive), and approved by the Company. The
determination of such physician made final and conclusive for all
purposes of this agreement. The Executive's full compensation
(including, but not limited to, base salary and payments under clauses 6
and 8 above) shall continue to be payable to him during any periods of
ill-health, accident or disability up to the date of termination of his
employment under paragraph (1) above.
(3) The Company may terminate the employment (but without prejudice to any
other rights of the Company) if the Executive:
(a) wilfully and continually fails substantially to perform his duties
with the Company or wilfully and continually commits a material
breach of this agreement (other than any such failure or such
material breach resulting from his incapacity due to ill-health,
accident or other disability or any such actual or anticipated
failure or material breach resulting from circumstances
constituting grounds for Termination for Good Reason by the
Executive) for a period of 30 days after a written demand for
substantial performance or substantial remedy of the material
breach, as the case may be, has been delivered to the Executive by
the Board, which demand specifically identifies the manner in
which the Board believes that the Executive has not substantially
performed his duties or specifically identifies the material
breach which the Board believes that the Executive has committed,
as the case may be; or
(b) wilfully engages in conduct which is demonstrably and materially
injurious to the Company, monetarily or otherwise.
(4) For purposes of paragraph (3) above, no act or failure to act on the
Executive's part shall be deemed to have been done or omitted to be done
"wilfully" unless done or omitted to be done by the Executive not in
good faith and without reasonable belief that his action or omission
was, in the case of (a) of paragraph (3) above, in the best interests of
the Company and, in the case of (b) of paragraph (3) above, in or not
opposed to the best interests of the Company.
(5) Notwithstanding the provisions of paragraph (3) above, the employment of
the Executive shall not be deemed to have been Terminated for Cause
unless and until there shall have been delivered to him a notice of
termination pursuant to subclause 15(2)(c) below which shall be
delivered together with a copy of a resolution duly adopted by the
affirmative vote (which cannot be delegated) of a majority of the entire
membership of the Board (not counting the Executive) at a meeting of the
Board called and held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive to be heard before the
Board), finding that in the good faith opinion of the Board the
Executive was guilty of conduct set forth above in subparagraphs (a) or
(b) of paragraph (3) above and specifying the particulars thereof in
detail.
(6) With effect from the date upon which the Company serves a notice upon
the Executive convening a meeting of the Board for the purpose described
in paragraph (5) above, the Board may (by service of the same or a
separate notice upon the Executive) suspend all or any of the
Executive's duties and powers on such terms as it considers expedient.
The foregoing suspension shall not exceed 14 days and the decision of
the Board to impose the same shall require a resolution duly adopted by
the affirmative vote ( which cannot be delegated) of a majority of the
entire membership of the Board (not counting the Executive). The
foregoing suspension shall not constitute a circumstance entitling the
Executive to terminate his employment pursuant to subclause 14(1)
(Termination for Good Reason) but shall be without prejudice to the
right of the Executive to terminate his employment pursuant to subclause
14(2).
14. Termination of the employment by the Executive
(1) The Executive may terminate his employment (but without prejudice to any
other rights of the Executive) with immediate effect if, without the
Executive's prior written consent:
(a) the Executive is removed from either or both of his positions as
Chief Financial Officer of the Company and President of ADT
Security Services, Inc. for any reason; or
(b) the Executive is assigned duties and responsibilities that are
inconsistent, in a material respect, with the scope of duties and
responsibilities associated with his positions as aforesaid; or
(c) the Company fails to pay or procure the payment to or on behalf of
the Executive any amounts otherwise vested and due hereunder
including any incentive bonus payment or pension and related
benefits payment; or
(d) a reduction is made in the Executive's base salary (as the same
may have been adjusted from time to time) which reduction is not
permitted under the provisions of subclause 5(2) above; or
(e) the Company fails to continue in effect any compensation or
benefits plan in which the Executive participates, including but
not limited to the ADT Option Plans or any additional or
substitute plans, unless a fair and equitable arrangement
(embodied in an ongoing substitute or alternative plan providing
the Executive with substantially similar compensation or benefits)
is made with respect to such plan(s) or the Company fails to
continue the Executive's participation in any such plan(s) on a
substantially similar basis, both in terms of the amount of
benefits or compensation provided and the level of the Executive's
participation relative to other participants; or
(f) the Company fails to continue to provide the Executive with
benefits substantially as favorable as those enjoyed by the
Executive under any of the Group's life insurance, medical, health
and accident, disability, deferred compensation or savings plans
in which the Executive is participating or the Company takes any
action which would directly or indirectly materially reduce any of
such benefits or deprive the Executive of any material fringe
benefit enjoyed by the Executive at that time; or
(g) the Company fails to obtain a satisfactory agreement from any
successor to assume and agree to perform this agreement, as
contemplated by clause 19 below; or
(h) the Company purports to terminate the Executive's employment or
otherwise dismiss him in a manner which is not effected in
accordance with the requirements of clause 15 below (and, if
applicable, the requirements of paragraphs (3) to (5) of clause 13
above); or
(i) the Company commits any other breach of its obligations under this
agreement;
which act, omission, failure or breach, in the cases of paragraphs (c), (e),
(f), (h) and (i) only, has not been remedied by the Company to the reasonable
satisfaction of the Executive within a period of 30 days following written
notice of such breach by or on behalf of the Executive to the Company.
(2) Notwithstanding any other provision of this agreement, the Executive may
terminate his employment (but without prejudice to any other rights of
the Executive) at any time by giving to the Company a minimum of 90
days' written notice of termination which notice shall refer to this
subclause 14(2). In the event of a service of a notice of termination
of the employment of the Executive pursuant to this subclause 14(2), the
Executive shall not be entitled to payment of the amounts described in
subclause 16(3) below (irrespective of whether or not the employment of
the Executive is terminated by him in circumstances constituting
Termination for Good Reason) provided that if during the 90 day notice
period there occurs one or more of the circumstances described in
subclause 14(1)(a) or (b) above (other than circumstances agreed to in
writing between the Company and the Executive) the Executive shall be
entitled to terminate his employment for Good Reason. Such notice of
termination may not be withdrawn except with the agreement of the Board.
15. Miscellaneous provisions applicable to termination of employment
(1) Any purported termination of the employment of the Executive by either
party (including any termination by expiry of the original Term or any
extended Term) shall be communicated by written notice of termination to
the other party. Save in the case of a notice under clause 3 above or
in accordance with subclause 14(2) above, such notice of termination
shall indicate the specific termination provision in this agreement
relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of such
employment.
(2) For the purposes of this agreement, "Date of Termination" shall mean:
(a) in the case of expiry of the Term under clause 3 above, the date
of such expiry of the Term in accordance with such clause (whether
original or as extended);
(b) in the case of Termination upon Disability, the date of death or
the date upon which the Executive attains the retirement age of 60
or 90 days after the relevant notice of Termination is given, as
the case may be;
(c) in the case of Termination for Cause, the date specified in the
relevant notice of termination which shall not be less than 30 not
more than 60 days from the date such notice of termination is
given;
(d) in the case of Termination for Good Reason, the date specified in
the relevant notice of termination which may be the date upon
which such notice is given; and
(e) in the case of a termination of the agreement in accordance with
subclause 14(2) above, the date of expiry of the notice period set
out in the relevant notice of termination;
provided that (except in the case of a termination of the agreement in
accordance with subclause 14(2) above) if, within 30 days after any notice of
termination is given the party receiving such notice of termination notifies
the other party that a dispute exists concerning the termination, the Date of
Termination shall be the date on which the dispute is finally determined
either by mutual written agreement of the parties or by a final judgment,
order or decree of an arbitration tribunal or a court of competent
jurisdiction (which is not appealable or the time for appeal therefrom has
expired and no appeal has been perfected).
(3) Notwithstanding any dispute concerning the Date of Termination, the
Company shall continue to pay the Executive his full compensation
(including, but not limited to, base salary and payments under clauses 6
and 8 above) in effect when the notice giving rise to the dispute was
given, and continue the Executive as a participant in all equity
incentive, compensation, benefit and insurance plans in which the
Executive was participating when the notice giving rise to the dispute
was given, until the dispute is finally resolved in accordance with
paragraph (2) above.
16. Amounts to be paid upon termination of employment
(1) If the employment of the Executive terminates upon expiry of the Term in
accordance with clause 3 above (whether the original Term or as
extended) or if such employment is terminated by the Company in
circumstances constituting Termination for Cause or if such employment
is terminated by the Executive in accordance with subclause 14(2) above,
then, not later than 15 days following the Date of Termination, the
Company shall pay to the Executive:
(a) his full base salary up to and including the Date of Termination
plus all other amounts to which the Executive is entitled under
any compensation or benefit plan of the Company; and
(b) the payments described in clauses 6 and 8 above, as the case may
be, apportioned on a time basis between the number of days elapsed
prior to and including the Date of Termination and the number of
days remaining in the relevant fiscal year of the Company during
which the Date of Termination falls.
(2) If the employment of the Executive is terminated by the Company in
circumstances constituting Termination upon Disability, then, not later
than 15 days following the Date of Termination, the Company shall pay to
the Executive (or his estate) or on his behalf:
(a) his full base salary up to and including the Date of Termination
plus all other amounts to which the Executive is entitled under
any compensation or benefit plan of the Company;
(b) in lieu of any further base salary payments to the Executive (or
his estate) for periods subsequent to the Date of Termination, a
lump sum payment (the "Disability Payment") equal to two times the
Executive's entire base salary for a period of twelve months at
the highest rate in effect during the term of his employment
hereunder; and
(c) the payments described in clauses 6 and 8 above, as the case may
be, apportioned on a time basis between the number of days elapsed
prior to and including the Date of Termination and the number of
days remaining in the relevant fiscal year of the Company during
which the Date of Termination falls.
(3) If the employment of the Executive is terminated by the Company other
than in circumstances referred to in paragraph (1) and (2) above or by
the Company in any manner inconsistent with clause 15 above or if such
employment is terminated by the Executive in circumstances constituting
Termination for Good Reason (other than a Termination for Good Reason
subsequent to service of a notice of termination by the Executive
pursuant to subclause 14(2) above), then (but not otherwise):
(a) not later than 15 days following the Date of Termination, the
Company shall pay to the Executive his full base salary up to and
including the Date of Termination plus all other amounts to which
the Executive is entitled under any compensation or benefit plan
of the Company;
(b) In addition, not later than 15 days following the Date of
Termination, the Company shall make to the Executive the payment
described in clause 6 above apportioned on a time basis between
the number of days elapsed prior to and including the Date of
Termination and the number of days remaining in the relevant
fiscal year of the Company during which the Date of Termination
falls;
(c) in addition, in lieu of any further base salary payments to the
Executive and any further payments pursuant to clause 6 above, in
each case for periods subsequent to the Date of Termination, the
Company shall pay as severance pay to the Executive, not later
than 15 days following the Date of Termination, a lump sum equal
to twice (x plus y) where:
x is equal to the Executive's entire salary for a period of 12 months at the
highest rate in effect during the term of his employment hereunder; and
y is equal to the average amount (by reference to each fiscal year of the
Company) paid or due and payable to the Executive pursuant to clause 6
above, where the "average amount" is equal to the average of the two
previous complete fiscal years of the Company immediately preceding the
fiscal year in which the Date of Termination falls, provided that in no
circumstances shall y be less than the Executive's entire base salary for a
period of 12 months at the highest rate in effect during the term of his
employment hereunder;
(d) for a 12 month period after such termination, the Company shall
arrange to provide the Executive with life, disability, accident
and health insurance benefits substantially similar to those which
the Executive was receiving immediately prior to the Date of
Termination provided that benefits otherwise receivable by the
Executive pursuant to this subparagraph (a) shall be reduced to
the extent comparable benefits are actually received by the
Executive during the 12 month period following termination and any
such benefits actually received by the Executive shall be reported
to the Company.
(4) Except as may be specifically provided in this agreement or agreed in
writing between the parties, the Executive shall not be required to
mitigate the amount of any payment provided for in this clause 16 by
seeking other employment or otherwise, nor shall the amount of any
payment or benefit provided for in this clause be reduced by any
compensation earned by the Executive as the result of employment by
another employer or by death, pension or related retirement benefits
payable otherwise than pursuant to the provisions of this agreement
whether after the Date of Termination or otherwise.
(5) In the event that any compensation is payable to the Executive hereunder
during a time when he is partially or totally disabled in circumstances
where such disability (except for the provisions hereof) would entitle
him to disability income or to salary continuation payments from the
Company according to the term of any plan or policy of the Company, the
compensation payable hereunder shall be inclusive of any such income or
salary continuation. If any such payments are payable directly to the
Executive by an insurance company under an insurance policy paid for by
the Company, the amounts paid by such insurance company to him shall be
inclusive of the payments made by the Company pursuant to this clause.
17. Protection of the Group's interests
(1) Except for actions taken in the course of his employment hereunder or
with the prior written consent of the Company, the Executive shall not
either during the Term or at any time afterwards divulge or furnish to
any person any information of a private, confidential or secret nature
obtained by him while in the employ of the Company and, upon termination
of his employment hereunder, the Executive shall return to the Company
all such information which exists in written or other physical form and
all copies thereof and shall surrender to the Company all other property
of the Company in his possession or under his control.
(2) For the purposes of this clause 17, "person" and "group" shall be
interpreted in the manner as such terms are used in Section 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended and "beneficial
owner" shall mean the same as such term is defined in Rule 13d-3 under
such Act, as amended, except that a person shall be deemed to be the
beneficial owner of all securities that any such person has the right to
acquire pursuant to any agreement or arrangement or upon exercise of
conversion rights, warrants, options or otherwise, without regard to the
60 day period referred to in such Rule.
(3) Further, for the purposes of this clause 17 only, the term "Group" shall
mean the Company and its Subsidiaries for the time being and the term
"Group Company" means any one of the Company and its Subsidiaries for
the time being.
(4) During the term of his employment hereunder, the Executive shall not
directly or indirectly be engaged in competition with, or be interested
in any business which competes, directly or indirectly, with any
business of the Company or any Group Company.
(5) The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he will not, for a period of nine months from
the Date of Termination (or such earlier date as the Company and the
Executive may agree to be the effective date of termination of the
employment of the Executive hereunder), except with the prior written
consent of the Company:
(a) be interested in any vehicle auction or electronic security
services business which is carried on in the United States and
which is directly competitive with any such business carried on at
the Date of Termination by a Group Company; or
(b) except on behalf of a Group Company, canvass or solicit business,
orders or custom for services similar to those being provided by
any Group Company carrying on a vehicle auction or electronic
security services business in the United States at the Date of
Termination from any person who is at that date or has been at any
time within twelve months ending on that date a supplier or
customer of such a Group Company; or
(c) induce or attempt to induce any supplier of a Group Company
carrying on a vehicle auction or electronic security services
business in the United States to cease to supply, or restrict or
vary the terms of supply to, that company; or
(d) approach an employee of a Group Company with a view to inducing
such employee to leave the employment of that company.
(6) For the purposes of paragraphs (2) to (5) above, the Executive is
interested in a person, company, entity or business if he carries it on
as principal or agent or if (i) he is a partner, director, employee,
secondee, consultant or agent in, of or to any person who carries on the
business, or (ii) he has any direct or indirect financial interest (as
shareholder or otherwise) in any person who carries on the business, or
(iii) he is a partner, director, employee, secondee, consultant or agent
in, of or to any person who has a direct or indirect financial interest
(as shareholder or otherwise) in any person who carries on the business
provided always that, however, the provisions of paragraphs (4) and (5)
above shall not prohibit ownership by any person of not more than 5% of
voting stock of any publicly held company which is so competitive.
(7) The restrictions in each paragraph or subparagraph above shall be
enforceable independently of each of the others and its validity shall
not be affected if any of the others is invalid; if any of those
restrictions is void but would be valid if some part of the restrictions
were deleted the restriction in question shall apply with such
modifications as may be necessary to make it valid.
(8) The Executive acknowledges that the provisions of this clause 17 are no
more extensive than are reasonable to protect the Company and the Group.
18. Payments fair and reasonable
The Company acknowledges and agrees that, due to the Executive's special
talents and stature and because of the nature and compensation practices of
services industries and in order to induce the Executive to continue in the
employment of the Company, the provisions of this agreement regarding further
payments in the event of termination of the employment of the Executive as set
out in clause 16 above constitute fair and reasonable provisions for the
consequences of such termination, do not constitute a penalty, and such
payments and benefits shall not be limited or reduced by amounts the Executive
might otherwise earn or be able to earn from any other employment or ventures
during the term of his employment hereunder.
19. Assumption of agreement
The Company will require any successor (whether direct or indirect, and
whether by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume and
agree to perform this agreement in the same manner and to the same extent that
the Company would be required to perform it if no such succession had taken
place. Such assumption and agreement shall be in express terms and shall be
obtained prior to the effectiveness of any such succession. As used in this
agreement, "Company" shall mean the Company as first defined above and any
successor to its business and/or assets as aforesaid.
20. Binding agreement
(1) This agreement shall be binding upon and inure to the benefit of the
Executive, his successors and assigns and to the benefit of the Company,
its successors and assigns. Where appropriate, references to the
Executive include his personal representatives. If the Executive dies
while any amount is payable to him hereunder if he had continued to
live, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this agreement to his devisee, legatee
or other designee or, if there is no such devisee, legatee or other
designee to the personal representatives of his estate.
(2) Neither party may, without the express written consent of the other
party, assign or pledge any rights or obligations under this agreement
to any person, firm or company, save that the Executive may transfer by
will or by operation of law (or by designation of beneficiary where a
plan or other agreement so provides) any rights to compensation or
benefits hereunder.
21. Indemnification and insurance
(1) The Company agrees to indemnify to the fullest extent permitted by
Bermuda law the Executive against all costs, losses and expenses which
the Executive may incur or become liable to by reason of any contract
entered into, or act or thing done by him as a director or officer of
the Company or any of its Subsidiaries, or in any way in the
discharge of his duties provided always that the indemnity contained
in this clause 21 shall not extend to any matter which would render
this clause 21 void pursuant to the laws of Bermuda.
(2) Subject to applicable laws and regulations, the Executive shall be
covered by directors' and officers' liability insurance to the same
extent as other senior executives of the Company.
22. Miscellaneous
(1) All payments under this agreement shall be made in United States
dollars. Except where expressly stated otherwise in this agreement,
payments under clauses 6 and 8 above shall be made (i) on or before
March 31 in the year following the end of the relevant fiscal year of
the Company; or (ii) five days following the date upon which the
Company's consolidated financial statements for the applicable fiscal
year are adopted by the Board, whichever is later.
(2) All amounts paid to the Executive under this agreement are without
prejudice to any other rights of the Executive against the Company and,
except where expressly stated otherwise, are in addition to all other
amounts due under this agreement. The Company's obligation to make the
payments provided for in this agreement and to provide the benefits
required hereby in accordance with this agreement shall not be affected
by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive.
(3) In addition to any other payments under this agreement, the Company
shall pay to the Executive (or, where applicable, his estate) all legal
fees and expenses reasonably incurred in connection with any dispute
arising under this agreement (including, without limitation, all such
fees and expenses, if any, incurred in contesting or disputing any
termination of the employment of the Executive or in seeking to obtain
or enforce any right or benefit provided by this agreement) unless the
Executive's (or his estate's) claim is found by an arbitration tribunal
or a court of competent jurisdiction to have been frivolous.
(4) This agreement represents the entire agreement of the parties with
respect to the employment of the Executive by the Company and all or
other agreements between the Executive and the Company shall cease to
have effect. Notwithstanding the foregoing, nothing in this agreement
shall affect or in any way prejudice any stock options or similar rights
granted to the Executive by the Company prior to the date hereof.
Subject to the rights of the parties under any applicable law, the
provisions of this agreement shall survive termination of the employment
hereunder.
(5) This agreement shall not be amended or modified nor shall any provision
hereof be capable of being waived or discharged by any party except, in
each case, by a written instrument executed by both of the parties
hereto.
(6) No waiver by either party of any breach by the other party of a
provision of this agreement shall be deemed to be a waiver of any
similar or dissimilar provision or condition at the same or any prior or
subsequent time.
(7) The invalidity or unenforceability of any provision of this agreement
shall not affect the validity or enforceability of any other provision
of this agreement, which shall remain in full force and effect.
(8) This agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will
constitute one and the same instrument.
23. Notices
Any notice or other document to be served under or in connection with this
agreement may be delivered or sent by facsimile process to the Company at its
registered office for the time being or to the Executive at the address set
out above. In addition, any such notice or document may be served at such
other place or by sending it to such other facsimile number as may be
designated in writing by like notice. Any notice shall be deemed to have been
given 12 hours after being so delivered or communicated as required herein.
24. Governing Law
This agreement shall be governed by and construed in accordance with the laws
of Bermuda and the parties hereto hereby submit to the non-exclusive
jurisdiction of the Courts of Bermuda for the purpose of resolving any dispute
hereunder.
AS WITNESS the hands of the Executive and of a duly authorized representative
of the Company on the date first mentioned on page one.
ADT LIMITED
By: __________________________
Name:
Title:
______________________________
Xxxxxxx X. Xxxxxx
