EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of September 6,
2001, by and between Financial Security Assurance Holdings Ltd., a New York
corporation ("Company"), and Xxxxx X. Xxxxxx ("Employee").
WHEREAS, Dexia S.A. ("Dexia") and Company entered into an Agreement
and Plan of Merger dated as of March 14, 2000 (the "Merger Agreement"), whereby
Company became a wholly-owned subsidiary of Dexia;
WHEREAS, in connection with the Merger Agreement, Company and
Employee entered into an employment agreement dated as of March 14, 2000 (the
"Initial Employment Agreement") providing for the continued employment of
Employee as President of Company upon the terms and subject to the conditions
set forth therein; and
WHEREAS, Employee desires to reduce his employment with Company to
part-time status and Company is prepared to accept such change in status,
subject to the terms and conditions of this Agreement, which amends and restates
the Initial Employment Agreement as herein provided;
NOW, THEREFORE, IN CONSIDERATION OF the mutual covenants herein
contained, and other good and valuable consideration, the parties hereto agree
as follows:
1. EMPLOYMENT.
Company hereby employs Employee, and Employee agrees to serve as an
employee of Company, on the terms and conditions set forth in this Agreement.
2. TERM.
Employee's employment shall commence at the Effective Time (as
defined in the Merger Agreement) and end on the fourth anniversary of the
Effective Time (the "Term").
3. DUTIES DURING EMPLOYMENT.
(a) FULL-TIME EMPLOYMENT PERIOD. From the date hereof through and
including December 31, 2001 (the "Full-Time Employment Period"), (i) Employee
shall
serve as President of Company and shall have such duties and responsibilities as
are assigned to him by the Board of Directors of Company (the "Board") and as
are consistent with the magnitude and scope of his duties and responsibilities
as of the Effective Time, (ii) Employee shall report directly to the Chairman
and Chief Executive Officer of Company and (iii) Employee shall devote
Employee's full business time and attention and best efforts to the affairs of
Company during his period of employment, PROVIDED, HOWEVER, that Employee may
continue to engage in other activities, such as activities involving
professional, charitable, educational, religious and similar types of
organizations, speaking engagements, membership on the board of directors of
such other organizations, provided that such activities do not interfere with
the performance of his duties for Company.
(b) PART-TIME EMPLOYMENT PERIOD. From January 1, 2002 through and
including July 5, 2004 (the "Part-Time Employment Period"), (i) Employee shall
serve as a part-time employee of Company and shall have such duties and
responsibilities as are assigned to him by the Chairman and Chief Executive
Officer of Company, (ii) Employee shall report directly to the Chairman and
Chief Executive Officer of Company and (iii) Employee shall make himself
available to devote at least 90 days (i.e. 65 working days based upon a 5-day
work week) per annum to the affairs of the Company at such times as the Company
shall reasonably request.
4. CURRENT CASH COMPENSATION.
(a) BASE SALARY.
As compensation for his services hereunder, Company will pay to
Employee (i) during the remainder of the Full-Time Employment Period, a base
salary at the annual rate in effect at the date hereof and (ii) during the
Part-Time Employment Period, a base salary equal to $250,000 per annum
(pro-rated for periods less than one year).
(b) ANNUAL BONUS. Company shall maintain a bonus pool (the "Bonus
Pool") for the benefit of Company employees equal to seven percent (7%) of the
after-tax
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growth in adjusted book value, excluding realized and unrealized gains/losses on
investments and including a return on equity ("XXX") modifier that is consistent
with the Company's practice as of the date hereof. The Company shall also
maintain a reserve bonus pool (the "Reserve Pool") made up of previously earned
but undistributed Bonus Pool allocations from prior years, equal to
approximately $7 million, which shall be distributable at the discretion of the
management of the Company in consultation with Dexia. In respect of the
Full-Time Employment Period, (i) Employee shall receive an annual cash bonus
equal to at least 4.25% of each of the Bonus Pool and the Reserve Pool, if
applicable; (ii) an additional 2.9% of the Bonus Pool and Reserve Pool, if
applicable, shall be allocated among Employee, Xx. Xxxxxx X. Xxxxxxx and Xx.
Xxxx X. XxXxxxxx as determined by Company's Human Resources Committee; PROVIDED,
HOWEVER, that such percentage shall be reduced to (A) 1.75% in the event Xx.
Xxxxxxx is no longer employed by the Company and (B) 2.02% in the event either
Employee or Xx. XxXxxxxx is no longer employed by Company; (iii) it should be
noted that the above described percentages are minimum percentages and that it
is anticipated that the actual percentages of each of the Bonus Pool and Reserve
Pool to be allocated among Employee, Xx. Xxxxxxx and Xx. XxXxxxxx will be in the
range of 17% to 20%, based on each employee's individual performance and the
performance of Company; and (iv) accordingly, Employee shall be entitled to an
annual cash bonus in respect of the year 2001 (as well as related pension plan
and SERP contributions), with such bonus amount to be paid in the first quarter
of the year 2002 when bonuses are paid to other executives of Company. During
the Part-Time Employment Period, Employee shall not be entitled to receive an
annual cash bonus.
(c) PERFORMANCE SHARES. Employee shall not be entitled to receive
additional Performance Share grants under the Company's 1993 Equity
Participation Plan (the "Performance Share Plan"). Employee's outstanding
Performance Shares shall remain in effect during the Term and shall not be
terminated or otherwise impaired by reason of Employee's transition to part-time
employment status as provided hereunder.
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5. OTHER EMPLOYEE BENEFITS. In addition to the cash compensation
provided for in Section 4 hereof, Employee, subject to meeting eligibility
provisions thereof, shall be entitled (a) during the Full-Time Employment
Period, to participate in Company's employee benefit plans, as presently in
effect or as they may be modified or added to by Company from time to time to
the same extent as are otherwise enjoyed by the senior executives of Company,
which shall not be reduced in any material respect from plans in existence as of
the Effective Time and (b) during the Part-Time Employment Period, (i) to
participate in Company's medical, dental and prescription drug plans and
Deferred Compensation Plan, (ii) to maintain a small office at Company's
principal executive offices with secretarial coverage and (iii) so long as
Employee shall remain a director of Company, to receive compensation for such
director services in the amounts paid to outside directors of Company.
6. TERMINATION.
(a) Termination by Company Without Cause;
TERMINATION BY EMPLOYEE FOR GOOD REASON.
(i) DURING THE TERM. If, during the Term, Company should
terminate Employee's employment without Cause (as defined below), or if
Employee should terminate his employment for Good Reason (as defined
below), Company shall pay to Employee an amount equal to the cash
compensation due hereunder as if no such termination had occurred (the
"Severance Payment"). The Severance Payment shall be in lieu of any amount
payable to Employee under the Company's Severance Policy for Senior
Management. Notwithstanding any provision of the Performance Share Plan to
the contrary, in the event the Employee's employment is terminated
pursuant to this Section 6(a)(i), all Performance Shares then outstanding
shall vest immediately.. Employee shall receive a cash payment with
respect to all such Performance Shares valued pursuant to the valuation
mechanism provided in the Performance Share Plan (which provides a
mechanism for determining the number of Performance Shares
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and the price per share) as applicable to Performance Shares outstanding
at the Effective Time and Performance Shares granted subsequent to the
Effective Time, respectively. If the performance cycle includes at least
one completed year, the payout for each such completed year shall be based
on the actual results for the completed year(s) and 100% will be used for
uncompleted years; or if the performance cycle does not include any
completed years, 100% payout. The value which is obtained by multiplying
the number of Performance Shares determined as provided above by the
applicable share price determined under the valuation mechanism in the
Performance Share Plan at the time of the termination will be increased
with interest at 8% per year, compounded semi-annually, from the date of
termination to the date of payment. Such cash payment shall be made within
five (5) days after the end of the Restricted Period (as defined in
Section 7(b)). Such cash payment shall be forfeited in the event Employee
breaches his obligations under Section 7(b) and (c) of this Agreement.
"Cause" shall mean (i) conviction or plea of NOLO CONTENDERE (or
similar plea) in a criminal proceeding for commission of a misdemeanor or a
felony that is materially injurious to the Company; (ii) willful and continued
failure by Employee to perform substantially his duties with Company (other than
any such failure resulting from incapacity due to physical or mental illness)
after a demand for substantial performance is delivered to Employee by Company
which specifically identifies the manner in which Company believes Employee has
not substantially performed his duties; or (iii) Employee engages in willful
misconduct in carrying out his duties with Company which is directly and
materially harmful to the business or reputation of Company. Employee shall not
be terminated for Cause unless he is provided with notice stating in reasonable
detail the alleged misconduct and if such misconduct is reasonably susceptible
to cure, he is allowed a period of time (not less than ten (10) days) to cure
the misconduct; and a resolution is adopted by the Board at a scheduled meeting
at which Employee shall be entitled to attend and speak to the Board.
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"Good Reason" shall mean, without Cause: (i) breach by the Company
of its obligations hereunder; or (ii) Company's requiring Employee to be based
at an office that is greater than twenty-five (25) miles from the location of
Employee's office as of the Effective Time. Notwithstanding the foregoing,
Employee shall not be deemed to have terminated his employment for Good Reason
unless he gives 60 days' prior written notice to Company stating in reasonable
detail the basis upon which "Good Reason" is asserted, such notice is given
within 120 days of the later of the occurrence of the event or the date Employee
knows or should have known of the event which would otherwise constitute Good
Reason and, if such failure or breach is reasonably susceptible to cure, Company
does not effect a cure within such 60-day period.
(b) Termination by Company for Cause;
TERMINATION BY EMPLOYEE WITHOUT GOOD REASON.
(i) DURING THE TERM. If, during the Term, Company should
terminate Employee's employment for Cause or Employee should terminate his
employment without Good Reason, Employee will be entitled only to be paid
the pro-rata annual base salary otherwise payable to Employee under
paragraph (a) of Section 4 through the date of termination. During the
Part-Time Employment Period, commencement by Employee of full-time
employment with an enterprise other than Company shall constitute
termination of employment by Employee. All Performance Shares that are
unvested on the date of termination shall be forfeited.
(c) ADDITIONAL PAYMENTS. If applicable, Employee shall be eligible
to receive the additional payments set forth on Annex A.
(d) NO DISPARAGING STATEMENTS.
In the event of termination of Employee's employment for any reason
by Company or Employee, Employee will not at any time publicly denigrate,
ridicule or intentionally criticize Company or any of its affiliates including,
without limitation, by way of news interviews, or the expression of personal
views, opinions or judgments to the
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news media. Similarly, neither Company nor any of its affiliates will publicly
denigrate, ridicule or intentionally criticize Employee.
7. RESTRICTIVE COVENANTS.
(a) CONFIDENTIAL INFORMATION.
Employee agrees to keep secret and retain in the strictest
confidence all confidential matters which relate to Company or any affiliate of
Company, including, without limitation, customer lists, client lists, trade
secrets, pricing policies and other nonpublic business affairs of Company and
any affiliate of Company learned by him from Company or any such affiliate or
otherwise before or after the date of this Agreement, and not to disclose any
such confidential matter to anyone outside Company or any of its affiliates,
whether during or after his period of service with Company, except as may be
required by a court of law, by any governmental agency having supervisory
authority over the business of Company or by any administrative or legislative
body (including a committee thereof) with apparent jurisdiction to order him to
divulge, disclose or make accessible such information. Employee agrees to give
Company advance written notice of any disclosure pursuant to the preceding
sentence and to cooperate at the Company's expense with any efforts by Company
to limit the extent of such disclosure. Upon request by Company, Employee agrees
to deliver promptly to Company upon termination of his services for Company, or
at any time thereafter as Company may request, all Company or affiliate
memoranda, notes, records, reports, manuals, drawings, designs, computer files
in any media and other documents (and all copies thereof) relating to Company's
or any affiliate's business and all property of Company or any affiliate
associated therewith, which he may then possess or have under his control, other
than personal notes, diaries, rolodexes and correspondence.
(b) COVENANT NOT TO COMPETE.
During the term of this Agreement and for the remainder of the Term,
upon a termination of Employee's employment for any reason (the "Restricted
Period"), Employee shall not directly or indirectly, own, manage, operate, join,
control, or
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participate in the ownership, management, operation or control of, or be
employed by or connected in any manner with, any competing business, whether for
compensation or otherwise, without the prior written consent of Company
(excluding less than 5% stakes in public vehicles). For the purposes of this
Agreement, a "competing business" shall be any financial services business which
is a significant competitor of Company or its affiliates. Should Employee,
directly or indirectly, own, manage, operate, join, control or participate in
the ownership, management, operation or control of, or be employed by or
connected in any manner with, any competing business, all payments under this
Agreement shall cease.
(c) COVENANT NOT TO SOLICIT COMPANY CLIENTS OR EMPLOYEES.
During the term of this Agreement, and for the Restricted Period,
Employee shall not, in any manner, directly or indirectly, (i) raid or solicit
any client or prospective client of Company or its affiliates to whom Employee
provided services, or for whom Employee transacted business, or whose identity
became known to Employee in connection with Employee's employment with Company,
to transact business with a competing business or reduce or refrain from doing
any business with Company or its affiliates or (ii) interfere with or damage (or
attempt to interfere with or damage) any relationship between Company or its
affiliates and any such client or prospective client. During the term of this
Agreement, and for the Restricted Period, Employee further agrees that Employee
shall not, in any manner, directly or indirectly, solicit any person who is an
employee of Company or its affiliates to apply for or accept employment with any
competing business. The term "solicit" as used in this Agreement means any
communication of any kind whatsoever, regardless of by whom initiated, inviting,
encouraging or requesting any person or entity to take or refrain from taking
any action.
(d) Employee agrees that during his employment and thereafter
Employee shall be available to Company and Parent and shall assist Company and
Parent in connection with any litigation brought by or against Company or its
affiliates and Parent relating to the period during which Employee was employed
by Company;
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provided, however, that all costs and expenses in connection with the foregoing
shall be borne by Company and/or Parent and advanced to the Employee.
(e) The provisions of this Section 7 shall survive the termination
or expiration of this Agreement in accordance with the terms hereof. It is the
intention of the parties hereto that the restrictions contained in this Section
7 be enforceable to the fullest extent permitted by law. Therefore, to the
extent any court of competent jurisdiction shall determine that any portion of
the foregoing restrictions is excessive, such provision shall not be entirely
void, but rather shall be limited or revised only to the extent necessary to
make it enforceable.
8. REMEDY.
Should Employee engage in or perform, either directly or indirectly,
any of the acts prohibited by Section 7 hereof, it is agreed that Company shall
be entitled to full injunctive relief, to be issued by any competent court of
equity, enjoining and restraining Employee and each and every other person,
firm, organization, association, or corporation concerned therein, from the
continuance of such violative acts. The foregoing remedy available to Company
shall not be deemed to limit or prevent the exercise by Company of any or all
further rights and remedies which may be available to Company hereunder or at
law or in equity.
9. PRIOR NOTICE TO PROSPECTIVE EMPLOYER.
Prior to accepting employment with any other person or entity during
Employee's employment or the Restricted Period, Employee shall provide such
prospective employer with written notice of the provisions of this Agreement.
10. ARBITRATION.
If a dispute arises between the parties respecting the terms of this
Agreement or Employee's employment by Company, such dispute shall be settled
only by binding arbitration in New York, New York, in accordance with the
commercial arbitration rules of the American Arbitration Association. Company
will pay the costs of
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arbitration and reasonable legal fees, provided that the claim is determined not
to be frivolous.
11. DIRECTORS' AND OFFICERS' INSURANCE.
During the Employee's employment, Company shall maintain directors'
and officers' liability insurance covering Employee, which contains at least the
same coverage and amounts and contains terms and conditions no less advantageous
than that coverage provided by Company as of the Effective Time.
12. GOVERNING LAW.
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of the State of New York, without reference to
principles relating to conflict of laws. If under such law, any portion of this
Agreement is at any time deemed to be in conflict with any applicable statute,
rule, regulation or ordinance, such portion shall be deemed to be modified or
altered to conform thereto or, if that is not possible, to be omitted from this
Agreement; the invalidity of any such portion shall not affect the force, effect
and validity of the remaining portion hereof.
13. NOTICES.
All notices under this Agreement shall be in writing and shall be
deemed effective when delivered in person, or five (5) days after deposit
thereof in the U.S. mails, postage prepaid, for delivery as registered or
certified mail, addressed to the respective party at the address set forth below
or to such other address as may hereafter be designated by like notice. Unless
otherwise notified as set forth above, notice shall be sent to each party as
follows:
(1) Employee, to:
Xxxxx X. Xxxxxx
000 Xxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxxxxx 00000
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(2) Company, to:
Financial Security Assurance Holdings Ltd.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel.
In lieu of personal notice or notice by deposit in the U.S. mail, a
party may give notice by confirmed telegram, telex or fax, which shall be
effective upon receipt.
14. ENTIRE AGREEMENT.
This Agreement constitutes the entire understanding between Company
and Employee relating to the terms of employment of Employee by Company and
supersedes and cancels all prior written and oral agreements and understandings
with respect to the subject matter of this Agreement, including, without
limitation, the Initial Employment Agreement. This Agreement may be amended but
only by a subsequent written agreement of the parties. This Agreement shall be
binding upon and shall inure to the benefit of Employee, Employee's heirs,
executors, administrators and beneficiaries, and Company and its successors.
15. SUCCESSORS.
This Agreement is personal to Employee and without the prior written
consent of Company shall not be assignable by Employee otherwise than by will or
the laws of descent and distribution. This Agreement shall inure to the benefit
of and be enforceable by Employee's legal representatives. This Agreement shall
inure to the benefit of and be binding upon Company and its successors and
assigns.
16. WITHHOLDING TAXES.
All amounts payable to Employee under this Agreement shall be
subject to applicable withholding of income, wage and other taxes.
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17. WAIVER OF BREACH.
The waiver by either party of a breach of any term of this Agreement
shall not operate nor be construed as a waiver of any subsequent breach thereof.
Any waiver must be in writing and signed by the Executive or an authorized
officer of the Company, as the case may be.
18. SURVIVORSHIP.
The respective rights and obligations of the parties hereunder shall
survive any termination of the Executive's employment to the extent necessary to
the intended preservation of such rights and obligations.
19. SEVERABILITY.
If any one or more of the provisions contained in this Agreement
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
20. HEADINGS.
The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
21. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the year and day first above written.
FINANCIAL SECURITY ASSURANCE HOLDINGS LTD.
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Title: Managing Director
/s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
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ANNEX A
ADDITIONAL PAYMENTS
(a) Except as set forth below, in the event it shall be determined
that any payment or distribution by Company to or for the benefit of Employee
(whether paid or payable or distributed or distributable pursuant to the terms
of the Agreement or otherwise, but determined without regard to any additional
payments required under this Annex A) (a "Payment") would be subject to the
excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code") or any interest or penalties are incurred by Employee with
respect to such excise tax (such excise tax, together with any such interest and
penalties, are hereinafter collectively referred to as the "Excise Tax"), then
Employee shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by Employee of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Employee retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of paragraph (c), all determinations
required to be made under this Annex A, including whether and when a Gross-Up
Payment is required and the amount of such Gross-Up Payment and the assumptions
to be utilized in arriving at such determination, shall be made by Company's
independent auditors or such other certified public accounting firm reasonably
acceptable to Employee as may be designated by Company (the "Accounting Firm")
which shall provide detailed supporting calculations both to Company and
Employee within 15 business days of the receipt of notice from Employee that
there has been a Payment, or such earlier time as is requested by Company. All
fees and expenses of the Accounting Firm shall be borne solely by Company. Any
Gross-Up Payment, as determined pursuant to this Annex A, shall be paid by
Company to Employee not later than the due date for the payment of any Excise
Tax. Any determination by the Accounting Firm shall be binding upon Company and
Employee. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that Gross-Up Payments which will not have been made
by Company should have been made ("Underpayment"), consistent with the
calculations required to be made hereunder. In the event that Company exhausts
its remedies pursuant to paragraph (c) and Employee thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be
promptly paid by Company to or for the benefit of
Employee. In the event the amount of the Gross-up Payment exceeds the amount
necessary to reimburse Employee for the Excise Tax (the "Overpayment"), the
Accounting Firm shall determine the amount of the Overpayment that has been made
and any such Overpayment shall be promptly paid by Employee (to the extent
Employee has received a refund if the applicable Excise Tax has been paid to the
Internal Revenue Service) to or for the benefit of the Company. Employee shall
cooperate, to the extent expenses are reimbursed by the Company, with any
reasonable requests by the Company in connection with any contests or disputes
with the Internal Revenue Service in connection with the Excise Tax.
