Exhibit 10.9
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT ("Agreement") is
dated as of the 26th day of March 2001, by and between XXXXXX NORTH AMERICA,
INC. ("Xxxxxx US") and XXXXXX X. XXXXXXX ("Executive").
WHEREAS, on October 15, 2000 (the "Commencement Date"), Xxxxxx US
and Xxxxxx Group Limited (f/k/a/ Xxxxxx Group plc, "Xxxxxx UK") entered into an
employment agreement in order to employ Executive as Executive Chairman of
Xxxxxx US and Chairman and Chief Executive Officer of Xxxxxx UK, among other
things (the "Prior Employment Agreement"); and
WHEREAS, effective on or about the date of this Agreement, Xxxxxx
Group Holdings Limited, a company established under the laws of Bermuda ("Xxxxxx
Group") shall, as a result of the exchange of ordinary shares of TA I Limited, a
company established under the laws of England and Wales and the former ultimate
parent company of Xxxxxx UK and Xxxxxx US, for shares of common stock of Xxxxxx
Group, instead become the ultimate parent company of TAI Limited, Xxxxxx US and
Xxxxxx UK (the " Share Exchange"); and
WHEREAS, in connection with the Share Exchange, Xxxxxx US, Xxxxxx UK
and Xxxxxx Group desire to make certain changes to the Prior Employment
Agreement including, among other things, to provide that Executive become
Chairman and Chief Executive Officer of Xxxxxx Group, and that Executive shall
hold a position on the board of directors of Xxxxxx Group (the "Board"); and
WHEREAS, Executive desires to accept such changes on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. EMPLOYMENT, COMPENSATION AND BENEFITS. During the period of this
Agreement, Xxxxxx US agrees to employ Executive in the capacity, to pay
the remuneration, and to provide the benefits, described below.
(a) TITLE AND DUTIES
(i) During the Term (as defined in Section 2 herein), Executive
shall be employed as Executive Chairman of Xxxxxx US and shall hold the
offices of Executive Chairman and Chief Executive Officer of Xxxxxx Group
and the offices of Chairman, Chief Executive Officer and Senior Managing
Director of Xxxxxx UK. Executive shall also be elected to the most senior
governing board and Executive Committee of Xxxxxx Group, Xxxxxx UK and
Xxxxxx US. Executive shall also be appointed to such senior
director and executive positions, as the Board, after consultation with
Executive, deems appropriate, of each subsidiary of Xxxxxx Group.
(ii) Executive shall have the customary duties, responsibilities
and authority of a chairman and a chief executive officer at a corporation
of a similar size and status as Xxxxxx Group.
(iii) Executive shall report directly to the Board.
(iv) Executive's principal office shall be located at an office
of Xxxxxx US in Manhattan, New York City, New York.
(b) REMUNERATION
(i) BASE SALARY. Beginning on the Commencement Date, Executive's
base salary shall be at the rate of U.S. $1,000,000 per annum, payable in
the United States in accordance with Xxxxxx U.S.'s normal payroll
practices. On each anniversary of the Commencement Date, the amount of
Executive's Base Salary shall be reviewed and may, at the discretion of
the Board, be adjusted (but never below the then Base Salary). Any such
increased amount shall constitute "Base Salary" hereunder.
(ii) BONUS. So long as Executive remains employed hereunder,
Executive shall receive an annual cash bonus (a "Guaranteed Bonus") equal
to 100% of Executive's Base Salary, in respect of each fiscal year ending
during the Term (the "FISCAL YEAR") (and, subject to Section 3 of this
Agreement, prorated based on the period within the Term for any partial
Fiscal Year ending after the Term); the amount of which shall be payable
in U.S. dollars in the United States within the first quarter following
the end of each such Fiscal Year. An additional annual or other bonus
amount in excess of the Guaranteed Bonus shall be payable to Executive if
extraordinary performance targets, established at the beginning of each
Fiscal Year by the Board after consultation with the Executive, are
achieved.
(c) BENEFITS. Xxxxxx US shall provide Executive with those
benefits, including medical, life insurance, disability, pension and
other benefit programs, plans and practices to which
similarly-situated, full-time executive employees of Xxxxxx US and its
subsidiaries (commensurate with Executive's position with Xxxxxx US)
are entitled (under the applicable benefit plans as in effect as of the
Commencement Date or as may be amended from time to time), as set forth
in the Staff Handbook (the "COMPANY PLANS"), as well as fringe benefits
commensurate with the Executive's position, including, at Xxxxxx US's
expense, reasonable availability of private air transportation, as
determined appropriate for business travel by Executive in his
reasonable, good faith discretion and, when reasonably necessary for
security reasons, personal travel of Executive and his family.
(d) TEMPORARY HOUSING. In addition to the benefits provided in
Section 1(c), above, Xxxxxx US shall make available for use by Executive
(and make payment of all rent, broker's fees, and other related expenses
for an apartment in London, England, suitable to Executive's status in his
role as Executive Chairman and Chief Executive
Officer of Xxxxxx Group, which apartment (and the expenses budgeted for
decorating such apartment) have been agreed upon by the board of directors
of Xxxxxx US.
(e) OTHER EXPENSES. All expenses of Executive incurred in connection
with the performance of his services hereunder or prior hereto, other than
with respect to the commutation by Executive from his home in New Jersey
to his office in New York City shall be payable or reimbursed by Xxxxxx
US, including but not limited to those fringe benefits set forth in(c)
above and (d) and, to the extent, if any, such benefits would be taxable
to Executive, shall be grossed up by Xxxxxx US such that Executive has no
after-tax cost for such expenses or additional gross-up amount.
(f) INDEMNIFICATION. Xxxxxx US and Xxxxxx Group shall provide
Executive with Directors and Officers and Errors and Omissions insurance
in amounts reasonably acceptable to Executive. Xxxxxx US agrees, and shall
cause Xxxxx Group to agree to indemnify and defend Executive to the
fullest extent permitted by applicable law, Xxxxxx US's and/or Xxxxxx
Group's Articles of Incorporation and bylaws (or the applicable equivalent
governing documents) with respect to any and all claims which arise from
or relate to Executive's duties as an officer, member of the Board (and
any other board of directors of Xxxxxx UK, Xxxxxx US or any of their
affiliates), employee of Xxxxxx US, and duties performed in connection
with the offices of Xxxxx UK and Xxxxxx Group held by Executive, or as a
fiduciary of any employee benefit plan or a similar capacity with any
other entity for which Executive is performing services at Xxxxxx US's or
Xxxxxx Group's request, whether performed heretofore or hereafter.
(g) EQUITY PARTICIPATION. Prior to or simultaneously with the
commencement of the Term, Executive invested US$5,000,000 in non-voting
ordinary shares of TA I Limited (which shares shall be exchanged for
shares of common stock of Xxxxxx Group (such shares, the "Shares"), at a
per share purchase price equal to(pound)2.00 (the "Initial Price Per
Share"). For each Share that Executive purchased, Executive was granted an
option to purchase three (3) Shares, at a per share exercise price equal
to the Initial Price Per Share, which option shall become vested in equal
annual installments (20% per year) on each of the first five anniversaries
of the date of grant, or (x) earlier in full upon a Change in Control (as
defined in the Share Option Agreement) and (y) for an additional year in
the case of a termination of employment (A) due to Executive's death or
Disability (as hereinafter defined) at any time after the third
anniversary of the Commencement Date and (B) by Xxxxxx US other than for
Cause or by Executive for Good Reason (as such terms are hereinafter
defined) after the five-hundred forty-seventh (547th) day of the Term. The
foregoing equity arrangements, to the extent not inconsistent herewith,
shall be governed by the terms and conditions, generally as set forth on
Exhibit A, and specifically of certain documents, including a Management
Shareholder and Subscription Agreement by and among TA I Limited, Mourant
& Co. Trustees Limited and various management and employee subscribers, as
amended or superceded to give effect to the Share Exchange, (the
"Subscription Agreement"), the 1998 Share Purchase and Option Plan for Key
Executives of TA I Limited (as amended or superceded to give effect to the
Share Exchange), the Share Option Agreement, the Sale Participation
Agreement, and the Registration Rights Agreement. Executive entered into a
Subscription Agreement, a
Share Option Agreement, and a Sale Participation Agreement, substantially
in the forms attached hereto.
(h) Executive shall be entitled to vacation time and holidays as are
provided in general to executive employees of Xxxxxx US but shall, in any
event, be entitled to no less than four (4) weeks of vacation per year.
Any unused days accrued in a particular year may not be carried over to a
subsequent year.
(i) Xxxxxx US and Executive shall cooperate to take all actions
necessary to promptly obtain all necessary immigration or similar
approvals required by applicable law for Executive to perform his duties
hereunder.
2. TERM AND TERMINATION.
(a) TERM. This Agreement shall become effective as of the
Commencement Date. Unless terminated earlier pursuant to Section 2(b),
below, Executive's employment hereunder shall remain in effect until the
day after the fifth anniversary of the Commencement Date. For purposes of
this Agreement, the five-year employment term (which begins on the
Commencement Date) shall be deemed to be the "Term".
(b) TERMINATION. The Term shall terminate on the earlier to occur of
(i) the expiration of the Term and (ii) the date upon which Executive's
employment is terminated, either by Xxxxxx US or Executive. Subject to the
conditions of Section 3(d)(i) and (ii), either party may terminate the
Term and Executive's employment at any time by providing 90 days' prior
written notice to the other party of the termination of Executive's
employment.
3. EFFECT OF CERTAIN TERMINATIONS.
(a) TERMINATION WITHOUT CAUSE BY XXXXXX US OR RESIGNATION WITH
GOOD REASON BY EXECUTIVE. In the event that Xxxxxx US terminates
Executive without Cause or the Executive terminates his employment for
Good Reason: (i) at any time during the first five hundred forty-seven
(547) days of the Term, (the "Initial Period"), Xxxxxx US shall, within
thirty (30) days after such termination, pay Executive an amount equal
to the sum of (x) his Base Salary and Guaranteed Bonus and (y) his
Accrued Amounts, in addition to providing Executive with his Accrued
Rights, and (ii) at any time after the Initial Period but prior to the
end of the Term, Xxxxxx US shall, within thirty (30) days after such
termination, pay Executive an amount equal to the sum of (x) the lesser
of (A) the product of two times his Base Salary and Guaranteed Bonus
and (B) the remainder of his Base Salary and Guaranteed Bonus due and
payable through the end of the Term and (y) his Accrued Amounts, in
addition to providing Executive with his Accrued Rights; PROVIDED,
HOWEVER, in the event that after the occurrence of a Change in Control
(or prior thereto at the direction of an anticipated successor, or
otherwise in connection therewith) Executive's employment is terminated
for any reason by Xxxxxx US (or its successor) or by Executive, Xxxxxx
US (or its successor) shall be required to pay Executive, within thirty
(30) days thereafter, an amount equal to the sum of (x) the product of
three times
the sum of his Base Salary and Guaranteed Bonus, and (y) his Accrued
Amounts, in addition to providing Executive with his Accrued Rights.
(b) OTHER TERMINATIONS. In the case of any other termination not
covered by Section 3(a) alone, Executive shall only be entitled to his
Accrued Amounts and Accrued Rights.
(c) NO MITIGATION; NO OFFSET. The amounts due under Section 3(a)
shall be paid without any obligation of mitigation or offset for future
earnings or other amounts, and shall be paid without setoff, counterclaims
or defense; PROVIDED, HOWEVER, that such amounts shall be offset by any
amounts payable to Executive pursuant to other severance plans of Xxxxxx
US.
(d) DEFINITIONS. For purposes of this Agreement, the capitalized
terms used above shall have the following meanings:
(i) "CAUSE" shall mean (A) Executive's conviction of, or
pleading nolo contendere to, a felony or misdemeanor involving sexual
misconduct (other than a traffic infraction not involving actual
imprisonment), (B) Executive's willful and continuous misconduct with
regard to his material duties and responsibilities which causes
demonstrable harm of a material nature (C) Executive's serious or
persistent breach of Executive's material obligations under this
Agreement (including any repeated failure to abide by the legal,
written directives presented to him by the Board, which directives are
not in violation of Section 1(a)(ii) hereof) or (D) gross negligence
(other then as a result of physical or mental impairment) with regard
to his duties; PROVIDED, that, in the case of (B), (C) and (D), above,
such misconduct, breach or negligence was not resolved or cured within
fifteen (15) days following Xxxxxx US's written notice to Executive of
Xxxxxx US's intention to terminate Executive's employment for Cause as
a result of such circumstances, which notice (pursuant to Section 2(b))
describes such circumstances with sufficient particularity to give
Executive a reasonable opportunity to resolve or cure any such
misconduct, breach or negligence. For purposes of this definition, an
act (or omission) shall not be deemed "willful", if, in the good faith
belief of Executive, such act (or omission) was in the best interests
of Xxxxxx US (or any of its subsidiaries), and such belief was
reasonable.
(ii) "GOOD REASON" shall mean Executive terminates his
employment as a result of (A) any diminution by Xxxxxx US or Xxxxxx Group
of his titles, positions or status, (B) any material diminution of his
duties, responsibilities or authority, or the assignment to him of any
duties materially inconsistent with his positions, (C) any relocation of
his principal office from New York, New York, (D) any material breach of
this Agreement by Xxxxxx US, (E) a Change in Control or (F) the Board
repeatedly overrides, supersedes or disregards reasonable decisions by
Executive or recommendations made by Executive to the Board, such that the
Board materially interferes with Executive's ability to effectively
function as the Executive Chairman and Chief Executive Officer, or the
Board otherwise takes actions that constructively represent a lack of
confidence in Executive's ability to perform his duties and
responsibilities; PROVIDED, that in all cases (other than (E) above), such
action or breach is not resolved or cured within fifteen (15) days
following
Executive's written notice(pursuant to Section 2(b)) to Xxxxxx US of the
event that he asserts is the basis for Good Reason, and which event or
behavior Xxxxxx US does not resolve or cure during such 15-day period.
(iii) "ACCRUED AMOUNTS" shall mean all accrued but unpaid Base
Salary and vacation pay, any bonus due for any completed fiscal year and a
pro rata Guaranteed Bonus for the Fiscal Year in which the termination
occurs; PROVIDED, HOWEVER, that upon a termination of Executive's
employment for Cause or by Executive without Good Reason (other than as a
result of death or Disability (as hereinafter defined) prior to the end of
the Term, "Accrued Amounts" shall not include the prorated Guaranteed
Bonus for the Fiscal Year in which the termination occurs.
(iv) "ACCRUED RIGHTS" shall mean any amounts or benefits due to
Executive under any benefit or equity plan or program (other than a
severance plan), and Executive's rights under Sections 1(e), 1(f), 4 and 7
hereof.
(e) DISABILITY TERMINATION. Xxxxxx US may terminate Executive's
employment as a result of a "Disability" if Executive, as a result of
mental or physical incapacity, has been unable to perform his material
duties for six (6) consecutive months (or 180 days in any 360-day period).
Such termination shall be only permitted while Executive is still so
disabled and shall be effective on thirty (30) days written notice to
Executive, provided that such termination shall not be effective if
Executive returns to full time performance of his material duties within
such thirty (30) day period and continues in such full time capacity
(which full time status shall be deemed to continue even in the event that
vacation or intermittent and de minimis sick leave is taken) for six (6)
consecutive months thereafter. For the avoidance of doubt, in the event
that Executive does return to full time performance but does not continue
in such full time capacity for six (6)) consecutive months thereafter, the
termination shall be deemed effective on thirty (30) days written notice
following the most recent date that Executive fails to continue in such
full time capacity.
4. EXCISE TAX.
(a) In the event it shall be determined that any payment, benefit or
distribution (or combination thereof) by Xxxxxx US, any of its affiliates,
one or more trusts established by Xxxxxx US for the benefit of its
employees, or any other person or entity, to or for the benefit of
Executive (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement, or otherwise pursuant to or by
reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, stock appreciation right,
phantom equity awards or similar right, or the lapse or termination of any
restriction on the vesting or exercisability of any of the foregoing) (a
"PAYMENT") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "CODE") by reason of
being "contingent on a change in ownership or control" of Xxxxxx US,
within Section 280G of the Code (or any successor provision thereto) or
any interest or penalties are incurred by Executive with respect to such
excise tax (such excise tax, together with any such interest and
penalties, hereinafter collectively referred to as the "EXCISE TAX"), then
Executive shall be entitled
to receive an additional payment or payments (a "GROSS-UP PAYMENT") in an
amount such that after payment by Executive 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 the Excise Tax imposed upon the Gross-Up
Payment, Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payments.
(b) Subject to the provisions of Section 4(a) hereof, all
determinations required to be made under this Section 4, 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 a nationally recognized certified public
accounting firm as may be designated by Xxxxxx US, and reasonably
satisfactory to Executive (the "ACCOUNTING FIRM"), which shall provide
detailed supporting calculations both to Xxxxxx US and Executive within
fifteen (15) business days of Termination Date, or such earlier time as is
requested by Xxxxxx US; PROVIDED that for purposes of determining the
amount of any Gross-Up Payment, Executive shall be deemed to pay federal
income tax at the highest marginal rates applicable to individuals in the
calendar year in which any such Gross-Up Payment is to be made and deemed
to pay state and local income taxes at the highest effective rates
applicable to individuals in the state or locality of Executive's
residence or place of employment in the calendar year in which any such
Gross-Up Payment is to be made, net of the maximum reduction in federal
income taxes that can be obtained from deduction of such state and local
taxes, taking into account limitations applicable to individuals subject
to federal income tax at the highest marginal rates. All fees and expenses
of the Accounting Firm shall be borne solely by Xxxxxx US. Any Gross-Up
Payment, as determined pursuant to this Section 4, shall be paid by Xxxxxx
US to Executive (or to the appropriate taxing authority on Executive's
behalf) when due immediately prior to the date Executive is required to
make payment of any Excise Tax or other taxes. If the Accounting Firm
determines that no Excise Tax is payable by Executive, it shall so
indicate to Executive in writing, with an opinion that Executive has
substantial authority not to report any Excise Tax on his/her federal
state, local income or other tax return. Any determination by the
Accounting Firm shall be binding upon Xxxxxx US and the Executive absent a
contrary determination by the Internal Revenue Service or a court of
competent jurisdiction; PROVIDED, HOWEVER, that no such determination
shall eliminate or reduce Xxxxxx US's obligation to provide any Gross-Up
Payment that shall be due as a result of such contrary determination. As a
result of the uncertainty in the application of Section 4999 of the Code
(or any successor provision thereto) and the possibility of similar
uncertainty regarding state or local tax law at the time of any
determination by the Accounting Firm hereunder, it is possible that the
amount of the Gross-Up Payment determined by the Accounting Firm to be due
to (or on behalf of) Executive was lower than the amount actually due
("UNDERPAYMENT"). In the event that Xxxxxx US exhausts its remedies
pursuant to Section 4(c) and Executive thereafter is required to make a
payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred as promptly as possible and notify
Xxxxxx US and Executive of such calculations, and any such Underpayment
(including the Gross-Up Payment to Executive) shall be promptly paid by
Xxxxxx US to or for the benefit of Executive within five (5) business days
after receipt of such determination and calculations.
(c) Executive shall notify Xxxxxx US in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by
Xxxxxx US of any Gross-Up Payment. Such notification shall be given as
soon as practicable but no later than ten (10) business days after
Executive is informed in writing of such claim and shall apprise Xxxxxx US
of the nature of such claim and the date on which such claim is requested
to be paid. The Executive shall not pay such claim prior to the expiration
of the thirty (30) day period following the date on which he gives such
notice to Xxxxxx US (or such shorter period ending on the date that any
payment of taxes with respect to such claim is due). If Xxxxxx US notifies
Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive shall (i) give Xxxxxx US any
information which is in Executive's possession reasonably requested by
Xxxxxx US relating to such claim, (ii) take such action in connection with
contesting such claim as Xxxxxx US shall reasonably request in writing
from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably
selected by Xxxxxx US, (iii) cooperate with Xxxxxx US in good faith in
order to effectively contest such claim, and (iv) permit Xxxxxx US to
participate in any proceedings relating to such claim; PROVIDED, HOWEVER,
that Xxxxxx US shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with
such contest and shall indemnify and hold Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation
and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 4(c), Xxxxxx US shall control all proceedings
taken in connection with such contest and, at its sole option, may pursue
or forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at
its sole option, either direct Executive to pay the tax claimed and xxx
for a refund or contest the claim in any permissible manner, and Executive
agrees to prosecute such contest to a determination before any
administrative tribunal, in a court of initial jurisdiction and in one or
more appellate courts, as Xxxxxx US shall determine; PROVIDED, FURTHER,
that if Xxxxxx US directs Executive to pay such claim and xxx for a
refund, Xxxxxx US shall advance the amount of such payment to Executive,
on an interest-free basis, and shall indemnify and hold Executive
harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with
respect to such advance or with respect to any imputed income with respect
to such advance (including the applicable Gross-Up Payment); PROVIDED,
FURTHER, that if Executive is required to extend the statute of
limitations to enable Xxxxxx US to contest such claim, Executive may limit
this extension solely to such contested amount. Xxxxxx US's control of the
contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by Executive of an amount paid or advanced
by Xxxxxx US pursuant to this Section 4, Executive becomes entitled to
receive any refund with respect to a Gross-Up Payment, Executive shall
(subject to Xxxxxx US's complying with the requirements of Section 4(c))
promptly pay to Xxxxxx US the amount of such refund received (together
with any interest paid or credited thereon after taxes applicable
thereto). If, after the receipt by Executive of an amount advanced by
Xxxxxx US pursuant
to Section 4(c), a determination is made that Executive shall not be
entitled to any refund with respect to such claim and Xxxxxx US does not
notify Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then
such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount
of the Gross-Up Payment required to be paid.
5. OWNERSHIP OF BUSINESS. All business activity participated in by
Executive as an employee of Xxxxxx US, and Executive's execution of his
duties and responsibilities to Xxxxxx Group, Xxxxxx US and their related
entities as set forth in Section 1(a), above (the "BUSINESS ACTIVITY")
shall be conducted solely on behalf of Xxxxxx Group, Xxxxxx US and their
related entities. Executive shall have no right to share in any commission
or fee resulting from such Business Activity, other than the compensation
referred to in Section 1(b), above, and any monies due to Xxxxxx Group,
Xxxxxx US or their related entities as a result of Business Activity which
may be collected by Executive on behalf of Xxxxxx Group, Xxxxxx US or
their related entities shall be promptly paid over to Xxxxxx Group, Xxxxxx
US or their related entities.
6. CONFIDENTIAL INFORMATION; NONCOMPETITION AND NONSOLICITATION. In
consideration of Xxxxxx US entering into this Agreement with Executive,
Executive hereby agrees effective as of the Effective Date that, without
Xxxxxx US's prior written consent, Executive shall not:
(a) While employed and at any time thereafter, directly or
indirectly, disclose any Confidential Information (as defined below)
pertaining to the business of any member of the Restricted Group (as
defined below), except when required by law; or
(b) At any time during Executive's employment with Xxxxxx US and
thereafter during the Noncompete Period, directly or indirectly (i) be
engaged in or have financial interest (other than an ownership position of
less than 5% in any company whose shares are publicly traded or any
non-voting non-convertible debt securities in any company or through a
mutual fund, private equity fund or other pooled account in which
Executive has no discretion as to investment decisions) in any business in
Competition (as defined below) with the Restricted Group (as defined
below), (ii) solicit, accept or perform, other than on the Restricted
Group's behalf, (x) insurance or fidelity or surety bond brokerage, or
agency, business, (y) risk management, claims administration,
self-insurance, or related consulting or (z) any other material types of
business performed by the Restricted Group for any client with whom
Executive has had business dealings, or any prospective client from whom
Executive has materially participated in soliciting business, in either
case on behalf of the Restricted Group within the last twelve (12) months
of Executive's employment with Xxxxxx US or (iii) other than in performing
his duties for Xxxxxx US, solicit any person who is or has been employed
by any member of the Restricted Group at any time during the 6 months
prior to the date of such solicitation to Compete with any member of the
Restricted Group, PROVIDED that the foregoing shall not prevent Executive
from serving as a reference for any given individual employee.
(c) As used in this Agreement, the term "CONFIDENTIAL INFORMATION"
means all non-public information (where such information is not otherwise
public as a result of Executive's breach of this Section 6) concerning the
financial data, strategic business plans, and other non-public,
proprietary, and confidential information of Xxxxxx Group, Xxxxxx UK,
Xxxxxx US or any of their subsidiaries (the "RESTRICTED GROUP") as in
existence during Executive's employment with, or performance of any
consulting services for, Xxxxxx US (and/or any other member of the
Restricted Group) and as of the date of any termination of such employment
or such performance of services. As used in this Agreement, a business
shall be in "COMPETITION" if, at the time of Executive joining such
business, it is principally engaged in (i) the insurance or surety or
fidelity bond brokerage, or agency, business, (ii) risk management, claims
administration, self-insurance, or risk management consulting, (iii) other
material business performed by any member of the Restricted Group at the
time of Executive's termination of Employment or (iv) if it is a business
in which any member of the Restricted Group has taken material steps
toward engaging. The Executive shall not be in competition if he is
involved in a portion of a business of a competitor that is itself not in
Competition. Finally the "NONCOMPETE PERIOD" shall mean (i) upon a
termination of employment at any time during the Initial Period, twelve
(12) months; (ii) upon a termination of employment on or after the end of
the Initial Period but prior to the end of the Term, the lesser of (x)
twenty-four (24) months and (y) the remainder of the Term; PROVIDED,
HOWEVER, that in no event shall the Noncompete Period be less than twelve
(12) months.
7. MISCELLANEOUS
(a) INTEGRATED AGREEMENT. Except as otherwise provided in this
Section 6, this document, together with the letter agreement dated as of
March 26, 2001, executed simultaneously herewith, embodies the complete
understanding and agreement of the parties hereto relating to Executive's
employment; PROVIDED, HOWEVER, that this Agreement shall be in addition to
and not in lieu of the agreements relating to Executive's subscription to,
purchase of, and option to purchase, Shares, as referenced in Section
1(g), above. This Agreement may not be amended or terminated orally, but
only by a writing executed by both parties hereto.
(b) SEVERABILITY. If any term of this Agreement is rendered,
declared or held to be invalid or unenforceable by any judicial,
legislative or administrative action, the remaining provisions hereof
shall remain in full force and effect, shall in no way be affected,
impaired or invalidated, and shall be enforced to the full extent
permitted by law and equity.
(c) NOTICES. Any notices given pursuant to this Agreement shall be
sent by certified mail or a nationally recognized courier service, with
proof of delivery, to the addresses set forth below (or, in the event of
an address change by either party, to the then-current address of the
party, as specified in any written change-of-address notice properly
furnished under this Section 7(c)).
If to Xxxxxx US:
Xxxxxx North America, Inc.
00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Esq.
If to Xxxxxx Group:
Xxxxxx Group Holdings Limited
c/x Xxxxxx Group Limited
Ten Xxxxxxx Xxxxxx
Xxxxxx Xxxxxxx XX0X 0XX
Attention: Corporate Secretary
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
If to Executive:
Xx. Xxxxxx Xxxxxxx
To the most recent address set forth in the personnel records of Xxxxxx US
With a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(d) GOVERNING LAW; REMEDIES. The substantive laws of New York shall
govern this Agreement, without giving effect to its conflicts of law
principles. Any disputes or issues arising out of or relating to any
equity in Xxxxxx Group that Executive has received or may become entitled
to receive shall also be governed by the laws of the State of New York or,
with respect to any stock options granted on Shares, (except to the extent
it involves interpretation under the Employment Agreement), the laws of
Bermuda, without regard to conflicts of law principles in any event.
Executive acknowledges that there is no adequate remedy at law for any
breach of the provisions of Section 6 of this Agreement and that, in
addition to any other remedies to which it may otherwise be entitled as a
matter of law, Xxxxxx US shall be entitled to injunctive relief in the
event of any such breach.
(e) WAIVER. The waiver by any party of any breach of this Agreement
shall not operate or be construed as a waiver of that party's rights upon
any subsequent or different breach.
(f) SUCCESSORS AND ASSIGNS; THIRD-PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon and
enforceable against the heirs, legal representatives and assigns of
Executive and the successors and permitted assigns of Xxxxxx US. Any
amounts due Executive as of his death shall be paid to his designated
beneficiary, or if none, his estate. Xxxxxx Group's direct and indirect
subsidiaries are intended third-party beneficiaries of all promises and
covenants made by Executive herein in favor of Xxxxxx US in Section 6
hereof. As such, insofar as they are affected by any breach, of this
Agreement by Executive, Xxxxxx Group's direct and indirect subsidiaries
may enforce Executive's covenants and promises herein to the same extent
that Xxxxxx US has a right to do. Xxxxxx US may not assign this Agreement
or its rights hereunder except as part of a sale of, and to the acquirer
of, all or substantially all of the securities and/or assets of Xxxxxx US
and then only if the assignee and the ultimate parent entity of the
assignee (if applicable) promptly deliver to Executive a written
assumption of the obligations hereunder in a form reasonably acceptable to
Executive (or, to the extent otherwise required to bind an entity other
than an entity incorporated under the laws of the United States, the
equivalent documentation therefor).
(g) COUNTERPARTS. This Agreement may be signed in counterparts, each
of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
(h) LEGAL FEES. Xxxxxx US shall promptly pay Executive's reasonable
legal and financial advisory fees incurred in connection with entering
into this Agreement and shall, to the extent such amounts would be taxable
to Executive, fully gross up such payments so that Executive shall have no
net after-tax cost in respect of such payments.
(i) ARBITRATION. Any dispute hereunder or with regard to any
document or agreement referred to herein, other than injunctive relief
under Section 7(d) hereof, shall be resolved by arbitration before the
American Arbitration Association in New York City, New York. The
determination of the arbitrator shall be final and binding on the parties
hereto and may be entered in any court of competent jurisdiction. In the
event of any arbitration or other disputes with regard to this Agreement
or any other document or agreement referred to herein, Xxxxxx US shall pay
Executive's legal fees and disbursements promptly upon presentation of
invoices thereof, subject to an obligation of Executive to repay such
amounts if an arbitrator finds Executive's positions in such arbitration
or dispute to have been frivolous or made in bad faith.
(j) JURISDICTION. Xxxxxx US and Xxxxx Group each hereby consents to
the jurisdiction of the federal and state courts in the State of New York,
irrevocably waives any objection it may now or hereafter have to laying of
the venue of any suit, action, or proceeding in connection with this
Agreement in any such court, and agrees that service upon it shall be
sufficient if made by registered mail.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the date first above written.
EMPLOYER:
XXXXXX NORTH AMERICA, INC.
By: __________________________
Name: ________________________
Title: _______________________
AND, signed as a Deed and delivered ) _____________________________
By XXXXXX GROUP HOLDINGS ) Director
LIMITED for the limited purpose of )
Sections 1(f), 7(i) and 7(j). ) _____________________________
Director/Secretary
EXECUTIVE:
__________________________
Xxxxxx X. Xxxxxxx
