EXHIBIT 10.1
Page 1
EMPLOYMENT AGREEMENT
AGREEMENT by and between Transamerica Corporation, a Delaware corporation (the
"Company") and Xxxxx X. Xxxxxxxxx (the "Executive"), dated as of the 4th day of
November, 1997.
1. Employment Period. The Company hereby agrees to continue the Executive in its
employ, and the Executive hereby agrees to remain in the employ of the Company
subject to the terms and conditions of this Agreement, for the period commencing
on the date hereof and ending on December 31, 2001 (the "Employment Period").
2. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, the Executive shall be Chief
Executive Officer of the Company and Chairman of the Company's Board of
Directors and shall have such duties, responsibilities and authority as shall be
consistent therewith. The Executive's services shall be performed in San
Francisco, California, subject to reasonable travel requirements.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave or other approved leaves of absence in accordance with
established policies of the Company to which the Executive is entitled, the
Executive agrees to devote full attention and time during normal business hours
to the business and affairs of the Company and to use the Executive's reasonable
best efforts to perform faithfully and efficiently such responsibilities. During
the Employment Period it shall not be a violation of this Agreement for the
Executive to (A) serve on corporate, civic or charitable boards or committees,
(B) deliver lectures, fulfill speaking engagements or teach at educational
institutions and (C) manage personal investments, so long as such activities do
not significantly interfere with the performance of the Executive's
responsibilities as an employee of the Company in accordance with this
Agreement.
(b) Compensation.
(i) Base Salary. During the Employment Period, the Executive
shall receive an annual base salary ("Annual Base Salary") of no less than
$975,000. The Annual Base Salary shall be paid in equal bi-monthly installments.
During the Employment Period, the Annual Base Salary shall be reviewed at least
every 12 months. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base Salary as so
increased.
(ii) Annual Bonus. In addition to Annual Base Salary, the
Executive shall have, for each fiscal year ending during the Employment Period,
a target annual bonus pursuant to the Company's 1994 Value Added Incentive Plan
or any successor thereto of no less than 100% of the Executive's Annual Base
Salary for such year (the "Target Bonus"). Each such Annual Bonus shall be paid
in cash or restricted stock as determined pursuant to the Company's 1994 Value
Added Incentive Plan and shall be paid no later than the end of the third month
of the fiscal year next following the fiscal year for which the Annual Bonus is
awarded, unless the Executive shall elect to defer the receipt of the cash
portion of such Annual Bonus. Any deferral shall be subject to the terms of the
Transamerica Corporation Deferred Compensation Plan.
(iii) Cash Long-Term Incentives. The Executive shall participate
in the Company's 1998 Cash Long-Term Incentive Plan on the same basis as other
senior executives of the Company and shall have a target award thereunder of
$3.2 million (the "Target LTIP") for the period 1998-1999 based on the
achievement of cumulative value added targets for the period 7/1/97 through
12/31/99 (the "Performance Period"). Upon a "Change in Control" of the Company
as defined in the Agreement between the Company and the Executive dated July 11,
1997 (the "Existing Agreement"), the Executive shall receive a lump sum payment
equal to the greater of (x) $1,067,000, and (y) $3.2 million multiplied by a
fraction, the numerator of which is the number of days from July 1, 1997 until
the date of the Change in Control and the denominator of which is the number of
days in the Performance Period. Upon the Executive's death or Disability, the
Executive or his estate, as the case may be, shall receive a lump sum payment
equal to $3.2 million multiplied by a fraction, the numerator of which is the
number of days from July 1, 1997 until the Date of Termination and the
denominator of which is the number of days in the Performance Period.
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(iv) Stock Options. On the later of the date of execution of
this Agreement or January 2, 1998, the Executive shall be granted, subject to
stockholder approval, a nonqualified stock option to acquire 645,000 shares of
the Company's common stock, pursuant to the Company's 1995 Performance Stock
Option Plan (the "1995 Plan") with an exercise price of $150 per share (the
"$150 Option"). The $150 Option shall vest and become immediately exercisable
when (i) the Company's common stock closes at or above $150 as quoted in the New
York Stock Exchange Composite Transactions Index published in The Wall Street
Journal for 10 out of any consecutive 30 trading days occurring not later than
five years of the date of grant, and (ii) the Company's total shareholder return
(as determined by the Company's Compensation Committee) during any Measurement
Period (as defined below) is at or above the median level of shareholder return
for the S&P 500 Financial Index, excluding banks and savings and loan
institutions (the criteria in (i) and (ii) above being the "Performance
Criteria"). Upon vesting, the $150 Option shall continue to be exercisable until
the tenth anniversary of the date of grant. "Measurement Period" is initially a
period from the date of grant of the $150 Option, or if longer, the date that is
one year prior to the date on which the condition in (i) above is satisfied. If
the condition in (ii) is not met initially, the condition shall be tested
periodically until the tenth anniversary of the date of grant of the $150
Option, as described in the Executive's award agreement.
Upon the Executive's death or Disability, the $150 Option shall
become vested and exercisable with respect to the following number of shares:
645,000 multiplied by a fraction (the "Proration Fraction"), the numerator of
which is the number of days from the date of grant until the Date of Termination
and the denominator of which is the number of days from the date of grant until
the fifth anniversary thereof, but only when and if the Performance Criteria are
met.
The Executive shall be granted that number of TLSARs, within the
meaning of the 1995 Plan, with respect to the $150 Option in the same manner as
for other participants under the 1995 Plan. Notwithstanding the foregoing, if a
TLSAR would make a Change in Control transaction ineligible for pooling of
interests accounting under XXX Xx. 00 that but for the TLSAR would otherwise be
eligible for such accounting treatment, the Compensation Committee of the
Company shall have the ability to substitute the cash payable hereunder with
stock with a fair market value equal to the cash that would otherwise be payable
hereunder.
(v) Phantom Restricted Shares. On the later of January 2, 1998
or the first day of the Employment Period, the Executive shall be credited on
the books of the Company with 105,000 Phantom Restricted Shares. In addition, on
each date on which dividends or other distributions are paid on the Company's
common stock, the Executive shall be credited with an additional number of
Phantom Restricted Shares equal to: (A) the fair market value of the cash or
other property which would have been paid on such date as a dividend or other
distribution if the Executive's Phantom Restricted Shares (immediately prior
to such dividend or distribution) were actual shares of the Company's common
stock, divided by (B) the Fair Market Value on such date of a share of the
Company's common stock.
Except as otherwise provided in this Agreement, the Executive
shall have a right to payment of (that is, the Executive shall become vested in)
the Phantom Restricted Shares credited to him only on the last day of the
Employment Period, and only if his employment has not terminated prior to such
date. If prior to the last day of the Employment Period, the Executive's
employment is terminated due to Disability or death, the Executive shall become
vested in a pro rata portion of the Phantom Restricted Shares, based on the
elapsed portion of the Employment Period. If prior to the last day of the
Employment Period, the Executive's employment is voluntarily terminated by him
for Good Reason or involuntarily terminated by the Company other than for Cause,
the Executive shall become vested in a pro rata portion of the Phantom
Restricted Shares, based on the elapsed portion of the Employment Period,
provided that for this purpose only, the Executive shall be deemed to have
terminated employment 12 months after his actual termination date. If a Change
in Control occurs prior to the last day of the Employment Period and while the
Executive still is employed with the Company, the Executive shall become vested
in a pro rata portion of the Phantom Restricted Shares, based on the elapsed
portion of the Employment Period. If within 24 months after such Change in
Control, but before the last day of the Employment Period, the Executive's
employment is voluntarily terminated by him for Good Reason or involuntarily
terminated by the Company other than for Cause, the Executive shall become
vested in the remaining unvested Phantom Restricted Shares (notwithstanding the
third sentence of this paragraph). In all cases, any Phantom Restricted Shares
which are credited as a dividend or other distribution on vested Phantom
Restricted Shares also shall be immediately vested.
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Pursuant to such procedures as the Committee may specify, the
Executive shall elect the form for payment of any vested Phantom Restricted
Shares and may designate one or more Beneficiaries to receive payment of any
vested, unpaid Shares which remain at the time of the Executive's death. Payment
of the Executive's vested Phantom Restricted Shares (if any) shall commence as
soon as administratively practicable after the Participant's termination of
employment. If, pursuant to the procedures specified by the Committee, the
Executive elected to receive ten annual installments, the amount of each
installment shall equal the value of the Phantom Restricted Shares credited to
him immediately prior to the payment, divided by the number of installments
remaining to be made. Each subsequent annual installment shall be paid to the
Executive as near as administratively practicable to each anniversary of the
first installment payment.
For purposes of this Agreement, "Phantom Restricted Share" means
an unfunded promise by the Company to make a cash payment to the Executive. Each
Phantom Restricted Share shall make the Executive only a general, unsecured
creditor of the Company. On any date, the value of each Phantom Restricted Share
shall equal the Fair Market Value of a share of the Company's common stock on
such date. For purposes of this Section 2(b)(v), "Fair Market Value" means the
last quoted per share selling price for the Company's common stock on the
relevant date, as quoted in the New York Stock Exchange Composite Transactions
Index published in The Wall Street Journal, or if there were no sales on such
date, the last quoted selling price on the nearest day after the relevant date.
All provisions of this Agreement relating to the Phantom
Restricted Shares shall be administered by the Management Development and
Compensation Committee of the Company's Board of Directors, or any successor
thereto (the "Committee"). The Committee shall have all powers and discretion
necessary or appropriate to administer the Phantom Restricted Shares, including,
but not by way of limitation, the discretionary powers to interpret and
determine the meaning of any provision of this Section 2(b)(v). The Phantom
Restricted Shares are intended to be exempt from liability under section 16(b)
of the Securities Exchange Act of 1934, as amended, pursuant to Rule 16b-3
promulgated thereunder. To the extent that any provision of this Section 2(b)(v)
or action by the Committee fails to comply with Rule 16b-3, it shall be deemed
null and void to the extent deemed advisable by the Committee, provided it does
not adversely affect the rights of the Executive hereunder.
In the event of any merger, reorganization, consolidation,
recapitalization, separation, liquidation, stock dividend, split-up, share
combination, or other change in the corporate structure of the Company affecting
the Company's common stock (each, an "Event"), the Committee shall adjust the
number and/or value of the Phantom Restricted Shares in such manner as the
Committee (in its sole discretion) shall determine to be appropriate to prevent
the dilution or diminution of such Phantom Restricted Shares. Any such
adjustment shall be made by the Committee as constituted immediately prior to
the applicable Event.
(vi) Incentive, Savings and Retirement Plans. During the
Employment Period, the Executive shall be eligible to participate in all
incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies.
(vii) Welfare Benefit Plans. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, shall be eligible
for participation in and shall receive all benefits under welfare benefit plans,
practices, policies and programs provided by the Company and its affiliated
companies (including, without limitation, medical, prescription, dental,
disability, salary continuance, life insurance, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies.
(viii) Expenses. During the Employment Period, the Executive
shall be entitled to receive prompt reimbursement for all reasonable business
expenses incurred by the Executive.
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(ix) Fringe Benefits. During the Employment Period, the
Executive shall be entitled to fringe benefits, including, without limitation,
tax and financial planning services and an automobile of his choice and payment
of related expenses.
(x) Vacation. During the Employment Period, the Executive shall
be entitled to at least four weeks of paid vacation in each calendar year.
3. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 10(b) of this Agreement of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) Cause. The Company may terminate the Executive's employment during
the Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the willful and continued failure of the Executive to
perform substantially the Executive's duties with the Company or one of
its affiliates (other than any such failure resulting from incapacity
due to physical or mental illness), after a written demand for
substantial performance is delivered to the Executive by the Board which
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct, which in either case is materially and demonstrably
injurious to the Company.
For purposes of this provision, no act or failure to act, on
the part of the Executive, shall be considered "willful" unless it is
done, or omitted to be done, by the Executive in bad faith or without
reasonable belief that the Executive's action or omission was in the
best interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board or
based upon the advice of counsel for the Company shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good
faith and in the best interests of the Company. The cessation of
employment of the Executive shall not be deemed to be for Cause unless
and until there shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of a majority of the
entire membership of the Board at a meeting of the Board called and held
for such purpose (after reasonable notice is provided to the Executive
and the Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of the
Board, the Executive is guilty of the conduct described in subparagraph
(i) or (ii) above, and specifying the particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) the assignment to the Executive of any duties inconsistent
with the Executive's position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
contemplated by Section 2(a) of this Agreement, or any other action by
the Company which results in a diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given
by the Executive or requiring the Executive to be based at a location
other than that set forth in Section 2(a);
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(ii) any failure by the Company to comply with any of the
provisions of Section 2(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(iv) any failure by the Company to comply with and satisfy
Section 9(c) of this Agreement.
For purposes of this Section 3(c), any good faith
determination of "Good Reason" made by the Executive shall be
conclusive.
(d) Notice of Termination. Any termination by the Company for Cause, or
by the Executive for Good Reason, shall be communicated by Notice of Termination
to the other party hereto given in accordance with Section 10(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of such
notice, specifies the termination date (which date shall be not more than thirty
days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Good Reason or Cause shall not waive any right of
the Executive or the Company, respectively, hereunder or preclude the Executive
or the Company, respectively, from asserting such fact or circumstance in
enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the case
may be.
4. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or Disability. If, during
the Employment Period, the Company shall terminate the Executive's employment
other than for Cause, Death or Disability or the Executive shall terminate
employment for Good Reason:
(i) the Company shall pay to the Executive the following
amounts:
A. a lump sum in cash equal to the sum of (1) the
Executive's Annual Base Salary through the Date of Termination
to the extent not theretofore paid, (2) the product of (x) the
Target Bonus and (y) a fraction, the numerator of which is the
number of days in the current fiscal year through the Date of
Termination, and the denominator of which is 365 and (3) any
compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid
(the sum of the amounts described in clauses (1), (2), and (3)
shall be hereinafter referred to as the "Accrued Obligations");
and
B. the amount (the "Severance Payment") equal to the
product of (1) three and (2) the sum of (x) the Executive's
Annual Base Salary and (y) the Target Bonus, which amount shall
be paid in 36 equal monthly installments, unless the Executive
has previously elected to receive a lump sum payment in which
case the Severance Payment shall be paid in a lump sum within 10
days of the Date of Termination and shall be discounted at the
applicable federal rate as defined in Section 7872(f)(2)(A) of
the Internal Revenue Code of 1986, as amended; and
(ii) all stock options, restricted stock and other stock-based
compensation shall become immediately exercisable or vested, as the case
may be, and will continue to be exercisable over the remaining term of
the respective option;
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(iii) for three years after the Executive's Date of Termination,
or such longer period as may be provided by the terms of the appropriate
plan, program, practice or policy, the Company shall continue benefits
to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans,
programs, practices and policies described in Section 2(b)(vii) of this
Agreement if the Executive's employment had not been terminated or, if
more favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and its
affiliated companies and their families, provided, however, that if the
Executive becomes reemployed with another employer and is eligible to
receive medical or other welfare benefits under another employer
provided plan, the medical and other welfare benefits described herein
shall be secondary to those provided under such other plan during such
applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits) of the
Executive for retiree benefits pursuant to such plans, practices,
programs and policies, the Executive shall be considered to have
remained employed until three years after the Date of Termination and to
have retired on the last day of such period, thereby accumulating 36
additional months of age and 36 additional months of service credit; and
(iv) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or
benefits required to be paid or provided or which the Executive is
entitled to receive under any plan, program, policy or practice or
contract or agreement of the Company and its affiliated companies (such
other amounts and benefits shall be hereinafter referred to as the
"Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of (i) Accrued Obligations, (ii) the timely
payment or provision of Other Benefits and (iii) such other payments as are
specifically provided for hereunder. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination.
(c) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of (i) Accrued Obligations, (ii) the timely payment or provision of Other
Benefits and (iii) such other payments as are specifically provided for
hereunder. Accrued Obligations shall be paid to the Executive in a lump sum in
cash within 30 days of the Date of Termination.
(d) Cause; Other than for Good Reason. If the Executive's employment
shall be terminated for Cause during the Employment Period, this Agreement shall
terminate without further obligations to the Executive other than the obligation
to pay to the Executive (x) his Annual Base Salary through the Date of
Termination, (y) the amount of any compensation previously deferred by the
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the Employment
Period, excluding a termination for Good Reason, this Agreement shall terminate
without further obligations to the Executive, other than for Accrued Obligations
and the timely payment or provision of Other Benefits. In such case, all Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
5. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit
the Executive's continuing or future participation in any plan, program, policy
or practice provided by the Company or any of its affiliated companies and for
which the Executive may qualify nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any contract or agreement
with the Company or any of its affiliated companies. Amounts which are vested
benefits or which the Executive is otherwise entitled to receive under any plan,
policy, practice or program of or any contract or agreement with the Company or
any of its affiliated companies at or subsequent to the Date of Termination
shall be payable in accordance with such plan, policy, practice or program or
contract or agreement except as explicitly modified by this Agreement.
6. Full Settlement. The Company's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder 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 or others. In
no event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and such amounts shall not be reduced
whether or not the Executive obtains other employment. The Company agrees to pay
as incurred, to the full extent permitted by law, all legal fees and expenses
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which the Executive may reasonably incur as a result of any contest (regardless
of the outcome thereof) by the Company, the Executive or others of the validity
or enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code"); provided that the Company shall have no such obligation if
it is determined by a court that the Company was not in breach of the Agreement
and that the Executive's claims were not made in good faith.
7. Coordination with Existing Agreement. Upon a Change in Control, the terms of
the Existing Agreement shall supersede this Agreement provided that the
provisions of Section 2(b)(iii), (iv), (v), Section 4(a)(ii), Section 4(b)(iii)
and Section 4(c)(iii) shall continue in full force and effect.
8. Confidential Information. The Executive shall hold in a fiduciary capacity
for the benefit of the Company all secret or confidential information, knowledge
or data relating to the Company or any of its affiliated companies, and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Company or any of its affiliated companies and
which shall not be or become public knowledge (other than by acts by the
Executive or representatives of the Executive in violation of this Agreement).
After termination of the Executive's employment with the Company, the Executive
shall not, without the prior written consent of the Company or as may otherwise
be required by law or legal process, communicate or divulge any such
information, knowledge or data to anyone other than the Company and those
designated by it. In no event shall an asserted violation of the provisions of
this Section 10 constitute a basis for deferring or withholding any amounts
otherwise payable to the Executive under this Agreement.
9. Successors.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to assume expressly 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.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
10. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without reference to principles of conflict
of laws. The captions of this Agreement are not part of the provisions hereof
and shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing
and shall be given by hand delivery to the other party or by registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
00 Xxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
If to the Company:
Transamerica Pyramid
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
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(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Company may withhold from any amounts payable under this
Agreement such Federal, state, local or foreign taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to Section 3(c)(i)-(iv) of this Agreement,
shall not be deemed to be a waiver of such provision or right or any other
provision or right of this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
XXXXX X. XXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxx
TRANSAMERICA CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx
XXXXX X. XXXXXXXXX
CHAIRMAN,
MANAGEMENT DEVELOPMENT
AND COMPENSATION COMMITTEE
