Exhibit 10.14
EMPLOYMENT AGREEMENT
AGREEMENT made effective as of the January 17th, 2000 between ESG Re Limited, a
Bermuda company (the "Company"), and it various subsidiaries and Xxxxxxxx Xxxxx
("Executive").
WHEREAS, the Company wishes to retain the services of the Executive and
recognises that the Executive's contribution to the growth and success of the
Company will be substantial; and
WHEREAS, the Executive is willing to commit to serve the Company, on the terms
and conditions herein provided.
NOW, THEREFORE, in order to effect the foregoing, the Company and the Executive
wish to enter into an employment agreement on the terms and conditions set forth
below. Accordingly, in consideration of the promises and the respective
covenants and agreements of the parties herein contained, and intending to be
legally bound hereby, the parties hereto agree to follows:-
1. EMPLOYMENT
The Company hereby agrees to employ the Executive, and the Executive hereby
agrees to be employed by the Company, on the terms and conditions set forth
herein.
2. TERM
The term of the Executive's employment hereunder shall commence as of the
date hereof and shall continue until the close of business on the third
anniversary of the date hereof, subject to earlier termination in
accordance with the terms of this Agreement (the "Term"). The Term shall be
automatically extended for successive one-year periods thereafter unless
any of the parties notifies the other in writing of its intention not to so
extend the Term at least six months prior to the commencement of the next
scheduled one year extension.
3. POSITION AND DUTIES
(a) TITLE AND DUTIES
The Executive shall serve as Chief Underwriting Officer of the Company
and shall have such duties, authority and responsibilities as are
referenced in Exhibit A as attached to this Agreement. The Executive
shall report directly to the Chief Executive Officer of the
Reinsurance Division. The Executive shall devote substantially all of
Executive's working time and efforts to the business and affairs of
the Company, at such locations, including Germany, Bermuda, Ireland
and Toronto and/or as mutually agreed upon by the Executive and the
Company. The Executive shall not serve as Director or Officer of any
unaffiliated companies, including but not limited to, any charitable
organisation or chamber of commerce without the written consent of the
Company.
(b) OFFICE AND FACILITIES
The Executive shall be provided with appropriate office and support
facilities at the Company's offices in Dublin in order for the
Executive to perform Executive's duties to the Company. The Executive
shall serve as an Officer of the Company and shall agree to serve on
other committees of the Company or any other affiliated company,
without additional compensation, if so requested by the Company.
4. COMPENSATION
(a) BASE SALARY
During the Term, the Company shall pay to the Executive an annual base
salary of BPS (pound)120,000. The Executive's base salary shall be
paid in substantially equal installments on a basis consistent with
the Company's payroll practices. The Executive's base salary, as in
effect at any time, is hereinafter referred to as the "Base Salary".
The Compensation Committee of the Board (the "Compensation Committee")
shall review the Executive's performance on an annual basis and may
increase the Executive's Base Salary, in its sole discretion, as it
deems appropriate.
(b) ANNUAL BONUS
The Compensation Committee may award the Executive an annual bonus, at
such time and in such amount, as the Compensation Committee, in its
sole discretion, deems appropriate.
5. EMPLOYEE BENEFITS
(a) BENEFIT PLANS
The Executive shall be entitled to participate in all employee benefit
plans, which include worldwide medical, dental and vision coverage, a
pension plan, perquisite and fringe benefit arrangements of the
Company made available by the Company to its senior executives,
subject to, and on the basis consistent with the terms, conditions and
administration of such plans and arrangements.
(b) EXPENSES
The Executive shall be entitled to receive prompt
reimbursement for all reasonable and customary expenses
incurred by the Executive in performing services hereunder
including all expenses of travel and living expenses while
away from home on business at the request of and in the
service of the Company or any of it Affiliates (defined in
this Agreement as any company which the Company has a majority
share of) and promoting the business of the Company, provided
that such expenses are incurred and accounted for in
accordance with the policies and procedures established by the
Company.
(c) VACATION
The Executive shall be entitled to vacations and holidays on a basis
consistent with that offered to other senior executive officers of the
Company.
6. TERMINATION OF EMPLOYMENT
The Company and the Executive may each terminate the Executive's employment
hereunder during the Term for any reason:-
(a) TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE EXECUTIVE FOR GOOD
REASON
If the Company shall terminate the Executive's employment without
"Cause" (as defined in Section 6(f)(i)(1-6), or if the Executive
resigns for Good Reason (as defined in Section 6(f)(iii) then, the
Executive shall be entitled to his Base Salary at the time of the
termination for the greater of (1) the remainder of the Term, or (2)
one year, subject to and conditioned upon the Executive's compliance
with Section 8 hereof. Options held by the Executive will be treated
as provided for in the applicable Award Agreement.
Except for the obligations listed in the initial letter of offer, any
subsequent legal document, other Agreements or benefits plans and as
expressly provided above, the Company and the Executive will have no
further obligations to each other hereunder following the Executive's
termination of employment under the circumstances described in this
Section 6(a), (other than those under Section 8 of this Agreement
"Confidentiality").
(b) TERMINATION DUE TO NON-RENEWAL OF THE TERM OR DEATH OR DISABILITY
If the Executive's employment is terminated due to a Non-Renewal of
the Term by either party to this Agreement or due to the Executive's
death or disability (as defined in Section 6(f)), the Executive shall
be entitled to a lump sum cash payment equal to the Executive's Base
Salary through the date of termination. Options held by the Executive
will be treated as provided for in the applicable Award Agreement.
Except for the obligations listed in the initial letter of offer, any
subsequent legal document, other Agreements or benefit plans and as
expressly provided above, the Company and the Executive will have no
further obligations to each other hereunder following the Executive's
termination of employment under the circumstances described in this
Section 6(b), (other than those under Section 8 of this Agreement
"Confidentiality").
(c) TERMINATION BY THE COMPANY FOR CAUSE OR BY THE EXECUTIVE OTHER THAN
FOR GOOD REASON
If the Executive's employment is terminated by the Company for Cause
or by the Executive other than for Good Reason, the Executive shall be
entitled to a lump sum cash payment equal to his Base Salary through
the date of termination. Options held by the Executive shall be
treated as provided for in the applicable Award Agreement.
Except as expressly provided above and in the initial offer letter,
any subsequent legal document, other Agreements or benefit plans, the
Company and the Executive will have no further obligations to each
other hereunder following the Executive's termination of employment
under the circumstances described in this Section 6(c), other than
those under Section 8 of this Agreement "Confidentiality").
(d) TERMINATION WITHIN ONE YEAR OF A CHANGE IN CONTROL
If the Company terminates the Executive's employment without cause or
the Executive terminates employment for good reason within one year
following a Change in Control, the Executive shall be entitled in
addition to the compensation otherwise payable upon termination of
employment pursuant to Section 6(a) above to a lump sum payment which
when added to the present value of all other benefits or payments
would equal three times Executive's base amount.
Following a termination of the Executive's employment with the Company
after a Change of Control pursuant to this Section 6(d), the Executive
shall not be required in any manner whatsoever to mitigate any damages
resulting from such termination. Furthermore the payments referred to
in this Section 6(d) shall be made regardless of whether the Executive
seeks or finds employment of any nature whatsoever.
The Company and the Executive confirm that the provisions of this
Section 6(d) are reasonable and that the total amount payable as
outlined herein is an amount which has been agreed between them to be
payable hereunder, or in the alternative is a reasonable preestimate
of the damages which will be suffered by the Executive in the event of
a termination within one year of a Change of Control by the Company
without Cause or by the Executive for Good Reason, and shall not be
construed as a penalty.
Following a termination of the Executive's employment after a Change
of Control as contemplated in this Section 6(d) and upon receipt of
the payments and benefits referred to in this Section 6(d), the
Executive hereby agrees to resign form any offices, positions and
directorships which he may have or may have held in the Company, any
of its subsidiaries and/or affiliates.
(e) NOTICE OF TERMINATION
Any termination of the Executive's employment by the Company or by the
Executive (other than termination pursuant to the Executive's death)
shall be communicated by written Notice of Termination to the other
party hereto in accordance with Section 11 hereof. If the Company
terminates the Executive's employment for Cause or if the Executive
resigns for Good Reason, the "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the
facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated. For
purposes of this Agreement, the date of the Executive's termination of
employment shall be deemed to be the date as specified in the Notice
of Termination.
(f) DEFINITIONS - For purpose of this Agreement
(i) "Cause" shall mean
(1) The Executive's breach of any material term of this
Agreement, including, but not limited to, the covenants set
forth in Sections 7 and 8 hereof if applicable, provided
that the Executive shall have Sixty days to cure the breach
of any such material term from the date that Executive is
notified in writing by the Company of such a breach.
(2) The Executive's failure or refusal to perform duties as
provided by Exhibit A hereunder or to perform specific
directives of the Company that are consistent with
Executive's position as Chief Underwriting Officer of the
Company, provided that such directives do not violate any
applicable laws or Industry Standards and provided, however,
that the Executive shall have Sixty days to cure such
breach, failure or refusal to perform from the date that
Executive is notified in writing by the Company of such
occurrence;
(3) Intentional Dishonesty of the Executive which is the cause
of a material loss to the Company or any of its Affiliates;
(4) Any gross or willful conduct of the Executive specifically
intended to cause substantial loss to or theft from the
Company or any of the Company's Affiliates;
(5) Alcoholism or Abuse of drugs or any controlled substances
which interferes with the performance of the Executive's
duties and responsibilities under this Agreement; or
(6) The Executive is convicted of a felony, whether or not
related to the business of the Company, including but not
limited to, any felony related to tax evasion, bribery,
theft, or political payoffs.
(ii) "Disability" shall mean the Executive's adjudication as mentally
incompetent, or mental or physical disability preventing the
Executive from performing duties under this Employment Agreement
for a period of 180 consecutive days.
(iii) "Good Reason" shall include but not be limited to (1) a material
diminution of the Executive's duties (per Exhibit A as attached)
or the assignment to the Executive of a title or duties
inconsistent using the position of Chief Underwriting Officer (2)
a material reduction in Executive's Base Salary amounting to at
least 10%, (3) An intentional breach of any applicable law,
regulation or Industry Standard by the Company, its various
subsidiaries, Affiliates, agents or other individuals or entities
performing duties at the direction of the Company including,
without limitation the employees of the entities listed above
while acting in the scope of their employment ("Related Parties")
or the failure of the Company to immediately cure a breach of any
applicable law, regulation or Industry Standard, upon becoming
aware of such breach, (4)failure of the Company to comply with
any material provision of this Agreement.
(iv) Definitions
Change of Control shall mean an event, whereby:
i any individual, firm, corporation or other entity, or any
group (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934) (the "Act")) becomes, directly or
indirectly, the beneficial owner (as defined in the General
Rules and Regulations of the Securities and Exchange
Commission with respect to Sections 13(d) and 13(g) of the
Act) of more than 35% of the then outstanding shares of the
Company's capital stock (entitled to vote generally in the
election of directors of the Company; or
ii the stockholders of the Company approve a definitive
agreement for (A) the merger or other business combination
of the Company with or into another corporation pursuant to
which the stockholders of the Company do not own,
immediately after the transaction, more than 50% of the
voting power of the corporation that survives and is a
publicly owned corporation and not a subsidiary of another
corporation, or (B) the sale, exchange or other disposition
of all or substantially all of the assets of the Company; or
iii during any period of two years or less, individuals who at
the beginning of such period constituted the Board of
Directors of the Company cease for any reason to constitute
at least a majority thereof unless the election or the
nomination for election by the stockholders of the Company,
of each new director was approved by a vote of at least 75%
of the directors then still in office who were directors at
the beginning of the period; or
iv such other event as the Board of Directors of the Company
may designate. PROVIDED HOWEVER, that a "Change of Control"
shall not be deemed to have taken place if beneficial
ownership is acquired by, or a tender or exchange offer is
commenced by, the Company or any of its subsidiaries, any
profit-sharing, Employee ownership or other employee benefit
plan of the Company or any subsidiary or any trustee of or
fiduciary with respect to any such plan when acting in such
capacity, or any group comprised solely of such entities.
7. NON-COMPETITION
(a) The Executive acknowledges and recognises the highly competitive
nature of the business of the Company and its affiliates and
accordingly agrees as follows:-
(i) During the Employment Term and for a period of 18 months
following the Executive's termination of employment for other
than Good Reason pursuant to Section 6(c) of this Agreement (the
"Restricted Period"), the Executive will not, unless the
Executive is given written permission by the Company, directly or
indirectly, (i) engage in any business for the Executive's own
account that competes directly with the business of the Company
or any of its affiliates that are engaged in the insurance or
reinsurance business (the "Company
Affiliates"), (ii) enter the employment of, or render any
services to, any person engaged in any business that competes
directly with the business of the Company or the Company
Affiliates, (iii) acquire a majority financial interest in,
or otherwise become actively involved with, any person engaged in
any business that competes directly with the business of the
Company or the Company Affiliates, directly or indirectly, as an
individual, partner, shareholder, officer, director, principal,
agent, trustee or consultant, or (v) interfere with business
relationships (whether formed before or after the date of this
Agreement) of the Company or the Company Affiliates.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Executive may, directly own, solely as an investment, securities
of any person engaged in the business of the Company or the
Company Affiliates if the Executive (i) is not a controlling
person of, or a member of a group which controls, such person and
(ii) does not, directly or indirectly, own more than one share
less than 5% of any class of securities of such person.
(iii) During the Restricted Period, the Executive will not, directly
or indirectly, (i) solicit or encourage any employee of the
Company or Company Affiliates or (ii) hire any such employee who
has left the employment of the Company or the Company Affiliates
to cease to work with the Company or the Company Affiliates any
consultant then under contract with the Company or the Company
Affiliates.
(iv) During the Restricted Period, the Executive will not, directly or
indirectly, solicit or encourage to cease to work with the
Company or the Company Affiliates any consultant then under
contract with the Company or the Company Affiliates.
(b) It is expressly understood and agreed that although the Executive and
the Company consider the restrictions contained in this Section 7 to
be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other
restriction contained in this Agreement is an unenforceable
restriction against the Executive, the provisions of this Agreement
shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such maximum extent as such
court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any
restriction contained in this Agreement is unenforceable, and such
restriction cannot be amended so as to make it enforceable, such
finding shall not affect the enforceability of any of the other
restrictions contained herein.
8. CONFIDENTIALITY
The Executive will not at any time (whether during or after employment with
the Company) disclose or use for Executive's own benefit or purposes or the
benefit or purposes of any other person, firm, partnership, joint venture,
association, corporation or other business organisation, entity or
enterprise other than the Company and any of their subsidiaries or
Affiliates, any trade secrets, information, data, or other confidential
information relating to customers, development programs, costs, marketing,
trading, investment, sales activities, promotion, credit and financial
data, financing methods, plans, or the business and affairs of the Company
or of any subsidiary or affiliate of the Company, PROVIDED that foregoing
shall not apply to information which is not unique to the Company or any of
its subsidiaries or alliliates or which is generally known to the industry
or the public other than as a result of the Executive's breach of this
covenant. The Executive agrees that upon termination of employment with the
Company for any reason, he will return to the Company immediately all
memoranda, books, papers, Plans, information, letters and other data, and
all copies thereof or therefrom, in any way relating to the business of the
Company and its affiliates, except that he may retain personal notes,
notebooks, diaries and reference materials. The Executive further agrees
that he will not retain or use for Executive's account at any time any
trade names, trademarks, or other proprietary business designations used or
owned in connection with the business of the Company or their Affiliates.
9. EQUITABLE RELIEF
The Executive acknowledges and agrees that the Company's remedies at law
for a breach or threatened breach of any of the provisions of Section 7 or
Section 8 would be inadequate and, in recognition of this fact, the
Executive agrees that, in the event of such a breach or threatened breach,
in addition to any remedies at law, the Company, without posting any bond
or security, shall be entitled to obtain equitable relief in the form of
specific performance, temporary restraining order, temporary or permanent
injunction or any other equitable remedy which may then be available.
10. SUCCESSORS; BINDING AGREEMENT
(a) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or a majority of
the business and/or assets of the Company to expressly assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall
mean the Company as herein defined and any successor to its business
and/or assets as aforesaid which executes and delivers the agreement
provided for in this Section 10 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law.
(b) This Agreement and all rights of the Executive hereunder shall inure
to the benefit of and be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributes, devisees and legatees. If the Executive should die while
any amounts are payable to him hereunder all such amounts unless
otherwise provided herein, shall be paid in accordance with the terms
of this Agreement to the Executive's devisee, legatee, or other
designee or, if there be no such designee, to the Executive's estate.
11. NOTICE
For the purpose of this Agreement, notices, demands and all other
communications provided for in this Agreement shall be in writing and shall
be deemed to have been duly given when personally delivered with receipt
acknowledged or after having been received by certified or registered mail,
return receipt requested, postage prepaid, addressed as follows:-
If to the Executive:
00 Xxxxxxxx Xxxx
Xx Xxxxx Xxxx
Xxxxxxxxxx
Xxxxxx 0
Xxxxxxx
If to the Company:
ESG Re Limited
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX00
Xxxxxxx
Xxxxxxxxx: Chief Financial Officer
Or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
12. MISCELLANEOUS
No provisions of this Agreement may be modified, waived or discharged
unless such waiver, modification or discharge is agreed to in writing
signed by the Executive and such officer of the Company as may be
specifically designated by the Company as the case may be. No waiver by any
party hereto at any time of any breach by the other party hereto of, or
compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time. The laws of Bermuda without regard to its conflicts of law
principles shall govern the validity, interpretation, construction and
performance of this Agreement.
13. VALIDITY
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of
this Agreement, which shall remain in full force and effect.
14. COUNTERPARTS
This Agreement may be executed in one or more counterpart, each of which
shall be deemed to be an original but all of which together will constitute
one and the same instrument.
15. WITHHOLDING
The Company may withhold from any amounts payable under this Agreement such
federal, state and local and foreign taxes as may be required to be
withheld pursuant to applicable law or regulation.
16. ENTIRE AGREEMENT
This Agreement sets forth the entire agreement of the parties hereto in
respect of the subject matter contained herein and supersedes all prior
agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer,
employee or representative of any party hereto, including any prior
employment agreements.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed
and the Executive has hereunto set his hand, effective as of the ____ day of
____ (date).
ESG Re Limited
By:
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Name:
Title:
Employee's Name:
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Xxxxxxxx Xxxxx
Ref: personnel - xxxxx-xxx.doc
