EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement"), made and entered into as of May 11, 2001
(the "Effective Date"), by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (the "Executive")
and Trenwick Group Ltd. (the "Company");
WITNESSETH THAT:
WHEREAS, the Executive is the Chairman, President, and Chief Executive
Officer of the Company, a publicly traded holding company with operating
subsidiaries in the insurance and reinsurance business, reporting to, and
subject only to the direction and control of, the Board of Directors of the
Company (the "Board");
WHEREAS, the Executive and Trenwick Group Inc. have previously entered into
an amended and restated agreement dated September 26, 2000, which agreement
relates to a change in control of Trenwick Group Inc., and certain other issues
(the "Change in Control Agreement"), and the Change in Control Agreement has
been assumed by the Company, which has been substituted for Trenwick Group Inc.
as the "Company" under such agreement;
WHEREAS, the Company wishes to assure that it will have the continued
dedication of the Executive as a key employee of the Company or one of its
subsidiaries and the continued availability of the Executive's advice, counsel
and services, notwithstanding the possibility, threat or actual occurrence of a
change of control of the Company, and to induce the Executive to remain as a key
employee of the Company or one of its subsidiaries; and
WHEREAS, the parties desire to enter into this Agreement pertaining to the
employment of the Executive by the Company as well as to the change in control
of the Company, this Agreement is intended to supersede and cancel the Change in
Control Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth below, it is hereby covenanted and agreed by the Executive and the Company
as follows:
1. Performance of Services. The Executive's employment with the Company
shall be subject to the following:
(a) Subject to the terms of this Agreement, the Company hereby agrees to employ
the Executive as its President and Chief Executive Officer during the
Agreement Term (as defined below), and the Executive hereby agrees to
remain in the employ of the Company during the Agreement Term. During the
Agreement Term, while the Executive is employed by the Company, the Board
shall use its best efforts to cause the Executive to be elected as a member
of the Board and its Chairman.
(b) During the Agreement Term, while the Executive is employed by the Company,
the Executive shall devote his full time, energies and talents to serving
as its President and Chief Executive Officer, and the Chairman of the
Board.
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(c) The Executive's location shall be as determined in accordance with Exhibit
D to this Agreement, which is attached to and forms a part of this
Agreement.
(d) The Executive agrees that he shall perform his duties faithfully and
efficiently subject to the directions of the Board. The Executive's duties
may include providing services for both the Company and the Subsidiaries
(as defined below), as determined by the Board; provided that the Executive
shall not, without his consent, be assigned tasks that would be
inconsistent with those of Chairman, President, and Chief Executive
Officer. The Executive shall report to the Board and have such authority,
power, responsibilities and duties as are inherent in his positions (and
the undertakings applicable to his positions) and necessary to carry out
his responsibilities and the duties required of him hereunder.
(e) Notwithstanding the foregoing provisions of this paragraph 1, during the
Agreement Term, the Executive may devote reasonable time to activities
other than those required under this Agreement, including the supervision
of his personal investments, and activities involving professional,
charitable, community, educational, religious and similar types of
organizations, speaking engagements, membership on the boards of directors
of other organizations, and similar types of activities, to the extent that
such other activities do not, in the judgment of the Board, inhibit or
prohibit the performance of the Executive's duties under this Agreement, or
conflict in any material way with the business of the Company or any
Subsidiary; provided, however, that the Executive shall not serve on the
board of any business, hold any other position with any business, or
otherwise engage in any business activity, without the consent of the
Board.
(f) Subject to the terms of this Agreement, the Executive shall not be required
to perform services under this Agreement during any period that he is
Disabled. The Executive shall be considered "Disabled" during any period in
which he has a physical or mental disability which renders him incapable,
after reasonable accommodation, of performing his duties under this
Agreement. In the event of a dispute as to whether the Executive is
Disabled or Permanently Disabled (as defined in paragraph 4(b)), the
Company may refer the same to a mutually acceptable licensed practicing
physician, and the Executive agrees to submit to such tests and examination
as such physician shall deem appropriate. If the Executive and the Company
cannot agree on a licensed practicing physician, each party shall select a
licensed practicing physician and the two physicians shall select a third
licensed practicing physician who shall be the approved physician for this
purpose. The determination of such physician or physicians shall be final
and binding upon the parties hereto. During the period in which the
Executive is Disabled, the Company may appoint a temporary replacement to
assume the Executive's responsibilities.
(g) The "Agreement Term" shall be the period beginning on the Effective Date
and ending on the three-year anniversary thereof; provided, however, that
such Agreement Term shall, on a daily basis, be automatically extended by
one day, such that at any time, the remaining term shall be three years.
Such day-to-day extensions may cease by either party delivering written
notice of such cessation to the other party; provided that such cessation
of the automatic extensions shall not be effective earlier than the date of
delivery of such notice. A Notice of Termination (as described in paragraph
4(h)) shall
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be deemed to constitute a notice of non-renewal under this paragraph 1(g)
to be effective as of the earliest date permitted under this paragraph
1(g).
(h) For purposes of this Agreement, the term "Subsidiary" shall mean any
corporation, partnership, joint venture or other entity during any period
in which at least a fifty percent interest in such entity is owned,
directly or indirectly, by the Company (or a successor to the Company).
(i) Except for the reference in paragraph 1(d), any reference in this Agreement
to the Board shall include the Compensation Committee thereof and any
officers of the Company to which the Board of or the Compensation Committee
thereof has by resolution delegated any explicit authority or
responsibilities with respect to this Agreement.
2. Compensation. Subject to the terms of this Agreement, during the
Agreement Term, while the Executive is employed by the Company, the Company
shall compensate him for his services as follows:
(a) Salary. The Executive shall receive, for each 12-consecutive month period
beginning on the Effective Date and each anniversary thereof, in
substantially equal monthly or more frequent installments, an annual base
salary of $725,000 (the "Salary"). Beginning as of the three-year
anniversary of the Effective Date, the Executive's Salary rate shall be
reviewed annually by the Board, while the Executive is employed by the
Company, to determine whether an increase in the amount of Salary is
appropriate. In no event shall the Salary of the Executive be reduced to an
amount that is less than the amount specified in this paragraph 2(a), or to
an amount that is less than the amount that he was previously receiving
during the Agreement Term.
(b) Bonus. The Executive shall participate in an annual bonus program. The
performance goals for such bonus program shall be established by the Board
after consultation with the Executive, and may include both objective and
subjective goals. The bonus program shall provide that if the Board
determines that the performance goals have been achieved for the
performance period, the Executive shall receive an annual bonus amount of
150% of the Executive's annual salary. If the Board determines that the
Executive has exceeded the performance goals for the performance period,
the annual bonus may be greater than 150% of annual salary, as determined
by the Board. If the Board determines that the Executive has not achieved
the performance goals for the performance period, the annual bonus may be
zero or some other amount that is less than 150% of annual salary, as
determined by the Board. The determinations of the Board under this
Agreement shall be made in its sole discretion.
(c) Option. An option or options to purchase common shares of the Company shall
be granted to the Executive as of the Effective Date, with a per share
option exercise price equal to the closing price per Company common share
reported on the New York Stock Exchange on that date. The option shall
provide the right to purchase 500,000 Company common shares. The option(s)
shall be subject to the following:
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(i) If, as of the Effective Date, the number of shares available for grant
under the option plans currently maintained by the Company is less
than 500,000, only the number of shares available on the Effective
Date will be covered by the option granted on that date. The Company
will seek authorization for the grant of an option for the additional
shares at its next regularly scheduled annual shareholders meeting,
and an option (the "Second Option") covering the difference between
that number and 500,000 shares will be granted to the Executive on the
date the shareholders of the Company approve additional shares for
option grants.
(ii) The terms of such option(s) shall be reflected in an agreement set
forth as Exhibit A to this Agreement, which is attached to and forms a
part of this Agreement. However, to the extent that the option granted
on the Effective Date covers less than 500,000 shares, the difference
between the number of shares covered and 500,000 shares will reduce
the shares scheduled to vest last.
(iii) At the time of the grant of the Second Option following shareholder
approval, the shares covered by such option will vest at the time they
would have vested if they had been granted under the option granted on
the Effective Date. The grant of such Second Option shall be
contingent on shareholder approval, and the per share exercise price
for such option shall be equal to the closing price per Company common
share reported on the New York Stock Exchange on the Effective Date.
(iv) If, because of the unavailability of shares as described in paragraph
(i), a Second Option is to be granted contingent on the approval of
the Company's shareholders at its next regularly scheduled annual
shareholders meeting after the Effective Date, and the Executive's
employment with the Company is terminated under the circumstances
described in paragraph 4(a), (b), (d), (f) or (g) prior to the date of
such regularly scheduled annual shareholder's meeting, the Executive
shall be granted the Second Option immediately prior to the time of
the Date of Termination (as defined in paragraph 4(i)) without the
need to obtain shareholder approval. If, at the time of the Date of
Termination, the Company is not able to make the grant required under
this paragraph (iv) because of the unavailability of shares, then,
immediately prior to the Date of Termination, the Company shall
instead grant to the Executive a stock appreciation right that will
have terms (including, without limitation, terms relating to Change in
Control and termination of employment) comparable to those to be
provided by the Second Option, and that will provide to the Executive
the value equivalent to the value that would otherwise be available to
the Executive by the Second Option if shares were available for its
grant.
(d) Other Equity-Based Awards. The Executive shall be eligible, at the
discretion of the Compensation Committee of the Board (the "Compensation
Committee") to participate in the ongoing equity programs of the Company.
However, except for the option described in paragraph (c) above, it is the
expectation of the Executive and the Company that,
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absent extraordinary performance or a change in circumstances, no further
long-term incentive awards will be made to the Executive before June 1,
2004.
(e) Deferred Compensation. The Company shall establish and maintain a
non-qualified deferred compensation plan (the "Non-Qualified Plan")
covering the Executive, subject to the following:
(i) As of the Effective Date, the amount of $2,500,000 shall be credited to
a deferred compensation account (the "Deferral Account") maintained by the
Company (or a Subsidiary) in the name of the Executive under the
Non-Qualified Plan.
(ii) The rate of return on the amounts credited to the Deferral Account
shall be measured by the return on such publicly available investment
alternatives as are selected by the Executive with the consent of the
Chairman of the Compensation Committee.
(iii) As soon as practicable after the Effective Date, the Company (or a
Subsidiary) shall establish a trust which shall hold the amounts credited
to the Executive's Deferral Account. Amounts held under such trust shall be
subject to the claims of the creditors of the Company (or a Subsidiary).
Except as otherwise expressly provided in this Agreement, the Executive
shall not, by reason of the Non-Qualified Plan, acquire any right in or
title to any assets, funds or property of the Company or any Subsidiary
whatsoever, including, without limitation, any specific funds, assets, or
other property set aside in anticipation of a liability under the
Non-Qualified Plan. The Executive shall have only a contractual right to
the amounts, if any, payable under the Non-Qualified Plan, unsecured by any
assets of the Company or any Subsidiary. (Such a trust is sometimes
referred to as a "rabbi trust.")
(iv) The Executive shall be vested in 20% of the balance in his Deferral
Account as of the Effective Date. Subject to paragraph 5, the Executive
shall become vested in an additional 20% of such balance on each of the
one-year, two-year, three-year and four-year anniversaries of the Effective
Date, provided that the Executive's Date of Termination (as defined below)
has not occurred prior to the respective vesting date.
(v) Notwithstanding the provisions of paragraph (iv) above, but subject to
the following sentence, the Executive shall become fully vested in his
Deferral Account on the date of a Change in Control (as defined below) if
his Date of Termination has not occurred prior to the date of the Change in
Control. Notwithstanding the provisions of paragraph (iv) above and the
foregoing provisions of this paragraph 2(e)(v), the Executive shall forfeit
all amounts held under the Non-Qualified Plan if either (A) the Executive's
Date of Termination occurs prior to his attainment of age 62 under
circumstances described in paragraph 4(c) (relating to the Executive's
termination for Cause), or (B) prior to or within 90 days after the
Executive's Date of Termination, the Executive agrees to provide service
(whether as an employee or otherwise) for a competitor in violation of the
provisions of paragraph 10.
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(vi) The Executive shall be entitled to a lump sum distribution of the
vested portion of his Deferral Account as soon as practicable after the
Executive's Date of Termination; provided, however, that the Executive may,
by election filed with the Company not later than 30 days after the
Effective Date or, if later, one year prior to the Executive's Date of
Termination (or at such later date as the election may be permitted by the
Board), have the vested portion of the Deferral Account distributed in
substantially equal installments beginning as soon as practicable after the
Date of Termination and continuing for a period of up to 15 years after the
Date of Termination (with the remaining undistributed balance continuing to
be subject to adjustment for investment returns until full distribution has
occurred).
(vii) For purposes of the Non-Qualified Plan, amounts that are deferred in
accordance with this paragraph 2(e) shall not be taken into account under
the other benefit plans of the Company or any Subsidiary.
(f) Existing Deferred Compensation Plan. Prior to the Effective Date, amounts
were credited to an account maintained for the Executive under the Trenwick
America Corporation Unfunded Supplemental Executive Retirement Plan (the
"Trenwick SERP"). The Executive may elect to have amounts previously
credited to his account under that plan held under the rabbi trust
described in paragraph (e)(iii) above; provided that vested amounts shall
remain vested and unvested amounts shall continue to vest in accordance
with the schedule established by the Trenwick SERP. Except as otherwise
provided in the preceding sentence, while the Executive is employed by the
Company, the Executive's account under that plan shall continue to be
credited with employer contributions in accordance with the terms of the
plan, the Executive's account shall continue to be adjusted for investment
returns until distribution, and the Executive's rights under that plan
shall continue to be determined in accordance with the terms of that plan
(including, without limitation, the provisions relating to distributions
under the plan).
(g) Loan. The Executive has previously borrowed certain amounts from the
Company, with an outstanding balance of principal and interest as of the
Effective Date of $836,893.07. The borrowings have been made under a line
of credit previously established for the Executive by the Company. The
Executive shall make no more borrowings under such line of credit. The
Executive agrees to enter into the promissory note attached as Exhibit B of
this Agreement, which is attached to and forms a part of this Agreement;
and that such note shall govern the repayment obligation with respect to
such borrowing, and shall be substituted for the promissory note dated
January 24, 2000 which previously governed such borrowing and which shall
be automatically canceled concurrently with the Executive entering into the
new promissory note.
(h) Disability. The Company shall arrange for disability income replacement
insurance coverage for the Executive which will provide for replacement of
not less than 60% of the Executive's Salary in the event of the Executive's
disability (as defined under the insurance policy). The premiums for such
coverage shall be paid by the Executive. However, the Company shall
reimburse the Executive for the actual premiums paid for
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such coverage, provided that the reimbursement shall not exceed $30,000 for
any year. During any period while the Executive is Disabled and is
otherwise entitled to receive Salary and bonus payments under this
Agreement, any such Salary and bonus payments to the Executive shall be
reduced by the amount of any benefits paid for the same period of time
under the disability income replacement insurance coverage described in
this paragraph 2(h).
(i) Miscellaneous Expenses. The Company shall provide to the Executive (or
provide reimbursement for) certain items as set forth in Exhibit D to this
Agreement. The Executive shall submit to the Chairman of the Compensation
Committee, on a quarterly basis, a summary report of all amounts for which
reimbursement is being sought under this Agreement. Any questions on
entitlement to expense reimbursements under this paragraph 2(i) or
otherwise shall be reviewed by, and be subject to the approval of, the
Chairman of the Compensation Committee, which approval shall not be
unreasonably withheld.
(j) Benefits Gross-Up Payment. The Company shall provide a Benefits Gross-Up
Payment in accordance with Exhibit D to this Agreement. The "Benefits
Gross-Up Payment" with respect to any compensation shall be an amount such
that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes) including, without
limitation, any foreign, U.S., or state income taxes imposed upon the
Benefits Gross-Up Payment, the Executive retains amounts equal to the
compensation due under the applicable paragraph.
(k) Business Expenses. The Executive is authorized to incur reasonable expenses
for entertainment, traveling, meals, lodging and similar items in promoting
the Company's business. The Company will reimburse the Executive for all
reasonable expenses so incurred, provided that such expenses are incurred
and accounted for in accordance with the reasonable policies and procedures
established by the Company.
(l) Other Fringe Benefits. Except as otherwise specifically provided to the
contrary in this Agreement, the Executive shall be provided with the
welfare benefits and other fringe benefits to the same extent and on the
same terms as those benefits are provided by the Company from time to time
to the Company's other senior management employees; provided, however, that
if any such benefits are adjusted to reflect an executive's position, the
Executive's benefits shall be adjusted in a manner commensurate with his
position. The Executive shall also be entitled to the perquisites that are
customarily provided in connection with his position. Nothing in this
paragraph 2(l) shall be construed to prevent the Company from revising the
benefits or perquisites generally provided to executives from time to time,
except that any such revision may not be inconsistent with the specific
requirements of this Agreement. The Company shall not be required to
provide a benefit under this paragraph 2(l) if such benefit would duplicate
(or otherwise be of the same type as) a benefit specifically required to be
provided under another provision of this Agreement. The Executive shall
complete all forms and physical examinations, and otherwise take all other
similar actions to secure coverage and
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benefits described in this paragraph 2, to the extent determined to be
necessary or appropriate by the Company.
(m) Indemnification. The Company shall maintain directors and officers
liability insurance in commercially reasonable amounts (as reasonably
determined by the Board), and the Executive shall be covered under such
insurance to the same extent as other senior management employees and
directors of the Company. The Executive shall be eligible for
indemnification by the Company under the Company Bye-Laws as currently in
effect. The Company agrees that it shall not take any action that would
impair the Executive's rights to indemnification under the Company
Bye-Laws, as currently in effect.
(n) Attorney Fees. The Company will reimburse the Executive for the reasonable
attorney fees accrued prior to June 1, 2001 in connection with the
negotiation of this Agreement.
(o) Withholding. All payments to the Executive hereunder shall be subject to
such withholding of federal, state and local income and excise taxes and to
such employment taxes as may be reasonably determined by the Company to be
required.
3. Change in Control.
(a) In the event it shall be determined that any payment, benefit or
distribution (or combination thereof) from the Company, any affiliate, or
trusts established by the Company or by any affiliate, for the benefit of
its employees, to the Executive or for the Executive's benefit (whether
paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, and with a "payment" including, without
limitation, the vesting of an option or other non-cash benefit or property)
(any of which are referred to as a "Payment") would be subject to the
excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as
amended (the "Code"), or any interest or penalties are incurred by the
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"), the Executive shall be entitled to receive an additional
payment (a "Parachute Gross-Up Payment") in an amount such that, after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes and payroll taxes (and any interest and penalties imposed with
respect thereto) and the Excise Tax imposed upon the Parachute Gross-Up
Payment, the Executive retains an amount of the Parachute Gross-Up Payment
equal to the sum of: (i) the Excise Tax imposed upon the Payments; plus
(ii) an amount equal to the product of any deductions disallowed for
federal, state, or local income tax purposes because of the inclusion of
the Parachute Gross-up Payment in the Executive's adjusted gross income
multiplied by the highest applicable marginal rate of federal, state, or
local income taxation, respectively, for the calendar year in which the
Parachute Gross-Up Payment is to be made. The payment of amounts under this
paragraph 3(a) shall be subject to the following:
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(i) The amount of the any Parachute Gross-Up Payment to be made shall be
determined, at the Company's expense, by a nationally recognized accounting
firm acceptable to the Executive and the Company.
(ii) The Executive shall notify the Company in writing promptly of any
written claim by the IRS that would require the payment of the Parachute
Gross-Up Payment. The Company may elect, by notifying the Executive in
writing within thirty (30) days of its receipt of Executive's notice, to
contest such claim and/or to retain legal counsel selected by the Company
(and reasonably acceptable to the Executive) to represent the Executive.
Such contest will be at the Company's sole cost and expense and the Company
shall advance any amounts required to be paid in respect of such Excise tax
or the contest thereof. The Executive shall cooperate fully with the
Company in good faith including permitting the Company to participate in
any proceedings relating to such claim or contest and giving the Company
any information reasonably requested by the Company relating to such claim
or contest.
(iii) The Company shall be entitled to control all proceedings,
conferences, and appeals it may elect to take, but only with respect to the
Excise Tax, and may ▇▇▇ for a refund or contest the claim in any
permissible manner provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the
Executive with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. The Executive shall promptly
pay to the Company the amount of any refund with respect to such claim
(together with any interest paid or credited thereof but after payment by
Executive by any taxes applicable thereto).
(iv) Notwithstanding the foregoing provisions of this paragraph 3(a), if
the Executive's Date of Termination occurs during the Agreement Term under
circumstances described in paragraph 4(c) (relating to the Executive's
termination for Cause), or paragraph 4(e) (relating to the Executive's
resignation), then the Executive shall not be entitled to any payments
under this paragraph 3(a), and shall be required to repay to the Company
any amounts previously provided to him under this paragraph 3(a).
(b) Upon the occurrence of a Change in Control, if the Executive's Date of
Termination has not occurred prior to the date of the Change in Control,
the exercise restrictions with respect to stock options granted to the
Executive by the Company as of a date prior to the Change in Control shall
lapse, and the options shall become exercisable as of the date of the
Change in Control.
(c) To the extent that extent that the Executive is a party to any other
arrangement with the Company or a Subsidiary establishing rights or
obligations upon a Change in Control, the definition of "Change in Control"
set forth in paragraph (d) below shall be substituted for the definition of
"Change in Control" as used in such arrangement with respect to the
Executive, including corresponding modifications to timing as set forth in
the provisions of paragraph (d)(iii) below.
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(d) For purposes of this Agreement, a "Change in Control" shall be deemed to
have occurred upon the earliest to happen of the following (but only if the
Board determines, in its reasonable judgment, that such circumstances have
occurred):
(i) The acquisition, in one or more transactions, of beneficial ownership
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934
(the "Exchange Act") by any person or entity or any group of persons or
entities who constitute a group (within the meaning of Rule 13d-3 of the
Exchange Act), other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a subsidiary, or any
securities of the Company if, as a result of such acquisition, such person,
entity or group either (A) beneficially owns (within the meaning of Rule
13d-3 under the Exchange Act), directly or indirectly, more than 40% of the
Company's outstanding voting securities entitled to vote on a regular basis
for a majority of the members of the Board; or (B) otherwise has the
ability to elect, directly or indirectly, a majority of the members of the
Board.
(ii) A change in the composition of the Board such that a majority of the
members of the Board are not Continuing Directors. A "Continuing Director"
means, as of any date of determination, any member of the Board who (A) was
a member of the Board on the Effective Date, or (B) was nominated for
election to the Board (and subsequently elected to the Board) or appointed
by the Board with the affirmative vote of a majority of the Continuing
Directors who were members of the Board at the time of such nomination or
election.
(iii) Subject to the following provisions of this paragraph 3(d)(iii), the
consummation of (A) a merger, consolidation, amalgamation, or scheme of
arrangement of the Company with any other corporation, other than a merger,
consolidation, amalgamation, or scheme of arrangement which would result in
the voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least 50% of
the total voting power represented by the voting securities of the Company
or such surviving entity outstanding immediately after such merger,
consolidation, amalgamation, or scheme of arrangement, or (B) a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company (in one or more transactions) of all or
substantially all of the Company's assets. Notwithstanding the foregoing
provisions of this paragraph 3(d)(iii), and solely for purposes of
determining, under paragraph 2(e)(v) (relating to the vesting of the
deferred compensation account) and under paragraph 3(b) (relating to
vesting of options), whether a Change in Control under this paragraph
3(d)(iii) has occurred prior to the Executive's Date of Termination, the
Change in Control will be deemed to have occurred on the date of
shareholder approval of the merger, consolidation, amalgamation, scheme of
arrangement, complete liquidation, or sale or disposition of the Company,
whichever is applicable; provided that no Change in Control will be deemed
to have occurred under this paragraph 3(d)(iii) unless the merger,
consolidation, amalgamation, scheme of arrangement, complete liquidation,
or sale or disposition of the Company is consummated, and the rights
provided to the Executive in
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connection with paragraph 2(e)(v) and 3(b) upon a Change in Control shall
not become available until such consummation.
Notwithstanding the foregoing, the events in paragraph (d)(i)(A) above or
paragraph (d)(iii)(A) above shall not be deemed a Change in Control if, for
a period of one year following the consummation of the transactions
constituting such change the Continuing Directors shall have continued to
constitute a majority of the Board of Directors of the Company or the
successor. In addition, an event that would not otherwise be a Change in
Control in accordance with this paragraph (d) may be designated as a
"Change in Control" by the Board, in its sole discretion.
4. Termination. The Executive's employment with the Company during the
Agreement Term may be terminated by the Company or the Executive without any
breach of this Agreement only under the circumstances described in paragraphs
4(a) through 4(g):
(a) Death. The Executive's employment hereunder will terminate upon his death.
(b) Permanent Disability. The Company may terminate the Executive's employment
during any period in which he is Permanently Disabled. The Executive shall
be considered "Permanently Disabled" during any period in which he is
Disabled; provided, however, that the Executive shall be not be considered
"Permanently Disabled" unless (i) the Executive is Disabled and such
disability renders the Executive incapable, after reasonable accommodation,
of performing the Executive's duties a permanent, full-time basis; and (ii)
such disability is reasonably expected by the Board to continue for at
least 180 days.
(c) Cause. The Company may terminate the Executive's employment hereunder at
any time for Cause. For purposes of this Agreement, the term "Cause" shall
mean: (A) the commission by the Executive of any felonious act or any other
criminal act involving moral turpitude, dishonesty, theft or unethical
business conduct, (B) the willful and continued failure of the Executive to
substantially perform his duties (other than as a result of being Disabled)
which duties the Executive has been directed in writing to perform by the
Board; (C) willful misconduct or gross negligence by the Executive in the
performance of the Executive's duties, or (D) a material failure of the
Executive to comply with any material policy or procedure of the Company.
However, no termination will be deemed to have occurred by reason of
"Cause" under clause (D) of the preceding sentence unless such termination
occurs following (i) the delivery of written notice from the Company to the
Executive setting forth in reasonable detail the reasons for the Company's
intention to terminate the Executive for Cause; (ii) a period of 15
calendar days after receipt of such notice during which the Executive is
afforded an opportunity to cure the neglect or conduct that is the basis
for such notice; (iii) the Executive, together with his legal counsel, is
afforded an opportunity to be heard before the full Board; and (iv)
two-thirds of the disinterested directors on the Board vote to terminate
the Executive for Cause based upon the reasons enumerated by the Company in
the notice delivered pursuant to clause (i). No action or failure to act by
the Executive shall be considered "willful" if it is determined by the
Board to have been done by the Executive in good
11
faith and with the reasonable belief that the Executive's action or
omission is in the best interest of the Company.
(d) Constructive Discharge. If (I) the Executive provides written notice to the
Company of the occurrence of Good Reason (as defined below) within 90 days
after the Executive has knowledge of the circumstances constituting Good
Reason, which notice sets forth in reasonable detail the facts and
circumstances which the Executive believes constitute Good Reason; (II) the
Company fails to correct the circumstances within ten business days after
such notice; and (III) the Executive resigns within 60 days after the
Company fails to correct such circumstances; then the Executive shall be
considered to have been subject to a Constructive Discharge by the Company.
For purposes of this Agreement, "Good Reason" shall mean, without the
Executive's express written consent (and except in consequence of a prior
termination of the Executive's employment), the occurrence of any of the
following circumstances:
(i) A reduction in the Executive's current Salary or target bonus
opportunity as a percentage of Salary.
(ii) The taking of any action by the Company that could substantially
diminish the aggregate value of the benefits provided to the Executive
under the Company's medical, health, accident, life insurance, thrift, and
retirement plans; provided, however, that nothing in this paragraph
4(d)(ii) shall be construed to include, as "Good Reason," a modification by
the Company of the generally applicable terms of any such arrangement from
time to time in the ordinary course of the Company's operations.
(iii) The failure to elect or reelect the Executive to any of the positions
of President and Chief Executive Officer of the Company or member and
Chairman of the Board or the removal of the Executive from any such
position.
(iv) The material diminution in the Executive's duties or interference with
the Executive carrying out his duties so that, in the reasonable exercise
of the Executive's judgment, he is unable to carry out his duties under the
Agreement as contemplated on the Effective Date.
(v) A change in the reporting structure so that the Executive reports to
someone other than the Board.
(vi) Relocation of the Executive's principal place of employment to a
location other than Bermuda or New York, New Jersey, or Connecticut
provided such location in New York, New Jersey, or Connecticut is no
further than 50 miles from mid-town Manhattan.
(vii) The failure of the Company to obtain the assumption in writing of its
obligation to perform this Agreement by any successor to all or
substantially all of the assets of the Company within 15 days after a
merger, consolidation, amalgamation, scheme of arrangement, sale or similar
transaction.
12
(viii) The delivery to the Company by the Executive of written notice of
the Executive's resignation, provided that delivery of such notice occurs
more than 60 calendar days after a Change in Control, but not more than one
year after a Change in Control. Delivery of such notice of resignation
shall be deemed to constitute satisfaction of the Executive's obligations
under clauses (I) and (III) of paragraph 4(d) and the Company shall not
have the ability to correct the circumstances pursuant to clause (II) of
paragraph 4(d). The Executive's notice of resignation shall constitute a
Notice of Termination (defined below) and the Date of Termination specified
in the Executive's notice of resignation shall not be less than 60 calendar
days or more than 90 calendar days after the date of delivery to the
Company of such notice of resignation. This paragraph 4(d)(viii) shall be
applicable regardless of whether the Executive consented to the Change in
Control.
(e) Termination by Executive. The Executive may terminate his employment
hereunder at any time for any reason prior to his attaining age 62 by
giving the Company prior written Notice of Termination, which Notice of
Termination shall be effective not less than 60 calendar days after it is
given to the Company, provided that nothing in this Agreement shall require
the Executive to specify a reason for any such termination. However, to the
extent that the procedures specified in paragraph 4(d) are required, the
procedures of this paragraph 4(e) may not be used in lieu of the procedures
required under paragraph 4(d).
(f) Retirement. Any Date of Termination after the Executive attains age 62 for
reasons other than death or being Permanently Disabled shall be treated as
a termination by reason of retirement (provided that any resignation by the
Executive after his attainment of age 62 shall be subject to the
requirement that he provide not less than 60 calendar days of advance
notice of such retirement).
(g) Termination by Company. The Company may terminate the Executive's
employment hereunder at any time for any reason, by giving the Executive
prior written Notice of Termination, which Notice of Termination shall be
effective immediately, or such later time as is specified in such notice.
The Company shall not be required to specify a reason for the termination
under this paragraph 4(g), provided that termination of the Executive's
employment by the Company shall be deemed to have occurred under this
paragraph 4(g) only if it is not for reasons described in paragraph 4(b) or
4(c).
(h) Notice of Termination. Any termination of the Executive's employment by the
Company or the Executive (other than a termination pursuant to paragraph
4(a)) must be communicated by a written Notice of Termination to the other
party hereto. For purposes of this Agreement, a "Notice of Termination"
means a dated notice which indicates the Date of Termination (not earlier
than the date on which the notice is provided), and which indicates the
specific termination provision in this Agreement relied on and, if such
Notice of Termination is being delivered under paragraph 4(b), 4(c), or
4(d), which sets forth in reasonable detail the facts and circumstances, if
any, claimed to provide a basis for termination of the Executive's
employment under the provision so indicated.
13
(i) Date of Termination. "Date of Termination" means the last day the Executive
is employed by the Company, provided that the Executive's employment is
terminated in accordance with the foregoing provisions of this paragraph 4.
(j) Effect of Termination. If, on the Date of Termination, the Executive is a
member of the Board of Directors of the Company or any of the Subsidiaries,
or holds any other position with the Company and the Subsidiaries, the
Executive shall resign from all such positions as of the Date of
Termination.
5. Rights Upon Termination. The Executive's right to payment and benefits
under this Agreement for periods after his Date of Termination shall be
determined in accordance with the following provisions of this paragraph 5:
(a) General. If the Executive's Date of Termination occurs during the Agreement
Term for any reason, the Company shall pay to the Executive:
(i) The Executive's Salary for the period ending on the Date of
Termination.
(ii) Payment for unused vacation days, as determined in accordance with
Company policy as in effect from time to time.
(iii) If the Date of Termination occurs after the end of a performance
period and prior to the payment of the bonus (as described in paragraph
2(b)) for the period, the Executive shall be paid such bonus amount at the
regularly scheduled time.
(iv) The Executive and any of his dependents shall be eligible for COBRA
continuation coverage (as described in section 4980B of the Code) to the
extent required by applicable law.
(v) Except as otherwise provided in this paragraph 5, the Executive shall
receive distribution of any vested portion of his Deferral Account under
the Non-Qualified Plan in accordance with the terms of that plan.
(vi) Any other payments or benefits to be provided to the Executive by the
Company pursuant to any employee benefit plans or arrangements established
or adopted by the Company (including, without limitation, any rights to
indemnification from the Company or from a third-party insurer for
directors and officers liability coverage) with respect to any costs,
losses, claims, suits, proceedings, damages or liabilities to which the
Executive may become subject which arise out of, are based upon or relate
to the Executive's employment by the Company or the Executive's service as
an officer or member of the Board of Directors of the Company), to the
extent such amounts are due from the Company in accordance with the terms
of such plans or arrangements.
Except as may otherwise be expressly provided to the contrary in this
Agreement, nothing in this Agreement shall be construed as requiring the
Executive to be treated as employed by the Company for purposes of any
employee benefit plan or arrangement following the Executive's Date of
Termination.
14
(b) Voluntary Resignation and Termination for Cause. If the Executive's Date of
Termination occurs during the Agreement Term under circumstances described
in paragraph 4(c) (relating to the Executive's termination for Cause), or
paragraph 4(e) (relating to the Executive's resignation), then, in addition
to the amounts payable in accordance with paragraph 5(a), the portion of
any stock option granted to the Executive that is not exercisable
immediately prior to the Date of Termination shall expire, and the portion
of any stock option granted to the Executive that is otherwise exercisable
prior to the Date of Termination shall remain exercisable for 30 days after
the Date of Termination, but in no event later than the date fixed for
expiration of the option (determined without regard to the Executive's
termination of employment).
(c) Death. If the Executive's Date of Termination occurs during the Agreement
Term by reason of the Executive's death, then, in addition to the amounts
payable in accordance with paragraph 5(a):
(i) The Executive's beneficiary shall receive a lump sum cash payment from
the Company equal to 60% of the Executive's annual Salary rate in effect
immediately prior to the Date of Termination.
(ii) The Executive's beneficiary shall receive payment of the bonus for the
performance period in which the Executive's death occurs, in an amount
equal to the amount payable in accordance with paragraph 2(b) on
achievement of the performance goals for the year in which the Date of
Termination occurs; provided, however, that such bonus shall be subject to
a pro-rata reduction for the portion of the performance period following
the date of death.
(iii) The vesting restrictions with respect to any stock awards shall lapse
on the Date of Termination and the stock awards shall become fully vested
on the Date of Termination. The exercise restrictions with respect to stock
options granted to the Executive by the Company shall lapse, and the
options shall become exercisable as of the Date of Termination. The portion
of any stock option granted to the Executive that is exercisable
immediately prior to the date of death, as well as the portion of any stock
option that becomes exercisable by reason of this paragraph 5(c)(iii),
shall remain exercisable for three years after the Date of Termination, but
in no event later than the date fixed for expiration of the option
(determined without regard to the Executive's termination of employment).
(iv) The Executive's beneficiary shall become fully vested in the balance
in the Executive's the Executive's Deferral Account under the Non-Qualified
Plan as of the Date of Termination.
(v) For the 36-month period following the Executive's Date of Termination,
the Executive's surviving spouse shall be entitled to the financial
planning and tax preparation reimbursement which constitute Severance
Period Benefits (as described in paragraph (h) below).
15
(vi) The Executive's surviving spouse and dependents shall be entitled to
the medical coverage which constitutes Severance Period Benefits, with such
medical coverage to continue to be available for the life of the surviving
spouse and dependents (provided that the dependent coverage shall be
subject to the age 21 limit set forth in the definition of Severance Period
Benefits). In addition, such medical coverage shall be conditioned on the
Executive's surviving spouse or dependents continuing to make payment of
the premiums for the full premium cost of such coverage, but subject to the
Executive's surviving spouse or his dependents, as applicable, being
reimbursed for the cost of such coverage (with such total reimbursement not
to exceed $1,000 per month).
(d) Permanent Disability. If the Executive's Date of Termination occurs during
the Agreement Term under circumstances described in paragraph 4(b)
(relating to the Executive's being Permanently Disabled), then, in addition
to the amounts payable in accordance with paragraph 5(a):
(i) The Executive shall receive from the Company for the period continuing
until the date (not later than 90 days after the Date of Termination) as of
which payments under the disability income replacement policy (described in
paragraph 2(h)) commence, 60% of the Salary amount described in paragraph
2(a), as in effect on his Date of Termination, in monthly or more frequent
installments as is required under that paragraph. However, if the
Executive's Date of Termination occurs as described in paragraph 4(d) prior
to the 180th day following the date on which the disability commenced, then
the Executive shall continue to receive full salary for the period from the
Date of Termination until the 180th day following the date on which the
disability commenced, and thereafter for the period continuing until the
date (not later than 270th day after the date on which the disability
commenced) as of which payments under the disability income replacement
policy (described in paragraph 2(h)) commence, 60% of the Salary amount
described in paragraph 2(a).
(ii) The Executive shall receive payment of the bonus for the performance
period in which his Date of Termination occurs, in an amount equal to the
amount payable in accordance with paragraph 2(b) on achievement of the
performance goals for the year in which the Date of Termination occurs;
provided, however, that such bonus shall be subject to a pro-rata reduction
for the portion of the performance period following the Date of
Termination.
(iii) The vesting restrictions with respect to any stock awards shall lapse
on the Date of Termination and the stock awards shall become fully vested
on the Date of Termination. The exercise restrictions with respect to stock
options granted to the Executive by the Company shall lapse, and the
options shall become exercisable as of the Date of Termination. The portion
of any stock option granted to the Executive that is exercisable
immediately prior to the Date of Termination, as well as the portion of any
stock option that becomes exercisable by reason of this paragraph
5(d)(iii), shall remain exercisable for three years after the Date of
Termination, but in no event later than the date fixed for expiration of
the option (determined without regard to the Executive's termination of
employment).
16
(iv) If the Executive's Date of Termination occurs by reason of the
Executive's being Permanently Disabled prior to his attainment of age 62,
he will be provided with life insurance coverage equal to four times his
annual Salary rate in effect on the Effective Date until the Executive's
attainment of age 65.
(v) If the Executive's Date of Termination occurs by reason of the
Executive's being Permanently Disabled after his attainment of age 62, he
shall be entitled to assignment and transfer of the ownership (including
any cash value) of any life insurance policy maintained by the Company on
his life (regardless of whether such life insurance policy has been
acquired pursuant a plan maintained by the Company or pursuant to an
individual arrangement with the Executive).
(vi) The Executive shall become fully vested in the balance in his Deferral
Account under the Non-Qualified Plan as of the Date of Termination.
(vii) For the 36-month period following the Executive's Date of
Termination, the Executive shall be entitled to Severance Period Benefits,
except that the duration and other provisions of the medical coverage shall
be subject to the following paragraph (viii).
(viii) The Executive, his surviving spouse, and his dependents shall be
entitled to the medical coverage which constitutes Severance Period
Benefits, with such medical coverage to continue to be available for the
life of the Executive, his surviving spouse, and his dependents (provided
that the dependent coverage shall be subject to the age 21 limit set forth
in the definition of Severance Period Benefits). In addition, such medical
coverage shall be conditioned on the Executive (or, in the event of the
Executive's subsequent death, the Executive's surviving spouse or
dependents) continuing to make payment of the premiums for the full premium
cost of such coverage, but subject to the Executive, his surviving spouse,
or his dependents, as applicable, being reimbursed for the cost of such
coverage (with such total reimbursement not to exceed $1,000 per month).
(ix) If the Executive's Date of Termination occurs prior to his attainment
of age 62, the medical coverage constituting Severance Period Benefits
shall cease as of the date on which the Executive begins receiving medical
benefit coverage provided by another employer of the Executive (or other
recipient of the Executive's services).
(e) Retirement. If the Executive's Date of Termination occurs during the
Agreement Term under circumstances described in paragraph 4(f) (relating to
the Executive's retirement), then, in addition to the amounts payable in
accordance with paragraph 5(a):
(i) The Executive shall receive payment of the bonus for the performance
period in which his Date of Termination occurs, in an amount equal to the
greater of the actual annual bonus amount described in paragraph 2(b) that
was payable for the year ending immediately prior to the year in which the
Date of Termination occurs or the amount payable in accordance with
paragraph 2(b) on achievement of the performance goals for
17
the year in which the Date of Termination occurs; provided, however, that
in either case such bonus shall be subject to a pro-rata reduction for the
portion of the performance period following the Date of Termination.
(ii) The vesting restrictions with respect to any stock awards shall lapse
on the Date of Termination and the stock awards shall become fully vested
on the Date of Termination. The exercise restrictions with respect to stock
options granted to the Executive by the Company shall lapse, and the
options shall become exercisable as of the Date of Termination. The portion
of any stock option granted to the Executive that is exercisable
immediately prior to the Date of Termination, as well as the portion of any
stock option that becomes exercisable by reason of this paragraph 5(e)(ii),
shall remain exercisable until the date fixed for expiration of the option
(determined without regard to the Executive's termination of employment).
(iii) The Executive shall be entitled to assignment and transfer of the
ownership (including any cash value) of any life insurance policy
maintained by the Company on his life (regardless of whether such life
insurance policy has been acquired pursuant a plan maintained by the
Company or pursuant to an individual arrangement with the Executive).
(iv) The Executive shall become fully vested in the balance in his Deferral
Account under the Non-Qualified Plan as of the Date of Termination.
(v) The Executive, his surviving spouse, and his dependents shall be
entitled to the medical coverage which constitutes Severance Period
Benefits, with such medical coverage to continue to be available for the
life of the Executive, his surviving spouse, and his dependents (provided
that the dependent coverage shall be subject to the age 21 limit set forth
in the definition of Severance Period Benefits). In addition, such medical
coverage shall be conditioned on the Executive (or, in the event of the
Executive's subsequent death, the Executive's surviving spouse or
dependents) continuing to make payment of the premiums for the full premium
cost of such coverage, but subject to the Executive, his surviving spouse,
or his dependents, as applicable, being reimbursed for the cost of such
coverage (with such total reimbursement not to exceed $1,000 per month).
(f) Termination without Cause and Constructive Discharge. If the Executive's
Date of Termination occurs during the Agreement Term under circumstances
described in paragraph 4(d) (relating to Constructive Discharge) or
paragraph 4(g) (relating to termination by the Company without Cause),
then, in addition to the amounts payable in accordance with paragraph 5(a):
(i) The Executive shall receive a lump sum cash payment from the Company
equal to three times the sum of: (A) the Executive's annual Salary rate in
effect immediately prior to the Date of Termination; plus (B) the greater
of the actual annual bonus amount described in paragraph 2(b) that was
payable for the year ending immediately prior to the year in which the Date
of Termination occurs or the amount payable in accordance with
18
paragraph 2(b) on achievement of the performance goals for the year in
which the Date of Termination occurs.
(ii) The Executive shall receive payment of the bonus for the performance
period in which his Date of Termination occurs, in an amount equal to the
greater of the actual annual bonus amount described in paragraph 2(b) that
was payable for the year ending immediately prior to the year in which the
Date of Termination occurs or the amount payable in accordance with
paragraph 2(b) on achievement of the performance goals for the year in
which the Date of Termination occurs; provided, however, that in either
case such bonus shall be subject to a pro-rata reduction for the portion of
the performance period following the Date of Termination.
(iii) The vesting restrictions with respect to any stock awards shall lapse
on the Date of Termination and the stock awards shall become fully vested
on the Date of Termination. The exercise restrictions with respect to stock
options granted to the Executive by the Company shall lapse, and the
options shall become vested and exercisable as of the Date of Termination.
The portion of any stock option granted to the Executive that is
exercisable immediately prior to the Date of Termination, as well as the
portion of any stock option that becomes exercisable by reason of this
paragraph 5(f)(iii), shall remain exercisable for three years after the
Date of Termination, but in no event later than the date fixed for
expiration of the option (determined without regard to the Executive's
termination of employment).
(iv) The Executive will be provided with life insurance coverage equal to
four times his annual Salary rate in effect on the Effective Date until the
Executive's attainment of age 65.
(v) The Executive shall become fully vested in the balance in his Deferral
Account under the Non-Qualified Plan as of the Date of Termination.
(vi) For the 36-month period following the Executive's Date of Termination,
the Executive shall be entitled to Severance Period Benefits. The medical
coverage constituting Severance Period Benefits shall be conditioned on the
Executive (or, in the event of the Executive's subsequent death, the
Executive's surviving spouse or dependents) continuing to make payment of
the premiums for such coverage at the level required of other employees
provided with such coverage. Notwithstanding the foregoing provisions of
this paragraph 5(f)(vi), the Company's obligation to provide any type of
benefits under this paragraph 5(f)(vi) shall cease as of the date on which
the Executive begins coverage provided by another employer of the Executive
(or other recipient of the Executive's services) of benefits of that type.
Notwithstanding the foregoing, no benefits under this paragraph 5(f) shall
be paid to the Executive unless he executes a release of claims against the
Company in a form set forth as Exhibit C to this Agreement, which is
attached to and forms a part of this Agreement.
19
(g) Other Plans. Except as may be otherwise specifically provided in an
amendment of this paragraph 5(g) adopted in accordance with paragraph 15,
the Executive's rights under this paragraph 5 shall be in lieu of any
benefits that may be otherwise payable to or on behalf of the Executive
pursuant to the terms of any severance pay arrangement of the Company or
any Subsidiary or any other, similar arrangement of the Company or any
Subsidiary providing benefits upon involuntary termination of employment
(including, without limitation, the Trenwick Group Inc. Merger Severance
Policy).
(h) Severance Period Benefits. For purposes of this Agreement, the term
"Severance Period Benefits" shall mean each of the following benefits:
(i) The Executive (and, in the event of the Executive's subsequent death,
the Executive's surviving spouse or dependents) shall be entitled to elect
to continue to receive coverage for the Executive, his spouse, and his
dependents (excluding, with respect to any dependent, periods after the
dependent has attained age 21) under the Company's medical plan as in
effect from time to time for retired employees (or, if no such plan exists,
the Company's medical plan as in effect from time to time for active
employees).
(ii) Continued crediting of Company contributions to the 401(k) plan,
pension plan and supplemental pension plan which the Executive would have
received if he had remained employed with the Company during the period of
such coverage. In determining the amount of benefits to which the Executive
is entitled under this paragraph 5(h)(ii), it shall be assumed that the
Executive shall continue to be entitled to the Salary that he was receiving
immediately prior to the Date of Termination, and the bonus for the year
prior to the year in which the Date of Termination occurs. This paragraph
5(h)(ii) shall not require continued participation in the deferred
compensation plans described in paragraph 2(e) or 2(f) after the Date of
Termination. Continued crediting of contributions for periods after the
Executive's death shall not be required under this paragraph 5(h)(ii). If
the Company reasonably determines that the Executive cannot participate in
any benefit plan because he is not actively performing services for the
Company, then, in lieu of providing benefits under any such plan, the
Company shall credit to a non-qualified deferred compensation arrangement
an amount equal to the reduction in funding cost resulting from the
Executive's exclusion from such plan, which crediting shall fully satisfy
any obligation of the Company to continue benefits under such plans. Any
such non-qualified deferred compensation arrangement shall be designed to
conform to the requirements of paragraphs 2(e)(ii) and (iii), and shall
provide for distribution to the Executive as soon as practicable after the
cessation of crediting of Company contributions under that arrangement.
(iii) Continuation of the car allowance described in paragraph 2(i)(ii).
This car allowance shall continue with respect to two cars while the
Executive resides in Bermuda, and shall continue with respect to one car in
the United States after the Executive ceases to reside in Bermuda. This
paragraph 5(h)(iii) shall not require continuation of the car allowance for
periods after the Executive's death.
20
(iv) Continuation of the reimbursement of up to $30,000 per year for
disability insurance premiums. This paragraph 5(h)(iv) shall not require
continuation of such payments for periods after the Executive's death.
(v) Continuation of the reimbursement of up to $10,000 per year for
appropriate financial planning and tax preparation fees.
6. Duties on Termination. Subject to the terms and conditions of this
Agreement, during the period beginning on the date of delivery of a Notice of
Termination, and ending on the Date of Termination, the Executive shall continue
to perform his duties as set forth in this Agreement, and shall also perform
such services for the Company as are necessary and appropriate for a smooth
transition to the Executive's successor, if any. Notwithstanding the foregoing
provisions of this paragraph 6, the Company may suspend the Executive from
performing his duties under this Agreement following the delivery of a Notice of
Termination providing for the Executive's resignation, or delivery by the
Company of a Notice of Termination providing for the Executive's termination of
employment for any reason; provided, however, that during the period of
suspension (which shall end on the Date of Termination), the Executive shall
continue to be treated as employed by the Company for other purposes, and his
rights to compensation or benefits shall not be reduced by reason of the
suspension. Following the Date of Termination, the Executive agrees to return to
the Company any keys, credit cards, passes, confidential documents or material,
or other property belonging to the Company, and to return all writings, files,
records, correspondence, notebooks, notes and other documents and things
(including any copies thereof) containing any Confidential Information (as
defined below).
7. Confidential Information. The Executive agrees that, during the
Agreement Term, and at all times thereafter:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, except as necessary to carry out his duties to the
Company and its Subsidiaries, or except to the extent that the Executive
has express authorization from the Company, the Executive agrees to keep
secret and confidential indefinitely, all Confidential Information, and not
to disclose the same, either directly or indirectly, to any other person,
firm, or business entity, or to use it in any way. The Executive shall,
during the continuance of the Executive's employment, use the Executive's
best endeavors to prevent the unauthorized publication or misuse of any
Confidential Information.
(b) To the extent that any court or agency seeks to have the Executive disclose
Confidential Information, he shall promptly inform the Company, and he
shall take reasonable steps to prevent disclosure of Confidential
Information until the Company has been informed of such requested
disclosure, and the Company has an opportunity to respond to such court or
agency. To the extent that the Executive obtains information on behalf of
the Company or any of the Subsidiaries that may be subject to
attorney-client privilege as to the Company's attorneys, the Executive
shall take reasonable steps to maintain the confidentiality of such
information and to preserve such privilege.
21
(c) Nothing in the foregoing provisions of this paragraph 7 shall be construed
so as to prevent the Executive from using, in connection with his
employment for himself or an employer other than the Company or any of the
Subsidiaries, knowledge which was acquired by him during the course of his
employment with the Company and the Subsidiaries, and which is generally
known to persons of his experience in other companies in the same industry.
(d) For purposes of this Agreement, the term "Confidential Information" shall
include all non-public information (including, without limitation,
information regarding litigation and pending litigation) concerning the
Company and the Subsidiaries which was acquired by or disclosed to the
Executive during the course of his employment with the Company, or during
the course of his consultation with the Company following his Date of
Termination (regardless of whether consultation is pursuant to paragraph
11). For purposes of this Agreement, the term "Confidential Information"
shall also include all non-public information concerning any other company
that was shared with the Company or a Subsidiary subject to an agreement to
maintain the confidentiality of such information. For purposes of this
Agreement, the term "Confidential Information" shall not include
information (i) which has been disclosed to the general public by the
Company, (ii) which has been disclosed by the Company to one or more third
parties without restrictions of confidentiality similar to the ones set
forth in this Agreement; or (iii) which is disclosed to the Executive by a
third party who, to the knowledge of the Executive following reasonable
inquiry, is not subject to a legal, contractual or fiduciary obligation of
confidentiality with respect to such information.
(e) This paragraph 7 shall not be construed to unreasonably restrict the
Executive's ability to disclose confidential information in an arbitration
proceeding or a court proceeding in connection with the assertion of, or
defense against any claim of breach of this Agreement. If there is a
dispute between the Company and the Executive as to whether information may
be disclosed in accordance with this paragraph 7(e), the matter shall be
submitted to the arbitrators or the court (whichever is applicable) for
decision.
8. Inventions and Patents. The Executive hereby assigns to the Company all
right, title, interest, to all patents and patent applications, all inventions,
innovations, improvements, developments, methods, designs, analyses, drawings,
reports and all similar or related information (in each case whether or not
patentable), all copyrights and copyrightable works, all trade secrets,
confidential information and know-how, and all other intellectual property
rights that are conceived, reduced to practice, developed or made by the
Executive while employed by the Company and the Subsidiaries and that (i) relate
to the Company's or any of its Subsidiaries' actual or anticipated business,
research and development or existing or future products or services; or (ii) are
conceived, reduced to practice, developed or made using any of the equipment,
supplies, facilities, assets or resources of the Company or any of its
Subsidiaries (including, but not limited to, any intellectual property rights )
("Work Product"). The Executive shall promptly disclose such Work Product to the
Board and perform all actions reasonably requested by the Board (whether during
or after the Agreement Term) to establish and confirm the Company's ownership
(including, without limitation, assignments, consents, powers of attorney,
applications and other instruments).
22
9. Non-Disparagement. The Executive agrees that, while he is employed by
the Company, and after his Date of Termination, he shall not make any false,
defamatory or disparaging statements about the Company, the Subsidiaries, or the
officers or directors of the Company or the Subsidiaries that are reasonably
likely to cause material damage to the Company, the Subsidiaries, or the
officers or directors of the Company or the Subsidiaries. While the Executive is
employed by the Company, and after his Date of Termination, the Company agrees,
on behalf of itself and the Subsidiaries, that neither the officers nor the
directors of the Company or the Subsidiaries shall make any false, defamatory or
disparaging statements about the Executive that are reasonably likely to cause
material damage to the Executive.
10. Noncompetition. While he is employed by the Company, and for a period
of 24 months after the Executive's Date of Termination for the reasons set forth
in paragraphs 4(c) (relating to Cause), 4(e) (relating to voluntary
termination), or 4(f) (relating to retirement):
(a) The Executive shall not be employed by, serve as a consultant to, or
directly or indirectly provide services to a Competitor (defined below) if:
(i) the services that the Executive is to provide to the Competitor are the
same as, or substantially similar to, any of the services that the
Executive provided to the Company or the Subsidiaries, and such services
are to be provided with respect to any location in which the Company or a
Subsidiary had material operations during the 12-month period prior to the
Date of Termination, or with respect to any location in which the Company
or a Subsidiary had devoted material resources to establishing operations
during the 12-month period prior to the Date of Termination; or (ii) the
trade secrets, confidential information, or proprietary information
(including, without limitation, confidential or proprietary methods) of the
Company and the Subsidiaries to which the Executive had access could
reasonably be expected to benefit the Competitor if the Competitor were to
obtain access to such secrets or information. For purposes of this
paragraph 10(a), services provided by others shall be deemed to have been
provided by the Executive if the Executive had material supervisory
responsibilities with respect to the provision of such services.
(b) The Executive shall not solicit or attempt to solicit any party who is then
or, during the 12-month period prior to such solicitation or attempt by the
Executive was (or was solicited to become), a customer or supplier of the
Company, provided that the restriction in this paragraph 10(b) shall not
apply to any activity on behalf of a business that is not a Competitor.
(c) The Executive shall not solicit, entice, persuade or induce any individual
who is employed by the Company or the Subsidiaries (or was so employed
within 90 days prior to the Executive's action) to terminate or refrain
from renewing or extending such employment or to become employed by or
enter into contractual relations with any other individual or entity other
than the Company or the Subsidiaries, and the Executive shall not approach
any such employee for any such purpose or authorize or knowingly cooperate
with the taking of any such actions by any other individual or entity.
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(d) The Executive shall not, directly or indirectly own an equity interest in
any Competitor (other than ownership of 5% or less of the outstanding stock
of any corporation listed on a national stock exchange or included in the
NASDAQ System).
The term "Competitor" means any enterprise (including a person, firm or
business, whether or not incorporated) during any period in which it is during
any period in which a material portion of its business is (and during any period
in which it intends to enter into business activities that would be) materially
competitive in any way with any business in which the Company or any of the
Subsidiaries was engaged during the 12-month period prior to the Executive's
Date of Termination (including, without limitation, any business if the Company
devoted material resources to entering into such business during such 12-month
period). Nothing in paragraph 7, paragraph 9, or this paragraph 10 shall be
construed as limiting the Executive's duty of loyalty to the Company, or any
other duty he may otherwise have to the Company, while he is employed by the
Company.
11. Assistance with Claims. The Executive agrees that, for the period
beginning on the Effective Date, and continuing for a reasonable period after
the Executive's Date of Termination, the Executive will assist the Company and
the Subsidiaries in defense of any claims that may be made against the Company
and the Subsidiaries, and will assist the Company and the Subsidiaries in the
prosecution of any claims that may be made by the Company or the Subsidiaries,
to the extent that such claims may relate to services performed by the Executive
for the Company and the Subsidiaries. The Executive agrees to promptly inform
the Company if he becomes aware of any lawsuits involving such claims that may
be filed against the Company or any Subsidiary. The Company agrees to provide
legal counsel to the Executive in connection with such assistance (to the extent
legally permitted), and to reimburse the Executive for all of the Executive's
reasonable out-of-pocket expenses associated with such assistance, including
travel expenses. For periods after the Executive's employment with the Company
terminates, the Company agrees to provide reasonable compensation to the
Executive for such assistance. The Executive also agrees to promptly inform the
Company if he is asked to assist in any investigation of the Company or the
Subsidiaries (or their actions) that may relate to services performed by the
Executive for the Company or the Subsidiaries, regardless of whether a lawsuit
has then been filed against the Company or the Subsidiaries with respect to such
investigation.
12. Equitable Remedies. The Executive acknowledges that the Company would
be irreparably injured by a violation of paragraph 7, 9, or 10, and he agrees
that the Company, in addition to any other remedies available to it for such
breach or threatened breach, shall be entitled to a preliminary injunction,
temporary restraining order, or other equivalent relief, restraining the
Executive from any actual or threatened breach of paragraph 7, 9, or 10. If a
bond is required to be posted in order for the Company to secure an injunction
or other equitable remedy, the parties agree that said bond need not be more
than a nominal sum.
13. Mitigation and Set-Off. The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise. Except for amounts owed pursuant to the promissory note
set forth in Exhibit B, the Company shall not be entitled to set off against the
amounts payable to the Executive under this Agreement any amounts owed to the
Company by the Executive, any amounts earned by the Executive in
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other employment after termination of his employment with the Company, or any
amounts which might have been earned by the Executive in other employment had he
sought such other employment.
14. Nonalienation. The obligations of the Executive hereunder are personal
and may not be delegated, assigned or transferred by the Executive in any manner
whatsoever, nor are such obligations subject to involuntary alienation,
assignment or transfer. However, the Executive may select (and change, to the
extent permitted under any applicable law) a beneficiary or beneficiaries to
receive any compensation or benefit payable under this Agreement following the
Executive's death, and may change such election by giving the Company written
notice thereof. In the event of the Executive's death, Disability or a judicial
determination of the Executive's incompetence, all references in this Agreement
to the Executive shall be deemed, where appropriate, to refer to the Executive's
named beneficiary, estate or other legal representative.
15. Amendment. This Agreement may not be changed orally but only by a
written agreement executed by the Executive and the Board that expressly
references this Agreement. So long as the Executive lives, no person, other than
the parties hereto, shall have any rights under or interest in this Agreement or
the subject matter hereof.
16. Applicable Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of New York, without regard to the
conflict of law provisions of any state. All disputes shall be arbitrated or
litigated (whichever is applicable) in the Borough of Manhattan, New York City,
New York.
17. Severability. The invalidity or unenforceability of any provision of
this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
18. Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
19. Successors. This Agreement shall not be terminated by the voluntary or
involuntary dissolution of the Company or by any merger or consolidation where
the Company is not the surviving or resulting corporation, or upon any transfer
or all or substantially all of the assets of the Company. In the event of any
such merger or consolidation or transfer of assets, the provisions of this
Agreement shall be binding and shall inure to the benefit of the Executive and
the surviving or resulting entity or the entity to which such assets shall be
transferred. The Company's successor, as the Executive's employer (whether such
succession is direct or indirect, by purchase, merger, consolidation or
otherwise, to all or a substantial portion of the business and/or assets of the
Company), assumes and agrees to perform this Agreement in the same
25
manner and to the same extent as the Company would be required to perform if no
such succession had taken place. As used in this Agreement, the term "Company"
shall mean the Company and any successor to all or a substantial portion of the
Company's business or assets.
20. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid
(provided that international mail shall be sent via overnight or two-day
delivery), or sent by facsimile or prepaid overnight courier to the parties at
the addresses set forth in Exhibit D (or such other addresses as shall be
specified by the parties by like notice). Such notices, demands, claims and
other communications shall be deemed given:
(a) in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
(b) in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
(c) in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed
to be given later than the date they are actually received. Communications
that are to be delivered by the U.S. mail or by overnight service or
two-day delivery service are to be delivered to the addresses set forth in
Exhibit D. All notices to the Company shall be directed to the attention of
the Chairman of the Compensation Committee of the Board, with a copy to the
Secretary of the Company. Each party, by written notice furnished to the
other party, may modify the applicable delivery address, except that notice
of change of address shall be effective only upon receipt.
21. Arbitration of All Disputes. Any controversy or claim arising out of or
relating to this Agreement, the breach thereof or the coverage of this
arbitration provision shall be settled by arbitration administered by the
American Arbitration Association in accordance with its Commercial Arbitration
Rules in effect on the date of delivery of demand for arbitration. The
arbitration of such issues, including the determination of the amount of any
damages suffered by either party hereto by reason of the acts or omissions of
the other, shall be to the exclusion of any court. The decision of the
arbitrators shall be final and binding on the parties and their respective
heirs, executors, administrators, successors and assigns. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction. There shall be three arbitrators, one to be chosen directly by
each party and the third arbitrator to be selected by the two arbitrators so
chosen. The arbitration shall be conducted in the Borough of Manhattan, New York
City, New York or at such other location as agreed by the parties. All decisions
and awards shall be made by a majority of the arbitrators. By agreeing to
arbitration under this paragraph 21, the Company and the Executive understand
that they are each waiving any right to a trial by jury and each party makes
that waiver knowingly and voluntarily with full consideration of the
ramifications of such waiver. Nothing contained herein shall be construed or
interpreted to preclude the Company prior to, or pending the resolution of, any
matter subject to arbitration from seeking injunctive relief in any court for
any breach or threatened breach of any of the Executive's obligations in
paragraph 12.
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22. Costs of Disputes. The costs of the parties hereto in connection with
any controversy or dispute arising out of or relating to this Agreement (or the
breach thereof), including any out-of-pocket legal fees and expenses, shall be
borne by the parties hereto in the proportions determined by the arbitrators in
accordance with the procedures set forth in paragraph 21.
23. Survival of Agreement. Except as otherwise expressly provided in this
Agreement, the rights and obligations of the parties to this Agreement shall
survive the termination of the Executive's employment with the Company.
24. Entire Agreement. Except as otherwise noted herein, this Agreement,
including any Exhibit(s) attached hereto, constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes all
prior and contemporaneous agreements, if any, between the parties relating to
the subject matter hereof (including, without limitation, the Change in Control
Agreement, which shall be void and without effect on and after the Effective
Date).
25. Acknowledgment by Executive. The Executive represents and warrants that
(i) he is not, and will not become a party to any agreement, contract,
arrangement or understanding, whether of employment or otherwise, that would in
any way restrict to prohibit him from undertaking or performing his duties in
accordance with this Agreement or that restricts his ability to be employed by
the Company in accordance with this Agreement; (ii) his employment by the
Company will not violate the terms of any policy of any prior employer of the
Executive regarding competition; and (iii) his position with the Company, as
described in this Agreement, will not require him to improperly use any trade
secrets or confidential information of any prior employer, or any other person
or entity for whom he has performed services.
IN WITNESS THEREOF, the Executive has hereunto set his hand, and the
Company has caused these presents to be executed in its name and on its behalf,
all as of the Effective Date.
Executive
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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Trenwick Group Ltd.
/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Chairman of Compensation Committee
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