Execution Copy
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of June 28, 2007 between
Scottish Holdings, Inc. (the "Company") and ▇▇▇▇▇▇▇ ▇. Delle Fave (the
"Employee") (together, the "Parties").
WHEREAS, the Employee and the Company are parties to an employment
dated August 15, 2005, as amended September 1, 2006 (the "2005 Employment
Agreement");
WHEREAS, the Parties wish to establish the terms of Employee's
continued employment with the Company upon the terms and conditions set forth
herein which supersede the terms of 2005 Employment Agreement, and all other
agreements with respect to the subject matter hereof;
Accordingly, the Parties agree as follows:
1. Employment and Acceptance. The Company shall employ the Employee,
and Employee shall accept employment, subject to the terms of this Agreement,
effective as of May 7, 2007 (the "Effective Date").
2. Term. Subject to Section 5 of this Agreement, the Employee's
employment with the Company shall be "at will." As used in this Agreement, the
"Term" shall refer to the period beginning on the Effective Date and ending on
the date the Employee's employment terminates in accordance with Section 5. In
the event of the Employee's termination of employment during the Term, the
Company's obligation to continue to pay all base salary, as adjusted, bonus and
other benefits then accrued shall terminate except as may be provided for in
Section 5 of this Agreement.
3. Duties and Title.
3.1 Title. The Company shall employ the Employee to render
exclusive and full-time services to the Company and its subsidiaries. The
Employee shall serve in the capacity of Executive Vice President, Tax, and shall
report solely and directly to the Chief Financial Officer of Scottish Re Group
Limited. The Employee shall also serve during the Term in executive positions
for one or more of the Company's subsidiaries and affiliates for no additional
consideration.
3.2 Duties. The Employee will have such authority and
responsibilities and will perform such executive duties as are customarily
performed by an Executive Vice President, Tax of a company in similar lines of
business as the Company and its subsidiaries or as may be assigned to Employee
by the Chief Financial Officer of Scottish Re Group Limited. The Employee will
devote all his full working-time and attention to the performance of such duties
and to the promotion of the business and interests of the Company and its
subsidiaries.
3.3 Location. The Employee shall perform his full-time services
to the Company and its subsidiaries in the Company's Charlotte, NC office;
provided that the Employee shall be required to travel as necessary to perform
his duties hereunder.
4. Compensation and Benefits by the Company. As compensation for all
services rendered pursuant to this Agreement, the Company shall provide the
Employee the following during the Term:
4.1 Base Salary. During the Term, the Company will pay to the
Employee an annual base salary of $375,000, payable in accordance with the
customary payroll practices of the Company. The Company agrees to review such
compensation not less frequently than annually during the Term. The Base Salary
as increased from time to time shall be referred to herein as "Base Salary."
4.2 Bonuses. During the Term, the Employee shall be eligible to
receive an annual bonus ("Bonus") under a plan established by the Company in the
amount determined by the Board of Directors of the Company (the "Board") based
upon achievement of performance measures established by the Company and approved
by the Board. The Employee's target bonus shall be 75% of Base Salary (the
"Target Bonus"). Notwithstanding the foregoing, (x) for the calendar year ending
on December 31, 2007, Employee shall receive a Bonus of not less than $325,000
(the "2007 Bonus") and (y) for the calendar year ending on December 31, 2008,
Employee shall receive a Bonus of not less than fifty percent (50%) of his then
current Base Salary (the "2008 Bonus"). The Employee's Bonus shall be payable at
such times and in the manner consistent with the Company's policies regarding
compensation of executive employees. The Bonus with respect to any calendar year
shall be paid no earlier than January 1 and no later than June 30 of the
following calendar year.
4.3 Participation in Employee Benefit Plans. The Employee shall
be entitled during the Term, if and to the extent eligible, to participate in
all of the applicable benefit plans of the Company, which may be available to
other senior executives of the Company. The Company may at any time or from time
to time amend, modify, suspend or terminate any employee benefit plan, program
or arrangement for any reason without the Employee's consent if such amendment,
modification, suspension or termination is consistent with the amendment,
modification, suspension or termination for other executives of the Company.
Notwithstanding the foregoing, the Employee will continue to participate in the
Company's Exec-U-Care plan (or other comparable benefit plan or plans sponsored
by the Company) through the second anniversary of the Effective Date, subject to
the terms of such plan and applicable law.
4.4 Equity Compensation. The Company will grant the Employee
stock options to purchase 225,000 ordinary shares of an affiliate of the Company
at an exercise price equal to fair market value (the "Stock Options") pursuant
to the terms and conditions set forth in the equity incentive compensation plan
established by the Company or an affiliate of the Company (the "Equity Incentive
Plan"). The Stock Options will be subject to the terms of the Equity Incentive
Plan and any applicable agreements thereunder as determined from time to time by
the Board.
4.5 Retention Bonus. The Company shall pay the Employee a
retention bonus in an aggregate amount of $1,485,000 (the "Retention Bonus"),
payable as follows: (x) by June 30, 2007, a lump sum payment equal to fifty
percent (50%) of the Retention Bonus; (y) by September 30, 2007, a lump sum
payment equal to twenty-five percent (25%) of the Retention Bonus; and (z) by
December 31, 2007, a lump sum payment equal to the final twenty-five percent
(25%) of the Retention Bonus. The Company's obligations to pay the
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Retention Bonus are not subject to the Employee's continued employment with the
Company through such payment dates.
4.6 Expense Reimbursement. During the Term, the Employee shall
be entitled to receive reimbursement for all appropriate business expenses
incurred by him in connection with his duties under this Agreement in accordance
with the policies of the Company as in effect from time to time.
4.7 Club Dues and Expenses. The Company hereby agrees to
reimburse Employee for club dues and expenses up to $6,000 per calendar year in
accordance with the Company's policy regarding substantiation of expenses.
4.8 Vacation and Holidays. Employee shall be entitled to four
(4) weeks of paid vacation per annum, in accordance with the Company's vacation
policy.
4.9 Indemnification. The Holdings' Indemnification Agreement
(the "Indemnification Agreement") attached as Exhibit A to the 2005 Employment
Agreement will continue in full force and effect in accordance with the terms of
the Indemnification Agreement.
4.10 Legal Fees.
(a) The Company shall pay or reimburse the Employee for all
reasonable attorneys' fees and costs (not to exceed $15,000) incurred by the
Employee in connection with advice pertaining to and negotiation of this
Agreement upon presentation to the Company of bills for such services and such
other supporting information as the Company may reasonably require.
(b) If it should appear to Employee that the Company has
failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes or threatens to take any action
to declare this Agreement void or unenforceable, or institutes any litigation or
other action or proceeding designed to deny, or to recover from, Employee the
benefits provided or intended to be provided to Employee hereunder, the Company
irrevocably authorizes Employee from time to time to retain counsel of
Employee's choice at the expense of the Company as hereafter provided, to advise
and represent Employee in connection with any such interpretation, enforcement
or defense, including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or any
Director, officer, stockholder or other person affiliated with the Company, in
any jurisdiction. Notwithstanding any existing or prior attorney-client
relationship between the Company and such counsel, the Company irrevocably
consents to Employee's entering into an attorney-client relationship with such
counsel, and in that connection the Company and Employee agree that a
confidential relationship shall exist between Employee and such counsel. Without
respect to whether Employee prevails, in whole or in part, in connection with
any of the foregoing, the Company will pay and be solely financially responsible
for any and all attorneys, and related fees and expenses incurred by Employee in
connection with any of the foregoing; provided that, in regard to such matters,
the Employee has not acted in bad faith or with no colorable claim of success.
Such payments shall be made within five (5) business days after delivery of
Employee's written requests for payment, accompanied by such evidence of fees
and expenses incurred as the Company may reasonably require. Notwithstanding the
foregoing
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provisions of this Section 4.10(b), the obligations of the Company under this
Section 4.10(b) shall not exceed, in the aggregate, $50,000.
5. Termination of Employment.
5.1 Termination of Employment other than for Cause. Upon a
termination of this Agreement and the Employee's employment with the Company for
any reason other than by the Company for Cause (as defined below), the Employee
shall be entitled to receive the following (the "Accrued Benefits"):
(a) the Employee's accrued but unpaid Base Salary and
benefits set forth in Sections 4.1 and 4.3, if any, to the date of termination;
(b) the unpaid portion of the Bonus, if any, relating to
the calendar year prior to the calendar year of the Employee's termination;
(c) if such termination of employment occurs during either
of the calendar years ending on December 31, 2007 and December 31, 2008, a
pro-rata portion of the 2007 Bonus or 2008 Bonus, as applicable, through the
date the Employee's employment terminates, payable in accordance with Section
4.2;
(d) a lump sum payment equal to the unpaid portion of the
Retention Bonus, if any; and
(e) expenses reimbursable under Section 4.6 incurred but
not yet reimbursed to the Employee to the date of termination.
Notwithstanding the foregoing, if the Employee is a "specified
employee," as such term is defined in Section 409A of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated thereunder (the "Code")
payments to be made pursuant to Sections 5.1(c) and (d) shall be made no earlier
than six (6) months following the date the Employee's employment terminates.
5.2 Termination of Employment By The Company For Cause. Upon a
termination by the Company for Cause (as defined below), the Employee shall be
entitled to receive all of the Accrued Benefits set forth in Paragraph 5.1,
except that Employee will not be entitled to receive a pro-rata portion of the
Bonus set forth in to Section 5.1(c), above.
For the purposes of this Agreement, "Cause" as determined by the Board
(or its designee), with respect to conduct during the Employee's employment with
the Company, whether or not committed during the Term, (i) commission of a
felony by Employee; (ii) acts of dishonesty by Employee resulting or intending
to result in personal financial gain or enrichment at the expense of the Company
or its subsidiaries; (iii) Employee's material breach of his obligations under
this Agreement; (iv) conduct by Employee in connection with his material duties
hereunder that is fraudulent, unlawful or grossly negligent; (v) engaging in
personal conduct by Employee (including but not limited to employee harassment
or discrimination, the use or possession at work of any illegal controlled
substance) which seriously discredits or damages the Company or its
subsidiaries; (vi) contravention of specific, reasonable, lawful, material
direction from the person or entity to whom the Employee reports or continuing
failure to adequately
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perform the material duties to be performed by Employee under the terms of
Section 3.2 of this Agreement or (vii) breach of the Employee's covenants set
forth in Section 7 below before termination of employment; provided, that, the
Employee shall have fifteen (15) days after notice from the Company to cure the
deficiency leading to the Cause determination (except with respect to (i)
above), if curable. A termination for "Cause" shall be effective immediately (or
on such other date set forth by the Company).
5.3 No Mitigation; No Offset. The Employee shall be under no
obligation to seek other employment after his termination of employment with the
Company and the obligations of the Company to the Employee which arise upon the
termination of his employment pursuant to this Section 5 shall not be subject to
mitigation or offset.
5.4 Removal from any Boards and Position. If the Employee's
employment is terminated for any reason under this Agreement, he shall be deemed
to resign (i) if a member, from the Board or board of directors of any
subsidiary of the Company or any other board to which he has been appointed or
nominated by or on behalf of the Company and (ii) from any position with the
Company or any subsidiary of the Company, including, but not limited to, as an
officer of the Company and any of its subsidiaries.
6. Certain Additional Payments by the Company.
6.1 Anything in this Agreement to the contrary notwithstanding,
in the event that it shall be determined (as hereafter provided) that any
payment (other than the Gross-Up payments provided for in this Section 6) or
distribution by the Company, Holdings or any of their affiliates to or for the
benefit of the Employee, whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise pursuant to or by reason of
any other agreement, policy, plan, program or arrangement, including without
limitation any stock option, performance share, performance unit, stock
appreciation right or similar right, or the lapse or termination of any
restriction on or the vesting or exercisability of any of the foregoing (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Code by reason of being considered "contingent on a change in ownership or
control" of the Company or Holdings, within the meaning of Section 280G of the
Code, or any similar tax imposed by state or local law, or any interest or
penalties with respect to such tax (such tax or taxes, together with any such
interest and penalties, being hereafter collectively referred to as the "Excise
Tax"), then the Employee shall be entitled to receive an additional payment or
payments (collectively, a "Gross-Up Payment"). The Gross-Up Payment shall be in
an amount such that, after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax imposed upon the Gross-Up Payment, the Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Payment. For purposes
of determining the amount of the Gross-Up Payment, the Employee will be
considered to pay (x) federal income taxes at the highest rate in effect in the
year in which the Gross-Up Payment will be made and (y) state and local income
taxes at the highest rate in effect in the state or locality in which the
Gross-Up Payment would be subject to state or local tax, net of the maximum
reduction in federal income tax that could be obtained from deduction of such
state and local taxes.
6.2 Subject to the provisions of Section 6.6, all determinations
required to be made under this Section 6, including whether an Excise Tax is
payable by the Employee and the amount of such Excise Tax and whether a Gross-Up
Payment is required to be
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paid by the Company to the Employee and the amount of such Gross-Up Payment, if
any, shall be made by a nationally recognized accounting firm (the "Accounting
Firm") selected by the Employee in his sole discretion. The Employee shall
direct the Accounting Firm to submit its determination and detailed supporting
calculations to both the Company and the Employee within thirty (30) calendar
days after the Date of Termination, if applicable, and any such other time or
times as may be requested by the Company or the Employee. If the Accounting Firm
determines that any Excise Tax is payable by the Employee, the Company shall pay
the required Gross-Up Payment to the Employee within five (5) business days
after receipt of such determination and calculations with respect to any Payment
to the Employee or to the Internal Revenue Service on the Employee's behalf. If
the Accounting Firm determines that no Excise Tax is payable by the Employee
with respect to any material benefit or amount (or portion thereof), it shall,
at the same time as it makes such determination, furnish the Company and the
Employee an opinion that the Employee has substantial authority not to report
any Excise Tax on his federal, state or local income or other tax return. As a
result of the uncertainty in the application of Section 4999 of the Code and the
possibility of similar uncertainty regarding applicable state or local tax law
at the time of any determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (an "Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts or fails
to pursue its remedies pursuant to Section 6.6 and the Employee thereafter is
required to make a payment of any Excise Tax, the Employee shall direct the
Accounting Firm to determine the amount of the Underpayment that has occurred
and to submit its determination and detailed supporting calculations to both the
Company and the Employee as promptly as possible. Any such Underpayment shall be
promptly paid by the Company to, or for the benefit of, the Employee within five
(5) business days after receipt of such determination and calculations.
6.3 The Company and the Employee shall each provide the
Accounting Firm access to and copies of any books, record and documents in the
possession of the Company or the Employee, as the case may be, reasonably
requested by the Accounting Firm, and-otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the determinations and
calculations contemplated by Section 6.2. Any determination by the Accounting
Firm as to the amount of the Gross-Up Payment shall be binding upon the Company
and the Employee.
6.4 The federal, state and local income or other tax returns
filed by the Employee shall be prepared and filed on a consistent basis with the
determination of the Accounting Firm with respect to the Excise Tax payable by
the Employee. The Employee shall report and make proper payment of the amount of
any Excise Tax, and at the request of the Company, provide to the Company true
and correct copies (with any amendments) of his federal income tax return as
filed with the Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment. If
prior to the filing of the Employee's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Employee shall within five (5) business days pay to the Company the amount of
such reduction.
6.5 The fees and expenses of Accounting Firm for its services in
connection with the determinations and calculations contemplated by Section 6.2
shall be borne by the Company. If such fees and expenses are initially paid by
the Employee, the Company
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shall reimburse the Employee the full amount of such fees and expenses within
five (5) business days after receipt from the Employee of a statement therefor
and reasonable evidence of his payment thereof.
6.6 The Employee shall notify the Company in writing of any
claim by the Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by the Company of a Gross-Up Payment. Such
notification shall be given as promptly as practicable but no later than ten
(10) business days after the Employee actually receives notice of such claim and
the Employee shall further apprise the Company of the nature of such claim and
the date on which such claim is requested to be paid (in each case, to the
extent known by the Employee). The Employee shall not pay such claim prior to
the earlier of (i) the expiration of the 30-calendar-day period following the
date on which he gives such notice to the Company and (ii) the date that any
payment of amount with respect to such claim is due. If the Company notified the
Employee in writing prior to the expiration of such period that it desires to
contest such claim, the Employee shall:
(a) provide the Company with any written records or
documents in his possession relating to such claim reasonably requested by the
Company;
(b) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including without limitation accepting legal representation with respect to such
claim by an attorney competent in respect of the subject matter and reasonably
selected by the Company;
(c) cooperate with the Company in good faith in order
effectively to contest such claim; and
(d) permit the Company to participate in any proceedings
relating to such claim; provided, however, that the Company shall bear and pay
directly all costs and expenses (including interest and penalties) incurred in
connection with such contest and shall indemnify and hold harmless the Employee,
on an after-tax basis, for and against any Excise Tax or income or other tax,
including interest and penalties with respect thereto, imposed as a result of
such representation and payment of costs and expenses. Without limiting the
foregoing provisions of this Section 6.6, the Company shall control all
proceedings taken in connection with the contest of any claim contemplated by
this Section 6.6 and, at its sole option, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim (provided, however, that the Employee may
participate therein at his own cost and expense) and may, at its option, either
direct the Employee to pay the tax claimed and ▇▇▇ for a refund or contest the
claim in any permissible manner, and the Employee agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Employee to pay
the tax claimed and ▇▇▇ for a refund, the Company shall advance the amount of
such payment to the Employee on an interest-free basis and shall indemnify and
hold the Employee harmless, on an after-tax basis, from any Excise Tax or income
or other tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any extension of
the statute of limitations relating to payment of taxes for the taxable year of
the Employee with respect to which the contested amount is claimed to be due is
limited solely to such contested amount. Furthermore, the Company's control of
any such contested claim shall be
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limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and the Employee shall be entitled to settle or contest as the case
may be, any other issue raised by the Internal Revenue Service or any other
taxing authority.
6.7 If, after the receipt by the Employee of an amount advanced
by the Company pursuant to Section 6.6, the Employee receives any refund with
respect to such claim, the Employee shall (subject to the Company's complying
with the requirements of Section 6.6) promptly pay to the Company the amount of
such refund (together with any interest paid or credited thereon after any taxes
applicable thereto). If, after the receipt by the Employee of an amount advanced
by the Company pursuant to Section 6.6, a determination is made that the
Employee shall not be entitled to any refund with respect to such claim and the
Company does not notify the Employee in writing of its intent to contest such
denial or refund prior to the expiration of ten (10) calendar days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of any such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid by the Company to
the Employee pursuant to this Section 6.
6.8 Notwithstanding any provision of this Agreement to the
contrary, but giving effect to any redetermination of the amount of Gross-Up
payments otherwise required by this Section 6, if (i) but for this sentence, the
Company would be obligated to make a Gross-Up Payment to the Employee and (ii)
the aggregate "present value" of the "parachute payments" to be paid or provided
to the Employee under this Agreement or otherwise does not exceed three times
the Employee's "base amount" by more than $50,000, then the payments and
benefits to be paid or provided under this Agreement will be reduced (or repaid
to the Company, if previously paid or provided) to the minimum extent necessary
so that no portion of any payment or benefit to the Employee, as so reduced or
repaid, constitutes an "excess parachute payment." For purposes of this Section
6.8, the terms "excess parachute payment," "present value," "parachute payment,"
and "base amount" will have the meanings assigned to them by Section 280G of the
Code. The determination of whether any reduction in or repayment of such
payments or benefits to be provided under this Agreement is required pursuant to
this Section 6.8 will be made at the expense of the Company, if requested by the
Employee or the Company, by the Accounting Firm. Appropriate adjustments shall
be made to amounts previously paid to Employee, or to amounts not paid pursuant
to this Section 6.8, as the case may be, to reflect properly a subsequent
determination that the Employee owes more or less Excise Tax than the amount
previously determined to be due. In the event that any payment or benefit
intended to be provided under this Agreement or otherwise is required to be
reduced or repaid pursuant to this Section 6.8, the Employee shall be entitled
to designate the payments and/or benefits to be so reduced or repaid in order to
give effect to this Section 6.8. The Company shall provide the Employee with all
information reasonably requested by the Employee to permit the Employee to make
such designation. In the event that the Employee fails to make such designation
within 10 business days prior to the Date of Termination or other due date, the
Company may effect such reduction or repayment in any manner it deems
appropriate.
7. Restrictions and Obligations of the Employee.
7.1 Confidentiality. (a) During the course of the Employee's
employment by the Company (prior to and during the Term), the Employee has had
and will have access to certain trade secrets and confidential information
relating to the Company and its subsidiaries (the "Protected Parties") which is
not readily available from sources outside the
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Company. The confidential and proprietary information and, in any material
respect, trade secrets of the Protected Parties are among their most valuable
assets, including but not limited to, their customer, supplier and vendor lists,
databases, competitive strategies, computer programs, frameworks, or models,
their marketing programs, their sales, financial, marketing, training and
technical information, their product development (and proprietary product data)
and any other information, whether communicated orally, electronically, in
writing or in other tangible forms concerning how the Protected Parties create,
develop, acquire or maintain their products and marketing plans, target their
potential customers and operate their retail and other businesses. The Protected
Parties invested, and continue to invest, considerable amounts of time and money
in their process, technology, know-how, obtaining and developing the goodwill of
their customers, their other external relationships, their data systems and data
bases, and all the information described above (hereinafter collectively
referred to as "Confidential Information"), and any misappropriation or
unauthorized disclosure of Confidential Information in any form would
irreparably harm the Protected Parties. The Employee acknowledges that such
Confidential Information constitutes valuable, highly confidential, special and
unique property of the Protected Parties. The Employee shall hold in a fiduciary
capacity for the benefit of the Protected Parties all Confidential Information
relating to the Protected Parties and their businesses, which shall have been
obtained by the Employee during the Employee's employment by the Company or its
subsidiaries and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). Except as required by law or an order of a court or governmental
agency with jurisdiction, the Employee shall not, during the period the Employee
is employed by the Company or its subsidiaries or at any time thereafter,
disclose any Confidential Information, directly or indirectly, to any person or
entity for any reason or purpose whatsoever, nor shall the Employee use it in
any way, except in the course of the Employee's employment with, and for the
benefit of, the Protected Parties or to enforce any rights or defend any claims
hereunder or under any other agreement to which the Employee is a party,
provided that such disclosure is relevant to the enforcement of such rights or
defense of such claims and is only disclosed in the formal proceedings related
thereto. The Employee shall take all reasonable steps to safeguard the
Confidential Information and to protect it against disclosure, misuse,
espionage, loss and theft. The Employee understands and agrees that the Employee
shall acquire no rights to any such Confidential Information.
(b) All files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the Business (for the purposes of this
Agreement, "Business" shall be as defined in Section 6.3 hereof), as well as all
customer lists, specific customer information, compilations of product research
and marketing techniques of the Company and its subsidiaries, whether prepared
by the Employee or otherwise coming into the Employee's possession in connection
with or relating to his employment with the Company, shall remain the exclusive
property of the Company and its subsidiaries, and the Employee shall not remove
any such items from the premises of the Company and its subsidiaries, except in
furtherance of the Employee's duties under any employment agreement.
(c) It is understood that while employed by the Company or
its subsidiaries, the Employee will promptly disclose to it, and assign to it
the Employee's interest in any invention, improvement or discovery made or
conceived by the Employee, either alone or jointly with others, which arises out
of the Employee's employment. At the Company's request
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and expense, the Employee will assist the Company and its subsidiaries during
the period of the Employee's employment by the Company or its subsidiaries and
thereafter in connection with any controversy or legal proceeding relating to
such invention, improvement or discovery and in obtaining domestic and foreign
patent or other protection covering the same.
(d) As requested by the Company and at the Company's
expense, from time to time and upon the termination of the Employee's employment
with the Company for any reason, the Employee will promptly deliver to the
Company and its subsidiaries all copies and embodiments, in whatever form, of
all Confidential Information in the Employee's possession or within his control
(including, but not limited to, memoranda, records, notes, plans, photographs,
manuals, notebooks, documentation, program listings, flow charts, magnetic
media, disks, diskettes, tapes and all other materials containing any
Confidential Information) irrespective of the location or form of such material.
If requested by the Company, the Employee will provide the Company with written
confirmation that all such materials have been delivered to the Company as
provided herein.
7.2 Non-Solicitation or Hire. During the Term and for a period
of twenty-four (24) months following the termination of the Employee's
employment for any reason, the Employee shall not directly or indirectly solicit
or attempt to solicit or induce, directly or indirectly, (a) any party who is a
customer of the Company or its subsidiaries, or who was a customer of the
Company or its subsidiaries at any time during the twelve (12) month period
immediately prior to the date the Employee's employment terminates, for the
purpose of marketing, selling or providing to any such party any services or
products offered by or available from the Company or its subsidiaries, (b) any
supplier to or customer or client of the Company or any subsidiary to terminate,
reduce or alter negatively its relationship with the Company or any subsidiary
or in any manner interfere with any agreement or contract between the Company or
any subsidiary and such supplier, customer or client or (c) any employee of the
Company or any of its subsidiaries or any person who was an employee of the
Company or any of its subsidiaries during the twelve (12) month period
immediately prior to the date the Employee's employment terminates to terminate
such employee's employment relationship with the Protected Parties in order, in
either case, to enter into a similar relationship with the Employee, or any
other person or any entity in competition with the Business of the Company or
any of its subsidiaries; provided that if the Employee intends to solicit any
such party referenced in this Section 7.2 (a), (b) or (c) for any other purpose,
he shall notify the Company of such intention and receive prior written approval
from the Company, which shall not be unreasonably withheld.
7.3 Non-Competition. During the Term and for a period of
twenty-four (24) months following the termination of Employee's employment by
the Company (for any reason), the Employee shall not, whether individually, as a
director, manager, member, stockholder, partner, owner, employee, consultant or
agent of any business, or in any other capacity, other than on behalf of the
Company or a subsidiary, organize, establish, own, operate, manage, control,
engage in, participate in, invest in, permit his name to be used by, act as a
consultant or advisor to, render services for (alone or in association with any
person, firm, corporation or business organization), or otherwise assist any
person or entity that engages in or owns, invests in, operates, manages or
controls any venture or enterprise which engages or proposes to engage in any
business conducted by the Company or any of its subsidiaries on the date of the
Employee's termination of employment or within twelve (12) months of the
Employee's termination of employment in the geographic locations where the
Company and its subsidiaries engage or propose to engage in such business (the
"Business"). Notwithstanding the
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foregoing, nothing in this Agreement shall prevent (i) the Employee from owning
for passive investment purposes not intended to circumvent this Agreement, less
than five percent (5%) of the publicly traded common equity securities of any
company engaged in the Business (so long as the Employee has no power to manage,
operate, advise, consult with or control the competing enterprise and no power,
alone or in conjunction with other affiliated parties, to select a director,
manager, general partner, or similar governing official of the competing
enterprise other than in connection with the normal and customary voting powers
afforded the Employee in connection with any permissible equity ownership, or
(ii) Employee's employment with Ernst & Young or any other public accounting
firm.
7.4 Property. The Employee acknowledges that all originals and
copies of materials, records and documents generated by him or coming into his
possession during his employment by the Company or its subsidiaries are the sole
property of the Company and its subsidiaries ("Company Property"). During the
Term, and at all times thereafter, the Employee shall not remove, or cause to be
removed, from the premises of the Company or its subsidiaries, copies of any
record, file, memorandum, document, computer related information or equipment,
or any other item relating to the business of the Company or its subsidiaries,
except in furtherance of his duties under the Agreement. When the Employee's
employment with the Company terminates, or upon request of the Company at any
time, the Employee shall promptly deliver to the Company all copies of Company
Property in his possession or control.
8. Remedies; Specific Performance. The Parties acknowledge and agree
that the Employee's breach or threatened breach of any of the restrictions set
forth in Section 7 will result in irreparable and continuing damage to the
Protected Parties for which there may be no adequate remedy at law and that the
Protected Parties shall be entitled to equitable relief, including specific
performance and injunctive relief as remedies for any such breach or threatened
or attempted breach. The Employee hereby consents to the grant of an injunction
(temporary or otherwise) against the Employee or the entry of any other court
order against the Employee prohibiting and enjoining him from violating, or
directing him to comply with any provision of Section 7. The Employee also
agrees that such remedies shall be in addition to any and all remedies,
including damages, available to the Protected Parties against him for such
breaches or threatened or attempted breaches. In addition, without limiting the
Protected Parties' remedies for any breach of any restriction on the Employee
set forth in Section 7, except as required by law and other than $100,000 of the
2007 Bonus, the Employee shall not be entitled to any payments set forth in
Section 5.1(c) hereof if the Employee has breached the covenants applicable to
the Employee contained in Section 7, the Employee will immediately return to the
Protected Parties any such payments previously received under Section 5.1(c)
upon such a breach, and, in the event of such breach, the Protected Parties will
have no obligation to pay any of the amounts that remain payable by the Company
under Section 5.1(c).
9. Other Provisions.
9.1 Notices. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid or overnight mail and shall be
deemed given when so delivered personally, telegraphed, telexed, or sent by
facsimile transmission or, if mailed, four (4) days after the date of mailing or
one (1) day after overnight mail, as follows:
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(a) If the Company, to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone:
Fax:
With copies to:
Cerberus Capital Management, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
Mass Mutual Capital
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(b) If the Employee, to the Employee's home address
reflected in the Company's records.
9.2 Entire Agreement. This Agreement and any award agreement
granted to the Employee under the Equity Incentive Plan with respect to the
Stock Options contains the entire agreement between the Parties with respect to
the subject matter hereof and supersedes all prior agreements, written or oral,
with respect thereto, including, without limitation the 2005 Employment
Agreement, except as specifically referenced herein.
9.3 Representations and Warranties by Employee. The Employee
represents and warrants that he is not a party to or subject to any restrictive
covenants, legal restrictions or other agreements in favor of any entity or
person which would in any way
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preclude, inhibit, impair or limit the Employee's ability to perform his
obligations under this Agreement, including, but not limited to, non-competition
agreements, non-solicitation agreements or confidentiality agreements.
9.4 Waiver and Amendments. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
Parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
9.5 Governing Law, Dispute Resolution and Venue.
(a) This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and not to be performed entirely within such state, without regard to conflicts
of laws principles.
(b) The parties agree irrevocably to submit to the
exclusive jurisdiction of the federal courts or, if no federal jurisdiction
exists, the state courts, located in the City of New York, Borough of Manhattan,
for the purposes of any suit, action or other proceeding brought by any party
arising out of any breach of any of the provisions of this Agreement and hereby
waive, and agree not to assert by way of motion, as a defense or otherwise, in
any such suit, action, or proceeding, any claim that it is not personally
subject to the jurisdiction of the above-named courts, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper, or that the provisions of this Agreement may
not be enforced in or by such courts. In addition, the parties agree to waive
trial by jury.
9.6 Assignability by the Company and the Employee. This
Agreement, and the rights and obligations hereunder, may not be assigned by the
Company or the Employee without written consent signed by the other party;
provided that the Company may assign the Agreement to any successor that
continues the business of the Company.
9.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
9.8 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
9.9 Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated.
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The Employee acknowledges that the restrictive covenants contained in Section 6
are a condition of this Agreement and are reasonable and valid in temporal scope
and in all other respects.
9.10 Judicial Modification. If any court determines that any of
the covenants in Section 6, or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court determines that any of such covenants, or any part
thereof, is invalid or unenforceable because of the geographic or temporal scope
of such provision, such court shall reduce such scope to the minimum extent
necessary to make such covenants valid and enforceable.
9.11 Tax Withholding. The Company or other payor is authorized to
withhold from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board to satisfy all obligations for the payment of such
withholding taxes.
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IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the day and year first above
mentioned.
EMPLOYEE
/s/ ▇▇▇▇▇▇ ▇. Delle Fave
----------------------------------------
▇▇▇▇▇▇▇ ▇. Delle Fave
SCOTTISH HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director