EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made as of the ___ day of February, 1999 (the
"Agreement"), by and between Orion Capital Corporation, a Delaware corporation
with a principal place of business in Farmington, Connecticut (the "Company"),
and _______________, of ___________, ________________- ("Executive").
WHEREAS, pursuant to an agreement between the Company and the Executive,
the Executive currently serves as the Company's _________________________;
WHEREAS, the Company and the Executive desire that Executive be employed by
the Company in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual terms and covenants contained
herein, the receipt and sufficiency of which the parties acknowledge and accept,
the Company and the Executive hereby agree as follows:
EMPLOYMENT. The Company hereby employs Executive to render services as the
_______________- and the Executive hereby accepts such employment. The Executive
shall have such responsibilities, perform such duties and have such authorities
as are consistent with such position, reporting to, and subject only to the
direction and control of, the Chief Executive Officer and the Board of Directors
of the Company (the "Board"). The Executive hereby accepts such employment and
agrees to render the Executive's services (unless prevented by sickness, injury
or other incapacity) fully, faithfully, and to the best of the Executive's
ability. The Executive's services shall be exclusive to the Company, except that
with the prior approval of the Executive Committee of the Board, the Executive
may serve as a compensated member of the board of directors of other, "for
profit" unaffiliated corporations. PLACE OF EMPLOYMENT. The Executive shall be
located, and shall render such services (subject to necessary and appropriate
business related travel), at the Company's office in ___________,
_______________. TERM. The term of the Executive's employment with the Company
shall be for a period commencing on (month) ____, 19___ and ending on (month)
___, 20____, unless sooner terminated in accordance with Section 6 of this
Agreement; provided, however, that the term of the Executive's employment after
(month) ____, 20___ shall automatically be extended by one (1) additional day
for each successive day of the Executive's employment with the Company.
COMPENSATION AND BENEFITS. Base Salary. The Company shall pay to the Executive a
base salary (the "Base Salary") at an annual rate of not less than $_________.
The Executive's Base Salary during the Term may be increased by such amount as
shall be determined by the Board in its discretion. Once the Executive's Base
Salary is established at any specific rate, the Base Salary shall not thereafter
be reduced. The Base Salary shall be payable to the Executive in installments on
the Company's normal payroll dates; -------------
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Incentive Compensation and Stock Awards. The Executive shall have the
opportunity to participate in long-term and short-term incentive or performance
plans or programs and in stock option and stock award plans of the Company to
the same extent as other senior executive employees;
- --------------------------------------- Expenses. The Executive is authorized to
incur and shall be reimbursed for reasonable business, entertainment and other
related expenses (including travel and living expenses while away from home on
Company business or at the request of the Company) incurred in the performance
of the Executive's duties. The Executive shall comply with the Company's expense
and reimbursement policies as in effect at the time the expense is incurred;
Other Benefit Plans. The Executive shall have the opportunity to participate in,
and shall be entitled to receive benefits under and in accordance with, the
provisions of any health, life insurance, disability, deferred compensation,
profit sharing and savings or other employee benefit plan or plans adopted, or
to be adopted, by the Company and which are generally applicable to senior
executive employees of the Company and for which the Executive is otherwise
eligible; and Disability Insurance. The Company shall also maintain, at its
expense, an executive long-term disability insurance policy ("Policy") for the
Executive providing the Executive with benefits in the event of a "disability"
as such term is defined in the Policy (a "Disability"). The annual benefit
payable under the Policy in the event of a Disability shall be equal to an
annual rate of 66.66% of the Executive's Base Salary or as close thereto as
reasonably available. PAID TIME OFF. The Executive shall be entitled to paid
time off of not less than five (5) weeks during each calendar year, earned on a
per pay period basis ("Paid Time Off"). TERMINATION. Death or Disability. The
Executive's employment under this Agreement shall terminate upon the Executive's
death or Disability. Cause. The Board may terminate the Executive's active
employment for Cause. For purposes of this Agreement, the Board shall have
"Cause" upon: (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 incapacity due to
physical or mental injury or illness) 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)
the failure of the Executive to comply with the policies or procedures of the
Company. 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 faith and with the reasonable belief that the Executive's action or
omission is in the best interest of the Company. Voluntary Termination. The
Executive may terminate his or her active employment or Post Employment at any
time for any reason whatsoever. Involuntary Termination. The Board may terminate
the Executive's active employment at any time for any reason whatsoever. Change
in Control (Termination by the Company). At any time within twelve (12) calendar
months following the month in which a Change in Control shall have occurred, the
Board may terminate the Executive's active employment for any reason whatsoever.
For purposes of this Agreement: a "Change in Control" shall be deemed to have
occurred upon the earliest to happen of the following:
- ---------------------------------------------- (A) 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, of any securities of the Company if, as a result of such
acquisition, such person, entity or group either (i) beneficially owns (within
the meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, more
than 20% of the Company's outstanding voting securities entitled to vote on a
regular basis for a majority of the members of the Board or (ii) otherwise has
the ability to elect, directly or indirectly, a majority of the members of the
Board; (B) 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 (i) was a
member of the Board on the date of this Agreement, or (ii) was nominated and
elected to such 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; or (C) The stockholders of the Company approve a merger or
consolidation of the Company with any other corporation, other than a merger or
consolidation 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 80% of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the stockholders of the
Company approve 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, the preceding events shall not be deemed a
Change in Control if, prior to any transactions constituting such change, a
majority of the Continuing Directors shall have voted not to treat such
transaction or transactions as resulting in a Change in Control.
Change in Control (Termination by the Executive). At any time within twelve
(12) calendar months following the month in which a Change in Control shall have
occurred, the Executive may terminate his or her Term of employment for Good
Reason or otherwise with the consent of the Company: "Good Reason" shall mean:
- ------------------------------------------------ The position or
responsibilities of the Executive are significantly reduced (including, without
limitation, the elimination of such position, a change in the reporting
responsibilities of such position, a substantial reduction in the size of the
Company or other substantial change in the character or scope of the Company's
operations), or the Executive is assigned without his or her written consent to
any duties inconsistent with his or her position with the Company immediately
prior to such assignment or the status and stature of those with whom the
Executive is asked to work or the position, authority, responsibility or type of
work or the working conditions under which the Executive is assigned is
inconsistent with, not comparable to, or reduced in status or altered in nature
from the Executive's position immediately preceding the Change in Control; The
annual incentive compensation provided to the Executive is eliminated or
significantly reduced, the Executive's participation level is reduced or the
manner of assessing actual performance is changed in a manner that results in
the Executive earning significantly less annual incentive compensation for a
given period than he or she would have for the same period absent such change,
except if such reduction occurs prior to a Change in Control and is part of an
across-the-board reduction in such benefits applicable to all senior level
executives of the Company; The Executive's aggregate level of benefits under the
Company's benefit plans is significantly reduced, except if such reduction
occurs prior to a Change in Control and is part of an across-the-board reduction
in such benefits applicable to all senior level executives of the Company; The
Company fails to provide the Executive with benefits and perquisites which are
substantially similar in the aggregate to those to which the Executive is
entitled under the Company's benefit plans in which the Executive was
participating immediately prior to the Change in Control, or fails to provide
the Executive with directors' or officers' insurance, as applicable, at least at
the level maintained immediately prior to the Change in Control; The Executive
is required to change his or her regular work location to a location that
requires the Executive to commute a distance more than 50 miles further from the
Executives principal place of employment existing at the time of the Change in
Control; or The Company fails to pay the Executive any amount otherwise vested
and due hereunder or under any plan or policy of the Company, or fails to comply
with any other provision of or perform any of its other obligations under this
Agreement.
Notwithstanding the foregoing, the preceding events shall not be deemed a
Change in Control if, prior to any transactions constituting such change, a
majority of the Continuing Directors shall have voted not to treat such
transaction or transactions as resulting in a Change in Control.
Notice of Termination. Any termination by the Board of Executive's active
employment pursuant to Section 6(b), (d) or (e) must, in order to be effective,
be preceded by a written notice to the Executive ("Notice of Termination")
indicating the specific provision of this Agreement relied upon and setting
forth in reasonable detail the facts and circumstances supporting the
termination under the provision so indicated and the Date of Termination.
- ---------------------
Any termination by the Executive of his active employment pursuant to
Section 6(f) must, in order to be effective, be preceded by a written notice to
the Company indicating the specific provision of Section 6(f) relied upon and
setting forth in reasonable detail the facts and circumstances supporting the
termination under the provision so indicated and the Date of Termination. After
receipt of such notice, the Company shall have ten (10) business days from the
date of receipt of such notice to cure the event described therein, and upon
cure thereof by the Company to the Executive's reasonable satisfaction, such
event shall no longer constitute "Good Reason" for purposes of this Agreement.
Date of Termination; Post Employment. "Date of Termination" shall mean (A)
if the Executive's employment is terminated by the Executive's death, the date
of the Executive's death, or by reason of the Executive's Disability, the date
all of the conditions to constitute a Disability have occurred, or if upon
expiration of the Term, the last day of the Term, (B) if the Executive's active
employment is terminated by the Board pursuant to Section 6 (d) or for Cause,
the date specified in the Notice of Termination, and (C) if the Executive's
active employment is terminated by the Executive or Section 6(f) pursuant to
Section 6 (c) or 6 (f) the date which is ten (10) business days after the date
of receipt of the Executive's notice of intention to terminate or such other
date as may be agreed by Executive and the Board. If Executive's active
employment shall be terminated pursuant to Section 6 (d), 6 (e) or 6 (f)
Executive shall, following the Date of Termination enter into a period of "Post
Employment".
COMPENSATION AND BENEFITS: POST EMPLOYMENT. Death. In the event of the
Executive's death while actively employed, the Company shall pay or provide to
the Executive: Base Salary - The Executive's Base Salary shall continue to be
paid to the Executive's named beneficiary for one month immediately following
the date of death; Bonus - A prorated portion of the Executive's bonus, if any,
as determined by the Board based on the Company's actual performance during its
fiscal year of the Executive's death shall be payable to the Executive's named
beneficiary. Such determination and payment will be made at the same time that
bonus consideration and payments, if any, for other senior executives for the
same performance period are made; and Benefits - The Executive shall be paid or
be provided such other benefits for which the Executive may otherwise be
eligible under the terms of any employee benefit, incentive, option, stock award
or other plans or programs of the Company in which he may be, or may have been,
a participant and any accrued but unpaid Paid Time Off through the Date of
Termination.
Disability. In the event of the Executive's termination due to a Disability
while actively employed, the Company shall pay or provide to the Executive:
Base Salary - The Executive's Base Salary shall be paid through the Date of
Termination; Bonus - The Executive shall receive a prorated portion of the
Executive's bonus, if any, as determined by the Board based on the Company's
actual performance during the fiscal year in which the Date of Termination
occurs. Such determination and payment, if any, will be made at the same time
that bonus consideration and payments for other senior executives for the same
performance period are made; Benefits - The Executive shall be paid or be
provided such other benefits for which the Executive may otherwise be eligible
under the terms of any employee benefit, incentive, option, stock award or other
plans or programs of the Company in which he may be, or may have been, a
participant and any accrued but unpaid Paid Time Off through the Date of
Termination.
Termination for Cause. In the event the Executive is terminated for Cause
while actively employed, the Executive shall receive only such benefits, if any,
as may be provided to him under the terms of any employee benefit, incentive,
option, stock award and other plans or programs of the Company in which he may
be, or may have been, a participant and shall be paid any balance of the
Executive's unpaid Base Salary and any Paid Time Off for the period through the
Date of Termination. ----------------------
Voluntary Termination. In the event the Executive voluntarily terminates
his employment while actively employed or during Post Employment (other than for
Good Reason following a Change in Control), the Company shall pay or provide to
the Executive only such benefits, if any, as may be provided to him under the
terms of any employee benefit, incentive, option, stock award and other plans or
programs of the Company in which he may be, or may have been, a participant and
shall be paid any balance of the Executive's unpaid Base Salary and any accrued
but unpaid Paid Time Off through the Date of Termination.
Involuntary Termination. In the event the Executive's active employment is
involuntarily terminated by the Company (other than for Cause or within twelve
months following a Change in Control), the Company shall pay or provide to the
Executive during the Executive's post-employment but subject to the provisions
of Section 19 hereof: Severance Pay - The Executive shall continue, during Post
Employment, to receive Base Salary for the remainder of the unexpired Term or 12
months after the Date of Termination, whichever is greater, payable in
installments on the Company's normal payroll dates; Bonus - The Executive shall
receive a prorated portion of the Executive's bonus, if any, as determined by
the Board based on the Company's actual performance during the fiscal year in
which the Date of Termination occurs, but such prorated portion shall be not be
based on an amount less than any bonus paid to the Executive for the prior
fiscal year. Such determination and payment will be made at the same time that
bonus consideration and payments, if any, for other senior executives for the
same performance period are made; Medical & Dental - The Executive shall
continue to receive coverage at a rate equal to that charged to active employees
for the longer of the remainder of the unexpired Term or 12 months after the
Date of Termination, but all other welfare benefits (including Life, Disability
and Workers' Compensation) shall cease as of the Date of Termination; Car
Allowance - The Executive shall continue, during Post Employment, to receive a
car allowance for the remainder of the unexpired Term or eighteen (12) months
after the Date of Termination, whichever is greater. The amount of such car
allowance shall equal the amount, if any, being received by the Executive
immediately prior to the Date of Termination; Long-Term Incentive - The
Executive shall continue during Post Employment to vest for the 12 month period
following the Executive's Date of Termination; 401(k) Profit Sharing and
Supplemental Benefits - The Executive shall continue to be treated, during Post
Employment, as a participant in all such plans in which the Executive shall have
been a participant immediately prior to the Date of Termination, based on then
applicable and corresponding elections and contribution rates, for the remainder
of the unexpired Term or 12 months after the Date of Termination, whichever is
greater. If such amounts cannot be paid to the plans, the tax-adjuste value the
Executive would have received shall be determined and paid by the Company
(outside of the plans); Deferred Compensation Plan - The Executive's
participation shall cease as of the Date of Termination and the Executive may
change the Executive's payment election under the terms of such Deferred
Compensation Plan as of the Date of Termination; and Benefits - The Executive
shall be paid or be provided such other benefits for which the Executive is
otherwise eligible, if any, under the terms of any employee benefit, incentive,
option, stock award or other plans or programs of the Company in which he may
be, or may have been, a participant and any accrued but unpaid Paid Time Off
through the Date of Termination.
Change in Control. In the event the Executive's active employment is
terminated by the Company other than for Cause following a Change in Control, or
in the event Executive terminates his active employment for Good Reason
following a Change in Control, the Company shall pay or provide to the Executive
during the Executive's Post Employment, but subject to the provisions of Section
19 hereof: ----------------- Severance Pay - The Executive shall continue,
during Post Employment, to receive Base Salary for the remainder of the
unexpired Term or eighteen (18) months after the Date of Termination, whichever
is greater, payable in installments on the Company's normal payroll dates; Bonus
- - The Executive shall receive a full year annual performance bonus for the
calendar year in which severance occurs equal to the latest performance bonus
paid or the average of last 2 performance bonuses paid, whichever is greater.
Such payment will be made at the same time that bonus consideration and payments
for other senior executives for the same performance period are made; Car
Allowance - The Executive shall continue, during Post Employment, to receive a
car allowance for the remainder of the unexpired Term or eighteen (18) months
after the Date of Termination, whichever is greater. The amount of such car
allowance shall equal the amount, if any, being received by the Executive
immediately prior to the Date of Termination; Medical & Dental - The Executive
shall continue, during Post Employment, to receive coverage at a rate equal to
that charged to active employees for the longer of the remainder of the
unexpired Term or eighteen (18) months after the Date of Termination, but all
other welfare benefits (including Life, Disability and Workers' Compensation)
shall cease as of the Date of Termination; 401(k) Profit Sharing and
Supplemental Benefits - The Executive shall continue, during Post Employment, to
be treated as a participant in all such plans in which the Executive shall have
been a participant immediately prior to the Date of Termination, based on then
applicable and corresponding elections and contribution rates, for the remainder
of the unexpired Term or 18 months after the Date of Termination, whichever is
greater. If such amounts cannot be paid to the plans, the tax-adjusted value the
Executive would have received shall be determined and paid by the Company
(outside of the plans); Deferred Compensation Plan - The Executive's
participation shall cease as of the Date of Termination and the Executive may
change the Executive's payment election under the terms of such Deferred
Compensation Plan as of the Date of Termination; and Long Term Incentives - All
awards made to the Executive under long-term incentive plans or programs shall
immediately vest and be payable, and all plan and program restrictions
inconsistent with such immediate vesting and payment shall lapse; and Benefits -
The Executive shall be paid or be provided such other benefits for which the
Executive is otherwise eligible, if any, under the terms of any employee
benefit, incentive, option, stock award or other plans or programs of the
Company in which he may be, or may have been, a participant and any Paid Time
Off.
REDUCTION OF PAYMENT. Notwithstanding any other provision of this Agreement
or of any other agreement, understanding or compensation plan, Executive shall
not be entitled to receive any payment which, taking into account all payments,
rights and benefits, would be deemed to be an "excess parachute payment" under
Section 280G (of the Internal Revenue Code of 1986, as amended), and the amount
of each payment shall be reduced to the extent necessary to ensure that the
Executive receives no "parachute payment" in connection with a Change of
Control; provided that no such reduction shall occur to the extent that
Executive shall have elected to defer receipt of payments beyond the end of the
Post Employment and such deferral shall have resulted in the present value of
such payment not constituting an "excess parachute payment". Any such election
by Executive, to be effective for purposes of this Agreement: (a) must be in
irrevocable when made, (b) must be made in a writing delivered to the Company
prior to the occurrence of a Change of Control, (c) must be for a period not be
exceed five years after the date on which Executive's period of Post Employment
would otherwise end, and (d) must be concurred in by the Company, on the basis
of the advice of its tax advisors, as being both necessary and effective to
reduce the extent to which payments to be made hereunder will constitute an
"excess parachute payment". If, at any future date following the making of a
payment hereunder, it shall have been determined by the IRS that such payment
was in excess of the limits set forth in Section 280G, and such excess shall not
have been caused by a voluntary action of the Executive not required by this
Agreement, then the Executive shall be entitled to receive from the Company, and
the Company shall pay to Executive promptly upon notification to the Company of
such determination, an Excise Tax Adjustment Payment equal to the amount of all
applicable U.S. federal, state and local taxes (computed at the maximum marginal
rates and including interest penalties and any cost of contest or defense and
including any applicable Excise Tax) imposed upon the Excise Tax Adjustment
Payment. PROTECTION OF THE COMPANY'S BUSINESS; CONFIDENTIAL INFORMATION AND
TRADE SECRETS; NON-SOLICITATION; AND NON-COMPETE. This Section 9 sets forth
rights of the Company and obligations of the Executive which are mutually
acknowledged to be for the protection of the Company and its successors and
assigns and to be reasonable in scope and duration. Executive acknowledges that
the provisions of this Section 9 are not intended to and will not have the
effect of preventing Executive from earning a living. The provisions of this
Section 9 shall be enforceable strictly in accordance with their terms,
notwithstanding any termination of this agreement, whether by the Company or by
the Executive and whether during the period of active employment or during
post-employment.
(a) Confidential Information; Trade Secrets. During Executive's active
employment with the Company, and thereafter for the longer of 18 months or the
remainder of the unexpired Term, the Executive shall not (1) disclose, directly
or indirectly, any Confidential Information to anyone outside of the Company or
to any employees of the Company not authorized to receive such information or
(2) use any Confidential Information other than as may be necessary to perform
the Executive's duties at the Company. In no event shall the Executive disclose
any Confidential Information to, or use any Confidential Information for the
benefit of, any current or future competitor, supplier or client of the Company,
whether on behalf of Executive, any subsequent employer, or any other person or
entity. The Executive is not, however, prohibited from using the general skills,
knowledge and experience that the Executive has learned or developed in his
position or positions with the Company or with others.
The Executive agrees that his position with the Company creates a
relationship of high trust and confidence with respect to Confidential
Information owned or used by the Company, and its clients or suppliers that may
be learned or developed by him while employed by the Company. For purposes of
this Agreement, the term "Confidential Information" includes all information
that the Company desires to protect and keep confidential or that the Company is
obligated to third parties to keep confidential, including but not limited to
"Trade Secrets" to the full extent of the definition of that term under state
law. It does not include "general skills, knowledge and experience" as those
terms are defined under applicable state law. Confidential Information includes,
but is not limited to: product information and designs, computer programs,
unpatented inventions, discoveries or improvements; marketing, sales,
organizational, financial, operating, research, development and business plans;
company policies and manuals; sales forecasts; personnel information (including
the identity of the Company employees, their responsibilities, competence,
abilities and compensation); medical information about employees; information
relating to the Company's agents and brokers; pricing and nonpublic financial
information; current and prospective client lists and information on clients or
their employees; information concerning planned or pending acquisitions or
divestitures; and information concerning purchases of major equipment or
property.
Non-Solicitation. During the Executive's active employment, and thereafter
for the longer of 18 months or the remainder of the unexpired Term, the
Executive shall not directly or indirectly solicit any customer or client of the
Company or any person or entity who is a prospect of the Company on the Date of
Termination or induce or encourage any employee of the Company to terminate
employment with the Company or to accept employment with any competitor,
supplier, agent or broker of the Company, nor shall the Executive cooperate with
any others in doing or attempting to do any of the foregoing. As used herein,
the term "solicit, induce or encourage" includes, but is not limited to, the
Executive's (i) initiating communications with any employee of the Company
relating to possible employment or independent contractor relationship, (ii)
offering bonuses or additional compensation to encourage the Company's employees
to terminate their employment with the Company and accept employment with a
competitor, supplier, client, agent or broker of the Company, or (iii) referring
the Company's employees to personnel or agents employed by competitors,
suppliers, clients, agents or brokers of the Company (iv) initiating
communications with or offering inducements to any customer or client (or
prospect) of the Company for the purpose of inducing such customer or client to
transact business with a competitor of the Company.
Non-Compete. Until the __ month after the Date of Termination, and
thereafter during Post Employment and while Executive is entitled to receive
payments pursuant to this Agreement, the Executive shall not, directly or
indirectly, as principal, agent, contractor, employee, employer, partner,
shareholder (other than solely as an owner of 2% or less of the stock of a
public corporation) or in any other capacity engage in or perform any managerial
or executive services for any corporation, partnership, individual or entity, a
primary business of which is competitive with the Company in any of the places
where the Company is doing business in the United States, Canada, Puerto Rico,
or Virgin Islands (the "Territory"). Notwithstanding the foregoing provisions of
this subparagraph, the Executive may accept employment with a person or entity
whose business is diversified and includes a line of business competitive with
the Company; provided that, prior to such employment, the Company is given
reasonable assurance in writing that the Executive shall not, during such
restricted period, render managerial or executive services, directly or
indirectly, specifically for any line of business of such person or entity which
is competitive with the Company. The Executive understands and agrees that the
Company has sales and operations facilities throughout the Territory and,
therefore, to provide the Company with reasonable protection, the Executive's
obligations under this subparagraph shall extend throughout the Territory.
Returnof Property. Immediately upon the termination of the Executive's
employment with the Company and at any time upon the Company's request, the
Executive shall deliver to the Company all the Company property in the
Executive's possession, custody or control including notebooks, reports,
manuals, programming data, listings and materials, engineering or patent
drawings, patent applications, any other documents, files or materials which
contain, mention or relate to Confidential Information, and all copies and
summaries of such materials whether in written, mechanical, electromagnetic,
analog, digital or any other format or medium.
Consent to Modifications by the Court. It is the express intention of the
parties to this Agreement that, if it should appear that any of the terms or
covenants of this section are in conflict with any rule of law or statutory
provision of the State of Connecticut or any other jurisdiction where this
Agreement is being enforced, which conflict would ordinarily render such terms
or covenants inoperative or null and void, the parties request that the Courts
of such state modify any such term or covenant so that the intention of the
parties hereto is carried out to as great a degree and extent as the Court deems
reasonable in order to conform with any rule of law or statutory provision
regarding restrictive covenants of the State of Connecticut or of such other
jurisdiction. MERGER OR REORGANIZATION. 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 of 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 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.
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ARBITRATION; JURY WAIVER.
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 Farmington, Connecticut or at such
other location as agreed by the parties. All decisions and awards shall be made
by a majority of the arbitrators. Each party shall pay the fees and expenses of
that party's arbitrator and any representatives, witnesses and all other
expenses related to the presentation of that party's case. The cost of the third
arbitrator, the record or any transcripts, any administrative fees, and all
other fees and costs shall be borne equally by the parties.
By agreeing to arbitration under this Section, 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 Section 9 hereof.
NON-ASSIGNABILITY. 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. AMENDMENT. This Agreement contains the entire agreement
of the parties. It may not be changed orally but only by a written agreement
executed by the Executive and the Board that expressly references this
Agreement.
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NOTICES.
All notices which a party is required or may desire to give to the other
party under or in connection with this Agreement shall be sufficient if given by
hand delivery or by addressing same to the other party as follows:
if to the Executive, to:
==============
--------------
if to the Company, to:
Orion Capital Corporation
9 Farms Spring Road
Farmington, CT 06032
Attn: Secretary
or at such other place as may be designed in writing by like notice. Any
notice shall be deemed to have been delivered when addressed as required herein
and deposited postage prepaid, in the United States Mail. WAIVER; MODIFICATION.
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing that expressly
reference this Agreement and signed by the Executive and the Board. The waiver
by either party of any breach by the other party, or of compliance with, any
condition or provision of this Agreement to be performed by such other party
shall not be deemed a waiver of the same provisions or conditions at any other
time, nor shall it be deemed a waiver of any other provisions or conditions at
any time. SEVERABILITY. The various Sections of this Agreement are severable,
and if any Section or an identifiable part thereof is held to be invalid or
unenforceable by any court of competent jurisdiction, then such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining Sections or identifiable parts thereof in this Agreement, and the
parties hereto agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or otherwise be
stricken from this Agreement, to the extent required for the purposes of the
validity and enforcement hereof. CHOICE OF LAW. The parties agree that
Connecticut, as the place of contracting and where the Company has its principal
place of business, has a substantial relationship to this Agreement and so the
parties agree that this Agreement shall be governed by the laws of the State of
Connecticut, without reference to any conflict of law rules. SURVIVAL AND
CONTINUATION OF AGREEMENT PROVISIONS. The termination of the Executive's
employment for any reason whatsoever shall not operate to terminate this
Agreement or otherwise adversely affect the respective continuing rights and
obligations of the parties, including those under Sections 4(c), 7, 8, 9, 10,
11, 14 and 19 of this Agreement, all of which shall survive the effective date
of such termination of employment in accordance with their respective terms.
RIGHT TO INJUNCTIVE AND OTHER RELIEF; CONSENT TO JURISDICTION.
The Executive acknowledges that the Company will suffer irreparable harm,
not readily susceptible of valuation in monetary damages, if the Executive
breaches any of his obligations in Section 9 of this Agreement. Accordingly, the
Executive agrees that the Company shall be entitled to injunctive relief against
any breach or prospective breach by the Executive of his obligations in Section
9 in any federal or state court of competent jurisdiction, and the Executive
hereby submits to the jurisdiction of any such federal or state court in the
State of Connecticut for the purposes of any actions or proceedings instituted
by the Company to obtain such injunctive relief. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies available
to the Company for such breach or threatened breach, including the recovery of
damages from the Executive,
In addition to the rights set forth in subsection (a), above, if Executive
breaches any of his obligations under Section 9 the Company shall be entitled to
cease making further payments to Executive pursuant to clauses (i) through (iv)
of Section 7 (e) or 7 (f), as the case may be, as well as pursuant to clause (v)
of Section 7 (e); and to terminate Executive's rights of participation under
clause (v) of Section 7 (e) or clause (vii) of Section 7(f), as the case may be,
This section shall survive the termination of the Executives Active
Employment ENTIRE AGREEMENT. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof and supersedes any
and all prior agreements between the Company and the Executive, whether written
or oral, relating to any or all matters covered by, and contained or otherwise
dealt with, in this Agreement. No agreements or representations, oral or
otherwise, express or implied, have been made by either party with respect to
the subject matter of this Agreement, unless set forth expressly in this
Agreement. BENEFICIARIES; REFERENCES. 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. ACTION OF THE BOARD.
Any reference in this Agreement to the Board shall include the Compensation
Committee thereof and any officers of the Company to which the Board or the
Compensation Committee thereof has by resolution delegated any explicit
authority or responsibilities with respect to this Agreement.
TAX WITHHOLDINGS.
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.
IN WITNESS WHEREOF, the Company and the Executive have
executed this Agreement as of the date set forth above.
ORION CAPITAL CORPORATION
By:
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Name:
-------------------------------------
Title:
-------------------------------------
EXECUTIVE
By:
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Name:
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