EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), dated as of January 1, 2005,
is made and entered into by and between Scottish Holdings, Inc., a company
formed and existing under the laws of the State of Delaware (the "Company") and
Gary Dombowsky (the "Executive").
WITNESSETH:
WHEREAS, the Company desires to obtain the Executive's management and
executive services by directly engaging Executive as Executive Vice President
Chief Operating Officer of the Company;
WHEREAS, in order to induce the Executive to serve in such position, the
Company desires to provide the Executive with compensation and other benefits on
the terms and conditions set forth in this Agreement; and
WHEREAS, the Executive is willing to accept such employment and perform
services for the Company, on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements and covenants herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto covenant and agree as follows:
1. Certain Defined Terms.
In addition to terms defined elsewhere herein, the following terms have the
following meanings when used in this Agreement with initial capital letters:
(a.) "Act" means the Securities Exchange Act of 1934, as amended.
(b.) "Board" means the Board of Directors of the Company.
(c.) "Change in Control" means the occurrence during the Term of any of the
following events:
(i.) the acquisition by any individual, entity or group, within
the meaning of Section 13(d)(3) or 14(d)(2) of the Act (a
"Person"), including as a result of a Business Combination
(as defined in Section (c)(iii)), of beneficial ownership,
within the meaning of Rule 13d-3 promulgated under the Act,
of 25% or more of the combined voting power of the then
outstanding Voting Stock of Scottish Re Group Limited (the
"Parent Company"); provided, however, that for purposes of
this
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Section 1(c)(i), the following acquisitions shall not
constitute a Change in Control: (A) any acquisition by the
Parent Company of Voting Stock of the Parent Company, or (B)
any acquisition of Voting Stock of the Parent Company by any
employee benefit plan (or related trust) sponsored or
maintained by the Parent Company or any Subsidiary; or
(ii.) individuals who, as of the date hereof, constitute the
Board of Directors of the Parent Company (the "Incumbent
Board" (as modified by this Section 1(c)(ii))) cease for
any reason to constitute at least a majority of the Parent
Company's Board; provided however, that any individual
becoming a Director subsequent to the date hereof whose
election, or nomination for election by the Parent
Company's shareholders, was approved by a vote of at least
two-thirds of the Directors then comprising the Incumbent
Board (either by a specific vote or by approval of the
proxy statement of the Parent Company in which such person
is named as a nominee for director, without objection to
such nomination) shall be deemed to have been a member of
the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs
as a result of an actual or threatened election contest
(within the meaning of Rule 14a-11 of the Act) with respect
to the election or removal of Directors or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Parent Company's Board;
or
(iii.) consummation of a reorganization, merger or consolidation,
a sale or other disposition of all or substantially all of
the assets of the Parent Company, or other transaction
(each, a "Business Combination"), unless, in each case,
immediately following such Business Combination, either
(A)(I) the individuals and entities who were the beneficial
owners of Voting Stock of the Parent Company immediately
prior to such Business Combination beneficially own in the
aggregate, directly or indirectly, more than 50% of the
combined voting power of the then outstanding shares of
Voting Stock of the entity resulting from such Business
Combination (including, without limitation, an entity which
as a result of such transaction owns the Parent Company or
all or substantially all of the Parent Company's assets
either directly or through one or more subsidiaries), (II)
no Person (other than the Parent Company, such entity
resulting from such Business Combination, or any employee
benefit plan (or related trust) sponsored or maintained by
the Parent Company, any subsidiary or such entity resulting
from such Business Combination, or any employee benefit
plan (or related trust) sponsored or maintained by the
Parent Company, any Subsidiary or such entity resulting
from such Business Combination)
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beneficially owns, directly or indirectly, 25% or more of
the combined voting power of the then outstanding shares of
Voting Stock of the entity resulting from such Business
Combination, and (III) at least a majority of the members of
the Board of Directors of the entity resulting from such
Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement or of the
action of the Parent Company Board providing for such
Business Combination, or (B) the same as Section
1(c)(iii)(A), except in clause (I), substituting "one-third"
for "50%" and in clause (III), substituting "two-thirds" for
"a majority"; or
(iv.) approval by the shareholders of the Parent Company of a
complete liquidation or dissolution of the Parent Company,
except pursuant to a Business Combination that complies
with clause (A) or (B) of Section 1(c)(iii).
(d.) "Competitive Activity" means the Executive's participation, without
the written consent of the Board, in the management of any business
enterprise if such enterprise engages in substantial and direct
competition with the Company and such enterprise engages in
substantial and direct competition with the Company if such
enterprise's sale of any product or service competitive with any
product or service of the Company amounted to 10% of such enterprise's
net sales for its most recently completed fiscal year. "Competitive
Activity" shall not include (i) the mere ownership of securities in
any such enterprise and the exercise of rights appurtenant thereto or
(ii) participation in the management of any such enterprise other than
in connection with the competitive operations of such enterprise.
(e.) "Director" means a member of the Board.
(f.) "Ordinary Shares" means the ordinary shares, par value $0.01 per
share, of the Parent Company.
(g.) "Subsidiary" means an entity in which the Parent Company directly or
indirectly beneficially owns 50% or more of the outstanding Voting
Stock.
(h.) "Total Cash Compensation" means the sum of the (i) highest annual Base
Salary in effect during the Term; and (ii) highest annual Incentive
Bonus (as set forth in Section 6(b)) earned during the prior fiscal
year.
(i.) "Voting Stock" means securities entitled to vote generally in the
election of directors.
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2. Employment.
The Company hereby agrees to employ Executive, and Executive hereby agrees
to be employed with the Company for the Term, upon the terms and conditions
herein set forth.
3. Term.
The term of employment under this Agreement (the "Initial Term") shall
commence on January 1, 2005 ("Commencement Date") and subject to earlier
termination pursuant to Section 7, expire on the second anniversary of the
Commencement Date, this Agreement will automatically be renewed for successive
one-year periods (the "Additional Term"), subject to earlier termination
pursuant to Section 7, unless either party provides written notice of
non-renewal to the other pursuant to Section 13, for the Company at least ninety
(90) days and the Executive at least thirty (30) days, prior to the end of the
Initial Term or any Additional Term. The Initial Term and any Additional Term
shall be referred to under this Agreement as the "Term"; provided, however, that
if a Change in Control occurs during the Term (as determined without regard to
this clause), then the Term shall include the period ending on the first
anniversary of the first occurrence of a Change in Control.
4. Positions and Duties.
(a.) During the Term, Executive will serve in the position of Executive
Vice President Chief Operating Officer of the Company, or such other
position as may be agreed upon by the Company and the Executive, and
will have such duties, functions, responsibilities and authority as
are (i) reasonably assigned to him by the Chief Executive Officer,
consistent with Executive's position as Executive Vice President Chief
Operating Officer or (ii) assigned to his office in the Company's
charter documents. Executive will report directly to the Chief
Executive Officer.
(b.) During the Term, Executive will be the Company's full-time employee
and, except as may otherwise be approved in advance in writing by the
Board, and except during vacation periods and reasonable periods of
absence due to sickness, personal injury or other disability,
Executive will devote substantially all of his business time and
attention to the performance of his duties to the Company.
Notwithstanding the foregoing, Executive may (i) subject to the
approval of the Board, serve as a director of a company, provided such
service does not constitute a Competitive Activity, (ii) serve as an
officer, director or otherwise participate in purely educational,
welfare, social, religious and civic
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organizations, (iii) serve as an officer, director or trustee of, or
otherwise participate in, any organizations and activities with
respect to which Executive's participation was disclosed to the
Company in writing prior to the date hereof and (iv) manage personal
and family investments.
5. Place of Performance.
In connection with his employment during the Term, Executive will be based
at the Company's principal executive offices or Denver, Colorado; provided,
however, that Executive agrees and acknowledges that in view of the nature of
the Company's business operations, Executive may be required in the performance
of his duties to undertake substantial travel on behalf of the Company and, if
necessary, requested to relocate to another executive office of the Company.
6. Compensation and Related Matters.
As compensation and consideration for the performance by Executive of his
obligations pursuant to this Agreement, Executive shall be entitled to the
following:
(a.) Base Salary. During the Term, the Company shall pay Executive an
annual base salary ("Base Salary") of $275,000, payable at the times
and in the manner consistent with the Company's policies regarding
compensation of executive employees. The Company agrees to review such
compensation not less frequently than annually during the Term. Once
increased, the Base Salary may not be decreased. The Base Salary as
increased from time to time shall be referred to herein as "Base
Salary".
(b.) Incentive Bonus. For each calendar year that begins during the Term,
the Company shall pay a cash bonus to Executive based on
pre-established performance goals established by the Board. Any
Incentive or Discretionary Bonus shall be payable at the times and in
the manner consistent with the Company's policies regarding
compensation of executive employees.
(c.) Guaranteed Bonus. For the calendar year ending on December 31, 2005,
Executive shall receive a guaranteed minimum bonus equal to $100,000
(the "Guaranteed Bonus") payable on December 31, 2005.
(d.) Executive Benefits. During the Term, the Company will make available
to Executive and his eligible dependents, participation in all
Company-sponsored employee benefit plans including all employee
retirement income and welfare benefit policies, plans, programs or
arrangements in which senior executives of the Company participate, or
any equivalent
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successor policies, plans, programs or arrangements that may now exist
or be adopted hereafter by the Company.
(e.) Club Dues and Expenses. The Company hereby agrees to reimburse
Executive for club dues and expenses up to $5,000 per calendar year in
accordance with the Company's policy regarding substantiation of
expenses. The Company also agrees to provide Executive membership at
Ballantyne Country Club. Such membership limited only by the terms and
conditions of the Company's corporate membership with Ballantyne
Country Club.
(f.) Expenses. The Company will promptly reimburse Executive for all
reasonable business expenses Executive incurs in order to perform his
duties to the Company under this Agreement in a manner commensurate
with Executive's position and level of responsibility with the
Company, and in accordance with the Company's policy regarding
substantiation of expenses.
(g.) Vacation and Holidays. Executive shall be entitle to 20 days of paid
vacation per annum, in accordance with the Company's vacation policy.
(h.) Tax Abatement. Upon Executive's relocation during the Term to a
jurisdiction which provides for taxation on personal income, the
Company shall provide tax abatement assistance up to 75% in year one,
50% in year two, 25% in year three and no further tax abatement for
years after year three.
(i.) Initial Equity Compensation Grant. The Company shall grant Executive
an option (the "Option") to purchase 5,000 Ordinary Shares of
Holdings. Additionally, the Company shall grant Executive 2,300
restricted shares (the "Restricted Shares") of Holdings. Any grant to
Executive under the 2004 Equity Incentive Compensation Plan shall be
subject to the terms and conditions of the plan as well as the
performance requirements expressly adopted by the Holdings' Board
and/or Compensation Committee. A copy of the 2004 Equity Incentive
Compensation Plan is attached hereto as Exhibit A.
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7. Termination.
(a.) Termination by the Company with Cause. The Company shall have the
right to terminate Executive's employment at any time with Cause by
providing a Notice of Termination to Executive in accordance with
Section 7(g) not more than sixty (60) days after the Board's actual
knowledge of the Cause event, and such termination shall not be deemed
to be a breach of this Agreement. For purposes of this Agreement,
"Cause" shall mean: (i) habitual drug or alcohol use which impairs
Executive's ability to perform his duties hereunder; (ii) Executive's
conviction during Term by a court of competent jurisdiction, or a
pleading of "no contest" or guilty to an arrestable criminal offense
resulting in the imposition of a custodial sentence; (iii) Executive's
engaging in fraud, embezzlement or any other illegal conduct with
respect to the Company which acts are materially harmful to, either
financially, or to the business reputation of the Company; (iv)
Executive's willful breach of Section 9 hereof; (v) Executive's
continued failure or refusal to perform his duties hereunder (other
than such failure caused by Executive's Disability), after a written
demand for performance is delivered to Executive by the Board that
specifically identifies the manner in which the Board believes that
Executive has failed or refused to perform his duties; or (vi)
Executive otherwise breaches any material provision of this Agreement
which is not cured, if curable, within thirty (30) days after written
notice thereof. No act or failure to act on the part of Executive
shall be deemed "intentional" if it was due primarily to an error in
judgment or negligence, but shall be deemed "intentional" only if done
or omitted to be done by Executive not in good faith and without
reasonable belief that his action or omission was in the best interest
of the Company.
(b.) Death. In the event Executive dies during the Term, his employment
shall automatically terminate effective on the date of his death, such
termination shall not be deemed to be a breach of this Agreement, and
the Company shall pay or provide to the Executive's beneficiaries or
estate, as appropriate, as soon as practicable after the Executive's
death, the amounts and benefits provided for in Section 8(d).
(c.) Disability. In the event Executive shall suffer from a mental or
physical disability which shall have prevented him from performing his
material duties hereunder for a period of at least ninety (90)
non-consecutive days within any 365 day period, the Company shall have
the right to terminate Executive's employment for "Disability", such
termination to be effective upon giving of notice thereof to the
Executive in accordance with Section 7(g) hereof, such termination
shall not be deemed to be a breach of this
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Agreement, and the Company shall provide to the Executive the amounts
and benefits provided for in Section 8(d). Executive's employment
hereunder shall terminate effective on the 30th day after receipt of
such notice by Executive (the "Disability Effective Date"); provided
that Executive shall not have returned to full-time performance of his
duties hereunder within thirty (30) days following receipt of such
notice.
(d.) Good Reason.
i. Executive may terminate his employment with the Company for "Good
Reason" and such termination shall not be deemed to be a breach
of this Agreement. Executive shall have Good Reason if Executive
has knowledge that one of the events described in Section
7(d)(ii) has occurred without Executive's written consent and (A)
if the event is not curable, Executive gives a Notice of
Termination to the Company pursuant to Section 7(g) within sixty
(60) days after having knowledge of the event, or (B) if the
event is curable, (I) Executive gives written notice to the
Company thereof in accordance with Section 13 within sixty (60)
days after having knowledge of the event, (II) such event has not
been cured with thirty (30) days after the Executive gives notice
of the event to the Company, and (III) Executive gives a Notice
of Termination to the Company in accordance with Section 7(g)
within thirty (30) days after the expiration of the Company's
30-day cure period.
ii. For purposes of this Agreement, "Good Reason" shall mean (A)
prior to a Change in Control, (I) a failure by the Company to
comply with any material provision of this Agreement; (II) the
liquidation, dissolution, merger consolidation or reorganization
of the Company or all of its business and/or assets, unless the
successor(s) assume all duties and obligations of the Company
pursuant to Section 12(a); or (III) upon the provision of notice
by the Company under Section 3 of non-renewal of the Agreement,
and (B) on or after a Change in Control, (I) any of the events
set forth in Section 7(d)(ii)(A); (II) any material and adverse
change to Executive's duties or authority which are inconsistent
with his title and position set forth herein; (III) a diminution
of Executive's title or position; (IV) the relocation of
Executive's office; (V) a reduction in Executive's Base Salary;
or (VI) a material reduction of Executive's benefits provided
pursuant to Section 6 other than a reduction permitted under
terms and conditions of the applicable Company policy or benefit
plan.
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(e.) Without Good Reason. Executive may voluntarily terminate his
employment with the Company without Good Reason by giving written
notice to the Company as provided in Section 7(g). Such notice must be
provided to the Company at least thirty (30) days prior to such
termination. Such Termination shall not be deemed to be a breach of
this Agreement.
(f.) Without Cause. This Company shall have the right to terminate
Executive's employment hereunder without Cause by providing written
notice to Executive as provided in Section 7(g), and such termination
shall not be deemed to be a breach of this Agreement. "Without Cause"
shall mean for any reason other than Cause, Death or Disability, as
provided in Sections 7(a), 7(b) and 7(c).
(g.) Notice of Termination.
(i.) Any termination of Executive's employment by the Company
pursuant to Section 7(a), 7(c) or 7(f), or by Executive
pursuant to Section 7(d) or 7(e), shall be communicated by a
Notice of Termination to the other party hereto in accordance
with this Section 7(g) and Section 13. For purposes of this
Agreement, a "Notice of Termination" means a written notice
that (A) indicated the specific termination provision in this
Agreement relied upon, (B) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's
employment under the provision so indicated and (C) if the
Date of Termination (as defined in Section 7(h)) is other than
the date of receipt of such notice, specifies the Date of
Termination. The failure by the Executive or the Company to
set forth in the Notice of Termination any fact or
circumstance that contributes to a showing of Good Reason or
Cause shall not waive any right of the Executive or the
Company, respectively, hereunder or preclude the Executive or
the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive's or Company's rights
hereunder.
(ii.) Any Notice of Termination by the Company for Cause shall be
ratified by a resolution duly adopted by the affirmative vote
of not less than two-thirds of the Board then in office
(excluding, for this purpose, the Executive, if the Executive
is then a member of the Board) at a meeting of the Board
called and held for such purpose, after reasonable notice to
the Executive and an opportunity for the Executive, together
with his counsel (if the Executive chooses to
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have counsel present at such meeting), to be heard before the
Board, finding that, in the good faith opinion of the Board,
the Executive had committed an act constitution "Cause" as
defined in Section 7(a) and specifying the particulars thereof
in detail.
(h.) Date of Termination. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause or by
the Executive for Good Reason, the date of receipt of the Notice of
Termination or any later date specified therein (but not more than
thirty (30) days thereafter), as the case may be (although such Date
of Termination shall retroactively cease to apply if the circumstances
providing the basis of termination for Cause or Good Reason are cured
in accordance with Section 7(a) or 7(d) of this Agreement, as the case
may be), (ii) if Executive's employment is terminated by the Company
other than for Cause or Disability, the Date of Termination shall be
the date set forth in the Notice of Termination (iii) if Executive's
employment is terminated by Executive without Good Reason, the Date of
Termination shall be the date set forth in the Notice of Termination,
but no sooner than thirty (30) days after such Notice of Termination
is received by the Company and (iv) if Executive's employment is
terminated by reason of death or Disability, the Date of Termination
shall be the date of the Executive's death or the Disability Effective
Date, as the case may be.
8. Compensation upon Termination.
If the Company or Executive terminates the Executive's employment during
the Term, the Company shall pay to the Executive the amount(s) set forth below
in a lump sum in cash upon the later of (i) five (5) business days after the
Date of Termination or date of expiration of this Agreement, as the case may be,
(ii) the effective date of a release (if a release is required by this Section
8) or (iii) at the Executive's option, a date later than the dates specified in
clauses (i) and (ii).
(a.) Compensation upon Termination for Cause or Without Good Reason. In the
event of termination of Executive's employment by the Company for
Cause or by the Executive without Good Reason, or by reason of
expiration of the Term (if applicable), the Company shall pay the
Executive his accrued, but unpaid Base Salary, accrued vacation pay
and unpaid business expenses through the Date of Termination (the
"Compensation Payments"), and the Executive shall be entitled to no
other compensation, except as otherwise due to the Executive under
applicable law. The Executive shall not be entitled to the payment of
any bonus or other incentive compensation for any portion of the
fiscal year in which such termination occurs.
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(b.) Compensation upon Termination by the Company Without Cause or upon
Termination by the Executive for Good Reason. Subject to Section 8(c),
in the event of the termination of the Executive's employment by the
Company without Cause or upon termination of the Executive's
employment by the Executive for Good Reason, the Company shall pay the
Executive the Compensation Payments. In addition, conditioned upon
receipt of the Executive's release of claims substantially in the form
attached hereto as Exhibit B, subject to such changes as may be
required to preserve the intent thereof for changes in applicable law,
the Company shall pay or provide to the Executive (i) as a severance
pay, an amount equal to the sum of one (1) full year's Total Cash
Compensation (ii) earned, but unpaid Incentive Bonus for the year of
termination, as determined in the good faith opinion of the Board base
upon the relative achievement of performance targets through the Date
of Termination (the "Termination Bonus"), and (iii) the welfare
benefits set forth in Section 8(f). Notwithstanding the foregoing
provisions of this Section 8(b), upon termination by the Executive for
Good Reason due to Section 7(d)(ii)(A)(III) (Company's notice of
non-renewal of the Agreement), the Company shall pay the Executive
under Section 8(b)(i) an amount not less than one (1) full year's
Total Cash Compensation, and any right of the Executive to receive
termination payments and benefits under Section 8(b) shall be
forfeited to the extent of any amounts payable or benefits to be
provided after a material breach of any covenant set forth in Section
9.
(c.) Compensation upon Termination in Connection with a Change in Control
of the Company. If, within the period of time commencing on the date
of the first occurrence of a Change in Control and continuing until
the first anniversary of such occurrence of a Change in Control or, if
earlier, until the Executive's death the Executive's employment is
terminated by the Company without Cause or by the Executive for Good
Reason, then the provisions of Section 8(b) shall be applicable. For
purposes of the preceding sentence, if a Change in Control occurs and
not more than one-hundred twenty (120) days prior to the date on which
the Change in Control occurs, the Executive's employment is terminated
by the Company without Cause, such termination of employment shall be
deemed a termination of employment after a Change in Control if the
Executive has reasonably demonstrated that such termination of
employment (i) was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control, or (ii) otherwise
arose in connection with or in anticipation of a Change in Control.
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(d.) Compensation upon Death or Disability. In the event of the Executive's
death or the termination of employment due to Disability, the Company
shall pay to the Executive (or beneficiaries, or estate, as the case
may be) an amount equal to the sum of (i) the Compensation Payments
and (ii) the Termination Bonus. Executive shall be entitled to any
other rights, compensation and/or benefits as may be due to Executive
in accordance with the terms and provisions of any agreements, plans
or programs of the Company.
(e.) Set-Off, Counterclaim or Late Payment. There shall be no right of
set-off or counterclaim in respect of any claim, debt or obligation
against any payment to or benefit for the Executive provided for in
this Agreement. Without limiting the rights of the Executive at law or
in equity, if the Company fails to make any payment required to be
made hereunder on a timely basis, the Company shall pay interest on
the amount or value thereof at an annualized rate of interest equal to
the "prime rate" as set forth from time to time during the relevant
period in The Wall Street Journal, "Money Rates" column, plus 4%. Such
interest shall be payable as it accrues on demand. Any change in such
prime rate shall be effective on and as of the date of such change.
(f.) Welfare Benefits. If the Executive becomes entitled to the benefits
provided by Section 8(b) or 8(c), then in addition to such benefits,
for a period following the Date of Termination equal to the greater of
the remaining Term or twelve (12) months (the "Continuation Period"),
the Company shall arrange to provide the Executive with health
insurance, life insurance, and other medical benefits substantially
similar to those that the Executive was receiving or entitled to
receive immediately prior to the Date of Termination (or, if greater,
immediately prior to the reduction, termination, or denial described
in Section 7(d)(ii)(B)(VI), if applicable). If and to the extent that
any benefit described in this Section 8(f) is not or cannot be paid or
provided under any policy, plan, program or arrangement of the
Company, then the Company will itself pay or provide for the payment
to the Executive, his dependents and beneficiaries, of such benefits
along with, in the case of any benefit described in this Section 8(f)
that is subject to tax because it is not or cannot be paid or provided
under any such policy, plan, program or arrangement of the Company, an
additional amount such that after payment by the Executive, or his
dependents or beneficiaries, as the case may be, of all taxes so
imposed, the recipient retains an amount equal to such taxes.
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(g.) Scope and Non-duplication. The provision or payment of termination
benefits under this Section 8 shall not affect any rights the
Executive may have pursuant to any agreement, plan, policy, program or
arrangement of the Company providing employee benefits, which rights
shall be governed by the terms thereof or by the release described in
Section 8; provided, however, that to the extent, and only to the
extent, a payment or benefit that is paid or provided under this
Section 8 would also be paid or provided under the terms of any
applicable plan, program or arrangement, including, without
limitation, any severance program, such applicable plan, program,
agreement or arrangement shall be deemed to have been satisfied by the
payment made or benefit provided under this Agreement.
(h.) Mitigation. In the event of the termination of the Executive's
employment by the Company without Cause, or by the Executive with Good
Reason, the Executive shall not be required to mitigate damages by
seeking other employment or otherwise as a condition to receiving
termination payments or benefits under this Agreement. No amounts
earned by the Executive after the Executive's termination by the
Company without Cause or by the Executive with Good Reason, whether
from self-employment, as a common law employee, or otherwise, shall
reduce the amount of any payment or benefit under any provision of
this Agreement. Notwithstanding the foregoing, the Executive's
coverage under the Company's group medical insurance as provided in
Section 8(f) shall be reduced to the extent comparable welfare
benefits are actually received by the Executive as soon as the
Executive becomes covered under any group medical plan made available
by another employer. The Executive shall report to the Company any
such coverage actually received by the Executive.
(i.) Resignations. Except to the extent requested by the Company, upon any
termination of the Executive's employment with the Company, the
Executive shall immediately resign all positions and directorships
with the Company and each of its subsidiaries and affiliates.
9. Competitive Activity; Confidentiality; Non-solicitation.
(a.) Executive acknowledges that during the course of his employment with
the Company the Executive will learn business information valuable to
the Company and Parent Company and will form substantial business
relationships with the Company's and Parent Company's clients. To
protect the Company's and Parent Company's legitimate business
interests in preserving its valuable confidential business information
and
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client relationships, the Executive shall not without the prior
written consent of the Company or Parent Company, which consent shall
not be unreasonably withheld, (i) engage in any Competitive Activity
during the Term and (ii) if the Executive shall have received or shall
be receiving benefits under Section 8(b) or 8(c), engage in any
Competitive Activity for a period ending on the first anniversary of
the earlier of the Date of Termination or the date of expiration of
this Agreement.
(b.) During the Term, and in consideration for the Executive's agreement to
enter into this Agreement, the Company and Parent Company agrees that
it will disclose to Executive its Confidential or Proprietary
Information (as defined in this Section 9(b)) to the extent necessary
for Executive to carry out his obligations to the Company. The
Executive hereby acknowledges the Company and Parent Company each has
a legitimate business interest in protecting its Confidential or
Proprietary Information and hereby covenants and agrees that he will
not without the prior written consent of the Company or Parent
Company, during the Term or thereafter (i) disclose to any person not
employed by the Company or Parent Company, or use in connection with
engaging I competition with the Company or Parent Company, any
Confidential or Proprietary Information of the Company of Parent
Company or (ii) remove, copy or retain in his possession any Company
or Parent Company files or records. For purposes of this Agreement,
the term "Confidential or Proprietary Information will include all
information of any nature and in any form that is owned by the Company
or Parent Company and that is not publicly available (other than by
Executive's breach of this Section 9(b)) or generally known to persons
engaged in business similar or related to those of the Company or
Parent Company. Confidential or Proprietary Information will include,
without limitation, the Company's and Parent Company's financial
matters, customers, employees, industry contracts, strategic business
plans, product development (or other proprietary product data),
marketing plans, and all other secrets and all other information of a
confidential or proprietary nature. Confidential or Proprietary
Information shall not be deemed to have become public for purposes of
this Agreement where it has been disclosed or made public by or
through anyone acting in violation of a contractual, ethical, or legal
responsibility to maintain its confidentiality. The foregoing
obligations imposed by this Section 9(b) shall not apply (x) during
the Term, in the course of the business of and for the benefit of the
Company or Parent Company, (y) if such Confidential or Proprietary
Information will have become, through no fault of the Executive,
generally known to the public or (z) if the Executive is required by
law to make disclosure (after giving
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the Company or Parent Company notice and an opportunity to contest
such requirement).
(c.) The Executive hereby covenants and agrees that during the Term and for
one (1) year after the Date of Termination Executive will not, without
the prior written consent of the Company or Parent Company, which
consent shall not unreasonably be withheld, on behalf of Executive or
on behalf of any person, firm or company, directly or indirectly,
attempt to influence, persuade or induce, or assist any other person
in so persuading or inducing, any employee of the Company or Parent
Company to give up employment or a business relationship with the
Company or Parent Company, and the Executive shall not directly or
indirectly solicit or hire employees of the Company or Parent Company
for employment with any other employer.
(d.) The Executive agrees that on or before the Date of Termination the
Executive shall return all Company and Parent Company property,
including without limitation all credit, identification and similar
cards, keys and documents, books, records and office equipment. The
Executive agrees that he shall abide by, through the Date of
Termination, the Company's or Parent Company's policies and procedures
for worldwide business conduct.
(e.) Executive and Company agree that the covenants contained in this
Section 9 are reasonable under the circumstances, and further agree
that if in the opinion of any court of competent jurisdiction any such
covenant is not reasonable in any respect, such court will have the
right, power and authority to excise or modify any provision or
provisions of such covenants as to the court will appear not
reasonable and to enforce the remainder of the covenants as so
amended. Executive acknowledges and agrees that the remedy at law
available to the Company for breach of any of his obligations under
this Section 9 would be inadequate and that damages flowing from such
a breach may not readily be susceptible to being measured in monetary
terms. Accordingly, Executive acknowledges, consents and agrees that,
in addition to any other rights or remedies that the Company may have
at law, in equity or under this Agreement, upon adequate proof of his
violation of any such provision of this Agreement, the Company will be
entitle to immediate injunctive relief and may obtain a temporary
order restraining any threatened or further breach, without the
necessity of proof of actual damage.
(f.) Representations of the Executive. The Executive represents and
warrants to the Company that:
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(i) (A) There are no restrictions, agreements or understandings
whatsoever to which the Executive is a party that would prevent
or make unlawful the Executive's execution of this Agreement or
the Executive's employment under this Agreement, or that is or
would be inconsistent, or in conflict with this Agreement or the
Executive's employment under this Agreement, or would prevent,
limit or impair in any way the performance by the Executive of
the obligations under this Agreement; and (B) the Executive has
disclosed to the Company all restraints, confidentiality
commitments or other employment restrictions that the Executive
has with any other employer, person or entity.
(ii) Upon and after the Executive's termination or cessation of
employment with the Company, and until such time as no
obligations of the Executive to the Company hereunder exist, the
Executive: (A) shall provide a complete copy of this Agreement to
any prospective employer or other person, entity or association
in a competing business with whom or which the Executive proposes
to be employed, affiliated, engaged, associated or to establish
any business or remunerative relationship prior to the
commencement thereof, provided that Executive shall first cause
the compensation amounts hereunder to be deleted or not
disclosed; and (B) shall notify the Company of the name and
address of any such person, entity or association prior to the
Executive's employment, affiliation, engagement, association or
the establishment of any business or remunerative relationship.
10. Withholding of Taxes.
The Company may withhold from any amounts payable under this Agreement all
applicable taxes that the Company is required to withhold pursuant to any
applicable law, regulation or ruling.
11. Legal Fees and Expenses.
If it should appear to Executive 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, Executive the benefits provided
or intended to be provided to Executive hereunder, the Company irrevocably
authorized Executive from time to time to retain counsel of Executive's choice
at the expense of the Company as hereafter provided, to advise and represent
Executive in connection with any such interpretation, enforcement or defense,
including without limitation the initiation or defense of any
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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 Executive's entering into an attorney-client relationship with such
counsel, and in that connection the Company and Executive agree that a
confidential relationship shall exist between Executive and such counsel.
Without respect to whether Executive 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 Executive in connection with any of the foregoing; provided that, in
regard to such matters, the Executive 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 Executive's written requests for payment, accompanied by
such evidence of fees and expenses incurred as the Company may reasonably
require. Notwithstanding the foregoing provisions of this Section 11, the
obligations of the Company under this Section 11 shall not exceed, in the
aggregate, $25,000.
12. Dispute Resolution.
Any dispute between the parties under this Agreement shall be resolved
(except as provided below) through informal arbitration by an arbitrator
selected under the rules of the American Arbitration Association for arbitration
of employment disputes (located in North Carolina) and the arbitration shall be
conducted in that location under the rules of said Association. Each party shall
be entitled to present evidence and argument to the arbitrator. The arbitrator
shall have the right only to interpret and apply the provisions of this
Agreement and may not change any of its provisions, except as expressly provided
in Section 15 and only in the event the Company has not brought an action in a
court of competent jurisdiction to enforce the covenants in Section 9. The
arbitrator shall permit reasonable pre-hearing discovery of facts, to the extent
necessary to establish a claim or a defense to a claim, subject to supervision
by the arbitrator. The determination of the arbitrator shall be conclusive and
binding upon the parties and judgment upon the same may be entered in any court
having jurisdiction thereof. The arbitrator shall give written notice to the
parties stating the arbitrator's determination, and shall furnish to each party
a signed copy of such determination. The expenses of arbitration shall be borne
equally by the Company and the Executive or as the arbitrator equitably
determines consistent with the application of state or federal law; provided,
however, that the Executive's share of such expenses shall not exceed the
maximum permitted by law. Any arbitration or action pursuant to this Section 11
shall be governed by and construed in accordance with the substantive laws of
North Carolina without giving effect to the principles of conflict of laws of
such State.
Notwithstanding the foregoing, the Company shall not be required to seek or
participate in arbitration regarding any actual or threatened breach of the
Executive's
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covenants in Section 99, but may pursue its remedies, including injunctive
relief, for such breach in a court of competent jurisdiction in North Carolina,
or in the sole discretion of the Company, in a court of competent jurisdiction
where the Executive has committed or is threatening to commit a breach of the
Executive's covenants, and no arbitrator may make any ruling inconsistent with
the findings or rulings of such court.
13. Successors and Binding Agreement.
a. The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all
or substantially all of the business or assets of the Company, by
agreement in form and substance reasonably satisfactory to Executive,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent the Company would be required to perform
if no such succession had taken place. This Agreement will be binding
upon and inure to the benefit of the Company and any successor to the
Company, including without limitation any persons acquiring directly
or indirectly all or substantially all of the business or assets of
the Company whether by purchase, merger, consolidation, reorganization
or otherwise (and such successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), but will not otherwise
be assignable, transferable or delegable by the Company.
b. This Agreement will inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and legatees.
c. This Agreement is personal in nature and neither of the parties hereto
shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as
expressly provided in Sections 12(a) and 12(b). Without limiting the
generality or effect of the foregoing, Executive's right to receive
payments hereunder will not be assignable, transferable or delegable,
whether by pledge, creation of a security interest, or otherwise,
other than by a transfer by Executive's will or by the laws of descent
and distribution and, in the event of any attempted assignment or
transfer contrary to this Section 12(c), the Company shall have no
liability to pay any amount so attempted to be assigned, transferred
or delegated.
14. Notices.
For all purposes of this Agreement, all communications, including without
limitation notices, consents, requests or approvals, required or permitted to be
given hereunder shall be in writing and shall be deemed to have been duly given
when hand
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delivered or dispatched by electronic facsimile transmission (with receipt
thereof orally confirmed), or five (5) business days after having been mailed by
registered or certified mail, return receipt requested, postage prepaid, or
three (3) business days after having been sent by an internationally recognized
overnight courier service, addressed to the Company (to the attention of the
Chairman of the Company) at its principal executive office and to Executive at
his principal residence, or to such other address as any party may have
furnished to the other in writing and in accordance herewith, except that
notices of changes of address shall be effective only upon receipt.
15. Governing Law.
The validity, interpretation, construction and performance of this
Agreement will be governed by and construed in accordance with the substantive
laws of North Carolina, without giving effect to the principles of conflict of
laws, except as expressly provided herein. In the event the Company exercises
its discretion under Section 9(e) to bring an action to enforce the covenants
contained in Section 9 in a court of competent jurisdiction where the Executive
has breached or threatened to breach such covenants, and in no other event, the
parties agree that the court may apply the law of the jurisdiction in which such
action is pending in order to enforce the covenants to the fullest extent
permissible.
16. Validity.
Any provision of this Agreement that is deemed invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective, to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provisions of this Agreement
invalid, illegal or unenforceable in any other jurisdiction. If any covenant in
Section 9 should be deemed invalid, illegal or unenforceable because its time,
geographical area, or restricted activity, is considered excessive, such
covenant shall be modified to the minimum extent necessary to render the
modified covenant valid, legal and enforceable.
17. Miscellaneous.
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing signed by the
Executive and the Company. No waiver by either party hereto at any time of any
breach by the other party hereto or compliance with any condition or provision
of this Agreement to be performed by such other party will be deemed a waiver of
similar or dissimilar provisions or conditions at the same or at any prior or
subsequent time. No agreements or representations, oral or otherwise, expressed
or implied with respect to the subject matter hereof have been made by either
party that are not set forth expressly in this Agreement. The headings used in
this Agreement are intended for convenience or
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reference only and shall not in any manner amplify, limit, modify or otherwise
be used in the construction or interpretation of any provision of this
Agreement. References to Sections are references to Sections of this Agreement.
Any reference in this Agreement to a provision of a statute, rule or regulation
shall also include any successor thereto.
18. Survival.
Notwithstanding any provision of this Agreement to the contrary, the
parties' respective rights and obligations under Sections 8, 9, 10, 11, 12 and
13(b) will survive any termination or expiration of this Agreement or the
termination of the Executive's employment for any reason whatsoever.
19. Beneficiaries.
The Executive shall be entitled to select (and change, to the extent
permitted under any applicable law) a beneficiary or beneficiaries to receive
any compensation or benefit payable hereunder following the Executive's death,
and may change such election, in either case by giving the Company written
notice thereof in accordance with Section 14. In the event of the Executive's
death or a judicial determination of the Executive's incompetence, reference in
this Agreement to the "Executive" shall be deemed, where appropriate, to be the
Executive's beneficiary, estate or other legal representative.
20. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original but all of which together will constitute one
and the same agreement.
21. Entire Agreement.
The terms of this Agreement are intended by the parties to be the final
expression of their agreement with respect to the Executive's employment by the
Company and may not be contradicted by evidence of any prior or contemporaneous
agreement. The parties further intend that this Agreement shall constitute the
complete and exclusive statement of its terms and that no extrinsic evidence
whatsoever may be introduced in any judicial, administrative, or other legal
proceedings to vary the terms of this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the date first written above.
/s/ Gary Dombowsky
--------------------------------------
Gary Dombowsky
SCOTTISH HOLDINGS, INC.
By: /s/ Paul Goldean
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Name: Paul Goldean
Title: EVP General Counsel
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