Execution Copy
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of July 18, 2007 between
Scottish Re Group Limited (the "Company") and George R. Zippel (the "Employee")
(together, the "Parties").
WHEREAS, the Parties wish to establish the terms of Employee's
employment with the Company upon the terms and conditions set forth herein, and
all other agreements with respect to the subject matter hereof;
Accordingly, the Parties agree as follows:
1. Employment and Acceptance. The Company shall employ the Employee,
and Employee shall accept employment, subject to the terms of this Agreement, on
July 30, 2007 (the "Effective Date").
2. Term. Subject to earlier termination pursuant to Section 5 of
the Agreement, this Agreement and the employment relationship hereunder shall
continue from the Effective Date until the second (2nd) anniversary of the
Effective Date and shall automatically renew for successive one (1) year
intervals thereafter unless either party shall have given at least sixty (60)
days advance written notice to the other that it does not wish to extend the
Term. As used in this Agreement, the "Term" shall refer to the period beginning
on the Effective Date and ending on the date the Employee's employment
terminates in accordance with this Section 2 or Section 5. In the event of the
Employee's termination of employment during the Term, the Company's obligation
to continue to pay all base salary, as adjusted, bonus and other benefits then
accrued shall terminate except as may be provided for in Section 5 of this
Agreement, or as otherwise required by law.
3. Duties and Positions.
3.1 Positions. During the Term, the Employee shall serve as
President and Global Chief Executive Officer of the Company and shall report
solely and directly to the Board of Directors of the Company (the "Board"). The
Employee shall also serve during the Term in executive positions for one or more
of the Company's subsidiaries and affiliates for no additional consideration. As
of the Effective Date, the Company shall use its best efforts to cause the
Employee to be nominated for election to the Board.
3.2 Duties. The Employee will have such authority and
responsibilities and will perform such executive duties as are customarily
performed by a President and Global Chief Executive Officer of a public company
of similar size in similar lines of business as the Company and its subsidiaries
as may be assigned to Employee by the Board. The Employee will devote all his
full working-time and attention to the performance of such duties and to the
promotion of the business and interests of the Company and its subsidiaries.
Nothing in this Agreement shall prevent the Employee from (i) devoting
reasonable time to charitable, community, industry or professional activities,
or (ii) participating in, or serving on, the governing body of any civic,
community or charitable organization with which the Employee may currently be or
hereafter become involved, provided such activities (A) do not materially
interfere with and are not inconsistent with Employee's performance of his
duties and obligations under this Agreement, (B) cannot reasonably be expected
to cause injury or harm to the business
or reputation of the Company or any of
its subsidiaries and affiliates and (C) do not violate any provision of this
Agreement.
3.3 Location. The Employee shall perform his full-time services
to the Company and its subsidiaries in the Company's Bermuda office; provided
that the Employee shall be required to travel as reasonably necessary to perform
his duties hereunder. The Employee shall establish residence in Bermuda as soon
as practicable following the Effective Date.
4. Compensation and Benefits by the Company. As compensation for all
services rendered pursuant to this Agreement, the Company shall provide the
Employee the following during the Term and thereafter as applicable:
4.1 Base Salary. During the Term, the Company will pay to the
Employee an annual base salary of $900,000, payable in accordance with the
customary payroll practices of the Company ("Base Salary"). The Employee's Base
Salary shall be subject to review and may be increased (but not decreased) to an
amount determined at the discretion of the Board, or the compensation committee
thereof (which, thereafter, shall be his "Base Salary") after taking into
consideration the Employee's performance, the Company's performance, increases
in the cost of living and such other factors as the Board or the compensation
committee thereof in good faith deems relevant. Such review shall be conducted
no less frequently than once during each calendar year at the same time the
Company conducts its review of the compensation of the Company's other senior
executive officers.
4.2 Bonuses. During the Term, the Employee shall be eligible to
receive an annual cash bonus ("Bonus") under a plan established by the Company
in the amount determined by the Board (or the compensation committee thereof)
based upon achievement of performance measures established by the Company, after
reasonable consultation with the Employee, and approved by the Board in its sole
discretion. The Employee's target bonus shall be seventy five percent (75%) of
Base Salary (the "Target Bonus"). Notwithstanding the foregoing, the Company
shall pay to the Employee a cash bonus with respect to the 2007 calendar year in
an amount equal to no less than the product of (i) $675,000 and (ii) the ratio
of (A) the number of days the Employee is employed during calendar year 2007 to
(B) 365 (the "2007 Bonus"). The Employee's Bonus (including the 2007 Bonus)
shall be payable at such times and in the manner consistent with the Company's
policies regarding compensation of executive employees. The Bonus with respect
to any calendar year shall be paid no earlier than January 1 and no later than
June 30 of the following calendar year.
4.3 Participation in Employee Benefit Plans. The Employee shall
be entitled during the Term, if and to the extent eligible, to participate in
all of the applicable pension and welfare benefit plans and fringe benefits of
the Company, which may be available to other senior executives of the Company.
These plans shall include, without limitation, medical, prescription drug,
dental, vision, disability, life and accidental death insurance plans and
programs and a 401(k) plan to the extent, and on terms at least as favorable as,
such plans and programs are available to other senior executives of the Company.
The Company may at any time or from time to time amend, modify, suspend or
terminate any employee benefit plan, program or arrangement for any reason
without the Employee's consent if such amendment, modification, suspension or
termination is consistent with the amendment, modification, suspension or
termination for other executives of the Company. In each calendar year prior to
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the date the Employee's employment terminates due to Disability (as defined
below), the Employee shall be entitled to receive up to ninety (90) days of full
salary continuation in the event he is unable to perform his duties hereunder
without reasonable accommodation due to a physical or mental illness or injury.
4.4 Equity Compensation. During the Term, the Employee shall be
eligible to participate in the 2007 Scottish Re Group Limited Stock Option Plan,
an equity incentive compensation plan established by the Company (the "Equity
Incentive Plan"), pursuant to the terms of the Equity Incentive Plan and any
applicable agreements thereunder as determined from time to time by the Board.
The Employee shall receive an initial grant of the option to purchase 1,250,000
ordinary shares of the Company (the "Initial Grant") pursuant to the terms of
the Equity Incentive Plan and any applicable agreements thereunder.
Notwithstanding the foregoing or the terms of the equity Incentive Plan, the
Employee's award agreement with respect to the Initial Grant shall provide that
if the Employee's employment is terminated by the Company without "Cause" (as
defined below), the Employee terminates his employment with "Good Reason" (as
defined below) or the Employee's employment with the Company terminates in
connection with the Company's determination not to extend or renew the Term
pursuant to Section 2, to the extent not previously forfeited, the unvested
portion of the Initial Grant, if any, shall become vested and exercisable, and
shall remain exercisable for a period of ninety (90) days following the date of
such termination of employment.
4.5 Relocation. The Company shall provide the Employee (on a
fully grossed up tax neutral basis), directly or through reimbursement (as
determined in the Company's reasonable discretion) the following relocation,
housing and transportation benefits: (a) a suitable apartment or comparable
residence in Bermuda and other reasonable costs associated with such residence,
including local ground transportation, during the Term; (b) through the end of
the 2008 calendar year, a suitable apartment or comparable residence for the
Employee in the Charlotte, NC area when the Employee is required to perform
services for the Company in its Charlotte, NC location; (c) through the end of
the 2008 calendar year, pursuant to the Company's normal travel expense policy,
weekly air travel between the Employee's home in Lynchburg, VA and the Company
locations, and (d) all reasonable costs associated with relocating Employee and
his family and transporting Employee's household goods to either Bermuda or
Charlotte, NC. Any such reimbursements and the tax gross-up payments for any
reimbursement or in-kind benefit shall be made no later than thirty (30)
business days following presentation to the Company of the bill or invoice for
any such benefit. In no event will any reimbursement or in-kind benefit in any
calendar year affect any reimbursement or in-kind benefit made in any subsequent
calendar year In no event will any tax gross-up payment be made later than the
Employee's taxable year next following the taxable year in which the Employee
remits the related taxes.
4.6 Retention Bonus. Subject to the Employee's continued
employment with the Company through the date such payment is made, in the event
of a Change in Control (as defined below), the Company shall pay the Employee a
lump-sum payment equal to (x) the Employee's then current Base Salary plus (y)
the Employee's Target Bonus for the year in which the Change in Control occurs
(the "Retention Bonus"), payable within ten (10) days following the first
anniversary of the Change in Control.
"Change of Control" shall mean (1) any person, other than
Cerberus Capital Management, L.P. ("Cerberus") or Mass Mutual Capital Partners
LLC ("Mass Mutual") or their
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respective affiliates, becomes the beneficial owner, directly or indirectly, of
fifty percent (50%) or more of the combined voting power of the then issued and
outstanding equity securities of the Company, or (2) the sale, transfer or other
disposition of all or substantially all of the business and assets of the
Company, whether by sale of assets, merger or otherwise (determined on a
consolidated basis) to another person other than a transaction in which the
survivor or transferee is a person controlled, directly or indirectly, by
Cerberus or Mass Mutual Capital or their affiliates.
4.7 Expense Reimbursement. During the Term, the Employee shall
be entitled to receive reimbursement for all appropriate business expenses
incurred by him in connection with his duties under this Agreement in accordance
with the policies of the Company applicable to other executive employees as in
effect from time to time.
4.8 Professional Fees. The Company shall pay or reimburse the
Employee (on a fully grossed up tax neutral basis) for the Employee's reasonable
attorneys' fees and costs (not to exceed $10,000) incurred during 2007 in
connection with advice pertaining to and negotiation of this Agreement upon
presentation to the Company of bills or invoices for such services and such
other supporting information as the Company may reasonably require. Such payment
or reimbursement and the corresponding gross-up payment shall be made no later
than fifteen (15) business days following presentation to the Company of the
bill or invoice for such services. In no event will the payment or reimbursement
affect any other reimbursement or in-kind benefit made in any subsequent
calendar year or be made later than December 31, 2007. In no event will the tax
gross-up payment be made later than the Employee's taxable year next following
the taxable year in which the Employee remits the related taxes.
5. Termination of Employment.
5.1 By the Company for Cause or by the Employee Without Good
Reason. If: (i) the Company terminates the Employee's employment with the
Company for Cause (as defined below); or (ii) the Employee terminates his
employment without Good Reason (as defined below), provided that the Employee
shall be required to give the Company at least forty-five (45) days prior
written notice of such termination, the Employee or the Employee's legal
representatives (as appropriate), shall be entitled to receive the following
(the "Accrued Benefits"):
(a) the Employee's accrued but unpaid Base Salary and
benefits set forth in Sections 4.1 and 4.3, if any, to the date of termination;
(b) the unpaid portion of the Bonus, if any, relating to the
calendar year prior to the calendar year of the Employee's death, Disability,
termination by the Company for Cause or by the Employee without Good Reason,
payable in accordance with Section 4.2;
(c) in accordance with the Company's policies, any accrued
but unused vacation time or paid time off; and
(d) expenses reimbursable under Section 4.7 incurred but not
yet reimbursed to the Employee to the date of termination.
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For the purposes of this Agreement, "Cause" means, as determined by a
majority of the Board, in the Board's reasonable business judgment acting in
good faith and engaging in fair dealing with the Employee, with respect to
conduct during the Employee's employment with the Company, whether or not
committed during the Term, (i) commission of a felony by Employee; (ii)
intentional acts of dishonesty by Employee resulting or intending to result in
personal gain or enrichment at the expense of the Company or its subsidiaries;
(iii) Employee's breach of his material obligations under this Agreement; (iv)
conduct by Employee in connection with his duties hereunder that is fraudulent
or grossly negligent or that the Employee knew or reasonably should have known
to be unlawful, provided that any action taken by the Employee on the advice of
the Company's General Counsel (or his designee) shall not be treated a unlawful
for purposes of this clause (iv); (v) engaging in personal conduct by Employee
(including but not limited to employee harassment or discrimination, the use or
possession at work of any illegal controlled substance) which seriously
discredits or damages the Company or its subsidiaries; (vi) contravention of
specific lawful direction of the Board or continuing inattention to or
continuing failure to attempt, in good faith, to perform the duties to be
performed by Employee under the terms of Section 3.2 of this Agreement or (vii)
breach of the Employee's covenants set forth in Section 6 below before
termination of employment; provided, that, the Employee shall have fifteen (15)
days after notice from the Company, which notice shall set forth in reasonable
detail a description of the deficiency determined by the Board to constitute
Cause, to cure the deficiency leading to the Cause determination (except with
respect to (i) above), if curable. A termination for "Cause" shall be effective
immediately (or on such other date set forth by the Company), following the
Employee's failure to timely cure such conduct, if curable.
For the purposes of this Agreement, "Good Reason" means, without the
Employee's consent, (i) a material adverse reduction in Employee's authority,
responsibilities or duties; (ii) a reduction in the Employee's Base Salary or
bonus opportunity; provided that, the Company may at any time or from time to
time amend, modify, suspend or terminate any bonus, incentive compensation or
other benefit plan or program provided to the Employee for any reason and
without the Employee's consent if such modification, suspension or termination
(x) is a result of the underperformance of the Employee or the Company under its
business plan, and (y) is consistent with an "across the board" reduction for
all similar employees of the Company, and, in each case, is undertaken in the
Board's reasonable business judgment acting in good faith and engaging in fair
dealing with the Employee; or (iii) the Company's material breach of the
Agreement; provided that a suspension of the Employee and the requirement that
the Employee not report to work shall not constitute "Good Reason" if the
Employee continues to receive the compensation and benefits required by this
Agreement. The Company shall have thirty (30) days after receipt of notice from
the Employee in writing specifying the deficiency to cure the deficiency that
would result in Good Reason.
5.2 By the Company Without Cause; by the Employee with Good
Reason; or Following the Company's Decision Not to Renew the Term. If, (1)
during the Term: (i) the Company terminates Employee's employment without Cause
(which may be done at any time without prior notice) or (ii) the Employee
terminates his employment for Good Reason (within ninety (90) days following the
initial condition giving rise to such Good Reason), upon at least thirty (30)
days prior written notice, or (2) the Employee's employment with the Company
terminates in connection with the Company's determination not to extend or renew
the Term pursuant to Section 2, upon execution without revocation of a valid
release agreement in a form
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reasonably acceptable to the Parties and not in violation of any applicable laws
(the "Release"), the Employee shall be entitled to receive:
(a) the Accrued Benefits;
(b) an amount equal to (x) the Employee's annual Base Salary
as of the date of termination plus (y) the Employee's Target Bonus for the year
of termination (the "Severance Amount"), payable in a lump sum, less standard
income and payroll tax withholding and other authorized deductions within
fifteen (15) days following the effective date of the Release;
(c) continued payment of the Employee's Base Salary for the
remainder of the Term, payable in accordance with the customary payroll
practices of the Company, provided that each payroll payment shall be treated as
a separate payment for purposes of Section 409A of the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder (the "Code");
(d) if the Employee elects continuing group coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended ("COBRA"), reimbursement of the cost of such continuation coverage(on a
fully grossed up tax neutral basis) for the earlier of (x) twelve (12) months or
(y) such earlier date that the Employee is covered under another group health
plan, subject to the terms of the plans and applicable law;
(e) if such termination of employment occurs prior to the
first (1st) anniversary of a Change in Control, an amount equal to the Retention
Bonus, payable pursuant to Section 4.6 above; and
(f) the Company shall pay or reimburse the Employee (in
either case, on a fully grossed up tax neutral basis in accordance with the
terms of Section 4.5) for the Employee's reasonable costs (not to exceed
$50,000) associated with relocating the Employee and his family and transporting
the Employee's household goods from Bermuda or Charlotte, NC to the Employee's
future principal residence.
The Company shall have no obligation to provide the benefits set
forth above in the event that Employee breaches the provisions of Section 6.
5.3 Due to Death or Disability. If: (i) the Employee's
employment terminates due to his death; or (ii) the Company terminates the
Employee's employment with the Company due to the Employee's Disability (as
defined below), in addition to Accrued Benefits, the Employee or the Employee's
spouse, dependents or legal representatives (as appropriate), shall be entitled
to receive (A) a lump-sum equal to the prorated portion of the Employee's Target
Bonus for the year of the Employee's death or termination of employment due to
Disability, less standard income and payroll tax withholding and other
authorized deductions, payable within thirty (30) days following the date the
Employee's employment terminates, and (B) if the Employee, or his spouse or
dependants (as appropriate) elects continuing group coverage pursuant to COBRA,
reimbursement of the cost of such continuation coverage (on a fully grossed up
tax neutral basis) for the earlier of (x) twelve (12) months or (y) such earlier
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date that the Employee, his spouse or dependents, as the case may be, is covered
under another group health plan, subject in all cases to the terms of the plans
and applicable law.
For the purposes of this Agreement, "Disability" means a determination
by the Company in accordance with applicable law that as a result of a physical
or mental injury or illness, the Employee is unable to perform the essential
functions of his job with or without reasonable accommodation for a period of
(i) ninety (90) consecutive days; or (ii) one hundred eighty (180) days in any
one (1) year period.
5.4 No Mitigation; No Offset. The Employee shall be under no
obligation to seek other employment after his termination of employment with the
Company and the obligations of the Company to the Employee which arise upon the
termination of his employment pursuant to this Section 5 shall not be subject to
mitigation or offset.
5.5 Removal from any Boards and Position. If the Employee's
employment is terminated for any reason under this Agreement, he shall be deemed
to resign (i) if a member, from the Board or board of directors of any
subsidiary of the Company or any other board to which he has been appointed or
nominated by or on behalf of the Company and (ii) from any position with the
Company or any subsidiary of the Company, including, but not limited to, as an
officer of the Company and any of its subsidiaries.
5.6 Nondisparagement. The Employee agrees that he will not at
any time (whether during or after the Term) publish or communicate to any person
or entity any Disparaging (as defined below) remarks, comments or statements
concerning the Company, Cerberus, Mass Mutual their parents, subsidiaries and
affiliates, and their respective present and former members, partners,
directors, officers, shareholders, employees, agents, attorneys, successors and
assigns. "Disparaging" remarks, comments or statements are those that impugn the
character, honesty, integrity or morality or business acumen or abilities in
connection with any aspect of the operation of business of the individual or
entity being disparaged.
5.7 Certain Additional Payments by the Company.
(a) Anything in this Agreement to the contrary
notwithstanding and except as set forth below, in the event it shall be
determined that any payment or distribution by the Company to, or for the
benefit of the Employee (whether paid or payable or distributed or distributable
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 5.7) (a "Payment")
would be subject to the excise tax imposed by Section 4999 of the Code, or any
interest or penalties are incurred by the Employee with respect to such excise
tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the Employee
shall be entitled to receive an additional payment (a "Gross-Up Payment") in an
amount such that after payment by the Employee of all taxes (including any
interest or penalties imposed with respect to such taxes), including, without
limitation, any income taxes (and any interest and penalties imposed with
respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Employee
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.
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(b) Notwithstanding the foregoing provisions of Section
5.7(a), if the Parachute Value (as defined below) of all Payments does not
exceed 110% of the Employee's Safe Harbor Amount (as defined below), then the
Company shall not pay the Employee a Gross-Up Payment, and the Payments due
under this Agreement shall be reduced so that the Parachute Value of all
Payments, in the aggregate, equals the Safe Harbor Amount; provided, that if
even after all Payments due under this Agreement are reduced to zero, the
Parachute Value of all Payments would still exceed the Safe Harbor Amount, then
no reduction of any Payments shall be made and the Gross -Up Payment shall be
made. The reduction of the Payments due hereunder, if applicable, shall be made
as designated by the Employee, and in any event shall be made in such a manner
as to maximize the economic present value of all Payments actually made to the
Employee, determined by the Accounting Firm (as defined in Section 5.7(c) below)
as of the date of the change of control for purposes of Section 280G of the Code
using the discount rate required by Section 280G(d)(4) of the Code. For purposes
of this Section 5.7, the "Parachute Value" of a Payment means the present value
as of the date of the change of control for purposes of Section 280G of the Code
of the portion of such Payment that constitutes a "parachute payment" under
Section 280G(b)(2) of the Code, as determined by the Accounting Firm for
purposes of determining whether and to what extent the Excise Tax will apply to
such Payment. For purposes of this Section 5.7, Executive's "Safe Harbor Amount"
means one dollar less than three times the Employee's "base amount" within the
meaning of Section 280G(b)(3) of the Code.
(c) All determinations required to be made under this
Section 5.7, including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be used in arriving at
such determination, shall be made by the Company's independent auditing firm or
such other certified public accounting firm as may be designated by the Employee
(the "Accounting Firm") which shall provide detailed supporting calculations
both to the Company and the Employee within fifteen (15) business days after
the receipt of notice from the Employee that there has been a Payment, or such
earlier time as is requested by the Company. In the event that the Accounting
Firm is serving as accountant or auditor for the individual, entity or group
effecting the Change in Control, the Employee may appoint another nationally
recognized accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company.
Any Gross-Up Payment, as determined pursuant to this Section 5.7, shall-be paid
by the Company to the Employee or to the Internal Revenue Service on the
Employee's behalf within five (5) business days after the receipt of the
Accounting Firm's determination, but in no event later than December 31 of the
year after the year in which the Employee remits the Excise Tax to the relevant
taxing authorities. Any determination by the Accounting Firm shall be binding
upon the Company and the Employee. As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial determination
by the Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made ("Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Employee thereafter is required to make a payment of any Excise
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Tax, the Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of the Employee, but no later than December 31 of the year after
the year in which the Employee remits the Excise Tax to the relevant taxing
authorities.
6. Restrictions and Obligations of the Employee.
6.1 Confidentiality. (a) During the course of the Employee's
employment by the Company, the Employee has had and will have access to certain
trade secrets and confidential information relating to the Company and its
subsidiaries (the "Protected Parties") which is not readily available from
sources outside the Company. The confidential and proprietary information and,
in any material respect, trade secrets of the Protected Parties are among their
most valuable assets, including but not limited to, their customer, supplier and
vendor lists, databases, competitive strategies, computer programs, frameworks,
or models, their marketing programs, their sales, financial, marketing, training
and technical information, their product development (and proprietary product
data) and any other information, whether communicated orally, electronically, in
writing or in other tangible forms concerning how the Protected Parties create,
develop, acquire or maintain their products and marketing plans, target their
potential customers and operate their retail and other businesses. The Protected
Parties invested, and continue to invest, considerable amounts of time and money
in their process, technology, know-how, obtaining and developing the goodwill of
their customers, their other external relationships, their data systems and data
bases, and all the information described above (hereinafter collectively
referred to as "Confidential Information"), and any misappropriation or
unauthorized disclosure of Confidential Information in any form would
irreparably harm the Protected Parties. The Employee acknowledges that such
Confidential Information constitutes valuable, highly confidential, special and
unique property of the Protected Parties. The Employee shall hold in a fiduciary
capacity for the benefit of the Protected Parties all Confidential Information
relating to the Protected Parties and their businesses, which shall have been
obtained by the Employee during the Employee's employment by the Company or its
subsidiaries and which shall not be or become public knowledge (other than by
acts by the Employee or representatives of the Employee in violation of this
Agreement). Except as required by law (including, but not limited to, pursuant
to a lawful subpoena) or an order of a court or governmental agency with
jurisdiction, the Employee shall not, during the period the Employee is employed
by the Company or its subsidiaries or at any time thereafter, disclose any
Confidential Information, directly or indirectly, to any person or entity for
any reason or purpose whatsoever, nor shall the Employee use it in any way,
except in the course of the Employee's employment with, and for the benefit of,
the Protected Parties or to enforce any rights or defend any claims hereunder or
under any other agreement to which the Employee is a party, provided that such
disclosure is relevant to the enforcement of such rights or defense of such
claims and is only disclosed in the formal proceedings related thereto. The
Employee shall take all reasonable steps to safeguard the Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. The Employee understands and agrees that the Employee shall acquire no
rights to any such Confidential Information.
(b) All Company files, records, documents, drawings,
specifications, data, computer programs, evaluation mechanisms and analytics and
similar items relating thereto or to the Business (for the purposes of this
Agreement, "Business" shall be as defined in Section 6.3 hereof), as well as all
customer lists, specific customer information, compilations of product research
and marketing techniques of the Company and its subsidiaries, whether prepared
by the
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Employee or otherwise coming into the Employee's possession, shall remain the
exclusive property of the Company and its subsidiaries, and the Employee shall
not remove any such items from the premises of the Company and its subsidiaries,
except in furtherance of the Employee's duties under this Agreement.
(c) It is understood that while employed by the Company or
its subsidiaries, the Employee will promptly disclose to it, and assign to it
the Employee's interest in any invention, improvement or discovery made or
conceived by the Employee, either alone or jointly with others, which arises out
of the Employee's employment. At the Company's request and expense, the Employee
will assist the Company and its subsidiaries during the period of the Employee's
employment by the Company or its subsidiaries and thereafter in connection with
any controversy or legal proceeding relating to such invention, improvement or
discovery and in obtaining domestic and foreign patent or other protection
covering the same.
(d) As requested by the Company and at the Company's
expense, from time to time and upon the termination of the Employee's employment
with the Company for any reason, the Employee will promptly deliver to the
Company and its subsidiaries all copies and embodiments, in whatever form, of
all Confidential Information in the Employee's possession or within his control
(including, but not limited to, memoranda, records, notes, plans, photographs,
manuals, notebooks, documentation, program listings, flow charts, magnetic
media, disks, diskettes, tapes and all other materials containing any
Confidential Information) irrespective of the location or form of such material.
If requested by the Company, the Employee will provide the Company with written
confirmation that all such materials have been delivered to the Company as
provided herein.
6.2 Non-Solicitation or Hire. During the Term and for a period
of eighteen months (18) months following the termination of the Employee's
employment for any reason, the Employee shall not directly or indirectly solicit
or attempt to solicit or induce, directly or indirectly, (a) any party who is a
customer of the Company or its subsidiaries, or who was a customer of the
Company or its subsidiaries at any time during the twelve (12) month period
immediately prior to the date the Employee's employment terminates, for the
purpose of marketing, selling or providing to any such party any services or
products offered by or available from the Company or its subsidiaries (provided
that if the Employee intends to solicit any such party for any other purpose, he
shall notify the Company of such intention and receive prior written approval
from the Company, which approval shall not unreasonably be withheld), (b) any
supplier to or customer or client of the Company or any subsidiary to terminate,
reduce or alter negatively its relationship with the Company or any subsidiary
or in any manner interfere with any agreement or contract between the Company or
any subsidiary and such supplier, customer or client or (c) any employee of the
Company or any of its subsidiaries or any person who was an employee of the
Company or any of its subsidiaries during the twelve (12) month period
immediately prior to the date the Employee's employment terminates to terminate
such employee's employment relationship with the Protected Parties in order, in
either case, to enter into a similar relationship with the Employee, or any
other person or any entity in competition with the Business of the Company or
any of its subsidiaries.
6.3 Non-Competition. During the Term and for a period of
eighteen (18) months following the termination of Employee's employment for any
reason, the Employee shall not, whether individually, as a director, manager,
member, stockholder, partner, owner, employee, consultant or agent of any
business, or in any other capacity, other than on
10
behalf of the Company or a subsidiary, organize, establish, own, operate,
manage, control, engage in, participate in, invest in, permit his name to be
used by, act as a consultant or advisor to, render services for (alone or in
association with any person, firm, corporation or business organization), or
otherwise assist any person or entity that engages in or owns, invests in,
operates, manages or controls any venture or enterprise which engages or
proposes to engage in any business conducted by the Company or any of its
subsidiaries on the date of the Employee's termination of employment or within
twelve (12) months of the Employee's termination of employment in the geographic
locations where the Company and its subsidiaries engage or propose to engage in
such business (the "Business"). Notwithstanding the foregoing, nothing in this
Agreement shall prevent the Employee from owning for passive investment purposes
not intended to circumvent this Agreement, less than five percent (5%) of the
publicly traded common equity securities of any company engaged in the Business
(so long as the Employee has no power to manage, operate, advise, consult with
or control the competing enterprise and no power, alone or in conjunction with
other affiliated parties, to select a director, manager, general partner, or
similar governing official of the competing enterprise other than in connection
with the normal and customary voting powers afforded the Employee in connection
with any permissible equity ownership).
6.4 Property. The Employee acknowledges that all originals and
copies of materials, records and documents generated by him or coming into his
possession during his employment by the Company or its subsidiaries are the sole
property of the Company and its subsidiaries ("Company Property"). During the
Term, and at all times thereafter, the Employee shall not remove, or cause to be
removed, from the premises of the Company or its subsidiaries, copies of any
record, file, memorandum, document, computer related information or equipment,
or any other item relating to the business of the Company or its subsidiaries,
except in furtherance of his duties under the Agreement. When the Employee's
employment with the Company terminates, or upon request of the Company at any
time, the Employee shall promptly deliver to the Company all copies of Company
Property in his possession or control.
7. Remedies; Specific Performance. The Parties acknowledge and agree
that the Employee's breach or threatened breach of any of the restrictions set
forth in Section 6 will result in irreparable and continuing damage to the
Protected Parties for which there may be no adequate remedy at law and that the
Protected Parties shall be entitled to equitable relief, including specific
performance and injunctive relief as remedies for any such breach or threatened
or attempted breach. The Employee hereby consents to the grant of an injunction
(temporary or otherwise) against the Employee or the entry of any other court
order against the Employee prohibiting and enjoining him from violating, or
directing him to comply with any provision of Section 6. The Employee also
agrees that such remedies shall be in addition to any and all remedies,
including damages, available to the Protected Parties against him for such
breaches or threatened or attempted breaches. In addition, without limiting the
Protected Parties' remedies for any breach of any restriction on the Employee
set forth in Section 6, except as required by law, the Employee shall not be
entitled to any payments set forth in Section 5.2 hereof if the Employee has
breached the covenants applicable to the Employee contained in Section 6, the
Employee will immediately return to the Protected Parties any such payments
previously received under Section 5.2 upon such a breach, and, in the event of
such breach, the Protected Parties will have no obligation to pay any of the
amounts that remain payable by the Company under Section 5.2.
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8. Indemnification. The Company shall indemnify the Employee from
and against any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by, or in the right of the Company) brought to impose a liability or penalty on
the Employee in his capacity of director, officer, employee or agent of the
Company or of any other corporation or entity which he serves as such at the
request of the Company, against judgments, fines, amounts paid in settlement and
expenses, including attorneys' fees actually and reasonably incurred as a result
of such action, suit or proceeding, or any appeal thereof, and provide for the
coverage of the Employee under any applicable directors and officers liability
insurance policy maintained by the Company, to the same extent and on the same
terms that the Company provides such indemnification to officers and directors
of the Company with respect to occurrences while Employee is or was an officer
or director of the Company, to the maximum extent permitted by applicable law.
9. Other Provisions.
9.1 Notices. Any notice or other communication required or which
may be given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered or express mail, postage prepaid or overnight mail and shall be
deemed given when so delivered personally, telegraphed, telexed, or sent by
facsimile transmission or, if mailed, four (4) days after the date of mailing or
one (1) day after overnight mail, as follows:
(a) If the Company, to:
13840 Ballantyne Corporate Place,
Suite 500
Charlotte, NC 28277
Attention: General Counsel
Telephone:
Fax:
(b) If the Employee, to the Employee's home address
reflected in the Company's records.
9.2 Entire Agreement. This Agreement contains the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all prior agreements, written or oral, with respect thereto.
9.3 Representations and Warranties.
(a) The Employee represents and warrants that he is not a
party to or subject to any restrictive covenants, legal restrictions or other
agreements in favor of any entity or person which would in any way preclude,
inhibit, impair or limit the Employee's ability to perform his obligations under
this Agreement, including, but not limited to, non-competition agreements,
non-solicitation agreements or confidentiality agreements.
(b) The Company represents and warrants that this Agreement
has been authorized by all necessary corporate action and is a valid and binding
agreement of the Company enforceable against it in accordance with its terms.
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9.4 Waiver and Amendments. This Agreement may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by the
Parties or, in the case of a waiver, by the party waiving compliance. No delay
on the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any
right, power or privilege hereunder, nor any single or partial exercise of any
right, power or privilege hereunder, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
9.5 Governing Law, Dispute Resolution and Venue.
(a) This Agreement shall be governed and construed in
accordance with the laws of the State of New York applicable to agreements made
and not to be performed entirely within such state, without regard to conflicts
of laws principles.
(b) The parties agree irrevocably to submit to the exclusive
jurisdiction of the federal courts or, if no federal jurisdiction exists, the
state courts, located in the City of New York, Borough of Manhattan, for the
purposes of any suit, action or other proceeding brought by any party arising
out of any breach of any of the provisions of this Agreement and hereby waive,
and agree not to assert by way of motion, as a defense or otherwise, in any such
suit, action, or proceeding, any claim that it is not personally subject to the
jurisdiction of the above-named courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper, or that the provisions of this Agreement may not be
enforced in or by such courts. In addition, the parties agree to waive trial by
jury.
9.6 Assignability by the Company and the Employee. This
Agreement, and the rights and obligations hereunder, may not be assigned by the
Company or the Employee without written consent signed by the other party;
provided that this Agreement shall be binding upon any successor that continues
the business of the Company, and that the Company shall require any such
successor shall assume this agreement, whether expressly or by operation of law.
9.7 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
9.8 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning of terms
contained herein.
9.9 Severability. If any term, provision, covenant or
restriction of this Agreement, or any part thereof, is held by a court of
competent jurisdiction of any foreign, federal, state, county or local
government or any other governmental, regulatory or administrative agency or
authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way be
affected or impaired or invalidated. The Employee acknowledges that the
restrictive covenants contained in Section 6 are a condition of this Agreement
and are reasonable and valid in temporal scope and in all other respects.
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9.10 Judicial Modification. If any court determines that any of
the covenants in Section 6, or any part of any of them, is invalid or
unenforceable, the remainder of such covenants and parts thereof shall not
thereby be affected and shall be given full effect, without regard to the
invalid portion. If any court determines that any of such covenants, or any part
thereof, is invalid or unenforceable because of the geographic or temporal scope
of such provision, such court shall reduce such scope to the minimum extent
necessary to make such covenants valid and enforceable.
9.11 Tax Withholding. The Company or other payor is authorized to
withhold from any benefit provided or payment due hereunder, the amount of
withholding taxes due any federal, state or local authority in respect of such
benefit or payment and to take such other action as may be necessary in the
opinion of the Board to satisfy all obligations for the payment of such
withholding taxes.
9.12 Compliance with Law.
(a) This Agreement is intended to comply with the
requirements of Section 409A of the Code. To the extent that any provision in
this Agreement is ambiguous as to its compliance with Section 409A, the
provision shall be read in such a manner so that all payments under Section 5
shall comply with Section 409A. The Company shall make reasonable best efforts
to make all payments hereunder in compliance with this Agreement and Section
409A of the Code and to minimize any adverse consequences of any such payments
to the Employee as a result of Section 409A of the Code.
(b) Notwithstanding anything in this Agreement to the
contrary, if any amount or benefit that would constitute non-exempt "deferred
compensation" for purposes of Section 409A of the "Code would otherwise be
payable or distributable under this Agreement by reason of the Employee's
separation from service during a period in which he is a Specified Employee (as
defined below), then, subject to any permissible acceleration of payment by the
Company under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order),
(j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment
taxes):
(i) if the payment or distribution is payable in a
lump sum, the maximum amount that can be paid to
the Employee without becoming subject to or
violating Section 409A of the Code shall be paid
to the Employee and the Employee's right to
receive payment or distribution of any additional
non-exempt deferred compensation will be delayed
until the earlier of the Employee's death or the
first day of the seventh month following the
Employee's separation from service; and
(ii) if the payment or distribution is payable over
time, the amount of such non-exempt deferred
compensation that would otherwise be payable
during the six-month period immediately following
the Employee's separation from service will be
accumulated and the Employee's right to receive
payment or distribution of such accumulated amount
will be delayed until the earlier of the
Employee's death or the first day of the seventh
month following the Employee's separation from
service, whereupon the accumulated amount will be
paid or distributed to the Employee and the normal
payment or distribution schedule for any remaining
payments or distributions will resume.
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(iii) in the case of any such delayed payment, the
Company shall pay interest on the deferred amount
at 100% of the short-term applicable federal rate
as in effect for the month in which the
termination of employment occurred.
For purposes of this Agreement, the term "Specified Employee" has the
meaning given such term in Section 409A of the Code, provided, however, that,
the Company's Specified Employees and its application of the six-month delay
rule shall be determined in accordance with rules adopted by the Board of
Directors, which shall be applied consistently with respect to all nonqualified
deferred compensation arrangements of the Company, including this Agreement.
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IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound
hereby, have executed this Agreement as of the day and year first above
mentioned.
EMPLOYEE
/s/ Geroge R. Zippel
-------------------------------------------
George R. Zippel
SCOTTISH RE GROUP LIMITED
By: /s/ Paul Goldean
---------------------------------------
Name: Paul Goldean
Title: President & CEO
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