Exhibit 10.21
EMPLOYMENT AGREEMENT
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Employment Agreement (the "Agreement") first effective as of
the 1st day of January, 2000, between EVEREST REINSURANCE COMPANY a Delaware
corporation (the "Company"), EVEREST REINSURANCE HOLDINGS, INC. ("Holdings") and
JOSEPH V. TARANTO ("Taranto").
W I T N E S S E T H :
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WHEREAS, the Company and Holdings wish to continue to secure
the services of Taranto pursuant to the terms and conditions hereof; and
WHEREAS, Taranto is willing to accept such employment with the
Company and Holdings and to enter into the Agreement;
NOW, THEREFORE, in consideration of the promises and mutual
covenants contained herein and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Position; Duties; Responsibilities.
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1.1 The Company hereby employs Taranto and Taranto hereby
agrees to serve as Chairman and Chief Executive Officer of Company and in such
other executive positions as designated by the Board of Directors of the
Company ("Board"). Taranto shall report to and be subject to the supervision,
control and direction of the Board. He shall be the senior executive of the
Company. Taranto shall have such other responsibilities and authority consistent
with the status, titles and reporting requirements set forth herein as are
appropriate to said positions, subject to change from time to time by the Board,
provided that Taranto shall not be required to accept any position or reporting
requirements or perform any duties that are inconsistent with his status
as the Chief Executive Officer of the Company. Taranto's office shall be
principally located at the Company's headquarters, currently in Liberty Corner,
New Jersey. During the term of the Agreement, the Company will not relocate its
headquarters more than one and one-half hours' travel time by automobile
from the Company's headquarters in Liberty Corner, New Jersey.
Holdings hereby employs Taranto and Taranto hereby agrees to
serve during the term of this Agreement, without additional compensation, on
similar terms and conditions as set forth in the preceding paragraph,
as Chairman and Chief Executive Officer of Holdings and, subject to his
election, as a director of the Company, and as a director and officer
of any corporation which is a subsidiary or affiliate of the
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Company, if elected by the stockholders or the board of directors of such
corporation.
It is the intention of Holdings and the Company to cause
Taranto to continue to be a member of the Board and to continue his appointment
as a member of the Executive Committee of the Board.
1.2 During the course of his employment, Taranto agrees to
devote his full working time and attention and give his best efforts and skill
to furthering the business and interests of the Company and Holdings. Consistent
with the foregoing, Taranto may volunteer a reasonable portion of his
non-working time to charitable, civic and professional organizations.
1.3 Notwithstanding the provisions of Section 1.2 above,
during the course of his employment Taranto may serve as a director or officer
of one or more companies affiliated with the Company. Taranto may also, with the
written consent of the Company and Holdings, serve as a director of any public
or private corporation, as a member of the governing board or as an officer
of any charitable, civic, educational or professional organization,
provided, however, that Taranto shall comply with the procedures
established by the Company and Holdings to prevent conflicts of interest by
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its officers and employees with respect to the business of the Company
and Holdings, their subsidiaries and affiliates.
2. Term.
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The term of employment under this Agreement shall commence as
of January 1, 2000 (the "Appointment Date"), and shall continue through December
31, 2001, unless sooner terminated in accordance with this Agreement.
3. Salary.
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The Company shall pay Taranto a base salary during the term of
employment at the annual rate of One Million Dollars ($1,000,000) ("Base
Salary"), payable in accordance with the standard payroll practices for senior
executives of the Company.
4. Bonus.
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4.1 During the course of his employment, Taranto shall be
eligible to participate in a bonus program or plan to be established by
Holdings, subject to the approval of Holdings' stockholders. If Holdings'
stockholders do not approve the bonus plan or program described in this Section
4.1, Taranto shall have the right to re-open this Agreement to negotiate an
alternative bonus arrangement, provided, however, that Taranto must exercise his
right to re-open by providing Holdings with written notice of his intent to re-
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open within thirty days of Taranto's becoming aware that the stockholders of
Holdings did not approve the bonus plan or program described in this Section
4.1.
4.2 All bonuses pursuant to this Section 4 shall be paid to
Taranto in conformance with Company's and/or Holdings' normal bonus pay policies
following the end of the respective fiscal year. Any bonus payable to Taranto
with respect to the fiscal year ending December 2001 shall survive the
termination of this Agreement.
5. Sign-On Bonus.
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5.1 Holdings shall grant to Taranto as a sign-on bonus
("Sign-On Bonus") One Hundred Fifty Thousand (150,000) non-qualified options for
the purchase of Holdings' stock under, and subject to the terms of, Holdings'
1995 Stock Incentive Plan, upon execution by Taranto. The options granted
pursuant to this Section 5.1 shall be subject to the general terms and
conditions of the Holdings 1995 Stock Incentive Plan and applicable award
agreements issued thereunder and shall vest at the rate of 20% per year over
five years, such vesting to occur on each of the first five anniversary dates of
the grant.
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6. Employee Benefit Plans.
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6.1 During the term of Taranto's employment hereunder, Taranto
shall be eligible to participate in the Company's employee benefit plans on the
same basis as the Company's other senior executives.
6.2 In addition to benefits described in Section 6.1, Taranto
shall also receive or participate, at a level consistent with Taranto's
position, in, to the extent permitted by law, the various perquisites and plans
which the Board determines to make available to officers of the Company from
time to time in accordance with the provisions thereof. Taranto shall be
entitled to not less than four weeks vacation per year.
6.3 Nothing contained in this Agreement shall prevent the
Board or the Board of Directors of Holdings ("Holdings Board") from adopting
additional compensation arrangements for Taranto or providing additional
benefits under any of the existing compensation arrangements.
7. Expense Reimbursements.
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7.1 During Taranto's employment with Company and
Holdings, Taranto will be entitled to receive reimbursement
by the Company and Holdings for all reasonable, out-of-pocket
expenses incurred by him (in accordance with policies
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and procedures established by the Company and Holdings), in connection with his
performing services hereunder.
8. Consequences of Termination of Employment.
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8.1 DEATH. In the event of the death of Taranto during the
term of employment under this Agreement or during the period when payments are
being made pursuant to Section 8.2, this Agreement shall terminate and all
obligations to Taranto shall cease as of the date of death except that Company
will (1) pay the Base Salary until the end of the month in which Taranto dies,
(2) Taranto's beneficiaries or estate, as appropriate, shall be entitled to all
rights and benefits accrued up to the date of termination under the stock option
plans and benefit plans and programs of the Company in which Taranto is a
participant, as determined in accordance with the terms and provisions of such
plans and programs, provided, however, that Taranto shall cease to be an active
participant in such plans and programs as of the date of termination. Any bonus
(or amounts in lieu thereof) pursuant to Section 4.1, payable with respect to
the year in which Taranto's death occurs, shall be annualized and promptly paid
to Taranto's estate pro rata to the date of death.
8.2 DISABILITY. If Taranto shall become
incapacitated by reason of sickness, accident or other
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physical or mental disability, as such incapacitation is certified in
writing by a physician chosen by Company and reasonably acceptable to Taranto
(or his spouse or representative if in the Company's reasonable determination
Taranto is not then able to exercise sound judgment), and shall therefore be
unable to perform his duties hereunder for a period of either (i) one hundred
twenty consecutive days, or (ii) more than six months in any twelve month
period, with reasonable accommodation as required by law, then to the extent
consistent with applicable law, Taranto shall be considered "disabled" and
the employment of Taranto hereunder and this Agreement may be terminated by
Taranto or the Company upon thirty (30) days' written notice to the other
party following such certification. Should Taranto not acquiesce in the
Company's selection of the certifying doctor, Taranto (or his spouse or
representative if in the Company's reasonable determination Taranto is not
then able to exercise sound judgment) may choose a doctor to determine
whether he is disabled. If the two doctors are unable to concur on whether
Taranto is disabled, the two doctors shall designate a third doctor
whose decision shall be determinative. Upon termination of employment
pursuant to this Section 8.2, the Company shall thereafter pay
to Taranto, (1) Base Salary through the date of termination,
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and (2) Taranto shall be entitled to all rights and benefits accrued
up to the date of termination under the stock option plans and benefit
plans and programs of the Company in which Taranto is a participant,
as determined in accordance with the terms and provisions of such plans and
programs, provided, however, that Taranto shall cease to be an active
participant in such plans and programs as of the date of termination. Any bonus
(or amounts in lieu thereof) pursuant to Section 4.1 of this Agreement, payable
with respect to the year in which Taranto's termination pursuant to Section 8.2
occurs, shall be annualized and promptly paid to Taranto pro rata to the date of
termination.
8.3 DUE CAUSE. The Company may terminate Taranto and this
Agreement at any time for Due Cause. In the event of such termination for Due
Cause, Taranto shall only continue to receive Base Salary through the date of
such termination for Due Cause, and Taranto shall be entitled to no further
benefits or compensation under this Agreement, except that Taranto shall be
entitled to all rights and benefits accrued up to the date of termination under
the stock option plans and benefit plans and programs of the Company in which
Taranto is a participant, as determined in accordance with the terms and
provisions of such plans and programs, provided, however, that Taranto shall
cease to be an active participant in such plans or programs as of the
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date of termination. The term "Due Cause" shall mean (a) repeated and gross
negligence in fulfillment of, or repeated failure of Taranto to fulfill, his
material obligations under this Agreement, in either event after written notice
thereof, (b) material willful misconduct by Taranto in respect of his
obligations hereunder, (c) conviction of any felony, or any crime of moral
turpitude or, (d) a material breach in trust committed in willful or reckless
disregard of the interests of the Company or Holdings or undertaken for personal
gain.
8.4 TERMINATION BY THE COMPANY WITHOUT DUE CAUSE. The other
provisions of this Agreement notwithstanding, the Company may terminate
Taranto's employment and this Agreement at any time for whatever reason it deems
appropriate, without Due Cause and with or without prior notice. In the event of
such a termination of Taranto's employment and this Agreement, Taranto shall
have no further obligations of any kind under or arising out of the Agreement
and Company shall be obligated only to pay Taranto as severance as soon after
such termination as reasonably possible the following: (a) the aggregate amount
of Base Salary at the rate then in effect for the period from the date of
termination through December 31, 2001, (b) the aggregate bonus amounts due under
the appropriate bonus plans or programs for the period from the date of
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termination through December 31, 2001, payable in accordance with, and at the
time provided for under, the appropriate bonus plan or program. As a condition
precedent to Taranto's receipt of the payments described in this Section 8.4,
Taranto shall execute a general release and waiver on behalf of the Company and
Holdings in a form acceptable to the Company and Holdings. Taranto shall be
entitled to all rights and benefits accrued up to the date of termination under
the stock option plans and benefit plans and programs of the Company in which
Taranto is a participant, as determined in accordance with the terms and
provisions of such plans and programs, provided, however, that Taranto shall
cease to be an active participant in such plans and programs as of the date of
termination.
8.5 EMPLOYEE VOLUNTARY TERMINATION. In the event Taranto
terminates his employment of his own volition, and not pursuant to Section 8.6
of this Agreement, prior to the end of the term specified in Section 2 of this
Agreement, such termination shall constitute a voluntary termination and in such
event Company's only obligation to Taranto shall be to make Base Salary
payments provided for in this Agreement through the period ending with
the date of such voluntary termination. Taranto shall be entitled
to all rights and benefits accrued up to the date of termination
under the stock option plans and benefit plans and programs
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of the Company in which Taranto is a participant, as determined in
accordance with the terms and provisions of such plans and
programs, provided, however, that Taranto shall cease to be an active
participant in such plans and programs as of the date of termination. Taranto
understands and agrees that in the event of the termination of employment
pursuant to this Section 8.5 the Company shall have no obligation to make any
payments under this Agreement other than as set forth in this Section 8.5.
Taranto specifically understands and agrees that in the event of the termination
of employment pursuant to this Section 8.5 the Company shall have no further
obligation to pay any bonus to Taranto pursuant to Section 4 of this Agreement.
8.6 EMPLOYEE VOLUNTARY TERMINATION FOR GOOD REASON. If at the
time Taranto terminates his employment any of the following circumstances shall
have occurred without Taranto's express consent and shall have remained
uncorrected for more than thirty (30) days following Taranto's giving written
notice of such occurrence to the Company, then Taranto's termination of his
employment shall be deemed a "Termination for Good Reason": (a) a materially
adverse change in the nature or status of his position or responsibilities; (b)
a reduction by the Company in the Base Salary set forth in Section 3 hereof; or
(c) a material breach of this Agreement by Company or Holdings, provided,
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for purposes of clarification, that the failure of Taranto and the Company to
reach agreement on an alternative bonus arrangement pursuant to Section 4.1
of this Agreement shall not constitute a material breach. If Taranto's
termination of employment is deemed a Termination for Good Reason, the Company
shall pay to Taranto and afford to him the compensation and benefits
Taranto would be entitled to receive in the event of a Termination by the
Company without Due Cause pursuant to Section 8.4 hereof.
8.7 CHANGE OF CONTROL. In lieu of any other provision of this
Agreement, if within one year of a Material Change (as defined in the Change of
Control Agreement between the parties hereto effective as of July 15, 1998),
Taranto terminates his employment with the Company for any reason or the Company
terminates Taranto's employment for any reason other than for Due Cause, Taranto
shall continue to receive Base Salary through the date of such termination and
the Company and Holdings shall pay to Taranto and afford to him the compensation
and benefits provided for in the Change of Control Agreement.
8.8 GENERAL. The Company's and Holdings' obligations to pay
Taranto the compensation and other benefits specified herein shall
be absolute and unconditional and shall not be affected
by any circumstances, including, without limitation, any set off,
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counterclaim, recoupment, defense or other right which the Company or Holdings
may have against him or anyone else. In no event shall Taranto be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to him under this Agreement.
9. Covenants of Employee.
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9.1 Taranto acknowledges that as a result of the services to
be rendered to the Company hereunder, Taranto will be brought into close contact
with many confidential affairs of the Company, its subsidiaries and affiliates,
not readily available to the public. Taranto further acknowledges that the
services to be performed under this Agreement are of a special, unique, unusual,
extraordinary and intellectual character; that the business of the Company is
international in scope; that its goods and services are marketed throughout the
United States and other countries; and that the Company competes with other
organizations that are or could be located in any part of the United States or
the world.
9.2 In recognition of the foregoing, Taranto covenants and
agrees that, except as is necessary in providing services under this
Agreement, Taranto will not knowingly use for his own benefit nor knowingly
divulge any Confidential Information and Trade Secrets of the Company,
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its subsidiaries and affiliated entities, which are not otherwise in the
public domain and, so long as they remain Confidential Information and Trade
Secrets not in the public domain, will not disclose them to anyone outside of
the Company either during or after his employment. For the purposes of
this Agreement, "Confidential Information and Trade Secrets" of the Company
means information which is secret to the Company, its subsidiaries and
affiliated entities. It may include, but is not limited to, information relating
to present future concepts and business of Company, its subsidiaries and
affiliates, in the form of memoranda, reports, computer software and data
banks, customer lists, employee lists, books, records, financial statements,
manuals, papers, contracts and strategic plans. As a guide, Taranto is to
consider information originated, owned, controlled or possessed by the Company,
its subsidiaries or affiliated entities which is not disclosed in printed
publications stated to be available for distribution outside the Company, its
subsidiaries and affiliated entities as being secret and confidential. In
instances where doubt does or should reasonably be understood to exist in
Taranto's mind as to whether information is secret and confidential to
the Company, its subsidiaries and affiliated entities, Taranto agrees to
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request an opinion, in writing, from the Company as to whether information
is secret and confidential.
9.3 Taranto will deliver promptly to the Company on the
termination of his employment with the Company, or at any other time the Company
may so request, all memoranda, notes, records, reports and other documents
relating to the Company, its subsidiaries and affiliated entities, and all
property owned by the Company, its subsidiaries and affiliated entities, which
Taranto obtained while employed by the Company, and which Taranto may then
possess or have under his control.
9.4 During and for a period of one (1) year after the
termination of employment with the Company (except that the time period of such
restrictions shall be extended by any period during which Taranto is in
violation of this Section 9.4), Taranto will not: (a) knowingly interfere with,
disrupt or attempt to disrupt, any then existing relationship, contractual or
otherwise between the Company, its subsidiaries or affiliated entities, and any
customer, client, supplier, or agent; (b) solicit, or assist any other entity in
soliciting for employment, any person known to Taranto to be an agent or
executive employee of the Company, its subsidiaries or affiliated
entities; or (c) except where the termination of employment occurs as
a result of the expiration of the term of this Agreement, accept any
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position of employment as an executive officer of any other company engaged in
the property and casualty insurance or reinsurance business.
9.5 Taranto will promptly disclose to the Company all
inventions, processes, original works of authorship, trademarks, patents,
improvements and discoveries related to the business of the Company, its
subsidiaries and affiliated entities (collectively "Developments"), conceived or
developed during Taranto's employment with the Company and based upon
information to which he had access during the term of employment, whether or not
conceived during regular working hours, through the use of Company time,
material or facilities or otherwise. All such Developments shall be the sole and
exclusive property of the Company, and upon request Taranto shall deliver to the
Company all outlines, descriptions and other data and records relating to such
Developments, and shall execute any documents deemed necessary by the Company to
protect the Company's rights hereunder. Taranto agrees upon request to assist
the Company to obtain United States or foreign letters patent and copyright
registrations covering inventions and original works of authorship belonging
to the Company hereunder. If the Company is unable because of
Taranto's mental or physical incapacity to secure Taranto's signature
to apply for or to pursue any application for any United States or
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foreign letters patent or copyright registrations covering inventions and
original works of authorship belonging to the Company hereunder, then Taranto
hereby irrevocably designates and appoints the Company and its duly
authorized officers and agents as his agent and attorney in fact, to act for
and in his behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
letters patent or copyright registrations thereon with the same legal force
and effect as if executed by him. Taranto hereby waives and quitclaims to
the Company any and all claims, of any nature whatsoever, that he may
hereafter have for infringement of any patents or copyright resulting from
any such application for letters patent or copyright registrations belonging to
the Company hereunder.
9.6 Taranto agrees that the remedy at law for any breach or
threatened breach of any covenant contained in this Section 9 will be inadequate
and that the Company, in addition to such other remedies as may be available to
it, in law or in equity, shall be entitled to injunctive relief without bond or
other security.
9.7 Although the restrictions contained in Sections 9.1, 9.2,
9.3 and 9.4 above are considered by the parties hereto to be fair and
reasonable in the circumstances, it is recognized that restrictions of such
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nature may fail for technical reasons, and accordingly it is hereby agreed that
if any of such restrictions shall be determined, by a court in a final
determination not subject to appeal to be void or unenforceable for whatever
reason, but would be valid if part of the wording thereof were deleted, or the
period thereof reduced or the area dealt with thereby reduced in scope, the
restrictions contained in Sections 9.1, 9.2, 9.3 and 9.4 shall be enforced to
the maximum extent permitted by law, and the parties consent and agree that
such scope or wording may be accordingly judicially modified in any
proceeding brought to enforce such restrictions.
9.8 Notwithstanding that Taranto's employment hereunder may
expire or be terminated as provided in Section 2 or Section 8 above, this
Agreement shall continue in full force and effect insofar as is necessary to
enforce the covenants and agreements of Taranto contained in this Section 9.
10. Arbitration.
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The parties shall use their best efforts and good will to
settle all disputes by amicable negotiations. The Company and Taranto agree
that, with the express exception of any dispute or controversy arising under
Section 9 of this Agreement, any controversy or claim arising out of or
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in any way relating to Taranto's employment with the Company, including, without
limitation, any and all disputes concerning this Agreement and the termination
of this Agreement that are not amicably resolved by negotiation, shall be
settled by arbitration in New Jersey, or such other place agreed to by the
parties, as follows:
(a) Any such arbitration shall be heard by a single
arbitrator. Except as the parties may otherwise agree, the arbitration,
including the procedures for the selection of an arbitrator, shall be
conducted in accordance with the National Rules for the Resolution of
Employment Disputes of the American Arbitration Association ("AAA").
(b) All attorneys' fees and costs of the arbitration shall in
the first instance be borne by the respective party incurring such
costs and fees, but the arbitrator shall have the discretion to award
costs and/or attorneys' fees as he or she deems appropriate under the
circumstances. The parties hereby expressly waive punitive damages, and
under no circumstances shall an award contain any amounts that are in
any way punitive in nature.
(c) Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
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(d) It is intended that controversies or claims submitted to
arbitration under this Section 10 shall remain confidential, and to
that end it is agreed by the parties that neither the facts disclosed
in the arbitration, the issues arbitrated, nor the view or opinions of
any persons concerning them, shall be disclosed to third persons at any
time, except to the extent necessary to enforce an award or judgment or
as required by law or in response to legal process or in connection
with such arbitration.
11. Successors and Assigns.
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11.1 ASSIGNMENT BY THE COMPANY AND HOLDINGS. This Agreement
shall inure to the benefit of and shall be binding upon the successors and
assigns of the Company and Holdings, respectively. It is assignable by Company
and Holdings to the purchaser or assignee of all or substantially all of the
Company's or Holdings' assets.
11.2 ASSIGNMENT BY TARANTO. Taranto may not assign this
Agreement or any part thereof; provided, however, that nothing herein
shall preclude one or more beneficiaries of Taranto from receiving any
amount that may be payable following occurrence of his legal
incompetency or his death and shall not preclude the legal representative
of his estate from receiving such amount or from assigning any
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right hereunder to the person or persons entitled thereto under his will
or, in the case of intestacy, to the person or persons entitled thereto under
the laws of the intestacy applicable to his estate.
12. Governing Law.
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This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State of New
Jersey without reference to the principles of conflict of laws.
13. Entire Agreement.
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This Agreement contains all the understandings and
representations between the parties hereto pertaining to the subject matter
hereof and supersedes all undertakings and agreements, whether oral or in
writing, if any there be, previously entered into by them with respect thereto.
14. Amendment or Modification; Waiver.
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No provision of this Agreement may be amended or modified
unless such amendment or modification is agreed to in writing, signed by
Taranto and by a duly authorized officer of the Company. Except as
otherwise specifically provided in this Agreement, no waiver by either
party hereto of any breach by the other party of any condition
or provision of the Agreement to be performed by such other
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party shall be deemed a waiver of a similar or dissimilar provision or
condition at the same or any prior or subsequent time.
15. Notices.
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Any notice to be given hereunder shall be in writing and
delivered personally or sent by overnight mail, such as Federal Express,
addressed to the party concerned at the address indicated below or to such other
address as such party may subsequently give notice of hereunder in writing:
If to Company or Holdings:
EVEREST REINSURANCE HOLDINGS, INC.
Westgate Corporate Center
477 Martinsville Road
P.O. Box 830
Liberty Corner, New Jersey 07938-0830
Attention: General Counsel
If to Taranto:
160 Henry Street
Brooklyn, New York 11201
16. Severability.
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In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the remaining
provisions or portions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
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17. Withholding.
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Anything to the contrary notwithstanding, all payments
required to be made by the Company hereunder to Taranto or his beneficiaries,
including his estate, shall be subject to withholding and deductions as the
Company may reasonably determine it should withhold or deduct pursuant to any
applicable law or regulation. In lieu of withholding or deducting, such amounts
in whole or in part, the Company may, in its sole discretion, accept other
provision for payment as permitted by law, provided it is satisfied in its sole
discretion that all requirements of law affecting its responsibilities to
withhold such taxes have been satisfied.
18. Survivorship.
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The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
19. Headings.
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Headings of the sections of this Agreement are intended solely
for convenience and no provision of this Agreement is to be construed by
reference to the title of any section.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the dates set forth below.
EVEREST REINSURANCE HOLDINGS, INC.
_____________________ By____________________________
Joseph V. Taranto
Dated: July 15, 1998 Dated: July 15, 1998
EVEREST REINSURANCE COMPANY
By____________________________
Dated: July 15, 1998
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