EXHIBIT 10.33
EMPLOYEE LEASING AGREEMENT
by and among
ROYAL INDEMNITY COMPANY
and
UNDERWRITERS REINSURANCE COMAPNY
Dated as of July 1, 2003
EMPLOYEE LEASING AGREEMENT (this "Agreement"), dated as of
July 1, 2003, by and between ROYAL INDEMNITY COMPANY, a corporation organized
under the laws of the State of Delaware ("Royal Indemnity"), and UNDERWRITERS
REINSURANCE COMAPNY, a corporation organized under the laws of the State of New
Hampshire ("URC").
WHEREAS, URC is in the business of insurance and reinsurance
and requires individuals to perform services to permit the conduct of its
business; and
WHEREAS, Alleghany Insurance Holding LLC ("AIHL") has entered
into an agreement with Royal Group, Inc. ("Royal Group") denominated as the
Acquisition Agreement and dated as of June 6, 2003 (the "Acquisition
Agreement"), pursuant to which AIHL shall acquire from Royal Group, among other
things, all of the issued and outstanding stock of Royal Specialty Underwriting,
Inc. ("RSUI"); and
WHEREAS, Royal Indemnity currently employs individuals
experienced in performing services involved in the underwriting and
administering of insurance and reinsurance, and Royal Indemnity is willing to
lease those employees to URC until URC offers employment to such individuals
following the acquisition of RSUI by AIHL; and
WHEREAS, this is the Employee Leasing Agreement contemplated
by the Acquisition Agreement; and
WHEREAS, the Acquisition Agreement permits AIHL to assign its
rights under the Acquisition Agreement and any Ancillary Agreement without prior
written consent to any wholly owned Subsidiary, which term includes URC, and
AIHL has assigned its rights under the Employee Leasing Agreement to URC; and
WHEREAS, following the consummation of the acquisition of RSUI
pursuant to the Acquisition Agreement, URC will be an Affiliate of RSUI; and
WHEREAS, Royal Indemnity and URC acknowledge that, as a result
of this Agreement, URC and Royal Indemnity may be viewed as shared employers or
joint employers for the purposes of certain laws and regulations. It is not the
intent of either party to escape certain risks and responsibilities that flow
from URC's development and/or distribution of products or delivery of services
through employees. These risks and responsibilities include but are not
necessarily limited to, premises liability, workplace safety, professional
negligence, general negligence and both federal and state employment laws and
regulations. Royal Indemnity and URC recognize that under certain laws, both
parties may be covered as employers, while under other laws, only one of the
parties may be deemed to be the employer.
NOW, THEREFORE, in consideration of the foregoing premises,
the mutual agreements and covenants contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
Definitions
Capitalized terms not otherwise defined herein shall have the
following meanings:
"Records" means copies of all records (including computer
generated, recorded or stored records) relating to the Leased Employees,
including all personnel records and such other employment-related records in the
possession or control of Royal Indemnity or any Affiliate relating to the Leased
Employees as URC shall reasonably request for URC to conduct its business or to
comply with any applicable employment law, rule or regulation.
"Cause" means (i) the failure or refusal of a Leased Employee
to substantially perform the material duties of his or her employment with Royal
Indemnity, as determined by URC with the consent of Royal Indemnity (which
consent shall not be unreasonably withheld, conditioned or delayed), (ii) the
commission by a Leased Employee of a crime involving moral turpitude or that
results in the loss, suspension or forfeiture of any license or registration
required by the Leased Employee for the performance of his or her duties, or
(iii) the Leased Employee's willful engagement in conduct which is materially
injurious to the business of URC. A Leased Employee shall be deemed to have been
terminated without cause if he or she terminates employment because of a refusal
to accept a transfer to a business location with URC after July 1, 2003, which
is more than fifty miles from his or her location of employment as of July 1,
2003, or if his or her job duties or employment status with RSUI are materially
and adversely altered by URC, without his or her consent, from his duties or
status immediately prior to July 1, 2003.
"COBRA" means Section 601 et seq. of ERISA and Section 4980B
of the Code and state and local laws of similar import, including all rules and
regulations promulgated thereunder.
"Leased Employee" means any RSUI Employee who performs
services on behalf of URC after July 1, 2003.
"RSUI Employee" means each of the active, full and part-time
employees of Royal Indemnity who are identified on Schedule 11.1(a) of the
Acquisition Agreement and any New Hire.
"Severance Costs" means the sum of (i) the amount paid by
Royal Indemnity to any Terminated Employee and the cost of any severance
benefits provided to such Terminated Employee pursuant to the severance plans
and policies of Royal Indemnity in effect during the Term, (ii) the additional
costs, if any, paid or incurred by Royal Indemnity as a result of COBRA coverage
with respect to any Terminated Employee and any "qualifying event" that occurs
with respect to any Leased Employee during the Term, (iii) the amount of the
payment, if any, to a Terminated Employee in
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respect of accrued Paid Time Off ("PTO") pursuant to the vacation pay/PTO plan
and policies of Royal Indemnity in effect at the time of termination of the
Terminated Employee, (iv) the Taxes payable (without duplication) in respect of
the amounts payable in respect of the Terminated Employee that are paid by Royal
Indemnity, and (v) the amount of any additional expense of Royal Indemnity
incurred on behalf of Terminated Employees at the request of URC.
"Taxes" means the amount of federal, state and local income
and employment taxes payable by Royal Indemnity (exclusive of any amount payable
or borne by, or deducted from, amounts otherwise payable to any Leased Employee
or Terminated Employee) and other withholdings or payments required by federal,
state or local law or regulations, including but not limited to, Social Security
taxes paid in accordance with the Federal Insurance Contribution Act, but not
including the Medicare portion of contributions in respect of the Federal
Insurance Contribution Act, Federal Unemployment Tax Act, and any taxes or other
charges in respect of workers' compensation and unemployment insurance benefits.
"Terminated Employee" means any Leased Employee who is
terminated at the request of URC other than for Cause, including any Leased
Employee who declines to accept URC's offer of employment (as contemplated by
Article IX) and does not become a Transferred Employee.
"Transferred Employee" means a Leased Employee who becomes an
active employee of URC on January 1, 2004.
Any other capitalized term used herein and not otherwise
defined shall have the meaning ascribed to such term in the Acquisition
Agreement.
Whenever the singular term is used in the Agreement, the same
shall include the plural, and whenever the plural is used in the Agreement, the
same shall include the singular, where appropriate.
ARTICLE II
Term
The term of this Agreement (the "Term") shall commence (or be
deemed to have commenced) on 12:01 a.m. (Eastern time) on July 1, 2003, and end
on 11:59:59 p.m. on December 31, 2003; provided that for each Leased Employee,
the time used to determine the expiration of the Term shall be the local time at
such Leased Employee's primary work location. Notwithstanding the expiration of
the Term, the obligations of Royal Indemnity and URC hereunder shall survive the
expiration of this Agreement.
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ARTICLE III
Staffing
(a) During the Term, Royal Indemnity agrees to use its
reasonable best efforts to continue to employ the Leased Employees and to make
the Leased Employees available exclusively to URC (or its Affiliates) to perform
those services performed by the RSUI Employees prior to July 1, 2003, in
connection with the business and activities previously conducted by URC;
provided, however, that Royal Indemnity shall not be required to incur any
increased cost or expense not currently incurred or paid by Royal Indemnity
related to any Leased Employee to continue such Leased Employee's employment
except for those costs and expenses for which Royal Indemnity is entitled to
reimbursement by URC hereunder, and provided further, that during the Term, no
Leased Employee shall be transferred to, nor shall the services of any Leased
Employee be shared with, Royal Indemnity or its Affiliates. Further, upon the
request of URC, Royal Indemnity shall use reasonable efforts to hire individuals
requested by URC and shall terminate the employment of any Leased Employee as of
a date specified by URC, provided such employment and/or termination is not in
violation of Royal Indemnity's employment policies and procedures or applicable
law, as reasonably determined by Royal Indemnity. During the Term, Royal
Indemnity agrees that it shall not terminate the employment of any Leased
Employee without the prior consent of URC, which shall not be unreasonably
withheld. During the Term, Royal Indemnity shall use its reasonable best efforts
not to enter into any collective bargaining agreement or any labor contract with
any labor union or association representing any Leased Employees unless
otherwise required by applicable law.
(b) Nothing contained herein shall preclude URC (or any
Affiliate) from simultaneously employing any individual, (including any Leased
Employee) for all or any part of the Term, or from electing or appointing any
Leased Employee as an officer of, or to a position with, URC (or any Affiliate)
during the Term. No provision of this Agreement shall be construed as limiting
or modifying the terms of any employment agreement between URC (or any
Affiliate) and any Leased Employee. Notwithstanding any provision in this
Agreement to the contrary, during the Term and for a period of twelve (12)
months following the expiration of the Term, URC (or any Affiliate) may not
employ any RSUI Employee who does not become a Leased Employee.
ARTICLE IV
Payments
(a) In exchange for Royal Indemnity's provision of
staffing services to URC hereunder, URC shall pay to Royal Indemnity, after
receiving a written statement from Royal Indemnity (not more frequently than
bi-weekly) setting forth the details and providing reasonable documentation
thereof, the following amounts paid or incurred by Royal Indemnity related to
the Leased Employees: (i) an amount equal to 135% of the Compensation (as such
term is defined in Article VI, below) paid to, or accrued by, the Leased
Employees during the Term, (ii) any and all Special Payments (as such term is
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defined in Article VI) paid by URC to or on behalf of the Leased Employees from
time to time during the Term, (iii) all Taxes payable on or with respect to the
employment of the Leased Employees or the compensation payable to them during
the Term, and (iv) all other reasonably documented out-of-pocket expenses
incurred by Royal Indemnity and previously approved or authorized by URC related
to the Leased Employees during the Term. For purposes of determining the amount
of Compensation earned in, or with respect to, any period, the Compensation
payable to an employee in respect of a particular period, i.e., annually,
monthly, weekly, shall be deemed earned ratably with respect to each calendar
day in such period.
(b) In addition to the foregoing amounts payable to Royal
Indemnity for providing the staffing services to URC during the Term, URC shall
pay to Royal Indemnity all Severance Costs, whether incurred by Royal Indemnity
during or after the Term in connection with any Leased Employee. Royal Indemnity
shall periodically (not more frequently than bi-weekly) submit a written
statement to URC setting forth in reasonable detail the Severance Costs paid by
Royal Indemnity since the last such statement.
(c) All amounts set forth on the statements submitted to
URC by Royal Indemnity shall be paid by URC within two (2) weeks after the date
such statement is submitted to URC. Notwithstanding any provision of this
Agreement or rule of law to the contrary, Royal Indemnity may terminate this
Agreement in the event URC fails after the Closing to pay at least 100% of any
Compensation provided by Royal Indemnity to Leased Employees at the time set
forth herein; provided that Royal Indemnity first provides URC at least thirty
(30) days' written notice of its failure to pay and Royal Indemnity's intent to
terminate the Agreement at the end of the 30-day period if such payment is not
made by the end of such 30-day period. In addition to all other relief
available, URC shall pay Royal Indemnity interest on any amounts payable beyond
the due date at the Applicable Rate.
ARTICLE V
Supervision
All Leased Employees shall be subject to the management and
direction of URC, including the designation of tasks to be performed and the
method of accomplishing such tasks. URC shall have reasonable access during
regular working hours to all Records relating to the Leased Employees; provided
that Royal Indemnity and URC shall observe all privacy laws with respect to the
Leased Employees' health and personnel information. Royal Indemnity shall
promptly notify URC if Royal Indemnity or any Affiliate receives notice of any
Leased Employee's actual, pending or threatened termination of employment with
Royal Indemnity (other than as a result of the request of URC) or intent not to
accept the offer of employment by URC or its specified Affiliates at the end of
the Term.
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ARTICLE VI
Wages and Salaries
Royal Indemnity will be responsible for paying and shall pay
to or on behalf of each Leased Employee all wages, salaries and other
compensation earned during the Term (collectively "Compensation"), for deducting
all employment taxes, withholdings and other legally required contributions
(such as in the nature of social security payments) which are required to be
deducted from such Compensation, for paying all Taxes on or with respect to such
Compensation and for any reporting, disclosure or withholding obligations in
connection therewith. The rate of Compensation payable to each Leased Employee
immediately prior to July 1, 2003, (or, in the case of any individual hired at
the request of URC, the rate of Compensation as approved by URC) shall not be
increased or decreased by Royal Indemnity during the Term without the prior
consent of URC, unless otherwise required in accordance with applicable law;
provided, however, that Royal Indemnity shall implement such changes in the rate
of Compensation of the Leased Employees and Royal Indemnity shall make such
special, non-recurring, non-performance based payments (including, for example,
any retention payments or sign-on bonuses) or reimburse such other compensatory
amounts as directed by URC ("Special Payments"). Notwithstanding the foregoing,
the sum of all Compensation and any Special Payments (excluding a one-time
maximum aggregate payment of $2.250 million made to Leased Employees in the form
of a retention or non-performance based bonus) paid to the Leased Employees (1)
during any bi-weekly pay period shall not exceed $1,000,000; and (2) during the
Term shall not in the aggregate exceed $12,500,000. URC shall not be obligated
to pay any Compensation to the Leased Employees directly, nor shall URC be
responsible for paying directly to any governmental agency any Taxes,
withholdings, or other legally required contributions (such as in the nature of
social security payments due), or for reporting or disclosure obligations in
connection therewith with respect to the Leased Employees. Royal Indemnity shall
not be obligated to pay as Compensation, and shall not pay, the 2003 Bonus
Payment. Nothing herein shall be interpreted as limiting the obligation of URC
to make payments to Royal Indemnity pursuant to Article IV.
ARTICLE VII
Employee Benefits
During the Term, the Leased Employees shall remain
participants in the same benefit plans and programs of Royal Indemnity provided
to similarly situated Royal Indemnity employees who are not Leased Employees.
During the Term, URC shall not be obligated to provide any employee benefits to
the Leased Employees. During the Term, Royal Indemnity shall also continue in
effect the current general liability and professional liability insurance
covering the Leased Employees to the same extent provided to similarly situated
Royal Indemnity employees, provided such coverage is permitted under the terms
of the applicable insurance policies. Royal Indemnity shall also retain during
the Term and thereafter: (i) responsibility and liability for any severance
amounts or benefits, including but not limited to COBRA coverage, to which
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any Leased Employee who does not become a Transferred Employee may be entitled;
and (ii) the obligation with respect to COBRA coverage for any "qualifying
event" occurring during the Term with respect to any RSUI Employee (but the
foregoing shall not be interpreted as limiting the obligation of URC to make
payments to Royal Indemnity pursuant to Article IV). No amount shall be payable
by URC to Royal Indemnity for providing any of the employee benefits, it being
intended that the amount payable to Royal Indemnity pursuant to Article IV will
fully compensate Royal Indemnity for all employee benefits earned by Leased
Employees and paid or provided by Royal Indemnity to the Leased Employees (and
their spouses and dependents) during or after the Term. In addition, Royal
Indemnity agrees not to make any change with respect to any severance plan and
policy or any vacation pay/PTO plan and policy for any Leased Employee other
than a change that is uniformly applicable to all similarly situated Royal
Indemnity employees.
ARTICLE VIII
Personnel Policies
Except as specified herein, or as required by law, all terms
and conditions of employment applicable to the Leased Employees shall be
governed by the personnel policies and practices generally applicable to all
employees of Royal Indemnity, as such policies and practices may be amended from
time to time during the Term.
ARTICLE IX
Transfer
Under the terms of the Acquisition Agreement, RSUI or an
Affiliates, which includes URC, shall make an offer of employment to each Leased
Employee, such employment to commence during or immediately after the end of the
Term. Royal Indemnity and URC shall cooperate in all reasonable respects in
connection with, the transfer of employment of any Leased Employee to URC or its
specified Affiliates. Royal Indemnity shall not (and shall cause its Affiliates
not to) take any action to solicit, aid or encourage any Leased Employee not to
become a Transferred Employee.
ARTICLE X
Covenants, Warranties and Indemnification
Each of URC and Royal Indemnity warrants to the other that it
will not discriminate against candidates for leased employment or Leased
Employees on the basis of race, gender, color, religion, national origin, age,
disability, veteran's status, or any other protected classification, or because
a Leased Employee has reported or is about to report a violation or suspected
violation of any law. Each of URC and Royal Indemnity further warrants to the
other that it will not sexually or otherwise harass any Leased Employee.
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URC shall indemnify and hold Royal Indemnity and its
shareholders, directors, employees, agents, successors, and assigns harmless for
any consequences or liabilities, including attorney's fees, costs, and other
expenses, which arise from allegations with respect to candidates for leased
employment or Leased Employees, including but not limited to allegations that
candidates for leased employment or Leased Employees were harassed,
discriminated against, made to work in an unsafe work environment, not paid
properly due to URC's failure to provide accurate information or verify
information as accurate, not properly supervised, or not properly licensed or
certified. This hold harmless provision shall also extend to any claims for any
damages or injunctive relief against Royal Indemnity or its agents which arise
out of URC's acts, errors, omissions, negligent acts, statutory violations or
failure to adhere to some other duty or obligation.
Royal Indemnity agrees that it will use its good faith best
efforts to comply with all legal and regulatory requirements in connection with
the employment of the Leased Employees.
ARTICLE XI
Miscellaneous Provisions
SECTION 11.1. No Third Party Beneficiaries. This Agreement and all
conditions and provisions hereof are for the sole and exclusive benefit of the
parties hereto and their respective successors and assigns and are not intended
for the benefit of any other person. In particular, nothing in this Agreement,
express or implied, is intended to or shall confer upon any person other than
the parties hereto any rights, benefits or remedies of any nature whatsoever
under or by reason of this Agreement or shall be construed to give any Leased
Employee or his or her respective heirs, assigns or beneficiaries any legal or
equitable right, remedy or claim under or in respect to this Agreement or any
provision contained herein.
SECTION 11.2. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
(delivery of which is confirmed), by courier (delivery of which is confirmed) or
by registered or certified mail (postage prepaid, return receipt requested) to
the respective parties to this Agreement as follows:
If to URC:
James A. Dixon
Chairman
Underwriters Reinsurance Company
945 East Paces Ferry Road
Atlanta, GA 30326
Telephone: (404) 266-3020
Facsimile: (404) 364-6480
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With concurrent copies to (which shall not
constitute notice to URC):
Robert M. Hart, Esq.
General Counsel
Alleghany Corporation
375 Park Avenue
Suite 3201
New York, New York 10152
Telephone: (212) 752-1356
Facsimile: (212) 759-8149
Richard D. Belford, Esq.
Swidler Berlin Shereff Friedman, LLP
The Chrysler Building, 405 Lexington Avenue
New York, N.Y. 10017
Telephone: (212) 891-9449
Facsimile: (212) 891-9598
If to Royal Indemnity:
Laura Lawrence, Esq.
General Counsel
Royal Indemnity Company
9300 Arrowpoint Road
Charlotte, NC 28273
Telephone: (704) 522-2851
Facsimile: (704) 522-2313
With concurrent copies to (which shall not
constitute notice to Royal Indemnity):
Michael Ott, Esq.
Assistant General Counsel
Royal Indemnity Company
9300 Arrowpoint Road
Charlotte, NC 28273
Telephone: (704) 522-3522
Facsimile: (704) 522-2688
and
Robert J. Sullivan, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
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Telephone: (212) 735-3000
Facsimile: 212-735-2000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. In
no event shall the provision of notice pursuant to this Section 11.2 constitute
notice for service of any writ, process or summons in any suit, action or other
proceeding.
SECTION 11.3. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
SECTION 11.4. Descriptive Headings. The descriptive article and section
headings herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of this
Agreement.
SECTION 11.5. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as would be enforceable.
SECTION 11.6. Relationship of Parties. Nothing herein contained shall
constitute Royal Indemnity or any of its respective Affiliates, on the one hand,
and URC or any of its Affiliates, on the other hand, as members of any
partnership, joint venture, association, syndicate, or other entity, or be
deemed to confer on any of them any express, implied, or apparent authority to
incur any obligation or liability on behalf of another party, except as
otherwise expressly provided herein.
SECTION 11.7. Assignment; Binding Effect. Neither this Agreement, nor
any of the rights, interests or obligations hereunder, may be assigned, in whole
or in part, by any party without the prior written consent of the other parties
hereto and any such assignment that is not consented to shall be null and void;
provided, that upon prior written notice, either party may assign to any of its
Affiliates all or any part of its rights, interests or obligations under this
Agreement (including, without limitation, the staffing services of all or any
Leased Employee for all or any part of the Term); provided, further, that no
such assignment shall relieve any party of any liability under this Agreement.
It being understood for the avoidance of doubt that in the event either party
shall merge or consolidate with another person or entity, such merger or
consolidation shall not be deemed to be an assignment and, accordingly, no
consent of any person shall be required hereunder. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors, permitted assigns and legal representatives.
SECTION 11.8. Integration. This Agreement and the Acquisition Agreement
constitute the entire agreement among Royal Indemnity and URC relating to
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the subject matter hereof and supersede all prior and contemporaneous
agreements, understandings, negotiations, and discussions, whether oral or
written, of Royal Indemnity and URC with respect thereto and there are no
general or specific warranties, representations or other agreements by or among
Royal Indemnity and URC in connection with the entering into of this Agreement
or the subject matter hereof except as specifically set forth or contemplated
herein or in the Acquisition Agreement. Notwithstanding the foregoing, except as
specifically set forth herein, this Agreement shall not be interpreted as
modifying the obligations and rights of the parties as set forth in the
Acquisition Agreement.
SECTION 11.9. Amendments. This Agreement may not be amended, modified
or waived except by an instrument or instruments in writing signed and delivered
on behalf of each of the parties hereto.
SECTION 11.10. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
SECTION 11.11. Consent to Jurisdiction. Each of the parties hereto
irrevocably and unconditionally submits to the exclusive jurisdiction of the
state and federal courts located in the State of Delaware for the purpose of
enforcing this Agreement. The parties shall take such actions as are within
their control to cause any matter contemplated hereby to be assigned to the
Chancery Court of the State of Delaware. In any action, suit or other
proceeding, each of the parties hereto irrevocably and unconditionally waives
and agree not to assert by way of motion, as a defense or otherwise any claims
that it is not subject to the jurisdiction of the above courts, that such action
or suit is brought in an inconvenient forum or that the venue of such action,
suit or other proceeding is improper. Each of the parties hereto also agrees
that any final and unappealable judgment against a party hereto in connection
with any action, suit or other proceeding shall be conclusive and binding on
such party and that such award or judgment may be enforced in any court of
competent jurisdiction, either within or outside the United States. A certified
or exemplified copy of such award or judgment shall be conclusive evidence of
the fact and amount of such award or judgment.
SECTION 11.12. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 11.13. Interpretation.
(a) When a reference is made in this Agreement to a
Section or Article, such reference shall be to a section or article of this
Agreement unless otherwise clearly indicated to the contrary. Whenever the words
"include," "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation." The words "hereof,"
"herein" and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole
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and not to any particular provision of this Agreement. The meaning assigned to
each term used in this Agreement shall be equally applicable to both the
singular and the plural forms of such term, and words denoting any gender shall
include all genders. Where a word or phrase is defined herein, each of its other
grammatical forms shall have a corresponding meaning.
(b) URC and Royal Indemnity have participated jointly in
the negotiation and drafting of this Agreement; consequently, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties thereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
SECTION 11.14. Waiver. No consent or waiver, express or implied, by any
party to or of any breach or default by any other party in the performance by
such other party of its obligations hereunder shall be deemed or construed to be
a consent or waiver to or of any other breach or default in the performance of
obligations hereunder by such other party hereunder. Failure on the part of any
party to complain of any act or failure to act of any other party or to declare
any other party in default, irrespective of how long such failure continues,
shall not constitute a waiver by such first party of any of its rights
hereunder.
SECTION 11.15. IP. Royal Indemnity hereby transfers, conveys and
assigns to URC its entire right, title and interest in and to all copyrights,
patents, trade secrets, trademarks and other intellectual property (in each
case, both in the United States and foreign countries), including, without
limitation, any and all writings, drawings, inventions, designs, processes,
discoveries, ideas and computer programs (including software codes), including
any improvements and modifications and any other work product, documentation,
notes and materials related to the foregoing (whether or not copyrightable or
patentable), developed or created by one or more of the Leased Employees during
the Term (collectively, the "Developments"). Royal Indemnity hereby agrees to
cooperate fully with URC, both during and after the Term in whatever respect URC
reasonably deems necessary or desirable with regard to the procurements,
maintenance and enforcement of all rights relating to any of the Developments,
including, without limitation, executing, acknowledging and delivering and
causing its applicable employees to execute, acknowledge and deliver all papers
and relevant information, including, without limitation, copyright applications,
patent applications, affidavits, declarations, oaths, testimony in connection
with a proceeding, formal assignments and conveyances, assignments of priority
rights and powers of attorney. Royal Indemnity further agrees that if URC is
unable, after reasonable effort, to secure Royal Indemnity's signature on any
such papers, any executive officer of URC shall be entitled to execute any such
papers as the agent and the attorney in fact of Royal Indemnity, and Royal
Indemnity hereby irrevocably designates and appoints each executive officer of
URC as its agent and attorney-in-fact to execute any such papers on its behalf,
and to take any and all actions as URC, with the full power of substitution
therein, may reasonably deem necessary or desirable to protect its rights and
interests in any Development, under the conditions described in this sentence.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duty authorized representatives as the date
first above written.
ROYAL INDEMNITY COMPANY
By: /s/ Stephen M. Mulready
----------------------------
Name: Stephen M. Mulready
Title: President and Chief
Executive Officer
UNDERWRITERS REINSURANCE COMPANY
By: /s/ James P. Slattery
-----------------------------
Name: James P. Slattery
Title: President