EXHIBIT 10.5
EXECUTION COPY
AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT is executed
this 5th day of September, 2003, between United National Insurance Company, a
Pennsylvania corporation with its principal offices in Bala Cynwyd, PA (the
"Company") and Seth D. Freudberg, an individual residing at 738 Cherry Circle,
Wynnewood, PA 19096 (the "Executive").
WHEREAS, the Executive has been employed previously as a senior
executive officer of the United National Group of insurance companies ("UNG")
under the terms of an employment agreement, executed as of January 1, 1999 (the
"Prior Agreement"); and
WHEREAS, Fox Paine Capital Fund II, L.P. and certain affiliated funds
(collectively "FPC") have agreed to acquire a controlling interest in UNG (the
"Acquisition Transaction"); and
WHEREAS, the parties desire that the Executive be employed by the
Company upon the closing of the transaction, and in connection with such
employment the parties desire to provide the Executive with the opportunity to
acquire an equity interest in the Company; and
WHEREAS, the Executive desires to enter into this Agreement and to
accept such employment, subject to the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Executive agree as follows:
1. TERM OF EMPLOYMENT; RENEWAL. The Company agrees to employ the
Executive and the Executive accepts employment with the Company for the period
commencing as of the closing of the Acquisition Transaction (the "Effective
Date") and ending on December 31, 2008 (such initial period, as extended below,
shall be referred to as the "Employment Term"). The term of this Agreement will
automatically renew at the expiration of the then current term for an additional
one-year period unless, at least ninety (90) days prior to the expiration date
of the then current term, either party shall give written notice of nonrenewal
to the other, in which event this Agreement shall terminate at the end of the
term then in effect. If the Company elects not to renew this Agreement at the
expiration of the initial five year term (the "Non-Renewal Date"), and if at
such time (i) there is no other event that would otherwise constitute "Cause"
for the termination of the Executive's employment hereunder, (ii) the Executive
continues to comply with all his post-termination obligations, and (iii)
executes a general release in form satisfactory to the Company, the Company
shall continue to pay to the Executive his full Annual Direct Salary from the
Non-Renewal Date in equal monthly installments until the earlier of (i) the
Executive secures full time employment or (ii) six months from the Non-Renewal
Date. Following the Non-Renewal Date, the Executive shall notify the Company in
writing upon his commencement of any full time employment.
2. POSITION AND DUTIES. The Executive shall serve as the
President and Chief Executive Officer of the Company, reporting to the Board of
Directors of the Company (the "Board) and shall have responsibility for the
general management and operation of the Company,
and shall have such other powers and duties as may from time to time be
prescribed by the Board, provided that such duties are consistent with the
Executive's position as President and Chief Executive Officer of the Company. At
the request of the Board, the Executive shall also serve, without additional
compensation, as an officer or director of any Affiliates of the Company that
are involved in the business of insurance, underwriting, reinsurance or other
matters related to the business operation of the Company. For purposes hereof,
an "Affiliate" means any company that is controlled by, under common control
with, or that controls the Company.
3. ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote his
business time, energies and talents to the business of the Company and shall
comply with each of the Company's corporate governance and ethics guidelines,
conflict of interests policies and code of conduct applicable to all Company
employees or senior executives as adopted by the Board from time-to-time. The
Executive first shall obtain the consent of the Board in writing before engaging
in any other business or commercial activities, duties or pursuits.
Notwithstanding the foregoing, nothing shall preclude the Executive from (i)
engaging in charitable activities and community affairs, and (ii) managing his
personal investments and affairs, provided such activities do not, in the
reasonable judgment of the Board, interfere with the proper performance of his
duties and responsibilities hereunder.
4. COMPENSATION.
(a) ANNUAL DIRECT SALARY. During the term of this
Agreement, as compensation for services rendered to Company under this
Agreement, the Executive shall be entitled to receive from the Company an annual
direct salary of not less than $415,000 per year commencing as of January 1,
2003 (the "Annual Direct Salary"). Executive's Annual Direct Salary shall be
payable in substantially equal bi-weekly installments, prorated for any partial
employment period. The Annual Direct Salary shall be reviewed by the Board in
January of each year this Agreement is in effect and may be adjusted in the
discretion of the Board after taking into account the prevailing market value of
the position and the then current pay increase practice of the Company. In no
event shall the Annual Direct Salary be decreased without the express written
consent of the Executive.
(b) ANNUAL BONUS. During the term of this Agreement,
Executive may be eligible for annual incentive awards under one or more programs
adopted by the Board and established for each of the Company's fiscal years.
Award opportunities and other terms and conditions of these awards, if any, will
be determined by the Board based on the achievement of goals and objectives
established for each of the Company's fiscal years, and shall not be paid until
completion of the Company's financial statements relating to the performance
period at issue and satisfaction of any other conditions adopted as part of such
programs. Nothing herein shall prohibit the Company from modifying or amending
any such incentive awards plan from time to time, or from terminating any such
plan. The bonus program during the first fiscal year for which the Executive is
employed hereunder shall be determined by the Company subject to approval by the
Board.
(c) EQUITY INCENTIVE AWARDS. As of the Effective Date,
the Executive: (i) shall purchase 50,000 Class A Common Shares of Vigilant
International, Ltd. ("Vigilant"), at an acquisition price of $500,000; (ii)
shall receive a stock option grant for 200,000 Class A Common Shares of Vigilant
in the form of option grant attached as Schedule B; (iii) shall receive a time
vesting stock option grant for 75,000 Class A Common Shares of Vigilant in the
form of option grant attached as Schedule C; and (iv) shall receive a
performance based stock
2
option grant for 125,000 Class A Common Shares of Vigilant in the form of option
grant attached as Schedule D. During the Employment Term, the Executive may be
eligible to receive additional option awards in Vigilant as determined by the
Board of the Company in its sole discretion. In addition to any exercise,
vesting or other restrictions imposed on such option awards by the Board in its
discretion, all such option awards shall be subject to the forfeiture provisions
of Annex A attached hereto.
5. FRINGE BENEFITS, VACATION TIME, EXPENSES, AND PERQUISITES.
(a) EMPLOYEE BENEFIT PLANS. The Executive shall be
entitled to participate in or receive benefits under all corporate employment
benefit plans including but not limited to any pension plan, savings plan,
medical or health-and-accident plan or arrangement generally made available by
the Company to its executives and key management employees as a group, subject
to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements.
(b) The Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its senior executive officers, but not less than four (4) weeks in any
calendar year (prorated in any calendar year during which the Executive is
employed hereunder for less than the entire such year in accordance with the
number of days in such calendar year during which he is so employed). The
Executive shall also be entitled to all paid holidays given by the Company to
its senior executive officers.
(c) During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him (in accordance with the policies and procedures
established by the Company from time to time) in performing services hereunder,
provided that the Executive properly accounts therefore in accordance with
Company policy.
(d) Except as otherwise specifically provided herein,
nothing paid to the Executive under any benefit plan or arrangement shall be
deemed to be in lieu of compensation to the Executive hereunder.
6. PROTECTION OF COMPANY INFORMATION. During the period of his
employment, or at any later time following the termination of his employment for
any reason, the Executive shall hold in a fiduciary capacity for the benefit of
the Company and its affiliates, and shall not, without the written consent of
the Board, knowingly disclose to any person, other than an employee of the
Company or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Executive of his duties as an executive
of the Company, or use for any purpose other than to perform his duties
hereunder, any "Confidential Information" of the Company or any of its
Affiliates obtained by him while in the employ of the Company. The Confidential
Information protected by this provision shall include all computer software and
files, policy expirations, telephone lists, customer lists, prospect lists,
marketing information, information regarding managing general agents, pricing
policies, contract forms, customer information, copyrights and patents, the
identity of Company and Affiliate employees, Company and Affiliate books,
records, files, financial information, business practices, policies and
procedures, information about all services and products of the Company and its
Affiliates, names of users or purchasers of the products or services of the
Company or its affiliates, methods of promotion and sale and all information
which constitutes trade secrets under the law of any state in
3
which the Company or any of its Affiliates does business. No information shall
be treated as Confidential Information if it is generally available public
knowledge at the time of disclosure or use by Executive, provided that
information shall not be deemed to be publicly available merely because it is
embraced by general disclosures or because individual features or combinations
thereof are publicly available. The Executive agrees that any breach of the
restrictions set forth in this Section will result in irreparable injury to the
Company and/or its Affiliates for which there is no adequate remedy at law and
the Company and its Affiliates shall, in addition to any other remedies
available to them, be entitled to injunctive relief and specific performance in
order to enforce the provisions hereof. Notwithstanding the foregoing
provisions, if the Executive is required to disclose any such confidential or
proprietary information pursuant to applicable law or a subpoena or court order,
the Executive shall promptly notify the Company in writing of any such
requirement so that the Company or the appropriate affiliate may seek an
appropriate protective order or other appropriate remedy or waive compliance
with the provisions hereof. The Executive shall reasonably cooperate with the
Company to obtain such a protective order or other remedy. If such order or
other remedy is not obtained prior to the time the Executive is required to make
the disclosure, or the Company waives compliance with the provisions hereof, the
Executive shall disclose only that portion of the confidential or proprietary
information which he is advised by counsel that he is legally required to so
disclose. All records, files, memoranda, reports, customer lists, drawings,
plans, documents and the like that the Executive uses, prepares or comes into
contact with during the course of the Executive's employment shall remain the
sole property of the Company and/or its affiliates, as applicable. The Executive
shall execute and deliver the Company's standard "work for hire" agreement
regarding ownership by the Company of all rights in its confidential and
business materials.
7. RESTRICTIVE COVENANTS.
(a) NONCOMPETITION AGREEMENT. The Executive acknowledges
and agrees that the insurance business and operations of the Company are
national in scope, and that the Company operates in multiple locations and
business segments in the course of conducting its business. In consideration of
this Agreement and the equity interests being made available to the Executive
hereunder, the Executive covenants and agrees that during his employment with
the Company, and for a period of eighteen (18) months following the termination
of such employment for any reason (whether termination occurs during, upon
expiration of, or following the original or the renewal term hereof), including
without limitation as a result of his discharge by the Company with or without
Cause or Executive's voluntary resignation, the Executive shall not directly or
indirectly compete with the business of the Company or its affiliates by
becoming a shareholder, officer, agent, employee, partner or director of any
other corporation, partnership or other entity, or otherwise render services to
or assist or hold an interest (except as less than a one percent (1%)
shareholder of a publicly traded company), in any "Competitive Business" (as
defined below). "Competitive Business" shall mean any person or entity
(including any joint venture, partnership, firm, corporation, or limited
liability company) that engages in (1) the specialty property and casualty
insurance business, including excess and surplus lines, non-admitted insurance
lines, program-style insurance lines and/or reinsurance, (2) the insurance
agency or brokerage business, (3) employs, contracts or consults with any
managing general agent or producer of the Company and (4) any other material
business of the Company or any of its affiliates as of the date of termination
of the Executive's employment. In the event that this paragraph shall be
determined by any court of competent jurisdiction to be unenforceable in part by
reason of its being too great a period of time or covering too great a
geographical area, it shall be in full force and in effect as to that period of
time or geographical area determined to be reasonable by the court.
4
Notwithstanding anything to the contrary contained herein (A) other than in the
case of a termination of the Executive's employment for Cause hereunder, upon
termination of the Executive's employment by the Company without Cause or as a
result of his disability, the Executive may elect in writing to have the Company
acquire his then outstanding common stock and options in the Company at the
lower of cost or fair market value (as determined by the Board of the Company)
and in connection therewith execute a release, in form acceptable to the
Company, which releases the Company and its affiliates (including FPC and its
affiliates) from all obligations to make payments under Section 9 of this
Agreement, and upon compliance by the Executive with the foregoing obligations,
the Executive shall no longer be subject to the restrictions set forth in
subclauses (1) and (2) of this Section 7(a), and (B) in the event of termination
by the Company of the Executive's employment due to a disability, the Executive
shall no longer be subject to the restrictions in (1) and (2) of this Section
7(a) (but will no longer qualify for payments pursuant to Section 9(a)).
(b) RETURN OF MATERIALS. Upon termination of employment
with the Company, the Executive shall promptly deliver to the Company all
correspondence, manuals, letters, notes, notebooks, computer disks, software,
reports and any other document or tangible items containing or constituting
Confidential Information about the business of the Company and/or its
Affiliates.
(c) NONSOLICITATION OF EMPLOYEES AND CUSTOMERS. Should
the Executive's employment with the Company be terminated for any reason
(whether such termination occurs during, upon expiration of, or following the
original or the renewal term hereof), including without limitation as a result
of his discharge by the Company with or without Cause or Executive's voluntary
resignation, for a period of eighteen (18) months following such termination the
Executive shall not: (i) contact, recruit, employ, entice, induce or solicit,
directly or indirectly, any employee, officer, director, agent, consultant or
independent contractor employed by or performing services for the Company or any
of its Affiliates to leave the employ of or terminate services to the Company or
such Affiliate, including without limitation working with the Executive, with
the entity with which the Executive has affiliated (as an employee, consultant,
officer, director, stockholder or otherwise), or with any other entity; (ii)
seek, either in his individual capacity or on behalf of any other entity,
whether directly or indirectly to solicit, communicate with or contact or
advise, or transact or otherwise engage in any insurance related business with
(x) any party who is or was a customer of the Company or any of its Affiliates
during Executive's employment by the Company or at any time during the said
eighteen (18) month period, or (y) any party who was identified as a prospect of
the Company or any of its Affiliates during Executive's employment by the
Company; or (iii) engage in or participate in any effort or act to induce any
customer (as defined in subsection 7(c)(ii)) of the Company or any of its
Affiliates to take any action which might be disadvantageous to the Company or
its Affiliates. The Executive agrees that any breach of the restrictions set
forth in Sections 6 and 7 will result in irreparable injury to the Company for
which it shall have no adequate remedy in law and the Company shall, in addition
to any other remedy available to it and in lieu of Section 15 hereof, be
entitled to injunctive relief and specific performance in order to enforce the
provisions hereof. In addition to its other remedies, the Company shall be
entitled to reimbursement from the Executive and/or the Executive's employer of
costs incurred in securing a qualified replacement as a result of any breach by
the Executive of this Section. For purposes of this Agreement, "customer" shall
include, without limitation, any policyholder, managing general agent or
reinsurer with whom the Company or its affiliates has transacted business.
5
(d) In the event Executive breaches any of his covenants
in this Section 7, the Company and its Affiliates shall be released from their
obligation to make payments under Section 9 of this Agreement and (to the extent
permitted by applicable law) to provide benefits or make payments under all
employee benefit plans in which Executive participates, and the Company shall be
entitled to reimbursement from the Executive of severance payments made to the
Executive by the Company following termination of employment with the Company.
In addition, in the event of a violation by the Executive of his covenants in
this Section 7, he shall be subject to the forfeiture provisions of Annex A with
respect to his equity holdings in the Company.
(e) The Executive acknowledges and agrees that the terms
of this Section 7: (i) are reasonable in light of all of the circumstances; (ii)
are sufficiently limited to protect the legitimate interests of the Company and
its subsidiaries; (iii) impose no undue hardship on the Executive; and (iv) are
not injurious to the public. The Executive further acknowledges and agrees that
(x) the Executive breach of the provisions of Section 7 will cause the Company
irreparable harm, which cannot be adequately compensated by money damages, and
(y) if the Company elects to prevent the Executive from breaching such
provisions by obtaining an injunction against the Executive, there is a
reasonable probability of the Company's eventual success on the merits. The
Executive consents and agrees that if the Executive commits any such breach or
threatens to commit any breach, the Company shall be entitled to temporary and
permanent injunctive relief from a court of competent jurisdiction, without
posting any bond or other security and without the necessity of proof of actual
damage, in addition to, and not in lieu of, such other remedies as may be
available to the Company for such breach, including the recovery of money
damages.
8. TERMINATION.
(a) The Executive's employment hereunder shall terminate
upon his death, retirement, or the expiration of this Agreement. Upon the
Executive's death, any sums then due him shall be paid to the executor,
administrator or other personal representative of the Executive's estate.
(b) If the Executive becomes disabled (as certified by a
licensed physician selected by the Company) and is unable to perform or complete
his duties under this Agreement for a period of 180 consecutive days or 180 days
within any twelve-month period, the Company shall have the option to terminate
this Agreement by giving written notice of termination to the Executive. Such
termination shall be without prejudice to any right the Executive has under the
disability insurance program maintained by the Company.
(c) The Company may terminate the Executive's employment
hereunder for Cause. For the purposes of this agreement, the Company shall have
"Cause" to terminate the Executive's employment hereunder upon (i) the Executive
substantially failing to perform his duties hereunder after notice from the
Company and failure to cure such violation within 10 days of said notice (to the
extent the Board reasonably determines such failure to perform is curable and
subject to notice) or violating any material Company policies, including without
limitation the Company's corporate governance and ethics guidelines, conflicts
of interests policies and code of conduct applicable to all Company employees or
senior executives, (ii) the engaging by the Executive in any malfeasance, fraud,
dishonesty or gross misconduct adverse to the interests of the Company or its
affiliates, (iii) the material violation by the Executive of any of the
provisions of Sections 3, 6 or 7 hereof or other provisions of this Agreement
after notice from Company and a failure to cure such violation within 10 days of
said notice (including a "Forfeiture Event" as
6
provided for in Annex A hereto), (iv) a breach by the Executive of any
representation or warranty contained herein (including a "Forfeiture Event" as
provided for in Annex A hereto), (v) the Board's determination that the
Executive has exhibited incompetence or gross negligence in the performance of
his duties hereunder, (vi) receipt of a final written directive or order of any
governmental body or entity having jurisdiction over the Company requiring
termination or removal of the Executive as President and Chief Executive Officer
of the Company, or (vii) the Executive being charged with a felony or other
crime involving moral turpitude.
(d) The Company may choose to terminate the Executive's
employment at any time without Cause or reason.
9. PAYMENTS UPON TERMINATION.
(a) If the Executive's employment shall be terminated
because of death, disability, or for Cause, the Company shall pay the Executive
(or his executor, administrator or other personal representative, as applicable)
his full Annual Direct Salary through the date of termination of employment at
the rate in effect at the time of termination and the Company shall have no
further obligations to the Executive under this Agreement (and the Executive
shall not be entitled to payment of any unpaid bonus or incentive award);
provided that in the event of a termination by the Company because of disability
and other than in the case of employment in any Competitive Business the Company
shall pay to the Executive, as full and complete liquidated damages hereunder,
an amount equal to the Executive's then monthly Annual Direct Salary multiplied
by six (6) months, with such amount payable in equal monthly installments and
provided further that the foregoing amounts shall be reduced by any disability
payments for which the Executive may otherwise be entitled. No payments or
benefits shall be provided hereunder in connection with the Executive's
disability (i) unless and until the Company has first received a signed general
release from the Executive (or the Executive's guardian or legal representative)
in a form acceptable to the Company releasing the Company and Affiliates and any
other parties identified by the Company and Affiliates therein, and (ii) to the
extent that the Executive has breached any of his post-termination obligations
hereunder.
(b) If the Executive's employment is terminated by the
Company without Cause or if the Executive terminates his employment as a result
of (i) a written notice from the Company that its principal executive offices
are being relocated more than 90 miles from their current location or that the
Executive's principal place of employment is transferred to an office location
more than 90 miles from his then current place of employment (unless in either
case the effect of such relocation results in the Executive's principal place of
employment being less than forty (40) miles from his principal residence) and
(ii) the failure of the Company to offer the Executive a reasonable relocation
package to cover direct out-of-pocket losses (if any) on the sale of the
Executive's primary residence, and temporary living expenses and moving costs,
then the Company shall pay to the Executive, as full and complete liquidated
damages hereunder, an amount equal to the Executive's then monthly Annual Direct
Salary multiplied by twenty-four (24) months, with such amount payable in equal
monthly installments; provided that the amount and term of such payments is
subject to adjustment upon the Executive's acceptance of an equity compensation
package to be determined. The Company shall also maintain in full force and
effect, for the continued benefit of the Executive for the period in which the
Executive is receiving the foregoing payments, any medical or
health-and-accident plan or arrangement of the Company in which the Executive is
a participant at the time of such termination of employment; provided that the
Executive shall remain responsible for continuing to pay his share of the costs
of such
7
coverage; provided further that the Company shall not be under any duty to
maintain such coverage if the Executive becomes eligible for coverage under any
other employer's insurance and the Executive shall give the Company prompt
notice of when such eligibility occurs. No payments or benefits shall be
provided hereunder (i) unless and until the Company has first received a signed
general release from the Executive in a form acceptable to the Company releasing
the Company and Affiliates and any other parties identified by the Company and
Affiliates therein, and (ii) to the extent that the Executive has breached any
of his post-termination obligations hereunder.
10. REPRESENTATIONS AND WARRANTIES. In addition to any other
representation and warranties contained herein, the Executive hereby represents
and warrants that the representations and warranties made by the Executive in
the Acquisition Documents (as defined below) do not contain any untrue
statements of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading. The term "Acquisition Documents" shall mean the
Investment Agreement, dated as of May 1, 2003 among U.N. Holdings LLC, Wind
River Investment Corporation and Those Trusts Listed on Schedule A (the
"Investment Agreement"), the Stockholders Agreement, dated as of May 1, 2003
among Wind River Investment Corporation and The Stockholders Listed on the
Signature Pages (the "Shareholders Agreement"), and all attachments, exhibits
and other documents appended thereto (including the "Disclosure Letter" as
defined in the Investment Agreement), as amended from time to time.
11. NOTICE. For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Seth D. Freudberg
738 Cherry Circle
Wynnewood, PA 19096
If to the Company: United National Insurance Company
Three Bala Plaza East, Suite 300
Bala Cynwyd, PA 19004
Attn: General Counsel
With a Copy To: Fox Paine & Company, LLC
950 Tower Lane, Suite 1150
Foster City, CA 94404
Attn: Troy Thacker
or to such other address as any party may have furnished to the others in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
12. SUCCESSORS. This Agreement shall be binding upon the
Executive, his heirs, executors or administrator, and the Company, and any
successor to or assigns of the Company.
8
This Agreement is not assignable by Executive. This Agreement is assignable by
the Company to a successor to or purchaser of the Company's business.
13. ENFORCEMENT OF SEPARATE PROVISIONS. Should provisions of this
Agreement be ruled unenforceable for any reasons, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and
effect.
14. AMENDMENT. This Agreement may be amended or canceled only by
mutual agreement of the parties in writing without consent of any other person
and, so long as the Executive lives, no person other than the parties hereto,
shall have any rights under or interest in this Agreement or the subject matter
hereof.
15. ARBITRATION. In the event that any disagreement or dispute
whatsoever shall arise between the parties concerning this Agreement, such
disagreement or dispute shall be submitted to the Judicial Arbitration and
Mediation Services, Inc. ("JAMS") for resolution in a confidential private
arbitration in accordance with the comprehensive rules and procedures of JAMS,
including the internal appeal process provided for in Rule 34 of the JAMS rules
with respect to any initial judgment rendered in an arbitration. Any such
arbitration proceeding shall take place in Philadelphia, Pennsylvania before a
single arbitrator (rather than a panel of arbitrators). The parties agree that
the arbitrator shall have no authority to award any punitive or exemplary
damages and waive, to the full extent permitted by law, any right to recover
such damages in such arbitration. Each party shall each bear their respective
costs (including attorney's fees, and there shall be no award of attorney's
fees) and shall split the fee of the arbitrator. Judgment upon the final award
rendered by such arbitrator, after giving effect to the JAMS internal appeal
process, may be entered in any court having jurisdiction thereof. If JAMS is not
in business or is no longer providing arbitration services, then the American
Arbitration Association shall be substituted for JAMS for the purposes of the
foregoing provisions. Each party agrees that it shall maintain absolute
confidentiality in respect to any dispute between them.
16. LAW GOVERNING. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania.
17. ENTIRE AGREEMENT. This Agreement supersedes any and all prior
agreements, either oral or in writing, between the parties with respect to the
employment of the Executive by the Company, including the Prior Agreement, and
this Agreement contains all the covenants and agreements between the parties
with respect to the Executive's employment.
18. ACKNOWLEDGEMENT. Executive acknowledges that he has carefully
read and fully understands this Agreement and that the Company has provided him
sufficient time to discuss such Agreement with an attorney.
19. CONDITION OF EFFECTIVENESS. The closing of the acquisition by
FPC of the UNG transaction on or before September 30, 2003 shall be a condition
precedent to the effectiveness and enforceability of this Agreement.
[signature page to follow]
9
EXECUTION COPY
[Amended and Restated Executive Employment Agreement Signature Page]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
ATTEST: United National Insurance Company
/s/ Kevin L. Tate By: /s/ Richard S. March
- ------------------------------- --------------------------------
Assistant Secretary Senior Vice President
WITNESS: Seth D. Freudberg
/s/ Robert Cohen By: /s/ Seth D. Freudberg
- --------------------------- --------------------------------
ANNEX A
OPTION AND EQUITY FORFEITURE
Forfeiture of Options and Restricted, Common and Preferred Stock and
Gains Realized upon Prior Option Exercises or Sale of Stock. Unless otherwise
determined by the Board of Directors of the Company, the Options granted under
this Employment Agreement, together with any future option grants made to the
Executive or options on the Class A Common Shares of Vigilant International,
Ltd. ("Vigilant") and any restricted stock and common or preferred stock, if
any, held by the Executive, shall be subject to the following additional
forfeiture conditions to which the Executive, by accepting such Options or
equity interests, hereby agrees. In the event of (i) the Executive's breach or
failure to comply with any of the terms or conditions of Section 6 or Section 7
of this Employment Agreement or any breach of any of the representations and
warranties set forth therein (whether or not employed by the Company at such
breach or failure to comply) (a "Forfeiture Event"), and (ii) if the Executive
is employed by the Company at the time of a Forfeiture Event, his termination of
employment by the Company, all of the following will result:
(i) The unexercised portion of the Options (both unvested and
vested, if any) will immediately be forfeited and canceled
without payment upon the occurrence of the Forfeiture Event;
(ii) All equity, including restricted stock, common and/or
preferred stock, if any, held by the Executive will, upon the
occurrence of the Forfeiture Event, immediately be repurchased
by the Company or its designee at the lower of fair market
value (as determined by the Board of the Company) or the
Executive's original purchase price (in each case reduced to
reflect any outstanding liabilities of the Executive to the
Company or its affiliates), with payment taking the form of a
five year note from the Company or its designee, accruing
interest at the lowest then applicable rate mandated by
Federal law, with the principal and interest due on the fifth
anniversary of the date of purchase (or such later date as may
be necessary to permit the Company or its designee to comply
with any applicable borrowing covenants affecting its payment
obligations.) The Executive promptly shall take all
appropriate and necessary action to facilitate the buy back of
such equity, including the prompt delivery to the Company (or
its designee) of all stock certificates or other documents
that the Company may request; and
(iii) The Executive will be obligated to repay to the Company (or
its designee), in cash, within five (5) business days after
demand is made therefore by the Company (or its designee), the
total amount of Award Gain (as defined herein) realized by the
Executive (I) upon each exercise of the Options that occurred
on or after (A) the date that is six (6) months prior to the
Forfeiture Event, if the Forfeiture Event occurred while the
Executive was employed by the Company or a subsidiary or
affiliate, or (B) the date that is six (6) months prior to the
date that Executive's employment by the Company or a
subsidiary or affiliate terminated, if the Forfeiture Event
occurred after the Executive ceased to be so employed, or (II)
upon any sale, transfer or other disposition of the Class A
Common Shares of Vigilant. For purposes of this Annex A, the
term "Award Gain" shall mean (i) in
respect of a given Options exercise, the product of (X) the
Fair Market Value per share of stock at the date of such
exercise (without regard to any subsequent change in the
market price of such share of stock) minus the exercise price
times (Y) the number of shares as to which the Options were
exercised at that date, and (ii), in respect of any sale of
stock, the value of any cash or the Fair Market Value of stock
or property paid or payable to the Executive less any cash or
the Fair Market Value of any stock or property (other than
stock or options which would have itself been forfeitable
hereunder and excluding any payment of tax withholding) paid
by the Executive to the Company (or its designee) as a
condition or in connection with the acquisition of such stock
or amount otherwise included in subclause (i) above.