Exhibit 10.2
SCHEDULE B
AGREEMENT OF RESTRICTIVE COVENANTS AND OTHER OBLIGATIONS
This Agreement of Restrictive Covenants and Other Obligations (the
"Agreement") is entered into by and between Willis Group Holdings Limited (the
"Company") and Peter Hearn ("Optionee") to be effective as of May 6, 2008.
RECITALS
Whereas, Optionee is employed by a subsidiary of the Company;
Whereas, on May 6, 2008 the Company granted Optionee an option for a
specified number of shares of common stock of Willis Group Holdings Limited (the
"Option");
Whereas, such grant is subject to the terms of the Willis Group Holdings
Limited 2008 Share Purchase and Option Plan (the "Plan"), the Option Agreement
(the "Option Agreement"), and this Agreement and in consideration of the grant,
Optionee shall enter into and acknowledge his or her agreement to the terms of
the Plan, the Option Agreement and this Agreement;
Whereas, Optionee acknowledges and agrees that he or she desires to receive
the Option, and understands and agrees such Option is subject to the terms and
conditions set forth in the Plan, the Option Agreement and this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other valuable consideration, in particular the grant
of the Option to Optionee by the Company, the receipt and sufficiency of which
is hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
1. Section 1 - Recitals
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The Recitals set forth above are an integral part of this Agreement, and
are incorporated herein by reference.
2. Section 2 - Definitions
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2.1 "Business" shall mean insurance brokerage, reinsurance brokerage,
surety brokerage, bond brokerage, insurance agency, underwriting
agency, managing general agency, risk management, claims
administration, self-insurance, risk management consulting or other
business performed by the Restricted Group.
2.2 "Competitor" shall mean any business principally engaged in insurance
brokerage, reinsurance brokerage, surety brokerage, bond brokerage,
insurance agency, underwriting agency, managing general agency, risk
management, claims administration, self-insurance, risk management
consulting or other business which is either performed by the
Restricted Group or is a business in which the Restricted Group has
taken steps toward engaging. It is further provided that Competitor
includes, but is not limited to, the following businesses and their
respective subsidiaries and/or other affiliates: Aon Corporation,
Arthur J Gallagher & Co and Marsh Incorporated.
2.3 "Confidential Information" shall mean all trade secrets and non-public
information concerning the financial data, strategic business plans,
and other non-public, proprietary, and confidential information of the
Company or any of its Subsidiaries.
2.4 "directly or indirectly" shall mean Optionee acting either alone or
jointly with or on behalf of or by means of any other person, firm or
company (whether as principal, partner, manager, employee, contractor,
director, consultant, investor or similar capacity).
2.5 "Employer" shall mean the Subsidiary that employs Optionee. If the
Company ever becomes an employer of Optionee, then the term Employer
shall refer to the Company.
2.6 "Employment Agreement" shall mean the contractual terms and conditions
which govern the employment of Optionee by Employer.
2.7 "Key Personnel" shall mean any person who is at the date Optionee
ceases to be an employee of Employer or was at any time during the
period of 12 months prior to that date employed by the Restricted
Group and who was an employee with whom Optionee had dealings other
than in a minimal and non-material way and who was employed by or
engaged in the Business in an executive or senior managerial capacity,
or was an employee with insurance, reinsurance or other technical
expertise.
2.8 "Option" shall have the meaning as set forth in the recitals.
2.9 "Option Agreement" shall have the meaning set forth in the recitals.
2.10 "Plan" shall have the meaning set forth in the recitals.
2.11 "Relevant Area" shall mean the counties, parishes, districts,
municipalities, cities, metropolitan regions, localities and similar
geographic and political subdivisions, within and outside of the
United States of America, in which the Company or any of its
Subsidiaries has carried on Business in which Optionee has been
involved or concerned or working on other than in a minimal and
non-material way at any time during the period of 12 months prior to
the date on which Optionee ceases to be an employed by Employer.
2.12 "Relevant Client" shall mean any person, firm or company who or which
at any time during the period of 12 months prior to the date on which
Optionee ceases to be employed by Employer is or was a client or
customer of the Company or any of its Subsidiaries or was in the habit
and/or practice of dealing under contract with the Company or any of
its Subsidiaries and with whom or which Optionee had dealings related
to the Business (other than in a minimal and non-material way) or for
whose relationship with the Company or any of its Subsidiaries
Optionee had responsibility at any time during the said period.
2.13 "Relevant Period" shall mean the period of 12 months following the
date on which Optionee ceases to be employed by Employer.
2.14 "Relevant Prospect" shall mean any person, firm or company who or
which at any time during the period of 12 months prior to the date on
which Optionee ceases to be employed by Employer was an active
prospective client of the Company or any of its Subsidiaries with whom
or with which Optionee had dealings related to the Business (other
than in a minimal and non-material way).
2.15 "Restricted Group" shall mean the Company and its Subsidiaries, as in
existence during Optionee's employment with Employer and as of the
date such employment ceases.
2.16 "Subsidiary" shall mean a direct and/or indirect subsidiary of the
Company as well as any associate company which is designated by the
Company as being eligible for participation in the Plan.
Section 3 - Non-Compete and other Obligations:
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3.1 Optionee acknowledges that by virtue of his or her senior management
position and as an employee of Employer, Optionee has acquired and
will acquire knowledge of Confidential Information of the Restricted
Group and their Business. Optionee further acknowledges that the
Confidential Information which the Restricted Group has provided and
will provide to Optionee would give Optionee a significant advantage
if Optionee were to directly or indirectly be engaged in any Business
at a Competitor of the Restricted Group.
3.2 Without the Company's prior written consent, Optionee shall not
directly or indirectly, at any time during or after Optionee's
employment with any Employer, disclose any Confidential Information
and shall use Optionee's best efforts to prevent the taking or
disclosure of any Confidential Information, except as reasonably may
be required to be disclosed by Optionee in the ordinary performance of
his or her duties for Employer or as required by law.
3.3 For a period of twelve months after the date on which Optionee's
employment with any Employer ceases, Optionee shall not work for or be
engaged or concerned in, or have a financial interest in (other than
an ownership position of less than 5% in any company whose shares are
publicly traded or any non-voting non-convertible debt securities in
any company) any Competitor of the Restricted Group within the
Relevant Area. During this period, Optionee shall receive payments
equal to the base salary payments Optionee would have received if
Optionee had been in Employer's employ during this non-compete period.
Employer will also pay the cost of COBRA Medical coverage for Optionee
for the duration of the non-compete period. These payments will be
made on the same frequency as such salary payments were made during
Optionee's employment.
3.4 The Company or Employer shall have the discretion to apply a shorter
period than the twelve-month periods set forth in 3.3 and 3.5.
3.5 Optionee shall not, for the Relevant Period, directly or indirectly:
3.5.1 within the Relevant Area, solicit any Relevant Client or
Relevant Prospect for the purposes of any Business which competes or
will compete or seeks to compete with the Restricted Group;
3.5.2. within the Relevant Area, accept, perform services for, or deal
with any Relevant Client or Relevant Prospect for the purposes of any
Business which competes or will compete or seeks to compete with the
Restricted Group;
3.5.3 solicit for employment or entice away from the Restricted Group
any Key Personnel; or
3.5.4 employ or engage or endeavour to employ or engage any Key
Personnel.
3.6 The restrictions contained in Section 3.5 including subsections, run
concurrently with the non-compete in Section 3.3. Additionally, to the
extent Optionee is a party to an employment agreement or other
agreement with the Restricted Group that contains a post-employment
restriction, the post-employment restrictions run concurrently with
the post-employment restrictions contained in this Section 3. Thus, by
way of example, if Optionee's employment agreement with Employer
contains a 24-month restriction on solicitation of the Restricted
Group's clients, then the non-solicitation in the employment agreement
would be effective for 12 months after the non-solicitation in this
Section 3 expires.
3.7 Optionee acknowledges that the provisions of this Section 3 are fair,
reasonable and necessary to protect the goodwill and interests of the
Restricted Group.
Section 4 - Governing Law & Jurisdiction
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4.1 This Agreement shall be governed by and construed in accordance with
the laws of the state of New York without regard to its conflicts of
law principles.
4.2 Any suit, action or proceeding against Optionee with respect to this
Agreement may be brought in any court of competent jurisdiction in the
State of New York or located in the City of New York, as the Company
may elect in its sole discretion and Optionee hereby submits
accordingly to the nonexclusive jurisdiction of such courts for the
purpose of any such suit, action, proceeding or judgment. Optionee
hereby irrevocably waives any objections which he or she may now or
hereafter have to the laying of the venue of any suit, action or
proceeding arising out of or relating to this Agreement brought in any
court of competent jurisdiction in the State of New York or City of
New York. Provided further that nothing herein shall in any way be
deemed to limit the ability of the Restricted Group to bring a suit,
action or proceeding against Optionee with respect to this Agreement,
in jurisdictions other than the State of New York and/or City of New
York, and in such manner, as may be permitted by applicable law.
Optionee hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought
in any inconvenient forum. No suit, action or proceeding against the
Company or any Subsidiary with respect to this Agreement may be
brought by Optionee in any court other than in a court of competent
jurisdiction in the State of New York or City of New York, and
Optionee hereby irrevocably waives any right which he or she may
otherwise have had to bring such an action in any other court. The
Company hereby submits accordingly to the jurisdiction of the courts
of the State of New York or City of New York for the purpose of any
such suit, action or proceeding.
Section 5 - Consideration, Severability, Beneficiaries & Effect on other
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agreements
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5.1 Optionee acknowledges that the covenants and undertakings he or she
has made herein, including those made in Section 3, are being given
for the benefit of the Restricted Group, including Employer, and may
be enforced by the Company and/or by its Subsidiaries on behalf of all
or any of them and that such Subsidiaries are intended beneficiaries
of this Agreement.
5.2 The parties acknowledge that the provisions of this Agreement are
severable. If any part or provision of this Agreement shall be
determined by any court or tribunal to be invalid, then such partial
invalidity shall not cause the remainder of this Agreement to be or
become invalid. If any provision hereof is held unenforceable on the
basis that it exceeds what is reasonable for the protection of the
goodwill and interests of the Restricted Group, but would be valid if
part of the wording were modified or deleted, as permitted by
applicable law, then such restriction or obligation shall apply with
such deletions or modifications as may be necessary to make it
enforceable.
5.3 Optionee acknowledges that he or she remains bound by any Employment
Agreement or any other agreement entered into by Optionee with the
Restricted Group and this Agreement shall be in addition to, and not
in place of any such agreements. Optionee further acknowledges that in
the event of any breach by Optionee of any provision contained in such
agreements or this Agreement, the Company and/or any Subsidiary may,
in their discretion, enforce any term and condition of those
agreements and/or this Agreement.
Section 6 - Miscellaneous
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6.1 This Agreement may not be modified except by written agreement signed
by both parties hereto.
6.2 The rights of the Restricted Group under this Agreement shall inure to
the benefit of any and all of its/their successors, assigns, parent
companies, sister companies, subsidiaries and other affiliated
corporations.
6.3 The waiver by either party of any breach of this Agreement shall not
operate or be construed as a waiver of that party's rights on any
subsequent breach.
6.4 Optionee acknowledges and agrees that Optionee shall be obliged to
draw the provisions of Section 3 to the attention of any third party
who may, at any time before or after the termination of Optionee's
employment with Employer, offer to employ or engage him and for or
with whom Optionee intends to work within the Relevant Period.
6.5 The various section headings contained in this Agreement are for the
purpose of convenience only and are not intended to define or limit
the contents of such sections.
6.6 This Agreement may be executed in one or more counterparts, each of
which shall constitute an original and all of which taken together
shall constitute one and the same document. This Agreement will be
binding, notwithstanding that either party's signature is displayed
only on a facsimile copy of the signature page.
6.7 Any provisions which by their nature survive termination of this
Agreement, including the obligations set forth in Sections 3 and 4
shall survive termination of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
become effective as of the date first above written.
Willis Group Holdings Limited: Optionee:
/s/ Michael P Chitty SIGNATURE: ___________________
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NAME: Michael P Chitty PRINT NAME: ___________________
DATE: May 6, 2008 DATE: ___________________
TITLE: Company Secretary