Employment Agreement between Everest Global Services, Inc., Everest Re Group, Ltd., Everest Reinsurance Holdings, Inc., and Juan C. Andrade

Contract Categories: Human Resources › Employment Agreements
Summary

This agreement is between Everest Global Services, Inc., Everest Re Group, Ltd., Everest Reinsurance Holdings, Inc., and Juan C. Andrade. It sets the terms for Mr. Andrade’s continued employment as President and CEO, including his duties, compensation, and benefits. The agreement covers salary, annual and equity incentives, and conditions for renewal or termination. It replaces a prior agreement and will automatically renew each year unless either party gives six months’ notice. If employment ends, the agreement outlines how it will be treated based on the reason for termination.

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EX-10.1 3 ex101.htm EXHIBIT 10.1 ex101
 
 
1
EMPLOYMENT AGREEMENT
This
 
Employment
 
Agreement
 
(this
 
"Agreement")
 
is
 
made
 
as
 
of
 
December
 
17,
 
2021,
between
 
Everest
 
Global
 
Services,
 
Inc.,
 
a
 
Delaware
 
corporation
 
(the
 
"Company"),
 
Everest
 
Re
Group, Ltd. ("Group"), Everest Reinsurance Holdings, Inc., a Delaware
 
corporation ("Holdings")
and Juan C. Andrade (the "Executive").
 
WHEREAS, the Executive is currently
 
serving as the President and
 
Chief Executive of the
Company;
WHEREAS,
 
the
 
Company,
 
Holdings
 
and
 
the
 
Executive
 
are
 
party
 
to
 
an
 
Employment
Agreement entered
 
into as
 
of August
 
1, 2019
 
(the "Prior
 
Agreement") providing
 
for the
 
Executive's
employment by the Company, and setting forth the terms and conditions for such employment;
WHEREAS, the
 
Company, Group and
 
Holdings desire
 
to continue
 
to employ
 
the Executive
and the
 
Executive desires
 
to continue
 
to be employed
 
by the
 
Company, on the terms
 
and conditions
provided below; and
WHEREAS, this Agreement shall govern
 
the employment relationship between Executive
and the
 
Company, Group and
 
Holdings and
 
supersedes all
 
previous agreements
 
and understandings
with respect to such employment relationship; and
WHEREAS, the
 
Company, Group, Holdings and
 
the Executive desire
 
to amend and
 
restate
the Prior
 
Agreement in
 
order to
 
set
 
forth
 
the terms
 
and conditions
 
of the
 
Executive's continued
employment
 
with
 
the
 
Company,
 
Group
 
and
 
Holdings
 
and
 
have
 
determined
 
that
 
it
 
is
 
in
 
their
respective
 
best
 
interests
 
to
 
enter
 
into
 
this
 
Agreement
 
on
 
the
 
terms
 
and
 
conditions
 
as
 
set
 
forth
herein..
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.
ENGAGEMENT
.
The Company
 
agrees to
 
continue to
 
employ the
 
Executive, and
 
the Executive
 
accepts to
continue such
 
employment, on
 
the terms
 
and conditions
 
set forth
 
in this
 
Agreement, unless
 
and
until
 
such
 
employment
 
shall
 
have
 
been
 
terminated
 
as
 
provided
 
in
 
this
 
Agreement
 
or
 
as
 
may
otherwise be agreed to by the parties.
2.
TITLE AND DUTIES
.
Executive shall continue
 
to serve as
 
President and Chief
 
Executive Officer
 
of each of
 
the
Company,
 
Group,
 
Holdings
 
and
 
Everest
 
Reinsurance
 
Company
 
and
 
will
 
report to
 
the
 
Board
 
of
Directors of Group ("Board") and shall perform duties consistent with these positions, shall abide
by Company policies as such
 
policies may be amended
 
from time to time, and
 
shall devote his full
business time and
 
best efforts to his
 
duties hereunder and
 
the business and
 
affairs of the
 
companies
over which he presides (except during vacation periods and periods of illness or other
 
 
 
 
 
2
incapacity).
 
While Executive
 
serves as
 
Chief Executive
 
Officer of
 
the Group,
 
if not
 
previously
appointed, the Board shall appoint Executive to the Group Board, and thereafter the Group Board
shall
 
nominate
 
Executive
 
for
 
re-election
 
as
 
a
 
member
 
of
 
its
 
Board
 
at
 
each
 
annual
 
shareholders
meeting
 
during
 
the
 
term
 
of
 
this
 
Agreement.
 
If
 
elected
 
to
 
the
 
Board
 
by
 
Group's
 
shareholders,
Executive
 
shall
 
serve
 
on
 
the
 
Group
 
Board
 
without
 
additional
 
compensation.
 
At
 
his
 
choosing,
Executive may also
 
serve, subject to
 
his appointment or
 
election, as a
 
director and officer
 
of any
corporation that
 
is a
 
subsidiary or
 
affiliate of
 
the Company
 
or Group.
 
The Executive
 
may volunteer
a reasonable
 
portion of
 
his non-working
 
time to
 
charitable, civic and
 
professional organizations,
as shall not
 
interfere with
 
the proper
 
performance of
 
his duties
 
and obligations
 
hereunder, provided
the
 
Executive shall
 
not
 
serve on
 
any
 
other
 
board
 
of
 
directors
 
of
 
a
 
public
 
or
 
private
 
"for
 
profit"
company without
 
the prior
 
consent of
 
the Board.
 
As previously
 
approved by
 
the Group
 
Board,
and subject
 
to such
 
service not
 
interfering with
 
the Executive’s
 
duties and
 
responsibilities to
 
the
Company and
 
the Group,
 
the Executive
 
may continue
 
to serve
 
on the
 
Board of
 
Directors of
 
the
United
 
States
 
Automobile
 
Association
 
(“USAA”).
 
Executive
 
will
 
be
 
based
 
at
 
the
 
Company's
facility
 
currently
 
located
 
in
 
Warren,
 
New
 
Jersey,
 
subject
 
to
 
customary
 
travel
 
and
 
business
requirements.
 
3.
TERM.
This Agreement shall commence
 
and replace the Prior
 
Agreement effective as
 
of January
1, 2022
 
(the “Effective
 
Date”), and
 
shall continue
 
in effect
 
up through
 
and including
 
December
31, 2023 (the
 
“Term”); provided that the Term shall automatically
 
be extended for
 
successive one-
year periods unless either party shall give the
 
other written notice of its intention not to extend
 
the
Term at least six (6) months prior to the expiration of the
 
then current Term.
 
For the avoidance of
doubt,
 
if
 
the
 
Company
 
provides
 
notice
 
to
 
not
 
extend
 
the
 
initial
 
or
 
any
 
subsequent
 
Term,
 
the
Executive’s
 
employment
 
with
 
the
 
Company
 
shall
 
cease
 
upon
 
expiration
 
of
 
the
 
Term
 
of
 
this
Agreement and such cessation of employment shall be treated as
 
if it were a Termination Without
Cause or for
 
Good Reason
 
in accordance with
 
Section 6(c), and
 
if the Executive
 
provides notice
to not extend the initial
 
or any subsequent Term,
 
the Executive’s
 
employment with the Company
shall cease upon the expiration of the
 
Term
 
of this Agreement and such cessation
 
of employment
shall be
 
treated as
 
if it
 
were a
 
Voluntary
 
Termination
 
without Good
 
Reason in
 
accordance with
Section 6(e).
 
4.
COMPENSATION
.
(a)
Base Salary.
 
During the Term, Executive's base
 
salary ("Base Salary")
 
shall be one
million
 
two
 
hundred
 
fifty
 
thousand
 
dollars
 
($1,250,000)
 
per
 
annum
 
(pro-rated
 
for
 
any
 
partial
years),
 
subject
 
to
 
appropriate
 
increases,
 
as
 
determined
 
and
 
approved
 
by
 
the
 
Compensation
Committee of
 
Group.
 
The Base
 
Salary shall
 
be paid
 
in accordance
 
with the
 
Company's normal
payroll practices in effect from time to time.
(b)
Annual Non-Equity Incentive
 
Grants.
 
During the Term, Executive shall
 
be eligible
to participate in an annual
 
non-equity incentive program or
 
plan established by Group,
 
subject to
the approval
 
of Group's
 
shareholders if
 
required by
 
law,
 
or to
 
participate in
 
an alternative
 
bonus
arrangement, as determined by the
 
Compensation Committee of the
 
Board of Directors of
 
Group
in consultation with Executive, and such arrangement to be consistent with
 
 
 
 
 
 
3
current
 
market
 
industry
 
practice.
 
Executive's
 
target
 
annual
 
non-equity
 
incentive
 
opportunity
("Target Cash
 
Incentive") will be two hundred twenty percent (220%) of Base Salary.
 
(c)
Executive Stock
 
Based
 
Incentive Plan.
 
During
 
the Term,
 
the Executive
 
shall be
eligible to participate in and receive such equity incentive compensation as
 
may be granted by the
Compensation Committee
 
from time
 
to time
 
pursuant to
 
the Everest
 
Re Group,
 
Ltd. 2020
 
Stock
Incentive Plan, as
 
such plan may
 
then be in
 
effect and as
 
it may be
 
amended or superseded
 
from
time to
 
time or
 
any successor
 
plan (the
 
"Stock Plan"),
 
with a
 
target value
 
of three
 
hundred sixty
percent (360%)
 
of
 
Executive's Base
 
Salary
 
as
 
applicable to
 
the
 
fiscal year
 
prior to
 
the calendar
year in which the Compensation Committee makes its
 
determination to grant such a share award.
 
All
 
awards
 
to
 
the
 
Executive
 
under
 
the
 
Stock
 
Plan
 
shall
 
be
 
determined
 
by
 
the
 
Compensation
Committee in
 
its discretion.
 
Except as
 
expressly set
 
forth in
 
this Agreement, all
 
equity awards
 
shall
be subject to the terms of the Stock Plan.
(d)
Sign
 
On
 
Equity
 
Grant.
 
Subject
 
to
 
the
 
Executive
 
commencing
 
his
 
duties
 
in
accordance with the
 
Prior Agreement on
 
or about September
 
3, 2019,
the Company made
 
a one-
time retention
 
grant of
 
restricted shares
 
to the
 
Executive in
 
2019 (the
 
“Retention Grant”
 
and the
date of grant of such award the “Grant Date”).
 
In consideration for Executive’s agreement to enter into this Agreement and subject to the
Executive’s continued employment through the
 
applicable vesting date,
 
the restricted shares
 
of the
Retention Grant granted to Executive shall
 
continue to vest over a five (5)-year
 
period with one-
fifth of
 
the total
 
amount vesting
 
on each
 
of the
 
first five
 
anniversaries of
 
the Grant
 
Date.
 
If the
Executive is terminated without Cause (as defined below), or due to Disability (as defined below)
or
 
due
 
to
 
death
 
or
 
if
 
the
 
Executive
 
resigns
 
for
 
Good
 
Reason
 
(as
 
defined
 
below)
 
(each
 
such
termination referred to as
 
a “Vesting
 
Termination”),
 
subject to (except in
 
the case of Executive’s
death) the Executive signing and not revoking a release of claims
 
as required pursuant to Section
6(h)
 
below,
 
the
 
Executive
 
will
 
become
 
fully
 
vested
 
in
 
the
 
Retention
 
Grant
 
to
 
the
 
extent
 
not
previously vested.
 
The release
 
must be
 
executed, and
 
any revocation
 
period must
 
have expired,
within sixty (60) days
 
after such termination date.
 
Notwithstanding the foregoing, in
 
the event the
Executive incurs a termination with Cause or if the Executive resigns without Good Reason, or in
the event
 
the release
 
does
 
not become
 
effective
 
within
 
sixty
 
(60) days
 
after termination
 
date
 
as
required
 
in
 
the
 
previous
 
sentence
 
following
 
a
 
Vesting
 
Termination,
 
the
 
Executive
 
shall
immediately
 
forfeit
 
any
 
portion
 
of
 
the
 
Retention
 
Grant
 
not
 
previously
 
vested
 
as
 
of
 
the
 
date
 
of
termination.
5.
BENEFITS
.
(a)
Employer Benefit
 
Plans.
 
During the
 
Term, Executive will be
 
eligible to
 
participate,
on terms which are generally available to the other senior executives of the Company
 
and subject
to the eligibility
 
requirements of the
 
applicable Company plans
 
as in effect
 
from time to
 
time, in
the
 
Company's
 
deferred
 
compensation,
 
medical,
 
dental,
 
vacation,
 
life
 
insurance
 
and
 
disability
programs and other benefits
 
generally available to the
 
Company's senior executives from
 
time to
time.
(b)
Business Expenses.
 
The Executive
 
is authorized
 
to incur
 
and the
 
Company shall
either pay directly or reimburse the Executive for ordinary and reasonable expenses in
 
 
 
 
 
4
connection with the performance
 
of his duties
 
hereunder, including,
 
without limitation,
 
expenses
for
 
(A)
 
transportation,
 
(B)
 
business
 
meals,
 
(C)
 
travel
 
and
 
lodging,
 
and
 
(D)
 
similar
 
items.
 
The
Executive
 
agrees
 
to
 
comply
 
with
 
Company
 
policies
 
with
 
respect
 
to
 
reimbursement
 
and
 
record
keeping in connection with such expenses.
(c)
Retirement
 
Benefits.
 
Executive
 
will
 
be
 
eligible
 
to
 
participate
 
in
 
the
 
Company's
existing
 
tax-qualified
 
retirement
 
plans
 
and
 
the
 
Company's
 
supplemental
 
retirement
 
and
 
excess
benefit plans (collectively "SERP"), as they may be in effect from time to time
(d)
Car Allowance.
 
The Company shall provide Executive
 
$1,000 per month as
 
a car
allowance to be applied toward the purchase or lease of a vehicle. This car allowance will be paid
to Executive
 
as part
 
of the
 
standard payroll
 
and will
 
be reported
 
as income
 
on Executive’s
 
year-
end W-2 form.
6.
TERMINATION OF EMPLOYMENT
.
The employment
 
of the
 
Executive hereunder
 
may be
 
terminated by
 
the Company
 
at any
time,
 
subject
 
to
 
the
 
Company
 
providing
 
the
 
compensation
 
and
 
benefits
 
in
 
accordance
 
with
 
the
terms of this Section 6, which
 
shall constitute the Executive's sole and
 
exclusive remedy and legal
recourse upon any
 
such termination of employment,
 
and the Executive
 
hereby waives and
 
releases
any and all other
 
claims against the
 
Company and its
 
parent entities, affiliates,
 
officers, directors
and employees in such event.
(a)
Termination
 
Due
 
To
 
Death
 
Or
 
Disability.
 
In the
 
event
 
of
 
the
 
Executive's
 
death,
Executive's
 
employment
 
shall
 
automatically
 
cease
 
and
 
terminate
 
as
 
of
 
the
 
date
 
of
 
death.
 
If
Executive shall become incapacitated
 
by reason of
 
sickness, accident or other
 
physical or mental
disability, as such incapacitation is certified in writing by
 
a physician chosen by the
 
Company and
reasonably acceptable to
 
Executive (or his
 
spouse or representative
 
if in the
 
Company's reasonable
determination Executive
 
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
 
(120) consecutive
days, or
 
(ii) more
 
than six (6)
 
months in any
 
twelve month period,
 
with reasonable
 
accommodation
as required by
 
law, then to the extent
 
consistent with applicable
 
law, Executive shall be considered
"Disabled" and the
 
employment of Executive
 
hereunder and this
 
Agreement may be
 
terminated by
Executive or the Company
 
upon thirty (30) days'
 
written notice to the
 
other party following such
certification.
 
In the event
 
of the termination
 
of employment due
 
to Executive's death
 
or Disability,
Executive or his estate or legal representatives shall be entitled to receive:
(i)
payment
 
for
 
all
 
accrued
 
but
 
unpaid
 
Base
 
Salary
 
as
 
of
 
the
 
date
 
of
Executive's termination of employment;
(ii)
reimbursement for
 
expenses incurred
 
by the
 
Executive pursuant
 
to Section
5(b) hereof up to and including the date on which employment is terminated;
(iii)
any earned benefits to which the Executive may be entitled as of the
 
date
of
 
termination
 
pursuant
 
to
 
the
 
terms
 
of
 
any
 
compensation
 
or
 
benefit
 
plans
 
(including,
 
for
 
the
avoidance of doubt, any equity
 
plans) to the extent permitted
 
by such plans (with
 
the payments
described in subsections (i) through (iii) of this Section 6(a), in each case payable at the time
 
 
 
5
they
 
would
 
have
 
been
 
payable
 
but
 
for
 
such
 
termination,
 
collectively
 
called
 
the
 
"Accrued
Payments");
(iv)
any annual non-equity
 
incentive bonuses earned
 
but not
 
yet paid for
 
any
completed full fiscal year immediately preceding the employment termination date; and
(v)
if employment termination
 
occurs prior to
 
the end of
 
any fiscal year, a
 
pro
rata annual
 
non-equity
 
incentive bonus
 
for
 
such
 
fiscal year
 
in which
 
employment
 
termination
occurs (based on actual business days in such fiscal year prior to such employment termination,
divided
 
by
 
the
 
total
 
annual
 
business
 
days)
 
determined
 
and
 
paid
 
based
 
on
 
actual
 
performance
achieved for that fiscal year against the performance goals for that fiscal year.
 
Any annual non-
equity incentive
 
bonus due
 
under section
 
6(a)(iv) or
 
(v) shall
 
be paid
 
after Group's
 
Compensation
Committee determines the amount, if any, of such bonus and in no event later than seventy (70)
days following the last day of such fiscal year to which the bonus relates.
(b)
Termination
 
For
 
Cause.
 
The
 
Company
 
may,
 
at
 
any
 
time,
 
terminate
 
Executive's
employment for Cause. The
 
term "Cause" for purpose
 
of this Agreement
 
shall mean (a) repeated
and
 
gross
 
negligence
 
in
 
fulfillment
 
of,
 
or
 
repeated
 
failure
 
of
 
Executive
 
to
 
fulfill,
 
his
 
material
obligations under this
 
Agreement, in either
 
event after written
 
notice thereof, (b) material
 
willful
misconduct
 
by
 
Executive
 
in
 
respect
 
of
 
his
 
obligations
 
hereunder,
 
including,
 
but
 
not
 
limited
 
to,
fraudulent
 
misconduct,
 
(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 its affiliates or undertaken for personal gain.
For purposes of this
 
Section 6 of the
 
Agreement, an act or
 
failure to act shall be
 
considered
"willful" only if done or omitted to be done without a good faith reasonable belief that such act or
failure to act was in the best interests of the Company.
In the event of the termination
 
of Executive's employment hereunder by the
 
Company for
Cause, then Executive shall be entitled to receive payment of the Accrued Payments.
(c)
Termination
 
without
 
Cause
 
or
 
for
 
Good
 
Reason.
 
The
 
Company
 
may
 
terminate
Executive's employment hereunder without Cause
 
at any time.
 
The Executive may terminate
 
his
employment for Good Reason by providing thirty (30) days' prior written notice to the
 
Company.
 
In the event
 
of the termination
 
of Executive's employment
 
under this Section
 
6(c) by the
 
Company
without Cause
 
or by
 
the Executive
 
for Good
 
Reason, in
 
each case
 
prior to
 
or more
 
than twenty-
four (24)
 
months following
 
a Material
 
Change (as
 
defined in
 
the Everest
 
Re Group,
 
Ltd. Senior
Executive Change
 
of Control
 
Plan, as
 
amended and
 
restated effective
 
January 1,
 
2016 (the
 
"Change
of Control Plan")), then Executive shall be entitled to:
(i)
payment of the Accrued Payments;
(ii)
a separation allowance, payable
 
in equal installments
 
in accordance with
normal payroll practices over a
 
twelve (12) month period
 
beginning immediately following the
date
 
of
 
termination,
 
equal
 
to
 
the
 
Executive's
 
Base
 
Salary
 
as
 
in
 
effect
 
on
 
the
 
date
 
of
 
such
termination;
 
6
(iii)
payment
 
no
 
later
 
than
 
seventy
 
(70)
 
days
 
following
 
the
 
employment
termination
 
date
 
of
 
any
 
annual
 
non-equity
 
incentive
 
bonuses
 
as
 
determined
 
by
 
the
 
Group
Compensation Committee to
 
have been earned
 
but not yet paid
 
for any completed
 
full fiscal year
immediately preceding the employment termination date;
(iv)
if employment
 
termination occurs
 
prior to
 
the end
 
of any
 
fiscal year,
 
an
annual non-equity incentive bonus for such fiscal year
 
in which employment termination occurs
determined and paid no later than seventy (70) days following the last day of such fiscal year to
which the
 
bonus relates
 
based on
 
actual performance
 
achieved for
 
such fiscal
 
year against
 
the
performance goals for that fiscal year; and
(v)
the Company shall arrange for the Executive to continue to participate
 
on
substantially the same
 
terms and
 
conditions as in
 
effect for
 
the Executive (including
 
any required
contribution) immediately prior
 
to such termination,
 
in the disability
 
and life
 
insurance programs
provided to
 
the Executive
 
pursuant to
 
Section 5(a)
 
hereof until
 
the earlier
 
of (i)
 
the end
 
of the
twelve
 
(12)
 
month
 
period
 
beginning
 
on
 
the
 
effective
 
date
 
of
 
the
 
termination
 
of
 
Executive's
employment hereunder, or
 
(ii) such
 
time as
 
the Executive
 
is eligible
 
to be covered
 
by comparable
benefit(s)
 
of
 
a
 
subsequent
 
employer.
 
The
 
foregoing
 
of
 
this
 
Section
 
6(d)(v)
 
is
 
referred
 
to
 
as
"Benefits Continuation".
 
In addition, no later than sixty (60) days after
 
the date of termination,
the Company agrees to pay Executive a single cash
 
sum in order to enable Executive to pay for
medical and dental
 
coverage (through COBRA
 
or otherwise) that
 
is comparable to
 
the medical
and dental coverage in effect for Executive (and his dependents, if any), with such cash
 
amount
equal to the cost of the premiums for such coverage that would
 
apply if Executive were to elect
COBRA
 
continuation
 
coverage
 
under
 
the
 
Company's
 
medical
 
and
 
dental
 
plans
 
following
 
his
termination of
 
employment and
 
continue such
 
coverage for
 
the twenty-four
 
(24) month
 
period
beginning on the
 
date of Executive's
 
termination of employment.
 
The Executive agrees
 
to notify
the Company
 
promptly
 
if and
 
when
 
he
 
begins employment
 
with another
 
employer and
 
if and
when
 
he
 
becomes
 
eligible
 
to
 
participate
 
in
 
any
 
benefit
 
or
 
other
 
welfare
 
plans,
 
programs
 
or
arrangements of another employer.
Notwithstanding
 
the foregoing,
 
the payments
 
and benefits
 
described in
 
clauses (ii),
 
(iii),
(iv) and (v)
 
above shall immediately terminate,
 
and the Company shall
 
have no further obligations
to Executive with
 
respect thereto, in the
 
event that Executive breaches
 
any provision of Section
 
11
or Section 12 of this Agreement,
 
and if Executive breaches any provision of
 
Section 11 or Section
12
 
after
 
receipt
 
of
 
any
 
such
 
payment
 
or
 
benefit,
 
then
 
Executive
 
shall
 
be
 
required
 
to
 
repay
 
the
Company the payments and benefits described
 
in clauses (ii), (iii), (iv) and (v) above
 
within thirty
(30) days after notice from the Company that
 
Executive has so breached the Section
 
11 or Section
12 of the Agreement.
For
 
purposes
 
of
 
this
 
Agreement,
 
the
 
term
 
"Good
 
Reason"
 
means,
 
without
 
Executive's
written
 
consent:
 
(i)
 
a
 
materially
 
adverse
 
change
 
in
 
the
 
nature,
 
title
 
or
 
status
 
of
 
his
 
position
 
or
responsibilities including a
 
change in Executive’s
 
reporting relationship as
 
set forth in
 
section 2;
(ii) a reduction
 
by the Company in
 
the Base Salary, Target Cash Incentive or the multiplier
 
of 2.50
that
 
would
 
be
 
used
 
in
 
calculating
 
the
 
Cash
 
Payment
 
referenced
 
in
 
Section
 
IV(A)
 
of
 
the
 
Senior
Executive
 
Change
 
of
 
Control
 
Plan;
 
(iii)
 
failure
 
of
 
the
 
Group
 
Board
 
to
 
nominate
 
Executive
 
for
election to
 
the Group
 
Board at
 
an annual
 
meeting
 
of shareholders
 
(other than
 
solely due
 
to any
future stock exchange or other legal requirement prohibiting management directors or to the
 
 
 
 
 
7
extent prohibited by the Group Bye-Laws); (iv) the
 
Company requiring Executive to be based at
 
a
location in excess of
 
fifty (50) miles from
 
the location of the
 
Company's principal executive office
as of
 
the effective
 
date of
 
this Agreement,
 
except for
 
required travel
 
on company
 
business or
 
if
Executive is required to
 
relocate to Group's headquarters
 
in Bermuda; or (v)
 
a material breach of
this Agreement by the Company.
Provided that
 
in all
 
cases of
 
which, in
 
each of
 
subsections (i)
 
through (v)
 
in the
 
immediately
preceding paragraph, is not remedied by the Company
 
within thirty (30) days of receipt of written
notice of such event
 
or breach delivered by
 
Executive to the Company;
 
provided further,
 
that the
Executive may only exercise his
 
right to terminate this Agreement
 
and his employment for Good
Reason within the
 
sixty (60) day
 
period immediately following the
 
occurrence of any
 
of the events
described in subsections (i) through (v) above.
(d)
Termination
 
of
 
Employment
 
without
 
Cause
 
or
 
for
 
Good
 
Reason
 
following
 
a
Change-in-Control.
 
If
 
the
 
Company
 
terminates
 
Executive's
 
employment
 
without
 
Cause
 
or
Executive
 
terminates
 
his
 
employment
 
for
 
Good
 
Reason,
 
in
 
each
 
case
 
within
 
twenty
 
four
 
(24)
months following
 
a Material
 
Change (as
 
defined in
 
the Change
 
of Control
 
Plan), the
 
Company's
sole obligation will be to provide to Executive the benefits and payments provided in that Change
of
 
Control
 
Plan,
 
and
 
the
 
Executive
 
shall
 
be
 
entitled
 
to
 
no
 
benefits
 
or
 
payments
 
hereunder.
 
Executive shall
 
be entitled
 
to a
 
multiplier of
 
2.50 for
 
purposes of
 
calculating the
 
Cash Payment
referenced in Section IV(A) of the Change of Control Plan.
Notwithstanding
 
the foregoing,
 
if the
 
rights, compensation
 
and benefits
 
described in
 
the
Change of
 
Control
 
Plan
 
pertaining to
 
termination
 
are less
 
than
 
those that
 
would be
 
provided
 
in
Section 6(c) of this Agreement, as determined by Executive and the
 
Group Board, Executive will
only be
 
entitled to
 
the compensation,
 
benefits and
 
rights provided
 
in this
 
Agreement, and
 
Executive
waives and specifically disclaims any rights, benefits and compensation he would otherwise have
been entitled to under the Change of Control Plan.
(e)
Voluntary
 
Termination
 
by
 
the
 
Executive
 
without
 
Good
 
Reason.
 
In
 
the
 
event
Executive terminates his employment without Good Reason,
 
he shall provide six (6) months prior
written notice of such termination to the
 
Company.
 
During the 6 month notice period, Executive
shall continue to receive
 
all compensation and benefits
 
specified in this agreement.
 
At the end of
the 6
 
month
 
notice period,
 
the Executive
 
will
 
be entitled
 
to any
 
outstanding Accrued
 
Payments
only, and the Executive shall not be entitled to any other benefits
 
or payments hereunder. Without
limiting
 
all
 
other
 
rights
 
and
 
remedies
 
of
 
the
 
Company
 
under
 
this
 
Agreement
 
or
 
otherwise,
 
a
termination of
 
employment by
 
the Executive
 
without Good
 
Reason upon
 
proper notice,
 
will not
constitute a breach by the Executive of this Agreement.
(f)
Resignation
 
from
 
all
 
Boards.
 
Upon
 
termination
 
or
 
cessation
 
of
 
Executive's
employment
 
with
 
the
 
Company
 
for
 
any
 
reason,
 
including
 
the
 
cessation
 
of
 
employment
 
upon
expiration of the term of this Agreement, Executive agrees immediately to resign
 
his employment
with the Company and all
 
affiliates.
 
Any notice of termination or actual
 
termination or cessation
of employment shall
 
act automatically
 
to effect
 
such resignation
 
as well
 
as resignation
 
from any
position on all boards of directors of the Company or any subsidiary or affiliate of the Company.
 
 
 
 
 
8
(g)
Termination
 
and
 
Clawback.
 
Notwithstanding
 
anything
 
in
 
this
 
Agreement
 
to
 
the
contrary,
 
if
 
the
 
Executive
 
engages
 
in
 
material
 
willful
 
misconduct
 
in
 
respect
 
of
 
his
 
obligations
hereunder, including, but not limited to, fraudulent
 
misconduct, during the term
 
of this Agreement
or during the period in
 
which he is otherwise entitled to
 
receive payments hereunder following his
termination of employment, then (i) the Executive shall
 
be required to repay to the Company any
incentive compensation (including equity awards) paid
 
to the Executive during or with
 
respect to
the period in
 
which he engaged
 
in such misconduct,
 
as determined by
 
a majority of
 
the Board of
Directors of Group
 
in its sole
 
discretion, provided that
 
no such determination
 
may be made
 
until
Executive
 
has
 
been
 
given
 
written
 
notice
 
detailing
 
the
 
specific
 
event
 
constituting
 
such
 
material
willful misconduct and an opportunity to appear before the Group Board (with legal counsel if
 
so
requested in writing by Executive) to discuss the specific circumstances alleged to give rise to the
material willful misconduct;
 
and (ii)
 
upon such
 
determination, if
 
Executive has
 
begun to
 
receive
payments or
 
benefits under
 
clauses (ii),
 
(iii), (iv)
 
and (v)
 
of paragraph
 
(c) of
 
this Section
 
6, then
such payments and benefits shall immediately terminate, and Executive shall be required to repay
to the Company the payments and the value of the benefits previously
 
provided to him hereunder.
(h)
Release of Claims
 
as Condition.
 
The Company's
 
obligation to
 
pay the
 
separation
allowance and
 
provide all
 
other benefits
 
and rights
 
(including equity
 
vesting) referred
 
to in
 
this
Agreement shall be conditioned
 
upon the Executive or
 
his estate having delivered
 
to the Company
an
 
executed
 
full
 
and
 
unconditional
 
release
 
of
 
claims
 
against
 
the
 
Company,
 
its
 
parent
 
entities,
affiliates,
 
employee
 
benefit
 
plans
 
and
 
fiduciaries,
 
officers,
 
employees,
 
directors,
 
agents
 
and
representatives satisfactory in form and content to the Company's counsel.
(i)
No Mitigation.
 
In no event shall Executive be obligated to seek other employment
or take
 
any other
 
action by
 
way of
 
mitigation of
 
the amounts
 
payable to
 
Executive under
 
any of
the provisions of
 
this Agreement, nor
 
shall the amount
 
of any payment
 
hereunder be
 
reduced by
any compensation earned by Executive as a result of subsequent employment.
(j)
Time for Payment.
 
Subject to the terms and conditions set forth in Section 13, and
except
 
as
 
otherwise
 
expressly
 
stated
 
herein,
 
benefits
 
payable
 
pursuant
 
to
 
this
 
Section
 
6,
 
if
 
any,
shall be paid within sixty (60) days following Executive's termination of employment.
7.
INDEMNIFICATION
.
(a)
The
 
Company
 
shall
 
indemnify,
 
defend
 
and
 
hold
 
Executive
 
harmless,
 
to
 
the
maximum extent permitted
 
by law, against all judgments, fines,
 
amounts paid in
 
settlement and all
reasonable expenses, including attorneys' fees incurred by him, in connection with the defense of,
or as a result of, any action or proceeding (or any appeal from any action or proceeding) in which
Executive is
 
made or
 
is threatened
 
to be
 
made a
 
party by
 
reason of
 
the fact
 
that he
 
is or
 
was an
officer or director of
 
the Company, regardless of whether such
 
action or proceeding
 
is one brought
by or in the right of the Company.
 
Each of the parties hereto shall give prompt notice to the other
of any action or proceeding
 
from which the Company is
 
obligated to indemnify,
 
defend and hold
harmless Executive of which it or he (as the case may be) gains knowledge.
 
 
9
(b)
The Company agrees that the Executive shall be covered and insured up to the full
limits
 
provided
 
by
 
all
 
directors'
 
and
 
officers'
 
insurance
 
which
 
the
 
Company
 
then
 
maintains
 
to
indemnify its
 
directors and
 
officers (and
 
to indemnify
 
the Company
 
for any obligations
 
which it
incurs as a
 
result of its
 
undertaking to
 
indemnify its
 
officers and
 
directors), subject
 
to applicable
deductibles and to the terms and conditions of such policies.
(c)
As
 
used
 
in
 
this
 
section
 
7,
 
the
 
term
 
Company
 
shall
 
be
 
construed
 
to
 
include
 
the
Company and its parent entities, affiliates and subsidiaries.
8.
ARBITRATION
.
The
 
parties
 
shall
 
use
 
their
 
best
 
efforts
 
and
 
good
 
will
 
to
 
settle
 
all
 
disputes
 
by
 
amicable
negotiations.
 
The Company and
 
Executive agree that,
 
with the express
 
exception of any
 
dispute
or
 
controversy
 
arising
 
under
 
Sections
 
11
 
and
 
12
 
of
 
this
 
Agreement,
 
any
 
controversy
 
or
 
claim
arising
 
out
 
of
 
or
 
in
 
any
 
way
 
relating
 
to
 
Executive'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:
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").
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.
Judgment
 
on
 
the
 
award
 
rendered
 
by
 
the
 
arbitrator
 
may
 
be
 
entered
 
in
 
any
 
court
 
having
jurisdiction thereof.
It is intended
 
that controversies or
 
claims submitted to
 
arbitration under this
 
Section 8 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.
Notwithstanding the foregoing,
 
each of the
 
parties agrees that,
 
prior to submitting
 
a dispute
under this Agreement to
 
arbitration, the parties agree to
 
submit for a period
 
of sixty (60) days, to
voluntary mediation
 
before
 
a jointly
 
selected neutral
 
third party
 
mediator
 
under the
 
auspices of
JAMS,
 
New
 
York,
 
New
 
York
 
Resolutions
 
Center
 
(or
 
any
 
successor
 
location),
 
pursuant
 
to
 
the
procedures
 
of
 
JAMS
 
International
 
Mediation
 
Rules
 
conducted
 
in
 
New
 
Jersey
 
(however,
 
such
mediation or obligation
 
to mediate shall
 
not suspend or
 
otherwise delay any
 
termination or other
action of the Company or affect the Company's other rights).
 
 
 
 
 
10
9.
ENFORCEABILITY
.
It is the
 
intention of the
 
parties that the
 
provisions of this
 
Agreement shall be
 
enforced to
the fullest
 
extent permissible
 
under the
 
laws and
 
public policies
 
of each
 
state and
 
jurisdiction in
which such
 
enforcement is
 
sought, but
 
that the
 
unenforceability (or
 
the modification
 
to conform
with
 
such
 
laws
 
or
 
public
 
policies)
 
of
 
any
 
provisions
 
hereof,
 
shall
 
not
 
render
 
unenforceable
 
or
impair the remainder of this Agreement.
 
Accordingly, if any provision of this Agreement shall be
determined
 
to
 
be
 
invalid
 
or
 
unenforceable,
 
either
 
in
 
whole
 
or
 
in
 
part,
 
this
 
Agreement
 
shall
 
be
deemed
 
amended
 
to
 
delete
 
or
 
modify,
 
as
 
necessary,
 
the
 
offending
 
provisions
 
and
 
to
 
alter
 
the
balance of this
 
Agreement in
 
order to render
 
the same
 
valid and
 
enforceable to
 
the fullest
 
extent
permissible.
10.
ASSIGNMENT
.
This Agreement is personal in nature to the Company and the rights and obligations of the
Executive
 
under
 
this
 
Agreement
 
shall
 
not
 
be
 
assigned
 
or
 
transferred
 
by
 
the
 
Executive.
 
This
Agreement and all of the
 
provisions hereof shall be
 
binding upon, and inure
 
to the benefit of,
 
the
parties hereto and their successors (including successors by merger,
 
consolidation, sale or similar
transaction,
 
permitted
 
assigns,
 
executors,
 
administrators,
 
personal
 
representatives,
 
heirs
 
and
distributees).
11.
NON-DISCLOSURE;
 
NON-SOLICITATION;
 
COVENANTS
 
OF
 
EXECUTIVE;
COOPERATION
.
(a)
Executive
 
acknowledges
 
that
 
as
 
a
 
result
 
of
 
the
 
services
 
to
 
be
 
rendered
 
to
 
the
Company hereunder,
 
Executive will
 
be brought into
 
close contact with
 
many confidential affairs
of
 
the
 
Company,
 
its
 
parents,
 
subsidiaries
 
and
 
affiliates,
 
not
 
readily
 
available
 
to
 
the
 
public.
 
Executive 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.
(b)
In recognition
 
of the
 
foregoing, Executive
 
covenants and
 
agrees that,
 
except as
 
is
necessary in providing
 
services under this
 
Agreement, or
 
as required by
 
law or pursuant
 
to legal
process
 
or
 
in
 
connection
 
with
 
an
 
administrative
 
proceeding
 
before
 
a
 
governmental
 
agency,
Executive
 
will
 
not
 
knowingly
 
use
 
for
 
his
 
own
 
benefit
 
nor
 
knowingly
 
divulge
 
any
 
Confidential
Information
 
and
 
Trade
 
Secrets
 
of
 
the
 
Company,
 
its
 
parents,
 
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
 
mean
 
information
 
which
 
is
proprietary
 
and
 
secret
 
to
 
the
 
Company,
 
its
 
parents,
 
subsidiaries
 
and
 
affiliated
 
entities.
 
It
 
may
include, but
 
is not
 
limited to,
 
information relating
 
to present
 
future concepts
 
and business
 
of the
Company,
 
its
 
parents,
 
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, Executive is to consider information
 
11
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
 
parents,
 
subsidiaries
 
and
 
affiliated
 
entities
 
as
 
being
 
secret
 
and
 
confidential.
 
In
instances where doubt does or should reasonably be understood to
 
exist in Executive's mind as to
whether
 
information
 
is
 
secret
 
and
 
confidential
 
to
 
the
 
Company,
 
its
 
subsidiaries
 
and
 
affiliated
entities, Executive agrees to request an opinion, in writing, from the Company as to whether such
information
 
is
 
secret
 
and
 
confidential.
 
Nothing
 
in
 
this
 
Agreement
 
prohibits
 
Executive
 
from
reporting possible violations
 
of federal or
 
state law
 
or regulation to
 
any governmental
 
agency or
entity or making other
 
disclosures that are protected under
 
the whistleblower provisions of federal
or state law or regulation.
 
(c)
In compliance
 
with 18
 
U.S.C. §
 
1833(b), as
 
established by
 
the Defend
 
Trade Secrets
Act of
 
2016, Executive
 
is given
 
notice of
 
the following:
 
(1) that
 
an individual
 
shall not
 
be held
criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade
secret that
 
(A) is
 
made (i)
 
in confidence
 
to a
 
Federal, State,
 
or local
 
government
 
official,
 
either
directly or indirectly, or to an attorney; and (ii) solely for the
 
purpose of reporting or investigating
a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or
other proceeding, if
 
such filing is
 
made under seal;
 
and (2) that
 
an individual who
 
files a lawsuit
for retaliation
 
by an
 
employer for
 
reporting a
 
suspected violation
 
of law
 
may disclose
 
the trade
secret to the
 
attorney of the
 
individual and use
 
the trade secret
 
information in the
 
court proceeding,
if the
 
individual (A)
 
files any
 
document containing
 
the trade
 
secret under
 
seal; and
 
(B) does
 
not
disclose the trade secret, except pursuant to court order.
(d)
Executive will deliver promptly to
 
the Company on 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
 
parents,
 
subsidiaries
 
and
affiliated entities, and all
 
property owned by the
 
Company,
 
its subsidiaries and affiliated
 
entities,
which
 
Executive
 
obtained
 
while
 
employed
 
by
 
the
 
Company,
 
and
 
which
 
Executive
 
may
 
then
possess or have under his control.
(e)
Executive 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
 
Executive'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,
 
though
 
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
Executive
 
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.
 
Executive 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.
 
If the Company is unable
because of Executive's
 
mental or physical
 
incapacity to secure
 
Executive's signature to
 
apply for
or to
 
pursue any
 
application for
 
any United
 
States or
 
foreign letters
 
patent or
 
copyright registrations
covering inventions and
 
original works of
 
authorship belonging to
 
the Company,
 
then Executive
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
 
 
12
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.
 
Executive 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 registrations belonging to the Company.
(f)
The
 
Executive
 
agrees
 
that
 
for
 
a
 
period
 
of
 
12
 
months
 
after
 
the
 
termination
 
or
cessation of
 
the Executive's
 
employment with
 
the Company
 
for any
 
reason(except that
 
the time
period
 
of
 
such
 
restrictions
 
shall
 
be
 
extended
 
by
 
any
 
period
 
during
 
which
 
the
 
Executive
 
is
 
in
violation of this Section 11(e)) the Executive will not:
(i)
directly or indirectly
 
solicit, attempt
 
to hire, or
 
hire any employee
 
of the
Company or
 
its affiliates
 
(or any
 
person who
 
may have
 
been employed
 
by the
 
Company or
 
its
affiliates during the
 
last year
 
of the
 
Executive's employment with
 
the Company),
 
or assist in
 
such
hiring by any other person or business entity
 
or encourage, induce or attempt to induce
 
any such
employee to terminate his or her employment with the Company or its affiliates; or
(ii)
take action intended to encourage any
 
vendor or supplier of the Company
or its affiliates to cease
 
to do business with the
 
Company or its affiliates or materially
 
reduce the
amount of business the vendor or supplier does with the Company or its affiliates; or
(iii)
materially disparage the Company or its affiliates.
(g)
Executive agrees
 
to cooperate
 
with the
 
Company, during the
 
term of
 
this Agreement
and
 
at
 
any
 
time
 
thereafter
 
(including
 
following
 
Executive's
 
termination
 
of
 
employment
 
for
 
any
reason), by making himself
 
reasonably available to testify
 
on behalf of the
 
Company,
 
its parents,
subsidiaries and
 
affiliates in any
 
action, suit,
 
or proceeding,
 
whether civil,
 
criminal, administrative,
or investigative, and to
 
assist the Company,
 
in any such
 
action, suit, or
 
proceeding, by providing
information
 
and
 
meeting
 
and
 
consulting
 
with
 
the
 
Board
 
or
 
its
 
representatives
 
or
 
counsel,
 
or
representatives
 
or
 
counsel
 
to
 
the
 
Company,
 
as
 
requested;
 
provided,
 
however
 
that
 
it
 
does
 
not
materially interfere
 
with his
 
then current
 
professional activities.
 
The Company
 
agrees to
 
reimburse
Executive
 
for
 
all
 
reasonable
 
expenses
 
actually
 
incurred
 
in
 
connection
 
with
 
his
 
provision
 
of
testimony or assistance.
12.
NON-COMPETITION AGREEMENT
.
The
 
Executive
 
agrees
 
that
 
throughout
 
the
 
term
 
of
 
his
 
employment,
 
and
 
for
 
a
 
period
 
of
twelve (12) months after
 
termination or cessation of
 
employment for any reason,
 
(except that the
time period of such
 
restrictions shall be extended
 
by any period during
 
which the Executive is
 
in
violation
 
of
 
this
 
Section
 
12),
 
he
 
will
 
not
 
engage
 
in,
 
participate
 
in,
 
carry
 
on,
 
own,
 
or
 
manage,
directly
 
or
 
indirectly,
 
either
 
for
 
himself
 
or
 
as
 
a
 
partner,
 
stockholder,
 
investor,
 
officer,
 
director,
employee, agent, independent contractor,
 
representative or consultant
 
of any person, partnership,
corporation
 
or
 
other
 
enterprise,
 
in
 
any
 
"Competitive
 
Business"
 
in
 
any
 
jurisdiction
 
in
 
which
 
the
Company
 
or
 
any
 
of
 
its
 
affiliates
 
actively
 
conducts
 
business.
 
For
 
purposes
 
of
 
this
 
Section
 
12,
"Competitive Business" means the property and casualty insurance or reinsurance business.
 
13
The Executive's engaging in the following activities will not be
 
deemed to be engaging or
participating in a
 
Competitive Business: (i)
 
investment banking;
 
(ii) passive
 
ownership of
 
less than
2%
 
of
 
any
 
class
 
of
 
securities
 
of
 
a
 
company;
 
(iii)
 
engaging
 
or
 
participating
 
solely
 
in
 
a
noncompetitive
 
business
 
of
 
an
 
entity
 
which
 
also
 
separately
 
operates
 
a
 
business
 
which
 
is
 
a
"Competitive Business"; (iv) continued service
 
on the USAA Board of
 
Directors; and (v) service
on the
 
board of
 
any public
 
or private
 
for profit
 
and not
 
for profit
 
company that
 
is not
 
otherwise
engaged
 
in
 
the
 
property
 
and
 
casualty
 
insurance
 
or
 
reinsurance
 
business.
 
Notwithstanding
 
the
foregoing, the
 
Board shall consider
 
any request
 
from Executive
 
to sit
 
on the
 
board of
 
a Competitive
Business and retain discretion to approve and
 
waive the restriction of Executive to participate as
 
a
board member of a Competitive Business, but only during
 
the 12 month non-compete period after
the termination date or cessation of employment.
 
For the avoidance of
 
doubt, all restrictions
 
on Executive embodied within
 
this Section 12
will cease at the
 
end of the 12 month
 
non-compete period following cessation
 
of employment, and
Executive is free
 
at that time
 
to be employed
 
by or serve
 
on the board
 
of any Competitive Business
without need to seek permission from the Group Board.
The
 
Executive
 
acknowledges,
 
with
 
the
 
advice
 
of
 
legal
 
counsel,
 
that
 
he
 
understands
 
the
foregoing provisions
 
of this
 
Section 12
 
and that
 
these provisions
 
are fair, reasonable,
 
and necessary
for the protection of the Company's business.
Executive
 
agrees
 
that
 
the
 
remedy
 
at
 
law
 
for
 
any
 
breach
 
or
 
threatened
 
breach
 
of
 
any
covenant
 
contained
 
in
 
Sections
 
11
 
and
 
12
 
will
 
be
 
inadequate
 
and
 
that
 
the
 
Company
 
and
 
its
affiliates, 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.
13.
TAXES
.
(a)
All payments to
 
be made to
 
and on behalf
 
of the
 
Executive under this
 
Agreement
will be subject to required withholding of federal, state and local income, employment and excise
taxes, and to related reporting requirements.
(b)
Notwithstanding anything
 
in this
 
Agreement to
 
the contrary,
 
it is
 
the intention
 
of
the
 
parties
 
that
 
this
 
Agreement
 
comply
 
with
 
Section
 
409A
 
of
 
the
 
Internal
 
Revenue
 
Code,
 
as
amended (the "Code") and any regulations and other guidance issued
 
thereunder or an exemption
thereunder
 
and
 
shall
 
be
 
construed
 
and
 
administered
 
in
 
accordance
 
with
 
Section
 
409A,
 
and
 
this
Agreement
 
and
 
the
 
payment
 
of
 
any
 
benefits
 
hereunder
 
shall
 
be
 
operated
 
and
 
administered
accordingly.
 
Any payments under this
 
Agreement that may
 
be excluded from Section
 
409A either
as separation pay due to
 
an involuntary separation from service
 
or as a short-term deferral shall
 
be
excluded from Section
 
409A to the maximum
 
extent possible. To the extent Section
 
409A applies,
each installment payment
 
provided under this
 
Agreement shall be
 
treated as
 
a separate payment.
Specifically,
 
but
 
not
 
by
 
limitation,
 
the
 
Executive
 
agrees
 
that
 
if,
 
at
 
the
 
time
 
of
 
termination
 
of
employment,
 
the
 
Company
 
is
 
considered
 
to
 
be
 
publicly
 
traded
 
and
 
he
 
is
 
considered
 
to
 
be
 
a
specified employee,
 
as defined
 
in Section
 
409A, then
 
some or
 
all of
 
such payments
 
to be
 
made
hereunder as a result
 
of his termination of
 
employment shall be deferred
 
for no more than
 
six (6)
months following such termination of employment, if and to the extent the delay in such payment
is necessary in order to comply with the requirements of Section 409A of
 
 
 
14
the Code.
 
Upon expiration of such six
 
(6) month period (or, if earlier, his death),
 
any payments so
withheld
 
hereunder
 
from
 
the
 
Executive
 
hereunder
 
shall
 
be
 
distributed
 
to
 
the
 
Executive,
 
with
 
a
payment
 
of
 
interest
 
thereon
 
credited
 
at
 
a
 
rate
 
of
 
prime
 
plus
 
1%
 
(with
 
such
 
prime
 
rate
 
to
 
be
determined as of the actual payment date).
(c)
With respect to any amount of expenses eligible for reimbursement
 
that is required
to
 
be
 
included
 
in
 
the
 
Executive's gross
 
income
 
for
 
federal
 
income
 
tax
 
purposes,
 
such
 
expenses
shall be reimbursed to
 
the Executive no later
 
than December 31 of
 
the year following
 
the year in
which the Executive incurs the related expenses.
 
In no event shall the amount of expenses (or in-
kind benefits) eligible for reimbursement in
 
one taxable year affect the amount of
 
expenses (or in-
kind
 
benefits)
 
eligible
 
for
 
reimbursement
 
in
 
any
 
other
 
taxable
 
year
 
(except
 
for
 
those
 
medical
reimbursements referred
 
to
 
in
 
Section
 
105(b)
 
of
 
the
 
Internal Revenue
 
Code
 
of
 
1986),
 
nor
 
shall
Executive's right
 
to reimbursement
 
or in-kind
 
benefits
 
be subject
 
to liquidation
 
or exchange
 
for
another benefit.
(d)
If
 
the
 
benefits
 
payable
 
hereunder
 
constitute
 
deferred
 
compensation
 
within
 
the
meaning of Section
 
409A of the
 
Code, then Executive
 
shall execute and
 
deliver to the
 
Company
the Release as referenced in section 6(h) within sixty (60)
 
days following the date of termination.
 
If such Release
 
is not effective no
 
later than sixty (60)
 
days following the date
 
of termination, then
any such payments
 
due following such
 
date of termination
 
other than the
 
Accrued Benefits shall
be forfeited.
 
Benefits that would have otherwise been payable
 
during such sixty (60) day period
shall be accumulated
 
and paid
 
on the 60th
 
day following
 
Executive's termination, provided
 
such
Release shall have
 
been executed and
 
such revocation
 
periods shall have
 
expired.
 
If a bona
 
fide
dispute
 
exists,
 
then
 
Executive
 
shall
 
deliver
 
a
 
written
 
notice
 
of
 
the
 
nature
 
of
 
the
 
dispute
 
to
 
the
Company
 
within
 
thirty
 
(30)
 
days
 
following
 
receipt
 
of
 
such
 
general
 
release.
 
Benefits
 
shall
 
be
deemed
 
forfeited
 
if
 
the
 
release
 
(or
 
a
 
written
 
notice
 
of
 
a
 
bona
 
fide
 
dispute)
 
is
 
not
 
executed
 
and
delivered to the Company within the time specified herein.
(e)
Termination
 
of
 
employment, or
 
words
 
of
 
similar
 
import,
 
used in
 
this
 
Agreement
means,
 
for
 
purposes
 
of
 
any
 
payments
 
under
 
this
 
Agreement
 
that
 
are
 
payments
 
of
 
deferred
compensation subject
 
to Section
 
409A of
 
the Code,
 
"separation from
 
service" as defined
 
in Section
409A of the Code and the regulations promulgated thereunder.
14.
SURVIVAL
.
Anything in Section
 
6 hereof to the
 
contrary notwithstanding, the
 
provisions of Section
 
7
through 16 shall survive the
 
expiration or termination of this
 
Agreement, regardless of the reasons
therefor.
15.
NO CONFLICT; REPRESENTATIONS
 
AND WARRANTIES
.
The Executive represents and warrants that, to the best of
 
his knowledge and belief, (i) the
information
 
(written
 
and
 
oral)
 
provided
 
by
 
the
 
Executive
 
to
 
the
 
Company
 
in
 
connection
 
with
obtaining
 
employment
 
with
 
the
 
Company
 
or
 
in
 
connection
 
with
 
the
 
Executive's
 
former
employments,
 
work
 
history,
 
circumstances
 
of
 
leaving
 
former
 
employments,
 
and
 
educational
background,
 
is
 
true
 
and
 
complete,
 
(ii)
 
he
 
has
 
the
 
legal
 
capacity
 
to
 
execute
 
and
 
perform
 
this
Agreement, (iii) this Agreement is a valid and binding obligation of the Executive enforceable
 
 
 
 
15
against him in
 
accordance with its terms,
 
(iv) the Executive's execution,
 
delivery or performance
of
 
this
 
Agreement will
 
not
 
conflict
 
with
 
or
 
result
 
in
 
a
 
breach of
 
any
 
agreement,
 
understanding,
order, judgment or
 
other obligation to
 
which the
 
Executive is
 
a party
 
or by which
 
he may
 
be bound,
written
 
or
 
oral,
 
and
 
(v)
 
the
 
Executive
 
is
 
not
 
subject
 
to
 
or
 
bound
 
by
 
any
 
covenant
 
against
competition, non-disclosure or
 
confidentiality obligation, or any
 
other agreement, order, judgment
or other obligation, written or oral, which would conflict with, restrict or limit the performance of
the
 
services
 
to
 
be
 
provided
 
by
 
him
 
hereunder.
 
The
 
Executive
 
agrees
 
not
 
to
 
use,
 
or
 
disclose
 
to
anyone
 
within
 
the
 
Company,
 
its
 
parents,
 
subsidiaries
 
or
 
affiliates,
 
at
 
any
 
time
 
during
 
his
employment hereunder, any trade
 
secrets or any confidential
 
information of any
 
other employer or
other third party.
 
Executive has provided to the
 
Company a true copy of
 
any non-competition or
non-solicitation obligation or agreement to which he may be subject.
16.
MISCELLANEOUS
.
(a)
Any notice
 
to be
 
given hereunder
 
shall be
 
in writing
 
and delivered
 
personally or
sent by overnight mail, 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 the Company or Holdings:
Everest Global Services, Inc.
100 Everest Way
 
Warren, New Jersey 07059
Attention: General Counsel
If to Executive:
Employee's last known address, as reflected in the Company's records.
Any notice given
 
as set
 
forth above
 
will be deemed
 
given on the
 
business day
 
sent when
delivered by hand during normal business hours, on the business
 
day after the business day sent if
delivered
 
by
 
a
 
nationally-recognized
 
overnight
 
courier,
 
or
 
on
 
the
 
third
 
business
 
day
 
after
 
the
business day sent if delivered by registered or certified mail, return receipt requested.
(b)
Law Governing.
 
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.
(c)
Jurisdiction.
 
Subject
 
to
 
Section
 
8
 
above,
 
(i)
 
in
 
any
 
suit,
 
action
 
or
 
proceeding
seeking to
 
enforce any
 
provision of this
 
Agreement or
 
for purposes
 
of resolving
 
any dispute
 
arising
out of or related to
 
this Agreement (including Sections 11 and 12 or
 
the transactions contemplated
by
 
this
 
Agreement),
 
the
 
Company
 
and
 
the
 
Executive
 
each
 
hereby
 
irrevocably
 
consents
 
to
 
the
exclusive jurisdiction
 
of any
 
federal court
 
located in
 
the State
 
of New
 
Jersey or
 
any of
 
the state
courts of the State of New Jersey; (ii) the
 
Company and the Executive each hereby waives, to the
fullest extent permitted by applicable law, any objection which it or he
 
may now or hereafter have
to the laying
 
of venue of
 
any such suit,
 
action or proceeding
 
in any such
 
court or that
 
any such suit,
action or proceeding brought in any such court has been brought in an
 
 
 
 
 
 
 
 
16
inconvenient forum;
 
(iii) process
 
in any
 
such suit,
 
action or
 
proceeding may
 
be served
 
on either
party anywhere in
 
the world, whether within
 
or without the
 
jurisdiction of such
 
court, and, without
limiting the foregoing, each of
 
the Company and the Executive
 
irrevocably agrees that service of
process on such party, in the same manner as provided for notices in Section 16(a)
 
above, shall be
deemed effective service of process on
 
such party in any such suit,
 
action or proceeding; and (iv)
WAIVER
 
OF JURY
 
TRIAL: EACH
 
OF THE
 
COMPANY
 
AND THE
 
EXECUTIVE HEREBY
IRREVOCABLY
 
WAIVES
 
ANY AND
 
ALL
 
RIGHT
 
TO
 
TRIAL BY
 
JURY
 
IN ANY
 
LEGAL
PROCEEDINGS
 
ARISING
 
OUT
 
OF
 
OR
 
RELATED
 
TO
 
THIS
 
AGREEMENT
 
OR
 
THE
TRANSACTIONS CONTEMPLATED
 
BY THIS AGREEMENT.
(d)
Headings.
 
The Section headings contained in
 
this Agreement are for convenience
of reference
 
only and
 
are not
 
intended to
 
determine, limit
 
or describe
 
the scope
 
or intent
 
of any
provision of this Agreement.
(e)
Number
 
and
 
Gender.
 
Whenever
 
in
 
this
 
Agreement
 
the
 
singular
 
is
 
used,
 
it
 
shall
include
 
the
 
plural
 
if
 
the
 
context
 
so
 
requires,
 
and
 
whenever
 
the
 
feminine
 
gender
 
is
 
used
 
in
 
this
Agreement, it shall be construed
 
as if the masculine, feminine
 
or neuter gender,
 
respectively,
 
has
been used
 
where
 
the
 
context
 
so
 
dictates,
 
with
 
the
 
rest
 
of
 
the
 
sentence
 
being
 
construed as
 
if
 
the
grammatical and terminological changes thereby rendered necessary have been made.
(f)
Entire
 
Agreement.
 
This
 
Agreement
 
contains
 
the
 
entire
 
agreement
 
and
understanding between
 
the parties
 
with respect
 
to the
 
subject
 
matter
 
hereof
 
and
 
supersedes
 
any
prior
 
or
 
contemporaneous
 
understandings
 
and
 
agreements,
 
written
 
or
 
oral,
 
between
 
and
 
among
them respecting such subject matter, including, without limitation, the Prior Agreement.
(g)
Counterparts.
 
This
 
Agreement
 
may
 
be
 
executed
 
in
 
counterparts,
 
each
 
of
 
which
shall be deemed an original but both of which taken together shall constitute one instrument.
(h)
Expenses.
 
All
 
reasonable
 
legal
 
and
 
advisor
 
fees
 
and
 
expenses
 
incurred
 
by
Executive in negotiating and entering into this Agreement will
 
be paid by the Company.
 
All such
fees and expenses
 
will be paid by
 
the Company within thirty
 
(30) days after
 
the Company's receipt
of the invoices therefor.
(i)
Amendments.
 
This Agreement may not be amended except
 
by a writing executed
by each of the parties to this Agreement.
(j)
No
 
Waiver.
 
No
 
provision
 
of
 
this
 
Agreement
 
may
 
be
 
modified,
 
waived
 
or
discharged unless such waiver, modification or discharge is agreed to in writing and
 
signed by the
Executive and such
 
officer as
 
may be specifically
 
designated by the
 
Board.
 
No waiver by
 
either
party
 
at
 
any
 
time
 
of
 
any
 
breach
 
by
 
the
 
other
 
party
 
of,
 
or
 
compliance
 
with,
 
any
 
condition
 
or
provision
 
of
 
this
 
Agreement
 
to
 
be
 
performed
 
by
 
such
 
other
 
party
 
shall
 
be
 
deemed
 
a
 
waiver
 
of
similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.
[signature page follows]
 
 
 
 
 
17
IN
 
WITNESS
 
WHEREOF,
 
the
 
parties
 
hereto
 
have
 
duly
 
executed
 
this
 
Agreement
 
as
 
of
December 17, 2021.
EVEREST GLOBAL SERVICES, INC.
/S/ SANJOY MUKHERJEE
Sanjoy Mukherjee
Executive Vice President
EVEREST REINSURANCE
HOLDINGS, INC.
/S/ SANJOY MUKHERJEE
Sanjoy Mukherjee
Executive Vice President
EVEREST RE GROUP,
 
LTD.
/S/ SANJOY MUKHERJEE
Sanjoy Mukherjee
Executive Vice President
/S/ JUAN C. ANDRADE
Juan C. Andrade