8-K
Everest Group, Ltd. (EG)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
Current Report Pursuant to Section 13 OR 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
December 17, 2021
Everest Re Group, Ltd.
(Exact name of registrant as specified in its charter)
Bermuda
1-15731
98-0365432
(State or other jurisdiction
(Commission
(IRS Employer
of incorporation)
File Number)
Identification No.)
Seon Place – 4th Floor
141 Front Street
PO Box HM 845
Hamilton
HM 19
,
Bermuda
Not Applicable
(Address of principal executive offices)
(Zip Code)
Registrant’s telephone number,
including area code
441
-
295-0006
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
☐
Written communications pursuant
to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under
the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Class
Trading Symbol(s)
Name of Exchange where registered
Common Shares, $0.01 par value
RE
New York Stock Exchange
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of
1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
☐
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period
for
complying with any new or revised financial accounting standards provided
pursuant to Section 12(a) of the Exchange Act.
☐
ITEM 5.02
DEPARTURE OF DIRECTORS OR PRINCIPAL
OFFICERS, ELECTION OF
DIRECTORS, APPOINTMENT OF PRINCIPAL OFFICERS
Today,
the registrant
entered into
an extension
of its
Employment Agreement
with Mr.
Juan C.
Andrade to
continue
as
President
and
Chief
Executive
Officer
of
Everest
Re
Group,
Ltd.
effective
December
17,
2021.
A
copy
of
the
Employment Agreement is filed herewith
as Exhibit 10.1and incorporated herein by
reference.
The material terms of
the extension of the Employment Agreement are as follows:
Term
:
Effective January 1, 2022 and runs through December 31, 2023. The Term shall automatically be extended for
successive one-year periods unless either party provides written notice
of its intent to not extend the Term at
least six months prior to expiration of the then current Term.
Annual Salary
:
$1,250,000 per year
Annual Incentive Bonus:
Eligible to participate in an executive performance bonus program
or plan established
by the Board of Directors.
The target value of the annual non-equity incentive will be 220% of base salary.
Executive Stock Based Incentive Plan:
Eligible to participate in the registrant’s stock-based incentive plan
with a target value of 360% of base salary.
ITEM 9.01
FINANCIAL STATEMENTS
AND EXHIBITS
(c)
Exhibits
Exhibit No.
Description
99.1
News Release of the registrant,
dated December 17, 2021
10.1
Employment Agreement with Juan C. Andrade
dated December 17,2021
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
EVEREST RE GROUP, LTD.
By:
/S/ ROBERT J. FREILING
Robert J. Freiling
Senior Vice President and
Chief Accounting Officer
Dated:
December 17, 2021
EXHIBIT INDEX
Exhibit
Number
Description of Document
Page No.
5
Employment Agreement with Juan C. Andrade
7
104
Cover Page Interactive Data File (embedded
within the Inline XBRL document)
ex991
1
N
EWS
R
ELEASE
EVEREST RE GROUP,
LTD.
Seon Place, 141 Front Street, 4
th
Floor, Hamilton HM 19, Bermuda
Contacts:
Media: Dawn Lauer
Investors: Jon Levenson
Chief Communications Officer
Head of Investor Relations
Everest Global Services, Inc.
Everest Global Services, Inc.
908.300.7670
908.604.3169
Everest Extends Employment Agreement with President and CEO Juan C. Andrade
HAMILTON,
Bermuda
–
December
17,
2021
–
Everest
Re
Group,
Ltd.
(“Everest”
or
the
“Company”)
(NYSE: RE),
a leading
global provider
of reinsurance
and insurance
solutions, and
its Board
of Directors
(the
“Board”)
today
announced
the
extension
of
President
and
CEO
Juan
C.
Andrade’s
employment
agreement through the end of 2023 with automatic annual extensions
following this term.
“In the past 24 months as
Everest’s CEO, Juan has
made exceptional progress positioning the company for
long-term profitable
growth,” said
Joseph V.
Taranto,
Everest Chairman.
“On behalf
of the
entire Board,
we
have
the
utmost
confidence
in
Juan’s
ability
to
lead
Everest
through
its
next
phase
of
evolution
and
success.”
"I am
honored to
continue leading
Everest into
the future
alongside a
world-class management
team and
with the
ongoing support
of our
Board of
Directors,” said
Juan C.
Andrade, President
& CEO.
“Together
with
our
outstanding
team
around
the
world,
we
are
profitably
growing
our
Company.
I
am
excited
to
advance Everest’s
strategic growth
agenda to
deliver even
greater value
for our
shareholders and
clients,
while fostering a vibrant and inclusive culture for our employees.”
2
About Everest Re Group, Ltd.
Everest Re Group, Ltd. (“Everest”) is
a leading global provider of reinsurance
and insurance, operating for
close
to
50
years
through
subsidiaries
in
the
U.S.,
Europe,
Singapore,
Canada,
Bermuda
and
other
territories.
Everest offers
property,
casualty,
and specialty
products through
its various
operating affiliates
located in
key markets around the world.
Everest common stock (NYSE:RE) is a component of the S&P 500 index.
Additional
information
about
Everest,
our
people,
and
our
products
can
be
found
on
our
website
at
www.everestre.com
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