EXHIBIT 10.63
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of September 24,
2007
between Scottish Re Group Limited (the "Company") and Terry
Eleftheriou (the
"Employee") (together, the "Parties").
WHEREAS, the Parties wish to establish the terms of the
Employee's
employment with the Company upon the terms and conditions set forth
herein, and
all other agreements with respect to the subject matter hereof;
Accordingly, the Parties agree as follows:
1. Employment
and Acceptance. The Company shall employ the
Employee, and the Employee shall accept employment, subject to the
terms of this
Agreement, on October 1, 2007 (the "Effective Date").
2. Term. Subject
to earlier termination pursuant to Section 5
of this Agreement, this Agreement and the employment relationship
hereunder
shall continue from the Effective Date until the second (2nd)
anniversary of the
Effective Date and shall automatically renew for successive one (1)
year
intervals thereafter unless either party shall have given at least
sixty (60)
days advance written notice to the other that it does not wish to
extend the
Term. As used in this Agreement, the "Term" shall refer to the
period beginning
on the Effective Date and ending on the date the Employee's
employment
terminates in accordance with this Section 2 or Section 5. In the
event of the
Employee's termination of employment during the Term, the Company's
obligation
to continue to pay all base salary, as adjusted, bonus and other
benefits then
due and payable shall terminate except as may be provided for in
Section 5 of
this Agreement, or as otherwise required by law.
3. Duties and
Positions.
3.1 Positions. During
the Term, the Employee shall serve as
Chief Financial Officer of the Company and shall report solely and
directly to
the President and Chief Executive Officer of the Company (the
"CEO"). The
Employee shall also serve during the Term in executive positions
for one or more
of the Company's subsidiaries and affiliates for no additional
consideration.
3.2 Duties. The
Employee will have such authority and
responsibilities and will perform such executive duties as are
customarily
performed by a Chief Financial Officer of a public company of
similar size in
similar lines of business as the Company and its subsidiaries as
may be assigned
to the Employee by the CEO. The Employee will devote all his full
working-time
and attention to the performance of such duties and to the
promotion of the
business and interests of the Company and its subsidiaries. Nothing
in this
Agreement shall prevent the Employee from (i) devoting reasonable
time to
charitable, community, industry or professional activities, or
(ii)
participating in, or serving on, the governing body of any civic,
community or
charitable organization with which the Employee may currently be or
hereafter
become involved; provided that such activities (A) do not
materially interfere
with and are not inconsistent with Employee's performance of his
duties and
obligations under this Agreement, (B) cannot reasonably be expected
to cause
injury or harm to the business or reputation of the Company or any
of its
subsidiaries and affiliates and (C) do not violate any provision of
this
Agreement.
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3.3 Location. The
Employee shall perform his full-time services
to the Company and its subsidiaries in the Company's Bermuda
office; provided
that the Employee shall be required to travel as reasonably
necessary to perform
his duties hereunder. The Employee shall establish residence in
Bermuda as soon
as practicable following the Effective Date.
4.
Compensation and
Benefits by the Company. As compensation
for all services rendered pursuant to this Agreement, the Company
shall provide
the Employee the following during the Term and thereafter as
applicable:
4.1 Base Salary.
During the Term, the Company will pay to the
Employee an annual base salary of $500,000, payable in accordance
with the
customary payroll practices of the Company ("Base Salary"). The
Employee's Base
Salary shall be subject to review and may be increased (but not
decreased) to an
amount determined at the discretion of the Board of Directors of
the Company
(the "Board") or the compensation committee thereof (which,
thereafter, shall be
his "Base Salary") after taking into consideration the Employee's
performance,
the Company's performance, increases in the cost of living and such
other
factors as the Board or the compensation committee thereof in good
faith deems
relevant. Such review shall be conducted no less frequently than
once during
each calendar year at the same time the Company conducts its review
of the
compensation of the Company's other senior executive officers.
4.2 Bonuses. During
the Term, the Employee shall be eligible to
receive an annual cash bonus ("Bonus") under a plan established by
the Company
in the amount determined by the Board or the compensation committee
thereof
based upon achievement of performance measures established by the
Company, after
reasonable consultation with the Employee, and approved by the
Board in its sole
discretion. The Employee's target bonus shall be seventy five
percent (75%) of
Base Salary (the "Target Bonus"). For the calendar year 2007, the
Employee shall
receive a Bonus in an amount equal to $150,000 (the "2007 Bonus").
The
Employee's Bonus (including the 2007 Bonus) shall be payable at
such times and
in the manner consistent with the Company's policies regarding
compensation of
executive employees. The Employee must not have given notice of his
intention to
terminate without Good Reason prior to or at the time the
Employee's Bonus
payment is to be made in order to be eligible to receive the Bonus.
The Bonus
with respect to any calendar year shall be paid no earlier than
January 1 and no
later than March 15 of the following calendar year.
4.3
Participation in
Employee Benefit Plans. The Employee shall
be entitled during the Term, if and to the extent eligible, to
participate in
all of the applicable pension and welfare benefit plans and fringe
benefits of
the Company, which may be available to other senior executives of
the Company.
These plans shall include, without limitation, medical,
prescription drug,
dental, vision, disability, life and accidental death insurance
plans and
programs and a 401(k) plan to the extent, and on terms at least as
favorable as,
such plans and programs are available to other senior executives of
the Company.
The Company may at any time or from time to time amend, modify,
suspend or
terminate any employee benefit plan, program or arrangement for any
reason
without the Employee's consent if such amendment, modification,
suspension or
termination is consistent with the amendment, modification,
suspension or
termination for other executives of the Company. In each calendar
year prior to
the date the Employee's employment terminates due to Disability (as
defined
below), the Employee shall be entitled to receive up to ninety (90)
days of full
salary continuation in the
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event he is unable to perform his duties hereunder without
reasonable
accommodation due to a physical or mental illness or injury.
4.4 Equity
Compensation. During the Term, the Employee shall be
eligible to participate in the 2007 Scottish Re Group Limited Stock
Option Plan,
an equity incentive compensation plan established by the Company
(the "Equity
Incentive Plan"), pursuant to the terms of the Equity Incentive
Plan and any
applicable agreements thereunder as determined from time to time by
the Board.
The Employee shall receive an initial grant of the option to
purchase 800,000
ordinary shares of the Company (the "Initial Grant") pursuant to
the terms of
the Equity Incentive Plan and any applicable agreements
thereunder.
Notwithstanding the foregoing or the terms of the equity Incentive
Plan, the
Employee's award agreement with respect to the Initial Grant shall
provide that
if the Employee's employment is terminated by the Company without
"Cause" (as
defined below), the Employee terminates his employment with "Good
Reason" (as
defined below) or the Employee's employment with the Company
terminates in
connection with the Company's determination not to extend or renew
the Term
pursuant to Section 2, to the extent not previously forfeited, the
unvested
portion of the Initial Grant, if any, shall become vested and
exercisable, and
shall remain exercisable for a period of ninety (90) days following
the date of
such termination of employment.
4.5 Relocation. The
Company shall provide the Employee (on a
fully grossed up tax neutral basis), directly or through
reimbursement (as
determined in the Company's reasonable discretion) the following
relocation,
housing and transportation benefits: (a) a suitable apartment or
comparable
residence in Bermuda, which the Company shall directly lease for
the Employee's
use, and shall pay or reimburse other reasonable costs associated
with such
residence during the Term (at a cost not to exceed $12,000 per
month plus
utilities), (b) a car and a scooter to be used in Bermuda by the
Employee for
local ground transportation, (c) through the end of the 2008
calendar year, a
suitable apartment or comparable residence for the Employee in the
Charlotte, NC
area when the Employee is required to perform services for the
Company in its
Charlotte, NC location (at a cost not to exceed $2,000 per month
plus
utilities); (d) until the earlier of (i) September 1, 2008 and (ii)
the date of
the relocation of the Employee's family to a Company location,
pursuant to the
Company's normal travel expense policy, weekly air travel between
the Employee's
home in Houston, TX and the Company locations (such payment or
reimbursement to
include ground transportation between the Employee's home and the
applicable
Houston metropolitan area airport), and (e) all reasonable costs
associated with
relocating the Employee and his family and transporting the
Employee's household
goods to Bermuda or to Charlotte, NC (such amounts paid by the
Company pursuant
to subsection (e), the "Relocation Expenses"). Notwithstanding
anything to the
contrary in the Scottish Re Executive Homeowner Corporate
Relocation Policy (the
"Relocation Policy"), the Employee's Relocation Allowance (as
defined in the
Relocation Policy) shall equal one (1) month of the Employee's
salary. For the
avoidance of doubt, the Relocation Allowance shall not be provided
to the
Employee on a fully grossed up tax neutral basis. Any such
reimbursements and
any applicable tax gross-up payments for any reimbursement or
in-kind benefit
shall be made no later than thirty (30) business days following
presentation to
the Company of the bill or invoice for any such benefit. In no
event will any
reimbursement or in-kind benefit in any calendar year affect any
reimbursement
or in-kind benefit made in any subsequent calendar year. In no
event will any
tax gross-up payment be made later than the Employee's taxable year
next
following the taxable year in which the Employee remits the related
taxes. In
the event that the Employee should terminate his employment with
the Company
without Good Reason, the Employee shall
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reimburse to the Company a pro rata share of the Relocation
Expenses in
accordance with the Relocation Policy in effect as of the Effective
Date.
4.6 Retention Bonus.
Subject to the Employee's continued
employment with the Company through the date such payment is made,
in the event
of a Change in Control (as defined below), the Company shall pay
the Employee a
lump-sum payment equal to the sum of (x) the Employee's then
current Base Salary
plus (y) the highest annual Bonus earned by the Employee (or, if
higher, the
Target Bonus) during the prior two (2) fiscal years (collectively,
the
"Retention Bonus"), payable within ten (10) days following the
first anniversary
of the Change in Control.
"Change of Control" shall mean (1) any person, other than
Cerberus
Capital Management, L.P. ("Cerberus") or Mass Mutual Capital
Partners LLC ("Mass
Mutual") or their respective affiliates, becomes the beneficial
owner, directly
or indirectly, of fifty percent (50%) or more of the combined
voting power of
the then issued and outstanding equity securities of the Company,
or (2) the
sale, transfer or other disposition of all or substantially all of
the business
and assets of the Company, whether by sale of assets, merger or
otherwise
(determined on a consolidated basis) to another person other than a
transaction
in which the survivor or transferee is a person controlled,
directly or
indirectly, by Cerberus or Mass Mutual Capital or their
affiliates.
4.7 Expense
Reimbursement. During the Term, the Employee shall
be entitled to receive reimbursement for all appropriate business
expenses
incurred by him in connection with his duties under this Agreement
in accordance
with the policies of the Company applicable to other executive
employees as in
effect from time to time.
4.8 Professional Fees.
The Company shall pay or reimburse the
Employee (on a fully grossed up tax neutral basis) for the
Employee's reasonable
attorneys' fees and costs (not to exceed $10,000) incurred during
2007 in
connection with advice pertaining to and negotiation of this
Agreement upon
presentation to the Company of bills or invoices for such services
and such
other supporting information as the Company may reasonably require.
Such payment
or reimbursement and the corresponding gross-up payment shall be
made no later
than fifteen (15) business days following presentation to the
Company of the
bill or invoice for such services. In no event will the payment or
reimbursement
affect any other reimbursement or in-kind benefit made in any
subsequent
calendar year or be made later than December 31, 2007. In no event
will the tax
gross-up payment be made later than March 31, 2008.
4.9 Club Membership.
The Company shall pay or reimburse the
Employee for (a) the initiation fee for a Bermuda country club
membership and
(b) the dues for such membership (not to exceed $5,000 per calendar
year)
following presentation to the Company of the bill or invoice for
such membership
dues, in accordance with the Company's expense reimbursement
policy.
4.10 Signing Bonus. The company shall pay the Employee a
$100,000
signing bonus upon execution of this Agreement (the "Signing
Bonus"). If the
Employee's employment with the Company is terminated either (x) by
the Company
for Cause or (y) by the Employee without Good Reason within one (1)
year of the
Effective Date, the Employee agrees to return the entire amount of
the Signing
Bonus to the Company.
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4.11 Vacation. The Employee shall be entitled to four (4) weeks
of paid vacation per annum, in accordance with the Company's
vacation policy.
5. Termination
of Employment.
5.1 By the Company for
Cause or by the Employee Without Good
Reason. If: (i) the Company terminates the Employee's employment
with the
Company for Cause (as defined below); or (ii) the Employee
terminates his
employment without Good Reason (as defined below) (provided that
the Employee
shall be required to give the Company at least forty-five (45) days
prior
written notice of such termination), the Employee or the Employee's
legal
representatives (as appropriate), shall be entitled to receive the
following
(the "Accrued Benefits"):
(i) the
Employee's accrued but unpaid Base Salary and
benefits set forth in Sections 4.1 and 4.3, if any, to the date of
termination;
(ii) the unpaid
portion of the Bonus, if any, relating to
the calendar year prior to the calendar year of the Employee's
termination,
payable in accordance with Section 4.2; provided, however, that if
the Employee
is terminated by the Company for Cause, or gives notice of his
intention to
terminate his employment without Good Reason, prior to the date on
the
Employee's Bonus payment is to be made, the Employee shall not be
eligible for
and shall not be paid such Bonus amount;
(iii) in accordance with the Company's policies, any accrued
but unused vacation time or paid time off; and
(iv) expenses
reimbursable under Section 4.7 incurred but
not yet reimbursed to the Employee to the date of termination.
For the purposes of this Agreement, "Cause" means, as
determined
by a majority of the Board, in the Board's reasonable business
judgment acting
in good faith and engaging in fair dealing with the Employee, with
respect to
conduct during the Employee's employment with the Company, whether
or not
committed during the Term, (i) commission of a felony by the
Employee; (ii)
intentional acts of dishonesty by the Employee resulting or
intending to result
in personal gain or enrichment at the expense of the Company or
its
subsidiaries; (iii) the Employee's breach of his material
obligations under this
Agreement; (iv) conduct by the Employee in connection with his
duties hereunder
that is fraudulent or grossly negligent or that the Employee knew
or reasonably
should have known to be unlawful; provided that any action taken by
the Employee
on the advice of the Company's Chief Administrative Officer (or his
designee)
shall not be treated as unlawful for purposes of this clause (iv);
(v) engaging
in personal conduct by the Employee (including, but not limited to,
employee
harassment or discrimination, the use or possession at work of any
illegal
controlled substance) which discredits or damages the Company or
its
subsidiaries; (vi) contravention of specific lawful direction of
the Board or
continuing inattention to or continuing failure to attempt, in good
faith, to
perform the duties to be performed by the Employee under the terms
of Section
3.2 of this Agreement or (vii) breach of the Employee's covenants
set forth in
Section 6 below before termination of employment. The Employee
shall have
fifteen (15) days after notice from the Company, which notice shall
set forth in
reasonable detail a description of the deficiency determined by the
Board to
constitute Cause, to cure the deficiency leading to the Cause
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determination (except with respect to (i) above), if curable. A
termination for
"Cause" shall be effective immediately (or on such other date set
forth by the
Company), following the Employee's failure to timely cure such
conduct, if
curable.
For the purposes of this Agreement, "Good Reason" means,
without
the Employee's consent, (i) a material adverse reduction in the
Employee's
authority, responsibilities or duties; (ii) a reduction in the
Employee's Base
Salary or bonus opportunity; provided that the Company may at any
time or from
time to time amend, modify, suspend or terminate any bonus,
incentive
compensation or other benefit plan or program provided to the
Employee for any
reason and without the Employee's consent if such modification,
suspension or
termination (x) is a result of the underperformance of the Employee
or the
Company under its business plan, and (y) is consistent with an
"across the
board" reduction for all similar employees of the Company, and, in
each case, is
undertaken in the Board's reasonable business judgment acting in
good faith and
engaging in fair dealing with the Employee; or (iii) the Company's
material
breach of the Agreement; provided that a suspension of the Employee
and the
requirement that the Employee not report to work shall not
constitute "Good
Reason" if the Employee continues to receive the compensation and
benefits
required by this Agreement. The Company shall have thirty (30) days
after
receipt of notice from the Employee in writing specifying the
deficiency to cure
the deficiency that would result in Good Reason.
5.2 By the Company
Without Cause; by the Employee with Good
Reason; or Following the Company's Decision Not to Renew the Term.
If, (1)
during the Term: (i) the Company terminates the Employee's
employment without
Cause (which may be done at any time without prior notice) or (ii)
the Employee
terminates his employment for Good Reason (within ninety (90) days
following the
initial condition giving rise to such Good Reason), upon at least
forty-five
(45) days prior written notice, or (2) the Employee's employment
with the
Company terminates in connection with the Company's determination
not to extend
or renew the Term pursuant to Section 2, upon execution without
revocation of a
valid release agreement in a form reasonably acceptable to the
Parties, drafted
diligently and in good faith, consistent with the terms and
conditions of this
Agreement, and not in violation of any applicable laws (the
"Release"), the
Employee shall be entitled to receive:
(i) the Accrued
Benefits;
(ii) an amount equal
to (x) the Employee's annual Base
Salary as of the date of termination plus (y) the highest annual
Bonus
earned by the Employee (or, if higher, the Target Bonus) during
the
prior two (2) fiscal years (collectively, the "Severance
Amount"),
payable in a lump sum, less standard income and payroll tax
withholding and other authorized deductions within fifteen (15)
days
following the effective date of the Release or such later time
as
required by Section 409A of the Internal Revenue Code of 1986,
as
amended ("Section 409A");
(iii) continued payment of the Employee's Base Salary for
the remainder of the Term, payable in accordance with the
customary
payroll practices of the Company; provided that each payroll
payment
shall be treated as a separate payment for purposes of Section
409A,
and the regulations promulgated thereunder (the "Code");
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(iv) if the Employee
elects continuing group coverage
pursuant to the Consolidated Omnibus Budget Reconciliation Act
of
1985, as amended ("COBRA"), reimbursement of the cost of such
continuation coverage (on a fully grossed up tax neutral basis)
for
the earlier of (x) twelve (12) months or (y) such earlier date
that
the Employee is covered (or eligible to be covered) under
another
group health plan, subject to the terms of the plans and
applicable
law;
(v) if such
termination of employment occurs prior to the
date that is ten (10) days subsequent to the first (1st)
anniversary
of a Change in Control, an amount equal to the Retention Bonus,
payable pursuant to Section 4.6 above; and
(vi) the Company shall
pay or reimburse the Employee (in
either case, on a fully grossed up tax neutral basis in
accordance
with the terms of Section 4.5) for the Employee's reasonable
costs
(not to exceed $50,000) associated with relocating the Employee
and
his family and transporting the Employee's