[Exhibit 10.2]
FOUNDER AGREEMENT
THIS FOUNDER AGREEMENT (the "Agreement") is made as of the 7th day of
December, 2005, between Validus Holdings, Ltd. (including its successors and
assigns, the "Company"), a company with limited liability organized under the
laws of Bermuda, and Aquiline Capital Partners LLC (the "Founder"), a Delaware
limited liability company.
The parties hereto hereby agree as follows:
1. Services Rendered by the Founder to the Company. The Founder has
rendered services to the Company prior to the date hereof in connection with the
formation and initial capitalization of the Company and its subsidiaries (the
"Services").
2. Fees. In consideration the Services, the Company agrees to pay to the
Founder (or its designee) a founder's fee (the "Founder's Fee"), such Founder's
Fee consisting of the following:
(a) $12,103,366.81, such amount being due in full on the date that is
thirty days following the first funding of the Company's offering of common
shares; and
(b) warrants issued to the Founder (or its designee), substantially in
the form of warrant attached hereto as Exhibit A (the "Warrants"), to
purchase 4.15% of the Company's fully diluted common shares, such Warrants
to be issued and delivered concurrently herewith.
3. Term. This Agreement shall become effective upon its execution, and
shall automatically terminate upon payment of the Founder's Fee in full in
accordance with the terms of Section 2. Notwithstanding the foregoing, the
provisions of Section 4 shall survive the termination of this Agreement.
4. Indemnity. In consideration of the execution and delivery of this
Agreement by the Founder, the Company hereby agrees to indemnify, exonerate and
hold each of the Founder and its affiliates, and each of their respective,
equityholders, directors, officers, fiduciaries, employees and agents
(collectively, the "Indemnitees") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities and damages, and expenses
in connection therewith, including without limitation reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to the
execution, delivery, performance, enforcement or existence of this Agreement or
the transactions contemplated hereby or thereby except for any such Indemnified
Liabilities arising solely on account of such Indemnitee's gross negligence or
willful misconduct, and if and to the extent that the foregoing undertaking may
be unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. None of the Indemnitees
shall be liable to the Company or any of its affiliates for any act or omission
suffered or taken by such Indemnitee that does not constitute gross negligence
or willful misconduct
5. Miscellaneous.
(a) No amendment or waiver of any term, provision or condition of this
Agreement shall be effective, unless in writing and executed by each of the
Founder and the Company. No waiver on any one occasion shall extend to or
effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to any choice
or conflict of law provision or rule that would cause the application of
the laws of any other jurisdiction.
(c) This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto. The fees set forth herein
are in addition to the fees set forth in the Advisory Agreement of even
date herewith between the Company and Aquiline Capital Partners LLC.
(d) All notices, demands, and communications of any kind which any
party may require or desire to serve upon any other party under this
Agreement shall be in writing and shall be served upon such other party as
specified below by personal delivery to the address set forth for it below
or to such other address as such party shall have specified by notice to
each other party or by mailing a copy thereof by certified or registered
mail, or by any reputable overnight courier service, postage prepaid, with
return receipt requested, addressed to such party and copied persons at
such addresses. In the case of service by personal delivery, it shall be
deemed complete on the first business day after the date of actual delivery
to such address. In case of service by mail or by overnight courier, it
shall be deemed complete, whether or not received, on the third day after
the date of mailing as shown by the registered or certified mail receipt or
courier service receipt. Notwithstanding the foregoing, notice to any party
or copied person of change of address shall be deemed complete only upon
actual receipt by an officer or agent of such party or copied person.
If to the Company, at:
Validus Holdings, Ltd.
Mintflower Place
8 Par-La-Ville Road, Third Floor
Xxxxxxxx HM08 Bermuda
Attention: Xxxxxx Xxxxxx
If to the Founder, at:
Aquiline Capital Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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(e) If in any judicial proceedings a court shall refuse to enforce any
provision of this Agreement, then such unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of such proceedings
to the extent necessary to permit the remaining provisions to be enforced.
(f) This Agreement may be executed in any number of counterparts and
by each of the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which together
shall constitute one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
VALIDUS HOLDINGS, LTD.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
AQUILINE CAPITAL PARTNERS LLC
By:
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Name:
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Title:
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