Exhibit 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT ("Agreement") dated as of December 20, 2001 between
Arch Capital Group Ltd., a Bermuda corporation ("Parent"), Arch Capital Group
(U.S.) Inc., a Delaware corporation (the "Company" and, together with Parent,
collectively referred to herein as the "Companies"), and Xxxxxxxxxxx Xxxxxxxx
(the "Executive").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. For purposes of this Agreement, the following
terms have the meanings set forth below:
"Base Salary" has the meaning set forth in Section 4.01.
"Cause" means (a) theft or embezzlement by the Executive with respect to
the Companies or their Subsidiaries; (b) the Executive's conviction of, or plea
of nolo contendere to, any felony or any misdemeanor involving moral turpitude;
(c) willful or prolonged absence from work by the Executive (other than by
reason of disability due to physical or mental illness) or willful failure or
refusal by the Executive to perform his duties and responsibilities, without the
same being corrected within thirty (30) days after being given written notice
thereof; (d) continued and habitual use of alcohol by the Executive to an extent
which materially impairs the Executive's performance of his duties, without the
same being corrected within thirty (30) days after being given written notice
thereof; (e) the Executive's use of illegal drugs, without the same being
corrected within thirty (30) days after being given written notice thereof; or
(f) the material breach by the Executive of any of the provisions contained in
this Agreement, including, without limitation, Section 3.01 and Section 11.01,
without the same (other than in the case of Section 11.01) being corrected
within thirty (30) days after being given written notice thereof.
"Confidential Information" means information that is not generally known to
the public and that was or is used, developed or obtained by the Companies or
their Subsidiaries in connection with their business. It shall not include
information (a) required to be disclosed by court or administrative order; (b)
lawfully obtainable from other sources or which is in the public domain through
no fault of the Executive; or (c) the disclosure of which is consented to in
writing by the Companies.
"Date of Termination" has the meaning set forth in Section 5.07.
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"Employment Period" has the meaning set forth in Section 2.01.
"Good Reason" means, without the Executive's written consent, (a) any
material diminution of the duties or responsibilities of the Executive, without
the same being corrected within thirty (30) days after being given written
notice thereof; (b) any material breach by the Companies of the provisions
contained in this Agreement, without the same being corrected within thirty (30)
days after being given written notice thereof; or (c) upon the departure of Xx.
Xxxx Xxxxxx from employment with Arch Reinsurance Ltd. and its affiliates, the
Executive is not promoted to the position of chief executive officer of the
worldwide insurance and reinsurance businesses of the Parent and its
Subsidiaries, without the same being corrected within thirty (30) days after the
Executive gives written notice thereof, but only if the Executive terminates his
employment with the Companies for any reason (other than by reason of death or
Permanent Disability) within eighteen (18) months from the date of such
departure by Xx. Xxxxxx.
For purposes of clause (a), a material diminution of duties or
responsibilities shall include, without limitation, either of the following: (i)
a requirement that the Executive report to anyone other than Xx. Xxxx Xxxxxx,
the chief executive officer of the Parent and the Board of Directors of the
Companies; or (ii) if, following an event or series of events where any Person
or group of related Persons under common control that engages in a substantial
property and casualty insurance or reinsurance business (the "Acquiror"), other
than a Permitted Person, are or become the "beneficial owner" (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")), directly or indirectly, of voting securities of the Parent representing
more than 50% of the total voting power of all then outstanding voting
securities of the Parent, the Executive is no longer the chief executive officer
(other than during the period that Xxxx Xxxxxx is the chief executive officer)
of the worldwide insurance and reinsurance businesses of the parent/subsidiary
group then including the Parent, the Acquiror and their Subsidiaries. For
purposes of this paragraph, "Permitted Persons" means (A) the Parent; (B) any
Related Party; (C) Xxxxxxx & Xxxxxxxx or any of its subsidiaries or investment
funds managed or controlled by Xxxxxxx & Xxxxxxxx or any of its subsidiaries;
(D) Warburg Pincus or any of its subsidiaries or any investment funds managed or
controlled by Warburg Pincus or any of its subsidiaries; or (E) any group (as
defined in Rule 13b-3 under the Exchange Act) comprised of any or all of the
foregoing; and "Related Party" means (A) a majority-owned subsidiary of the
Parent; (B) a trustee or other fiduciary holding securities under an employee
benefit plan of the Parent or any majority-owned subsidiary of the Parent; or
(C) any entity, 50% or more of the voting power of which is owned directly or
indirectly by the stockholders of the Parent in substantially the same
proportion as their ownership of voting securities of the Parent immediately
prior to the transaction.
"Intellectual Property" has the meaning set forth in Section 7.01.
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"Notice of Termination" has the meaning set forth in Section 5.06.
"Noncompetition Period" has the meaning set forth in Section 9.01.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, an estate, a trust, a
joint venture, an unincorporated organization or a governmental entity or any
department, agency or political subdivision thereof.
"Permanent Disability" means those circumstances where the Executive is
unable to continue to perform the usual customary duties of his assigned job or
as otherwise assigned in accordance with the provisions of this Agreement for a
period of six (6) months in any twelve (12) month period because of physical,
mental or emotional incapacity resulting from injury, sickness or disease.
"Reimbursable Expenses" has the meaning set forth in Section 4.04.
"Subsidiary" or "Subsidiaries" means, with respect to any Person, any
corporation, partnership, limited liability company, association or other
business entity of which (a) if a corporation, fifty (50) percent or more of the
total voting power of shares of stock entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or combination
thereof; or (b) if a partnership, limited liability company, association or
other business entity, fifty (50) percent or more of the partnership or other
similar ownership interest thereof is at the time owned or controlled, directly
or indirectly, by any Person or one or more Subsidiaries of that Person or a
combination thereof. For purposes of this definition, a Person or Persons will
be deemed to have a fifty (50) percent or more ownership interest in a
partnership, limited liability company, association or other business entity if
such Person or Persons are allocated fifty (50) percent or more of partnership,
limited liability company, association or other business entity gains or losses
or control the managing director or member or general partner of such
partnership, limited liability company, association or other business entity.
ARTICLE 2
EMPLOYMENT
SECTION 2.01. Employment. Subject to the receipt on or before December 21,
2001 by the Company of a written letter of resignation from the Executive to his
prior employer or a written notice of termination from such prior employer to
the Executive which, in either case, is effective on or before December 31,
2001, the Company shall employ the Executive, and the Executive shall accept
employment with the Company, upon the terms and conditions set
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forth in this Agreement for the period beginning on January 1, 2002 (the date of
the beginning of such period to be referred to herein as the "Start Date") and
ending as provided in Section 5.01 (the "Employment Period"). If the Executive
fails to satisfy the condition set forth in the preceding sentence or fails to
commence the performance of his duties and responsibilities hereunder by January
2, 2002, he shall forfeit all rights hereunder and incur no obligations
hereunder; provided, that any breach of the requirements described in this
sentence shall be disregarded unless notice of such breach is provided to the
Executive by January 31, 2002.
ARTICLE 3
POSITION AND DUTIES
SECTION 3.01. Position and Duties. During the Employment Period, the
Executive shall serve as President and Chief Executive Officer of the Company
and shall be responsible for the general management and oversight of the United
States insurance operations of the Company and its United States affiliates. In
such capacity, the Executive shall have such responsibilities, powers and duties
as may from time to time be prescribed by the Board of Directors of the Company;
provided that such responsibilities, powers and duties are substantially
consistent with those customarily assigned to individuals serving in such
position at comparable companies. During the Employment Period the Executive
shall devote substantially all of his working time and efforts to the business
and affairs of the Companies and their Subsidiaries. The Executive shall not
directly or indirectly render any services of a business, commercial or
professional nature to any other person or for-profit organization not related
to the business of the Companies or their Subsidiaries, whether for compensation
or otherwise, without prior written consent of the Parent. Notwithstanding the
foregoing, Executive may continue to serve as a non-employee director of the
Insurance Service Office (or any successor thereto) and a reasonable number of
non-profit organizations so long as such service does not interfere with the
performance of the Executive's duties hereunder. If, after two years from the
date hereof, the Board of Directors of Parent determines that it is necessary
for Executive to provide his services to Parent and its Subsidiaries from
offices located in Bermuda, Executive would agree to relocate to Bermuda to
provide such services, and Parent would agree to provide Executive benefits
customarily provided to similarly situated senior executives residing in
Bermuda. Except as indicated in the preceding sentence and for the normal travel
requirements of his position, Executive's principal place of business shall be
located in the New York Metropolitan area, including New York City, Westchester
County, New York, Long Island, Fairfield County, Connecticut, and Morris, Essex,
Bergen and other locations in northern New Jersey.
SECTION 3.02. Parent Board Seat. During the Employment Period, Parent shall
use its best efforts to cause the Executive to be elected to the Board of
Directors of Parent. In the event that the Executive's employment with the
Company terminates for any reason, the Ex-
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ecutive shall resign from the Board of Directors of Parent and any committee of
such Board of Directors on which he serves. In such capacity as a Director of
Parent, the Executive will provide oversight and stewardship for Parent's
non-United States insurance and reinsurance subsidiaries.
ARTICLE 4
BASE SALARY AND BENEFITS
SECTION 4.01. Base Salary. During the Employment Period, the Executive's
base salary will be $1,000,000 per annum (the "Base Salary"). The Base Salary
will be payable bi-monthly on the 15th and last working day of each month in
arrears. Annually during the Employment Period, the Board of Directors of the
Company shall review with the Executive his job performance and compensation,
and, commencing with calendar year 2004, if deemed appropriate by the Board of
Directors of the Company, in its discretion, the Executive's Base Salary may be
increased.
SECTION 4.02. Bonuses. In addition to the Base Salary, the Executive shall
participate in an annual bonus plan on terms established from time to time by
the Board of Directors of the Company, in consultation with the senior
executives of the Company, including the Executive. The Executive's target
annual bonus will be 100% of his Base Salary.
SECTION 4.03. Benefits. In addition to the Base Salary, and any bonuses
payable to the Executive pursuant to this Agreement, the Executive shall be
entitled to the following benefits during the Employment Period:
(a) such major medical, life insurance and disability insurance
coverage as is, or may during the Employment Period, be provided generally
for other senior executive officers of the Company as set forth from time
to time in the applicable plan documents;
(b) four (4) weeks of paid vacation annually during the Employment
Period; and
(c) benefits under any plan or arrangement available generally for the
senior executive officers of the Company, subject to and consistent with
the terms and conditions and overall administration of such plans as set
forth from time to time in the applicable plan documents.
SECTION 4.04. Expenses. The Company shall reimburse the Executive for all
reasonable expenses incurred by him in the course of performing his duties under
this Agreement which are consistent with the Company's policies in effect from
time
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to time with respect to travel, entertainment and other business expenses
("Reimbursable Expenses"), subject to the Companies' requirements with respect
to reporting and documentation of expenses. If the Executive relocates to
Bermuda, any private aircraft owned or leased by the Companies at such time (if
any), or such other air transportation as is reasonably acceptable to the
Executive, shall be made available to him upon his reasonable request and at the
Company's expense for travel between Bermuda and the New York Metropolitan area.
SECTION 4.05. Stock Options and Restricted Stock. On the Start Date, Parent
shall grant to the Executive an option to acquire 425,000 shares of Parent's
common stock at an exercise price equal to $23.50 per share. The other terms of
the stock option shall be as set forth in the form of the Stock Option Agreement
attached hereto as Exhibit A. On the Start Date, Parent shall also grant to the
Executive 325,000 shares of restricted common stock of Parent on the terms set
forth in the form of Restricted Stock Agreement attached hereto as Exhibit B.
The stock option and restricted stock awards provided for in this Section 4.05
are made as an inducement essential to the Executive's entering into the
Agreement. In addition, the Executive shall be eligible to participate in
Parent's Long Term Incentive and Share Award Plans (and any similar plan adopted
by the Parent) under which awards of options or other stock-based awards may be
granted by the Board of Directors of Parent. In any year during the period
extending through December 31, 2003, the Executive shall be entitled to receive
not less than 75% of the largest award of restricted shares and stock options
granted to any continuing member of management of the Companies in such year
(for the avoidance of doubt, this provision does not apply to any stock-based
awards made to any new hire as an inducement essential to the initial employment
of such individual).
SECTION 4.06. Signing Bonus Restricted Stock Grant. On the Start Date,
Parent shall grant to the Executive 106,383 shares of restricted common stock of
Parent on the terms set forth in the form of the Restricted Stock Agreement
attached hereto as Exhibit B. The restricted stock award provided for in this
Section 4.06 is made as an inducement essential to the Executive's entering into
the Agreement.
SECTION 4.07. Review of Benefit Plans. As soon as practicable after the
Start Date, the Companies shall appoint a committee consisting of members of the
Board of Directors of Parent and senior management of the Companies, including
the Executive, to review the adequacy of the existing company-sponsored plans
providing group life, disability and pension benefits.
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ARTICLE 5
TERM AND TERMINATION
SECTION 5.01. Term. The Employment Period will terminate on the fifth
anniversary of the Start Date unless otherwise agreed by the parties; provided,
that (a) the Employment Period shall terminate prior to such date upon the
Executive's death or Permanent Disability, and (b) the Employment Period may be
terminated at any time by the Company upon 30 days' prior written notice to the
Executive or by the Executive upon 60 days' prior written notice to the Company.
In addition, this Agreement will be automatically extended on the same terms and
conditions for successive one year periods following the original five (5) year
term until either the Company or the Executive, at least twelve (12) months
prior to the expiration of the original term or any extended term, shall give
written notice of their intention not to renew the Agreement (it being
understood that any such notice by the Company or the Executive shall not be
considered a termination of employment by the Company or the Executive for
purposes of Section 5.03).
SECTION 5.02. Termination Due to Death or Permanent Disability. If the
Employment Period shall be terminated due to the death of the Executive, the
Executive's estate or legal representative shall be paid solely (except as
provided in Section 5.05 below) (i) a portion of the bonus (if any) that would
have been payable to the Executive for the year of termination as determined by
the Board of Directors in accordance with the annual bonus plan, prorated for
the portion of the bonus year during which he was employed by the Company, and
(ii) an amount equal to two times the sum of the Base Salary and the target
annual bonus set forth in Section 4.02. Such amount will be payable in a lump
sum as soon as practicable following termination of the Executive's employment
and shall be offset by any proceeds received by the Executive's estate or legal
representative from any insurance coverages provided by the Company or any of
its affiliates. If the Employment Period shall be terminated due to the
Permanent Disability of the Executive, the Executive (or his legal
representative) shall be paid solely (except as provided in Section 5.05 below)
(i) a portion of the bonus (if any) that would have been payable to the
Executive for the year of termination as determined by the Board of Directors in
accordance with the annual bonus plan, prorated for the portion of the bonus
year during which he was employed by the Company, and (ii) at a rate equal to
40% of the Base Salary on a monthly basis during the period of the Executive's
Permanent Disability up to a maximum period as set forth in the Company's
long-term disability plan, offset by any proceeds received by the Executive or
his legal representative from any insurance coverages provided by the Company or
any of its affiliates. In addition, promptly following any such termination, the
Executive (or his estate or legal representative) shall also be reimbursed all
Reimbursable Expenses incurred by the Executive prior to such termination.
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SECTION 5.03. Termination for Good Reason or Without Cause. If the
Employment Period shall be terminated (a) by the Executive for Good Reason or
(b) by the Company not for Cause, subject to reduction as set forth in Section
12.01, the Executive shall be paid solely (except as provided in Section 5.05
below) (i) a portion of the bonus (if any) that would have been payable to the
Executive for the year of termination as determined by the Board of Directors in
accordance with the annual bonus plan, prorated for the portion of the bonus
year during which he was employed by the Company, and (ii) an amount equal to
two times the sum of the Base Salary and the target annual bonus set forth in
Section 4.02. Such amount will be payable in equal monthly installments for a
period of eighteen (18) months commencing on the first month anniversary of the
Date of Termination. In addition, promptly following any such termination, the
Executive shall also be reimbursed all Reimbursable Expenses incurred by the
Executive prior to such termination.
SECTION 5.04. Termination for Cause or Other Than Good Reason. If the
Employment Period shall be terminated (a) for Cause, or (b) as a result of the
Executive's resignation or leaving of his employment, other than for Good
Reason, the Executive shall be entitled to receive solely the Base Salary
through the Date of Termination and reimbursement of all Reimbursable Expenses
incurred by the Executive prior to such termination.
SECTION 5.05. Benefits. If the Employment Period is terminated as a result
of a termination of employment as specified in Section 5.02 or 5.03, the
Executive and his spouse shall continue to receive major medical insurance
coverage benefits from the Company's plan in effect at the time of such
termination, at the expense of the Company, for a period equal to the lesser of
(x) eighteen (18) months following the Date of Termination or (y) if applicable,
until the Executive is provided by another employer with benefits substantially
comparable (with no preexisting condition limitations) to the benefits provided
by such plan. The statutory health care continuation coverage period under
Section 4980B of the Internal Revenue Code of 1986, as amended (the "Code"),
will commence at the end of such period. In addition, if the Employment Period
is terminated as a result of a termination of employment as specified in Section
5.02 or 5.03, any unvested stock options and any unvested shares of restricted
stock of Parent granted to the Executive under Section 4.05 and Section 4.06
shall vest in accordance with the terms of the applicable award agreements.
Except as otherwise required by mandatory provisions of law, all of the
Executive's rights to fringe and other benefits under this Agreement or other
plans or arrangements of the Companies, if any, accruing after the termination
of the Employment Period as a result of a termination of employment as specified
in Section 5.04 will cease upon such termination; provided, that the foregoing
shall not apply with respect to the Executive's rights as set forth in any
deferred compensation plans maintained by the Company or its affiliates, and
under Section 11.03.
SECTION 5.06. Notice of Termination. Any termination by the Companies or by
the Executive for any reason shall be communicated by written Notice of
Termination to the other
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party hereto. For purposes of this Agreement, a "Notice of Termination" shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of employment under the
provision indicated.
SECTION 5.07. Date of Termination. "Date of Termination" shall mean (a) if
the Employment Period is terminated as a result of a Permanent Disability, five
(5) days after a Notice of Termination is given, (b) if the Employment Period is
terminated for Good Reason, the date specified in the Notice of Termination, (c)
if the Employment Period is terminated for Cause, the date designated by the
Company in the Notice of Termination, and (d) if the Employment Period is
otherwise terminated under Section 5.01, after the applicable notice period
specified in such section has elapsed.
ARTICLE 6
CONFIDENTIAL INFORMATION
SECTION 6.01. Nondisclosure and Nonuse of Confidential Information. The
Executive will not disclose or use at any time during or after the Employment
Period any Confidential Information of which the Executive is or becomes aware,
whether or not such information is developed by him, except to the extent that
such disclosure or use is directly related to and required by the Executive's
performance of duties assigned to the Executive pursuant to this Agreement.
ARTICLE 7
INTELLECTUAL PROPERTY
SECTION 7.01. Ownership of Intellectual Property. In the event that the
Executive as part of his activities on behalf of the Companies generates,
authors or contributes to any invention, design, new development, device,
product, method of process (whether or not patentable or reduced to practice or
comprising Confidential Information), any copyrightable work (whether or not
comprising Confidential Information) or any other form of Confidential
Information relating directly or indirectly to the business of the Companies as
now or hereinafter conducted (collectively, "Intellectual Property"), the
Executive acknowledges that such Intellectual Property is the sole and exclusive
property of the Companies and hereby assigns all right title and interest in and
to such Intellectual Property to the Companies. Any copyrightable work prepared
in whole or in part by the Executive during the Employment Period will be deemed
"a work made for hire" under Section 201(b) of the Copyright Act of 1976, as
amended, and the Companies will own all of the rights comprised in the copyright
therein. The Executive will cooperate with the Companies to protect the
Companies' interests in and rights to such Intellectual Property (including
providing reasonable assistance in securing xxx-
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ent protection and copyright registrations and executing all documents as
reasonably requested by the Companies, whether such requests occur prior to or
after termination of Executive's employment hereunder).
ARTICLE 8
DELIVERY OF MATERIALS UPON TERMINATION OF EMPLOYMENT
SECTION 8.01. Delivery of Materials upon Termination of Employment. As
requested by the Companies, from time to time and upon the termination of the
Executive's employment with the Companies for any reason, the Executive will
promptly deliver to the Companies all copies and embodiments, in whatever form
or medium, of all Confidential Information or Intellectual Property in the
Executive's possession or within his control (including written records, notes,
photographs, manuals, notebooks, documentation, program listings, flow charts,
magnetic media, disks, diskettes, tapes and all other materials containing any
Confidential Information or Intellectual Property) irrespective of the location
or form of such material and, if requested by the Companies, will provide the
Companies with written confirmation that all such materials have been delivered
to the Companies.
ARTICLE 9
NONCOMPETITION AND NONSOLICITATION
SECTION 9.01. Noncompetition. The Executive acknowledges that during his
employment with the Company, he will become familiar with trade secrets and
other Confidential Information concerning the Companies, their Subsidiaries and
their respective predecessors, and that his services will be of special, unique
and extraordinary value to the Companies. In addition, in consideration of the
rights to the payments set forth in Article 5 of this Agreement, the Executive
hereby agrees that at any time during the Employment Period, and for a period
ending eighteen (18) months after the termination of Executive's employment (the
"Noncompetition Period"), he will not directly or indirectly own, manage,
control, participate in, render services (as an employee, consultant or in any
other capacity) for or in any manner engage in any business competing with the
insurance and reinsurance businesses of the Companies or their Subsidiaries as
such businesses exist as of the termination of Executive's employment, within
any geographical area in which the Companies or their Subsidiaries engage in
such businesses; provided, however, that, if such termination is by the Company
not for Cause or by the Executive for Good Reason under Section 5.03, the
Executive shall be bound by this Section 9.01 only to extent that the Company
provides to the Executive the benefits set forth in Section 5.03 and Section
5.05; provided, further, that, if such termination is due to (i) the expiration
of the original five year term of this Agreement or any extended term or (ii) by
reason of Executive's resignation or leaving of his employment other than for
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Good Reason, the Executive shall be bound by this Section 9.01 for the period of
up to eighteen (18) months that the Company, at its sole option, within thirty
(30) days following such termination, elects in writing to (a) pay the Executive
an amount equal to two times the sum of the Base Salary and the target annual
bonus set forth in Section 4.02 (such amount to be payable in equal monthly
installments over such period), and (b) provide the benefits set forth in
Section 5.05. It shall not be considered a violation of this Section 9.01 for
the Executive to be a passive owner of not more than 2% of the outstanding stock
of any class of a corporation which is publicly traded, so long as the Executive
has no active participation in the business of such corporation. In addition, it
shall not be considered a violation of this Section 9.01 for the Executive to
provide services in a non-managerial capacity to a non-risk bearing entity (for
example, as an insurance broker or analyst).
SECTION 9.02. Nonsolicitation. The Executive hereby agrees that (a) during
the Employment Period and for a period of eighteen (18) months after the
termination of Executive's employment (the "Nonsolicitation Period") the
Executive will not, directly or indirectly through another entity, induce or
attempt to induce any employee of the Companies or their Subsidiaries to leave
the employ of the Companies or their Subsidiaries, or in any way interfere with
the relationship between the Companies or their Subsidiaries and any employee
thereof and (b) during the Nonsolicitation Period, the Executive will not induce
or attempt to induce any customer, supplier, client, insured, reinsured,
reinsurer, broker, licensee or other business relation of the Companies or their
Subsidiaries to cease doing business with the Companies or their Subsidiaries.
SECTION 9.03. Enforcement. If, at the enforcement of Sections 9.01 or 9.02,
a court holds that the duration, scope or area restrictions stated herein are
unreasonable under circumstances then existing, the parties agree that the
maximum duration, scope or area reasonable under such circumstances will be
substituted for the stated duration, scope or area and that the court will be
permitted to revise the restrictions contained in this Article 9 to cover the
maximum duration, scope and area permitted by law.
ARTICLE 10
EQUITABLE RELIEF
SECTION 10.01. Equitable Relief. The Executive acknowledges that (a) the
covenants contained herein are reasonable, (b) the Executive's services are
unique, and (c) a breach or threatened breach by him of any of his covenants and
agreements with the Companies contained in Sections 6.01, 7.01, 8.01, 9.01 or
9.02 could cause irreparable harm to the Companies for which they would have no
adequate remedy at law. Accordingly, and in addition to any remedies which the
Companies may have at law, in the event of an actual or threatened breach by the
Executive of his covenants and agreements contained in Sections
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6.01, 7.01, 8.01, 9.01 or 9.02, the Companies shall have the absolute right to
apply to any court of competent jurisdiction for such injunctive or other
equitable relief as such court may deem necessary or appropriate in the
circumstances, and the Companies will be entitled to enforce such rights
specifically, without posting a bond or other security.
ARTICLE 11
REPRESENTATIONS; CERTAIN COVENANTS
SECTION 11.01. Executive Representations. The Executive hereby represents
and warrants to the Companies that (a) the execution, delivery and performance
of this Agreement by the Executive does not and will not conflict with, breach,
violate or cause a default under any contract, agreement, instrument, order,
judgment or decree to which the Executive is a party or by which he is bound,
(b) the Executive is not a party to or bound by any noncompetition agreement
with any other Person and (c) upon the execution and delivery of this Agreement
by the Companies, this Agreement will be the valid and binding obligation of the
Executive.
SECTION 11.02. Companies Representations. Each Company hereby represents
and warrants to the Executive that (a) it has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and (b) the execution and delivery of this Agreement by each Company
has been duly and validly authorized by all necessary corporate action. The
Parent also agrees to use reasonable best efforts to maintain an effective
Registration Statement on Form S-8 (or any similar successor form) covering the
issuance to the Executive of (i) the shares of the Parent's common stock upon
the exercise of the option referred to in Section 4.05 (the "Option Shares") and
(ii) the shares of restricted common stock of the Parent referred to in Section
4.05 and Section 4.06 (together with the Option Shares, the "Shares"). Parent
hereby represents and warrants that, on the date hereof, the Shares are
registered under the Securities Act of 1933, as amended, on a currently
effective Form S-8 Registration Statement.
SECTION 11.03. General Indemnification. The Parent and Company agree that
if the Executive is made a party, or is threatened to be made a party, to any
pending or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative (each, a "Proceeding"), by reason of the fact
that he is or was a director, officer or employee of the Company or the Parent
or is or was serving at the request of the Company as a director, officer,
member, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, the Executive shall be indemnified and held harmless by the Companies to
the fullest extent permitted or authorized by applicable law and the Companies'
certificate of incorporation or bylaws, against all cost, expense, liability and
loss reasonably incurred or suffered by the Executive in connection
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therewith, including, without limitation, attorneys' fees and disbursements and
judgments, and the Companies shall advance expenses in connection therewith, to
the fullest extent permitted or authorized by applicable law and the Companies'
certificate of incorporation or bylaws. Such indemnification shall continue as
to the Executive even if he has ceased to be a director, member, employee or
agent of the Company or other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The Company agrees to continue
and maintain a directors' and officers' liability insurance policy covering the
Executive to the extent the Company provides such coverage for its other
executive officers.
SECTION 11.04. Legal Fees. The Company shall reimburse the Executive for
all reasonable expenses incurred by him for legal advice in finalizing the
Agreement, subject to a maximum of $15,000. In addition, the Company agrees to
pay, upon written demand therefor by the Executive, all legal fees which the
Executive may reasonably incur as a result of any dispute or contest by or with
the Companies regarding the validity or enforceability of, or liability under,
any provision of this Agreement or otherwise in connection with the enforcement
of this Agreement, unless the Company substantially prevails on all material
causes of action in the dispute or contest.
ARTICLE 12
CERTAIN ADDITIONAL PAYMENTS
SECTION 12.01. Anything in this Agreement to the contrary notwithstanding,
in the event it shall be determined that any payment, award, benefit or
distribution (including, without limitation, the acceleration of any payment,
award, distribution or benefit), by the Company or any of its affiliates to or
for the benefit of the Executive (whether pursuant to the terms of this
Agreement or otherwise, but determined without regard to any additional payments
required under this Article 12) (as reduced as set forth in this Section 12.01,
a "Payment") would be subject to the excise tax imposed by Section 4999 of the
Code or any corresponding provisions of state or local tax law, or any interest
or penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be paid
an additional payment (a "Gross-Up Payment") in an amount such that after
payment by the Executive of all taxes (including any Excise Tax, and any
federal, state and local income tax or employment tax) imposed upon the Gross-Up
Payment and any interest or penalties imposed with respect to such taxes, the
Executive retains from the Gross-Up Payment an amount equal to the Excise Tax
imposed upon the Payments; provided that, the Payments, in the aggregate, shall
be reduced (subject to the following sentences of this section) by an amount
equal to the lesser of: (x) the smallest amount possible such that no Payment
would be treated as a "parachute payment" under Section 280G of the Code; and
(y) $500,000, $1,000,000, $1,500,000, $2,000,000, and $2,500,000 for Payments
that become payable as a
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result of a termination of employment occurring in calendar years 2002, 2003,
2004, 2005 and 2006, respectively, even if actually paid in later years. The
reduction of the Payments, if applicable, shall be made by first reducing the
payments under Section 5.03, unless an alternative method of reduction is
elected by the Executive prior to the effective date of the event that triggers
the Payments. No reduction shall be made with respect to any Payment received or
otherwise required to be included in income for federal income tax purposes
prior to such event. Notwithstanding anything to the contrary in the three
preceding sentences, if, without regard to any Gross-Up Payment and without any
reduction in Payments, the net amount retained by the Executive, after
subtracting from the Payments otherwise to be made all taxes imposed thereon
(including the Excise Tax), would exceed the after-tax amount that would be
retained by the Executive with the Gross-Up Payment and after the reduction
computed above, then no reduction in Payments shall be made and no Gross-Up
Payment shall be made. For purposes of determining the amount of the Gross-Up
Payment, the Executive shall be deemed to pay federal income tax and employment
taxes at the highest marginal rates of federal income and employment taxation in
the calendar year in which the Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the state and
locality of the Executive's residence (or, if greater, the state and locality in
which the Executive is required to file a nonresident income tax return with
respect to the Payment) on the date of termination of employment, net of the
reduction in federal income taxes that may be obtained from the deduction of
such state and local taxes. In addition, no reduction shall be made (and no
Excise Tax shall be withheld) with respect to any Payment if the Executive
elects (i) to provide to the Company an opinion of counsel reasonably acceptable
to the Company to the effect that no Excise Tax should be due with respect to
the Payments and (ii) to release the Company from any liability under this
Article 12.
SECTION 12.02. Subject to the provisions of Section 12.03, all
determinations required to be made under this Article 12, including the
determination of whether a Gross-Up Payment is required and of the amount of any
such Gross-up Payment, shall be made by a "Big 5" accounting firm (other than
the regular outside accounting firm retained by the Company) selected by the
Company and agreed to by the Executive, which agreement shall not be
unreasonably withheld (the "Accounting Firm"), which Accounting Firm shall
provide detailed supporting calculations both to the Company and the Executive
within 15 business days after the receipt of notice from the Company that the
Executive has received a Payment, or such earlier time as is requested by the
Company. The initial Gross-Up Payment, if any, as determined pursuant to this
Section 12.02, shall be paid to the Executive (or for the benefit of the
Executive to the extent of the Company's withholding obligation with respect to
applicable taxes) within 10 days after the receipt of the Accounting Firm's
determination. Any determination by the Accounting Firm meeting the requirements
of this Section 12.02 shall be binding upon the Company and the Executive. As a
result of the uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Com-
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pany should have been made ("Underpayment"), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies pursuant to Section 12.03 and the Executive thereafter is required to
make a payment of any Excise Tax, the Accounting Firm shall determine the amount
of the Underpayment that has occurred and any such Underpayment shall be paid by
the Company to or for the benefit of the Executive within 10 days after delivery
of copies of a statement setting forth such determination, and the underlying
calculations, to the Company and the Executive. The fees and disbursements of
the Accounting Firm shall be paid by the Company. If required, the Company shall
enter into an engagement letter with the Accounting Firm containing reasonable
and customary terms and provisions.
SECTION 12.03. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of a Gross-Up Payment. Such notification shall be given
as soon as practicable but not later than ten business days after the Executive
receives written notice of such claim and shall apprise the Company of the
nature of such claim and the date on which such Claim is requested to be paid.
The Executive shall not pay such claim prior to the expiration of the 30-day
period following the date on which it gives such notice to the Company (or such
shorter period ending on the date that any payment of taxes with respect to such
claim is due). If the Company notifies the Executive in writing prior to the
expiration of such period that it desires to contest such claim, the Executive
shall:
(i) give the Company any information reasonably requested by the Company
relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the
Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
(iv) permit the Company to participate in any proceedings relating to such
claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax, income tax or employment tax, including
interest and penalties with respect thereto, imposed as a result of such
representation and payment of costs and expenses. Without limitation on the
foregoing provisions of this Section 12.03, the Company shall control all
proceedings taken in
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connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax, income tax
or employment tax, including interest or penalties with respect thereto, imposed
with respect to such advance; and further provided that any extension of the
statute of limitations relating to the payment of taxes for the taxable year of
the Executive with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the Company's control
of the contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled to settle
or contest, as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority.
SECTION 12.04. If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 12.03, the Executive becomes entitled to
receive any refund with respect to such claim, the Executive shall (subject to
the Company's complying with the requirements of Sections 12.01, 12.02 and
12.03) promptly pay to the Company, upon receipt of the refund, the amount of
such refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 12.03, a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01. Certain Procedures. There are currently no disciplinary or
grievance procedures in place, there is no collective agreement in place, and
there is no probationary period.
SECTION 13.02. Consent to Amendments. The provisions of this Agreement may
be amended or waived only by a written agreement executed and delivered by the
Companies and
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the Executive. No other course of dealing between the parties to this Agreement
or any delay in exercising any rights hereunder will operate as a waiver of any
rights of any such parties.
SECTION 13.03. Successors and Assigns. All covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto will
bind and inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not, provided that the Executive may not
assign his rights or delegate his obligations under this Agreement without the
written consent of the Companies; provided further that the Companies may not
assign the rights of the Companies hereunder except to a Person that expressly
assumes the obligations of the Companies hereunder.
SECTION 13.04. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
SECTION 13.05. Counterparts. This Agreement may be executed simultaneously
in two or more counterparts, any one of which need not contain the signatures of
more than one party, but all of which counterparts taken together will
constitute one and the same agreement.
SECTION 13.06. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
SECTION 13.07. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement will
be in writing and will be deemed to have been given when delivered personally to
the recipient, two (2) business days after the date when sent to the recipient
by reputable express courier service (charges prepaid) or four (4) business days
after the date when mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Executive and to the Companies at the
addresses set forth below.
If to the Executive: To the last address of the Executive on record
with the Companies.
Copies (which shall not constitute notice) of notices to the Executive
shall also be sent to:
Xxxxxxx & Xxxxxxx LLP
000 Xxxxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
If to Parent: Arch Capital Group Ltd.
Executive Offices:
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
If to the Company: Arch Capital Group (U.S.) Inc.
00 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Copies (which shall not constitute notice) of notices to Parent and the
Company shall also be sent to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
SECTION 13.08. Withholding. The Companies may withhold from any amounts
payable under this Agreement such federal, state, local or foreign taxes as
shall be required to be withheld pursuant to any applicable law or regulation.
SECTION 13.09. No Third Party Beneficiary. This Agreement will not confer
any rights or remedies upon any person other than the Companies, the Executive
and their respective heirs, executors, successors and assigns.
SECTION 13.10. Parent Guarantee. Parent hereby guarantees all of the
obligations of the Company hereunder.
SECTION 13.11. Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements or representations by or among
the parties, written or oral, that may have related in any way to the subject
matter hereof.
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SECTION 13.12. Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party. Any
reference to any federal, state, local or foreign statute or law will be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. The use of the word "including" in this Agreement
means "including without limitation" and is intended by the parties to be by way
of example rather than limitation.
SECTION 13.13. Survival. Sections 6.01, 7.01, 8.01 and Articles 9, 10, 12
and 13 will survive and continue in full force in accordance with their terms
notwithstanding any termination of the Employment Period.
SECTION 13.14. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE INTERNAL
LAW OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
SECTION 13.15. JURISDICTION . The parties agree to the nonexclusive
jurisdiction of the federal and state courts situated in New York County, New
York, for the resolution of any dispute arising under this Agreement, the Stock
Option Agreement or the Restricted Stock Agreements referenced in Sections 4.05
and 4.06.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date and year first above written.
ARCH CAPITAL GROUP LTD.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
ARCH CAPITAL GROUP (U.S.) INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President, General
Counsel and Secretary
/s/ Xxxxxxxxxxx Xxxxxxxx
-------------------------------------------------
Xxxxxxxxxxx Xxxxxxxx
