Exhibit 10.2
JULIAN XXXXXXX XXXXXX
AND
ASPEN INSURANCE HOLDINGS LIMITED
------------------------------------------------
AMENDED AND RESTATED SERVICE AGREEMENT
------------------------------------------------
TABLE OF CONTENTS
Clause Page
1. INTERPRETATION...........................................................................................1
2. AMENDMENT AND RESTATEMENT................................................................................1
3. POSITION.................................................................................................2
4. TERM.....................................................................................................2
5. DUTIES...................................................................................................2
6. REMUNERATION AND COMMISSION..............................................................................3
7. PENSION AND INSURANCE BENEFITS...........................................................................4
8. EXPENSES.................................................................................................5
9. HOLIDAYS AND HOLIDAY PAY.................................................................................5
10. DISABILITY OR DEATH......................................................................................5
11. CONFIDENTIAL INFORMATION.................................................................................6
12. COPYRIGHT AND DESIGNS....................................................................................6
13. GRATUITIES AND CODES OF CONDUCT..........................................................................7
14. RESTRICTIVE COVENANTS....................................................................................7
15. TERMINATION BY RECONSTRUCTION OR AMALGAMATION; CHANGE IN CONTROL.........................................9
16. TERMINATION OF EMPLOYMENT BY THE COMPANY FOR CAUSE......................................................10
17. TERMINATION OF EMPLOYMENT BY THE COMPANY WITHOUT CAUSE..................................................10
18. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE..............................................................11
19. OBLIGATIONS UPON TERMINATION OF EMPLOYMENT; CERTAIN OTHER
TERMINATION.............................................................................................12
20. EFFECT OF TERMINATION OF THIS AGREEMENT.................................................................14
21. GENERAL RELEASE.........................................................................................15
22. OTHER TERMS AND CONDITIONS..............................................................................15
i
23. NOTICES.................................................................................................15
24. PREVIOUS AND OTHER AGREEMENTS...........................................................................15
25. ENTIRE AGREEMENT/AMENDMENT..............................................................................15
26. ASSIGNMENT..............................................................................................16
27. SEVERABILITY............................................................................................16
28. SUCCESSORS/BINDING AGREEMENT............................................................................16
29. COOPERATION.............................................................................................16
30. GOVERNING LAW...........................................................................................16
31. COUNTERPARTS............................................................................................17
AMENDED AND RESTATED SERVICE AGREEMENT
DATE: 24 September 2004
PARTIES:
(1) JULIAN XXXXXXX XXXXXX of Baywatch, 0 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxx (the "Executive"); and
(2) ASPEN INSURANCE HOLDINGS LIMITED incorporated in the Islands of Bermuda
whose registered office is at Cedar Avenue, Hamilton, Bermuda (the
"Company").
OPERATIVE TERMS:
1. INTERPRETATION
1.1 In this Agreement:
"Affiliate" means any entity directly
or indirectly controlling,
controlled by, or under
common control with the
Company; or any other
entity designated by the
Board in which the Company
or an Affiliate has an
interest.
"Board" means the Board of
Directors of the Company
from time to time;
"Group" means the Company and its
Affiliates (and "Group
Company" means the Company
or any one of its
Affiliates).
1.2 In this Agreement references to any statutory provision shall include such
provision as from time to time amended, whether before on or (in the case of
re-enactment or consolidation only) after the date hereof, and shall be deemed
to include provision of earlier legislation (as from time to time amended) which
have been reenacted (with or without modification) or replaced (directly or
indirectly) by such provision and shall further include all statutory
instruments or orders from time to time made pursuant thereto.
2. AMENDMENT AND RESTATEMENT
This Agreement shall serve as a complete amendment and restatement of the
Service Agreement entered into between Julian Xxxxxxx Xxxxxx and Aspen Insurance
Holdings Limited dated 21 June 2002 (the "Original Agreement"). Except as
otherwise provided herein, all terms of the Original Agreement shall be
superceded by the terms of this Agreement and, upon execution of this Agreement,
the Original Agreement shall be of no further force and effect.
3. POSITION
The Company shall employ the Executive as Executive Vice President, Group Chief
Financial Officer, Chief Executive Officer of Aspen Insurance Ltd and a member
of the Board. In addition, the Executive shall also be nominated to serve as a
director of such other Group Companies as mutually agreed to by the Executive
and the Board (which nomination shall be subject to approval by the shareholders
of such Group Company in accordance with the organizational documents thereof).
4. TERM
4.1 The Company shall employ the Executive, and the Executive shall serve the
Company, on the terms and conditions set forth in this Agreement, for the period
beginning on the date hereof (the "Effective Date") and ending on the second
anniversary of the Effective Date (the "Term"); provided, however, that
commencing on the Effective Date and on each succeeding day thereafter, unless
previously terminated, the Term shall be automatically extended by one
additional day.
4.2 Notwithstanding the provisions of Clause 4.1, the Executive's employment
shall terminate automatically when the Executive reaches the age of 65 years.
5. DUTIES
5.1 During his employment hereunder the Executive shall:
(a) report to the Board and perform the duties and exercise the powers
and functions which from time to time may reasonably be assigned to or
vested in him by the Board in relation to the Company and any other
Group Company to the extent consistent with his job title set out in
Clause 3 (without being entitled to any additional remuneration in
respect of such duties for any Group Company);
(b) devote the whole of his working time, attention and ability to his
duties in relation to the Company and any other Group Company at such
place or places as the Board shall determine. The Executive shall work
at the Company's premises at Hamilton, Bermuda, or such other place as
the Company and the Executive shall mutually agree, provided that the
Executive shall not be required to reside outside Bermuda or the United
Kingdom;
(c) comply with all reasonable requests, instructions and regulations
given or made by the Board (or by any one authorised by it) and
promptly provide such explanations, information and assistance as to
the performance of his duties assigned to him under this Agreement as
the Board may reasonably require;
(d) faithfully and loyally serve the Company and each other Group
Company to the best of his ability and use his utmost endeavours to
promote its interests in all respects;
2
(e) not engage in any activities which would detract from the proper
performance of his duties hereunder, nor without the prior written
consent of the Board in any capacity including as director,
shareholder, principal, consultant, agent, partner or employee of any
other company, firm or person (save as the holder for investment of
securities which do not exceed three percent (3%) in nominal value of
the share capital or stock of any class of any company quoted on a
recognised stock exchange) engage or be concerned or interested
directly or indirectly in any other trade, business or occupation
whatsoever; and
(f) comply (and shall use every reasonable endeavour to procure that
his wife and minor children will comply) with all applicable rules of
law, stock exchange regulations, individual registration requirements
(at a cost to be borne by the Company) and codes of conduct of the
Company and any other Group Company in effect with respect to dealing
in shares, debentures or other securities of the Company or other Group
Company.
5.2 Nothing herein shall preclude the Executive from (a) serving on the boards
of directors of a reasonable number of other corporations subject to the
approval of the Board in each case (which approval has been given as to the
boards listed in Exhibit A attached hereto), which approval shall not be
unreasonably withheld, (b) serving on the boards of a reasonable number of trade
associations subject to the approval of the Board, which approval shall not
unreasonably be withheld, and/or charitable organizations, (c) engaging in any
charitable activities and community affairs, and (d) managing his personal
investments and affairs, provided that such activities set forth in this Clause
5.2 do not significantly interfere with the performance of his duties and
responsibilities to any Group Company.
6. REMUNERATION AND COMMISSION
6.1 The Executive shall be paid by way of remuneration for his services during
his employment hereunder a salary at the rate (the "Salary Rate") of US$342,000
per annum and (pound)30,000 per annum both, subject to increase pursuant to
Clause 6.3, which shall be inclusive of any fees to which the Executive may be
entitled as a director of the Company or of any other Group Company. The Company
shall pay the Executive's proper and reasonable expenses relating to the
maintenance of the Executive's primary residence in Bermuda during the term of
his employment. Prior to such payment the Executive shall provide to the Company
any substantiation for such expenses requested by the Company. Notwithstanding
the foregoing, the maximum amount the Company shall pay in respect of housing
allowance shall be $180,000.00 per annum.
6.2 The Executive shall be eligible for a cash bonus during his employment
hereunder of such amounts (if any) at such times and subject to such conditions
as the Compensation Committee of the Board (the "Compensation Committee") may in
its absolute discretion decide; provided, however, that notwithstanding the
preceding language of this Clause 6.2, the Executive shall participate in all
management incentive plans made available to the Company's senior executives at
a level commensurate with Executive's status and position at the Company.
3
6.3 The Company shall review the Salary Rate for increase at least once each
year, and any change in the Salary Rate resulting from such review will take
effect from 1 April. The Company's review shall take into consideration, among
other factors, the base salary paid to individuals performing similar services
at comparable companies based in Bermuda, the United Kingdom and the United
States, as well as other relevant local or global talent pool comparables, it
being expressly understood that while it is intended that the Company shall
consider these factors, it shall have no obligation to take any specific action
based on such factors.
6.4 The Executive's salary will be payable by equal monthly installments; each
monthly installment will be in respect of a calendar month and will be paid on
or before the last day of such calendar month. Where the employment has begun or
ended in a calendar month, salary in respect of that month will be the
proportion of a normal month's installment which the days of employment in that
month bear to the total days in the month.
6.5 The Company may withhold from amounts payable under this Agreement all
applicable taxes that are required to be withheld by applicable laws or
regulations.
7. PENSION AND INSURANCE BENEFITS
7.1 During his employment hereunder, the Executive shall continue to be a member
of the pension scheme established by the Board (the "Scheme"). The Executive's
membership in the Scheme shall be subject to the provisions thereof as may be
amended from time to time.
7.2 During his employment hereunder, the Executive shall be entitled to
participate in all employee benefit and perquisite plans and programs made
available to the Company's senior level executives or to its employees
generally, as such plans or programs may be in effect from time to time.
7.3 During his employment hereunder, the Executive will be eligible for 2
Business Class return airfares per annum from Bermuda to the UK for himself,
spouse and dependent children. The Executive will also be eligible for
reimbursement of reasonable expenses if he is required to move location to take
up employment with a Group Company..
7.4 During his employment hereunder, the Company shall provide the Executive
with medical insurance, permanent health insurance, personal accident insurance
and life insurance (subject to the relevant insurers' terms and conditions). The
Board shall have the right to change the arrangements for the provision of such
benefits as it sees fit or, if in the reasonable opinion of the Board, the
Company is unable to secure any such insurance under the rules of any applicable
scheme or otherwise at reasonable rates to cease to provide any or all of the
insurances.
4
8. EXPENSES
The Company shall reimburse to the Executive all traveling, hotel, entertainment
and other expenses properly and reasonably incurred by him in the performance of
his duties hereunder and properly claimed and vouched for in accordance with the
Company's expense reporting procedure in force from time to time.
9. HOLIDAYS AND HOLIDAY PAY
9.1 In addition to public holidays in Bermuda, during his employment hereunder,
the Executive shall be entitled to 30 working days' paid holiday per holiday
year and, if applicable, such additional days as are set out in the Company's
standard terms and conditions of employment from time to time, during each
holiday year to be taken at such time or times as are convenient to the Company.
Except as otherwise provided in the Company's holiday policy, the Executive may
not carry forward any unused part of his holiday entitlement to a subsequent
holiday year and the Executive shall not be entitled to any salary in lieu of
untaken holiday.
9.2 For the holiday year during which the Executive's employment hereunder
commences or terminates he shall be entitled to such proportion of his annual
holiday entitlement as the period of his employment in each such holiday year
bears to one holiday year as set out in the Company's holiday policy. Upon
termination of this employment for whatever reason, he shall, if appropriate, be
entitled to salary in lieu of any outstanding holiday entitlement.
10. DISABILITY OR DEATH
10.1 The Company reserves the right at any time to require the Executive (at the
expense of the Company) to be examined by a medical adviser nominated by the
Company and the Executive consents to the medical adviser disclosing the results
of the examination to the Company and shall provide the Company with such formal
consents as may be necessary for this purpose.
10.2 If the Executive shall be prevented by illness, accident or other
incapacity from properly performing his duties hereunder he shall report this
fact forthwith to the Company Secretary's office and if he is so prevented for
seven or more consecutive days he shall if required by the Company provide an
appropriate doctor's certificate.
10.3 If the Executive shall be absent from his duties hereunder owing to
illness, accident or other incapacity duly certified in accordance with the
provisions of clause 10.2 he shall be paid his full remuneration for any period
of absence of up to a maximum of 26 weeks in aggregate in any period of 52
consecutive weeks and thereafter, subject to the provisions of clause 16, to
such remuneration (if any) as the Board shall in its absolute discretion allow.
10.4 If the Executive shall be, on the basis of a medical report supplied to the
Company following his having undergone a medical examination pursuant to clause
10.1, in the opinion of the Board unfit ever to return to his duties (but in
such circumstances
5
and prior to any action being taken under this clause, the Executive shall have
the right to have a second medical report from a duly qualified doctor or
medical adviser selected by the Executive and approved by the Board, which
approval shall not be unreasonably withheld) the Company shall be entitled to
place the Executive on permanent sick leave without pay or benefits (other than
permanent health insurance benefits) with effect from any time on or after the
commencement of payments under the permanent health insurance arrangements
referred to in clause 7.4.
10.5 In the event that the Executive's employment is terminated due to his
death, his estate or his beneficiaries, as the case may be, shall be entitled
to: (a) salary at his Salary Rate through the end of the month in which in which
his death occurs, (b) the annual incentive award, if any, that the Executive
would have been entitled to pursuant to Clause 6.2 for the year in which the
Executive's death occurs, multiplied by a fraction, the numerator of which is
the number of days that the Executive was employed during the applicable year
and the denominator of which is 365, and (c) the unpaid balance of all
previously earned cash bonus and other incentive awards with respect to
performance periods which have been completed, all of which amounts shall be
payable in a lump sum in cash within 30 days after his death, except that the
pro-rated incentive award shall be payable when such award would have otherwise
been payable had the Executive's employment not terminated.
11. CONFIDENTIAL INFORMATION
The Executive shall not during his employment hereunder or at any time
after his termination for any reason whatsoever (except (i) for the benefit of
the Company or any other Group Company in the course of his employment or
membership on the Board or (ii) if compelled by a court or administrative order
in which case the Executive may do so only to the extent legally required and
only if he has promptly notified the Company of such order and cooperated fully
with the Company to protect such information) disclose to any person whatsoever
or otherwise make use of (and he shall at all times exercise all due care and
diligence to prevent the unauthorised disclosure or use of) any confidential or
secret information which he has or may have acquired in the course of his
employment relating to the Company or any other Group Company or any customers
or clients of the Company or any other Group Company, including without limiting
the generality of the foregoing confidential or secret information relating to
the past, current or future business, finances, activities and operations of the
Company or any other Group Company and/or any third party to the extent that
such information was obtained by the Company or any other Group Company pursuant
to a confidentiality agreement, but excluding information that is generally
known to, or recognized as standard practice in, the industry in which the
Company is engaged unless such information is known or recognized as a result of
the Executive's breach of this covenant (referred to herein as "Confidential
Information").
12. COPYRIGHT AND DESIGNS
12.1 The Executive hereby assigns to the Company all present and future
copyright, design rights and other proprietary rights if any for the full term
thereof throughout the
6
world in respect of all works originated by him at any time during the period of
his employment by the Company or any other Group Company whether during the
course of his normal duties or other duties specifically assigned to him
(whether or not during normal working hours) either alone or in conjunction with
any other person and in which copyright or design rights may subsist except only
those designs or other works written, originated, conceived or made by his
wholly unconnected with his service hereunder.
12.2 The Executive agrees and undertakes that he will execute such deeds or
documents and do all such acts and things as may be necessary or desirable to
substantiate the rights of the Company in respect of the matters referred to in
this Clause. To secure his obligation under this Agreement the Executive
irrevocably appoints the Company to be his attorney in his name and on his
behalf to execute such deeds or documents and do all such acts and things as may
be necessary or desirable to substantiate the rights of the Company in respect
of the matters referred to in this Clause.
12.3 The Executive hereby irrevocably waives all moral rights that he had or may
have in any of the works referred to in Clause 12.1, subject to the exception
therein.
13. GRATUITIES AND CODES OF CONDUCT
13.1 The Executive shall comply with all codes of conduct from time to time
adopted by the Board.
13.2 The Executive shall not, except in accordance with any code of conduct
adopted by the Board or with the prior written consent of the Board, directly or
indirectly accept any commission, rebate, discount, gratuity or gift, in cash or
in kind from any person who has or is likely to have a business relationship
with the Company or any other Group Company and shall notify the Company upon
acceptance by the Executive of any commission, rebate, discount, gratuity or
gift in accordance with the Company's code of conduct from time to time.
14. RESTRICTIVE COVENANTS
14.1 For the purpose of this Clause:
"THE BUSINESS" means the business of the Group or any Group Company at the date
of termination of the Executive's employment with which the Executive has been
concerned to a material extent at any time in the Relevant Period;
references to the "GROUP" and "GROUP COMPANIES" shall only be reference to the
Group and Group Companies in respect of which the Executive has carried out
material duties in the Relevant Period ;
"RELEVANT PERIOD" shall mean the period of 24 months immediately preceding the
date of termination of the Executive's employment or, in the event that the
Company exercises all or any of its rights under Clause 18.3, the period of 24
months immediately preceding the date on which it exercises such rights;
7
"RESTRICTED PERSON" shall mean any person who or which has at any time during
the Relevant Period done business with the Company or any other Group Company as
customer or client or consultant and whom or which the Executive shall have had
personal dealings with, contact with or responsibility for (each, in a business
or commercial capacity) during the Relevant Period;
"KEY EMPLOYEE" shall mean any person who at the date of termination of the
Executive's employment is employed or engaged by the Company or any other Group
Company with whom the Executive has had material contact during the Relevant
Period and (a) is employed or engaged in the capacity of Manager, Underwriter or
otherwise in a senior capacity or in any other capacity as may be agreed in
writing between the Executive Committee and the Executive from time to time
and/or (b) is in the possession of Confidential Information and/or (c) is
directly managed by or reports to the Executive.
14.2 The Executive covenants with the Company that he will not in connection
with the carrying on of any business in competition with the Business during his
employment and, in the event of resignation by the Executive with Good Reason or
dismissal of the Executive by the Company (whether with or without Cause) for
the period of 12 months after the termination of his employment without the
prior written consent of the Board either alone or jointly with or on behalf of
any person directly or indirectly:
14.2.1 canvass, solicit or approach or cause to be canvassed or solicited or
approached for orders in respect of any services provided and/or any products
sold by the Company or any other Group Company any Restricted Person;
14.2.2 solicit or entice away or endeavour to solicit or entice away from the
Company or any other Group Company any Key Employee.
14.3 The Executive further covenants that in the event of resignation by the
Executive with Good Reason or dismissal of the Executive by the Company without
Cause under the provisions of Clause 17.1(ii), he will not in connection with
the carrying on of any business in competition with the Business for the further
period of 12 months following the first anniversary of the date of termination
of the Executive's employment, without the prior written consent of the Board,
either alone or jointly with or on behalf of any person directly or indirectly
(a) canvass, solicit or approach or cause to be canvassed or solicited or
approached for orders in respect of any services provided and/or any products
sold by the Company or any other Group Company any Restricted Person; or (b)
solicit or entice away or endeavour to solicit or entice away from the Company
or any other Group Company any Key Employee.
14.4 The Executive further covenants with the Company that, in the event of
resignation by the Executive with Good Reason he will not, for the period of 12
months after the termination of his employment, be employed, engaged, interested
in or concerned with any business or undertaking which is engaged in or carries
on business in the United Kingdom, Bermuda or the USA which is or is about to be
in competition with the Business;
8
14.5 The covenants contained in Clauses 14.2.1, 14.2.2 ,14.3 and 14.4 are
intended to be separate and severable and enforceable as such. It is expressly
understood and agreed that although the Executive and the Company consider the
restrictions contained in this Clause 14 to be reasonable, if a final judicial
determination is made by a court of competent jurisdiction that the time or
territory or any other restriction contained in this Agreement is an
unenforceable restriction against the Executive, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as to
such maximum time and territory and to such maximum extent as such court may
judicially determine to be enforceable. Alternatively, if any court of competent
jurisdiction finds that any restriction contained in this Agreement is
unenforceable, and such restriction cannot be amended so as to make it
enforceable, such finding shall not affect the enforceability of any of the
other restrictions contained herein.
14.6 The Executive acknowledges and agrees that the Company's remedies at law
for a breach of any of the provisions of Clause 11, 12 or 14 would be inadequate
and the Company would suffer irreparable damages as a result of such breach. In
recognition of this fact, the Executive agrees that, in the event of such a
breach, in addition to any remedies at law, the Company, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, temporary restraining order, temporary or permanent injunction or
any other equitable remedy which may then be available.
15. TERMINATION BY RECONSTRUCTION OR AMALGAMATION; CHANGE IN CONTROL
15.1 If the employment of the Executive hereunder shall be terminated solely by
reason of the liquidation of the Company for the purposes of amalgamation or
reconstruction or as part of any arrangement for the amalgamation of the
undertaking of the Company not involving liquidation (in each case, other than a
"Change in Control", as defined below) and the Executive shall be offered
employment with the amalgamated or reconstructed company on the same terms as
the terms of this Agreement (including as to the continuation of any
directorship which he may then hold in the Company or any other Group Company),
the Executive shall have no claim against the Company in respect of the
termination of his employment by the Company.
15.2 If the employment of the Executive hereunder shall be terminated by the
Company without Cause or by the Executive with Good Reason within the six-month
period prior to a Change in Control or within the two-year period after a Change
in Control, in addition to the benefits provided in Clause 19.2, the Executive
shall be entitled to the following benefits: (a) other than share options and
other equity based awards granted prior to the date of this Agreement, which
shall vest and be exercisable in accordance with the terms of their grant
agreements, all share options and other equity -based awards shall immediately
vest and remain exercisable for the remainder of their terms; and (b) (i) if the
aggregate of all payments or benefits made or provided to the Executive under
this Agreement and under all other plans and programs of the Company exceeds
2.99 times the Executive's "base amount", as defined in Section 280(b)(3) of the
Internal Revenue Code of 1986, as amended (the "Code"), (the "Executive Limit
9
Amount"), by 10% or less of such Executive Limit Amount, the amounts
constituting "parachute payments" within the meaning of Section 280G(b)(2) (the
"Parachute Amount") which would otherwise be payable to or for the benefit of
the Executive shall be reduced to the extent necessary so that the Parachute
Amount is equal to the Executive Limit Amount; or (ii) if the aggregate of all
payments or benefits made or provided to the Executive under this Agreement and
under all other plans and programs of the Company exceeds the Executive Limit
Amount by more than 10% of such Executive Limit Amount, the Company shall pay to
the Executive, as and when any excise tax imposed by Section 4999 of the Code is
payable with respect to such payment, an additional amount which, after the
imposition of all income, employment, excise and other taxes thereon, is equal
to the excise tax imposed on such payment.
For purposes of this Agreement, "Change in Control" shall have the same meaning
as under the Aspen Insurance Holdings 2003 Share Incentive Plan as in effect as
of the date hereof.
16. TERMINATION OF EMPLOYMENT by the company FOR CAUSE
16.1 The Company, without prejudice to any remedy which it may have against the
Executive for the breach or non-performance of any of the provisions of this
Agreement, may by notice in writing to the Executive forthwith terminate his
employment for "Cause". In the event the Company terminates the Executive's
employment for Cause, the Executive shall be entitled to salary at his Salary
Rate through the date of termination.
For purposes of this Agreement, "Cause" shall mean circumstances where the
Executive:
(a) becomes bankrupt or becomes the subject of an interim order under
the Insolvency Xxx 0000 of the United Kingdom or makes any arrangement
or composition with his creditors; or
(b) is convicted of any criminal offence (other than an offence under
road traffic legislation in the United Kingdom or elsewhere for which a
penalty other than imprisonment is imposed); or
(c) is guilty of any serious misconduct, any conduct tending to bring
the Company or any Group Company or himself into disrepute, or any
material breach or non-observance of any of the provisions of this
Agreement, or conducts himself in a way which is materially prejudicial
or calculated to be materially prejudicial to the business of the
Group; or
(d) is disqualified from being a director of any company by reason of
an order made by any competent court; or
(e) is guilty of any repeated breach or non-observance of any code of
conduct or fails or ceases to be registered (where such registration
is, in the reasonable opinion of the Board, required for the
performance of his duties) by any regulatory body in the United Kingdom
or elsewhere.
10
17. TERMINATION OF EMPLOYMENT BY THE COMPANY WITHOUT CAUSE
17.1 The Company may terminate the employment of the Executive at any time
during the Term without Cause by either (i) giving to the Executive 12 months'
prior notice in writing; or (ii) terminating the employment of the Executive
immediately and paying the Executive in lieu of the notice to which he would
have otherwise been entitled under (i) above (which payment in lieu shall be
deemed to be included within the payment referred to in Clause 19.2).
18. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE
18.1 The Executive shall have the right to terminate his employment at any time
for Good Reason by immediate notice if, following submission of the written
notice by the Executive to the Company detailing the events alleged to
constitute Good Reason in accordance with this Clause, the Company shall have
failed to cure such events within the 30 day period following submission of such
notice. For purposes of this Agreement, "Good Reason" shall mean (i) a reduction
in the Executive's annual base salary or annual bonus opportunity, or the
failure to pay or provide the same when due, (ii) a material diminution in the
Executive's duties, authority, responsibilities or title, or the assignment to
the Executive of duties or responsibilities which are materially inconsistent
with his positions, (iii) the failure to elect or reelect the Executive to any
of the positions described in Clause 3 or the removal of him from any such
position, (iv) an adverse change in the Executive's reporting relationship, or
(v) the Company's requiring the Executive to be based at any office or location
more than fifty (50) miles from the Executive's office as of the date hereof;
provided, however, that no such event(s) shall constitute "Good Reason" unless
the Company shall have failed to cure such event(s) within 30 days after receipt
by the Company from the Executive of written notice describing in detail such
event(s).
18.2 The Executive shall have the right to terminate his employment at any time
without Good Reason upon giving 12 months' prior written notice to the Company.
18.3 If the Executive gives notice to terminate his employment without Good
Reason under Clause 18.2 or if the Executive seeks to terminate his employment
without Good Reason and without the notice required by Clause 18.2 or the
Company gives notice to terminate the Executive's employment under Clause
17.1(i), then provided the Company continues to provide the Executive with the
salary and contractual benefits in accordance with this Agreement, the Company
has, at its discretion, the right for the period (the "GARDEN LEAVE PERIOD")
then outstanding until the date of the termination of the Executive's
employment:
(a) to exclude the Executive from any premises of the Company or any
Group Company and require the Executive not to attend at any premises
of the Company or any Group Company; and/or
(b) to require the Executive to carry out no duties; and/or
11
(c) to require the Executive not to communicate or deal with any
employees, agents, consultants, clients or other representatives of the
Company or any other Group Company; and/or
(d) to require the Executive to resign with immediate effect from any
offices he holds with the Company or any other Group Company (and any
related trusteeships); and/or
(e) to require the Executive to take any holiday which has accrued
under clause 9 during the Garden Leave Period.
The Executive shall continue to be bound by the duties set out in Clause 5
(insofar as they are compatible with being placed on garden leave), the
restrictions set out in Clause 14.2 and all duties of good faith and fidelity
during the Garden Leave Period
19. OBLIGATIONS UPON TERMINATION OF EMPLOYMENT; CERTAIN OTHER TERMINATIONS
19.1 Upon the termination of his employment hereunder for whatever reason the
Executive shall:
(a) forthwith tender his resignation as a Director of the Company and
of any other Group Company without compensation, but without prejudice
to any other rights which he may have under this Agreement. To secure
his obligation under this Agreement the Executive irrevocably appoints
the Company to be his attorney in his name and on his behalf to sign
any documents and do any things necessary to give effect thereto, if
the Executive shall fail to sign or do the same himself.
(b) deliver up to the Company all vehicles, keys, credit cards,
correspondence, documents, specifications, reports, papers and records
(including any computer materials such as discs or tapes) and all
copies thereof and any other property (whether or not similar to the
foregoing or any of them) belonging to the Company or any other Group
Company which may be in his possession or under his control, and
(unless prevented by the owner thereof) any such property belonging to
others which may be in his possession or under his control and which
relates in any way to the business or affairs of the Company or any
other Group Company or any supplier, agent, distributor or customer of
the Company or any other Group Company, and he shall not without
written consent of the Board retain any copies thereof;
(c) if so requested send to the Company Secretary a signed statement
confirming that he has complied with Clause 19.1(b); and
(d) not at any time make any untrue or misleading oral or written
statement concerning the business and affairs of the Company or any
other Group Company or represent himself or permit himself to be held
out as being in any way connected with or interested in the business of
the Company or any other Group
12
Company (except as a former employee for the purpose of communicating
with prospective employers or complying with any applicable statutory
requirements).
19.2 In the event of a termination of Executive's employment hereunder by the
Executive with Good Reason or by the Company without Cause (other than by reason
of death), the Executive shall be entitled to (a) salary at his Salary Rate
through the date in which his termination occurs; (b) the lesser of (x) the
target annual incentive award for the year in which the Executive's termination
occurs, and (y) the average of the annual incentive awards received by the
Executive in the prior three years (or, if less the number of prior years in
which the Executive was employed by the Company), multiplied by a fraction, the
numerator of which is the number of days that the Executive was employed during
the applicable year and the denominator of which is 365; (c) subject to Clauses
19.3 and 19.4 below, the sum of 2 times (x) the Executive's highest Salary Rate
during the term of this Agreement and (y) the average bonus under the Company's
annual incentive plan actually earned by the Executive during the three years
(or number of complete years employed by the Company, if fewer) immediately
prior to the year of termination (the sum of 2 times (x) and (y) hereafter
referred to as the "Severance Payment"), and (d) the unpaid balance of all
previously earned cash bonus and other incentive awards with respect to
performance periods which have been completed, but which have not yet been paid,
all of which amounts shall be payable in a lump sum in cash within 30 days after
his termination. In the event that the Company terminates the Executive's
employment without Cause under the provisions of Section 17.1(ii) the parties
acknowledge that the Severance Payment will be inclusive of the Executive's
rights to be paid in lieu of the 12 months' notice period to which he is
entitled under that Clause.
19.3 In the event that the Executive's entitlement to a Severance Payment arises
as a result of the Executive's employment being terminated by the Executive with
Good Reason or by the Company terminating the Executive's employment without
Cause under the provisions of Clause 17.1(ii), 50% of the Severance Payment
shall be paid to the Executive within 14 days of the execution by the Executive
of a valid release in accordance with Clause 21. The remaining 50% of the
Severance Payment will be paid in four equal installments during the 12 months
following the first anniversary of the termination of the Executive's employment
(with the first quarterly payment being paid on or as soon as reasonably
practicable after the date which is three months after the first anniversary of
the date of termination and each subsequent quarterly payment being paid on the
date which is three months after the last quarterly payment) in specific
consideration for the agreement by the Executive to be bound by the further
covenants set out in Clause 14.3 to apply during that period. In the event that
the Executive breaches any part of Clause 14.3 at any time during that 12 months
period or the Executive successfully challenges in a court of competent
jurisdiction the enforceability of all or any part of the covenants set out in
Clause 14.3, the Company shall not be obliged to make any further quarterly
payments to the Executive whatsoever (and in addition shall not be prevented
from taking any other action to enforce the covenants set out in Clause 14.3
whatsoever in the event of breach by the Executive).
13
19.4 In the event that the Executive's employment is terminated by the Company
without Cause under the provisions of Clause 17.1 (i) and the Company exercises
all or any of its rights under Clause 18.3 during the 12 months' notice period,
the Severance Payment shall be reduced by a sum equal to the total salary and
bonus payments received by the Executive during the Garden Leave Period and the
total Severance Payment (reduced in accordance with this Clause) will be paid in
four equal installments during the 12 months following the termination of the
Executive's employment (with the first quarterly payment being paid on or as
soon as reasonably practicable after the date which is three months after the
termination of the Executive's employment and each subsequent quarterly payment
being made on the date which is three months after the last quarterly payment)
provided that if during that 12 months period the Executive breaches any of the
provisions of Clause 14.2 or the Executive successfully challenges in a court of
competent jurisdiction the enforceability of all or any part of the covenants
set out in Clause 14.2, the Company shall not be obliged to make any further
quarterly payments to the Executive whatsoever (and in addition shall not be
prevented from taking any other action to enforce the covenants set out in
Clause 14.2 whatsoever in the event of breach by the Executive).
19.5 Notwithstanding any other provision contained in this Agreement, in the
event that the Executive breaches any material provision of the Shareholder
Agreement between Executive and the Company, if such breach has a material
adverse effect on the Group and, if capable of remedy, is not remedied by the
Executive within 21 days of the Executive's receipt of a notice from the Company
requiring remedy to be made, the Company shall have the right to terminate the
employment of the Executive; provided that, notwithstanding any other provision
of this Agreement, upon such a termination, the Executive shall be entitled to
receive only salary at the Salary Rate through the date of termination. For the
purposes of Clause 14 such termination shall be deemed to be a termination for
Cause.
19.6 Upon any termination of employment, the Executive shall be entitled to (a)
any expense reimbursement due to him and (b) other benefits (if any) in
accordance with the applicable plans and programs of the Company.
19.7 In the event of any termination of employment under this Agreement, the
Executive shall be under no obligation to seek other employment and there shall
be no offset against amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that he may
obtain.
20. EFFECT OF TERMINATION OF THIS AGREEMENT
20.1 The expiry or termination of this Agreement however arising shall not
operate to affect any of the provisions hereof which are expressed to operate or
have effect thereafter and shall not prejudice the exercise of any right or
remedy of either party accrued beforehand.
14
21. GENERAL RELEASE
Notwithstanding any provision herein to the contrary, prior to payment of any
amount pursuant to Clauses 15.2 and 19.2, the Executive shall execute a valid
general release, in the form attached hereto (except to the extent a change in
law or any current practice existing at the date of termination requires a
modification to such release), pursuant to which the Executive shall release the
Group and its shareholders, directors, officers, employees and agents, to the
maximum extent permitted by law, from any and all claims the Executive may have
against the Group that relate to or arise out of the Executive's employment or
termination of employment, except such claims arising under this Agreement.
22. OTHER TERMS AND CONDITIONS
The Company shall maintain a directors' and officers' liability insurance policy
covering the Executive which is no less favorable than the policy covering other
senior executive officers of the Company. In addition, the Company expressly
acknowledges that the Executive is in the class of individuals entitled to be an
"Indemnified Person" (as such term is defined in the Amended and Restated
Bye-Laws of the Company (the "Bye-Laws")). As such, the Executive shall be
entitled to the greatest of any and all protections regarding indemnity,
insurance and advancement and reimbursement of expenses provided under the
Bye-Laws as in existence on the date hereof, the directors' and officers' policy
described above, or such greater protection as may be provided under applicable
law; provided, however, that if the Bye-Laws are amended after the date hereof,
and, as amended, they provide greater benefits than the existing Bye-Laws, the
Executive shall be entitled to such greater benefits.
23. NOTICES
Any notice to be given hereunder shall be in writing. Notice to the Executive
shall be sufficiently served by being delivered personally to him or be being
sent by first class post addressed to him at his usual or last known place of
residence, Notice to the Company shall be sufficiently served by being delivered
to the Company Secretary or by being sent by first class post to the registered
office of the Company. Any notice if so posted shall be deemed served upon the
third day following that on which it was posted.
24. PREVIOUS AND OTHER AGREEMENTS
This Agreement shall take effect in substitution for all previous agreements and
arrangements (whether written, oral or implied) between the Company and the
Executive (including, without limitation, the Original Agreement) relating to
his employment which shall be deemed to have been terminated by mutual consent
with effect from the commencement of the Agreement.
25. ENTIRE AGREEMENT/AMENDMENT
This Agreement contains the entire understanding of the parties with respect to
the employment of the Executive by the Company. There are no restrictions,
agreements,
15
promises, warranties, covenants or undertakings between the parties with respect
to the subject matter herein other than those expressly set forth herein. This
Agreement may not be altered, modified, or amended except by written instrument
signed by the parties hereto.
26. ASSIGNMENT
This Agreement, and all of the Executive's rights and duties hereunder, shall
not be assignable or delegable by the Executive. Any purported assignment or
delegation by the Executive in violation of the foregoing shall be null and void
ab initio and of no force and effect. This Agreement may be assigned by the
Company to a person or entity that is the successor in interest to substantially
all of the business operations of the Company. Upon such assignment, the rights
and obligations of the Company hereunder shall become the rights and obligations
of such successor person or entity. Failure by such successor of the Company to
expressly assume this Agreement shall constitute an event of "Good Reason",
entitling Executive to the Benefits set forth in Clause 15 or 19, as applicable.
27. SEVERABILITY
In the event that any one or more of the provisions of this Agreement shall be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement shall
not be affected thereby.
28. SUCCESSORS/BINDING AGREEMENT
This Agreement shall inure to the benefit of and be binding upon personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the parties hereto.
29. COOPERATION
During employment by the Company and thereafter, the Executive shall provide his
reasonable cooperation in connection with any action or proceeding (or any
appeal from any action or proceeding) that relates to events occurring during
the Executive's employment; provided, however, that after the Executive's
employment by the Company has ended, (i) any request for such cooperation shall
accommodate the demands of the Executive's then existing schedule and (ii) if
any such request will involve more than a de minimis amount of the Executive's
time, the Executive shall be entitled to reasonable compensation therefor.
30. GOVERNING LAW
Bermuda law shall apply to this Agreement.
16
31. COUNTERPARTS
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
17
IN WITNESS whereof this Agreement has been duly executed and delivered
as a deed the day and year first before written.
SIGNED as a Deed )
and DELIVERED by )
XXXXXX XXXXXXX ) /s/ Xxxxxx Xxxxxx
XXXXXX )
in the presence of: )
Witness Signature: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx
Witness Name:
Witness Address: Chartered Accountant
Witness Occupation:
------------------------------------
ASPEN INSURANCE HOLDINGS LIMITED
By: /s/ Xxxxxxxxxxx X'Xxxx
--------------------------------
Name: Xxxxxxxxxxx X'Xxxx
Title: Chief Executive Officer
and Director
18
DATED ____________________________
ASPEN INSURANCE HOLDINGS LIMITED (1)
AND
JULIAN XXXXXXX XXXXXX
------------------------------------------------
SEVERANCE AGREEMENT
------------------------------------------------
LEBOEUF, LAMB, XXXXXX & XxxXxx
0 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
xxx.xxxx.xxx
THIS AGREEMENT is made as of the _____ day of _______________ [20[ ]]
BETWEEN:
(1) ASPEN INSURANCE HOLDINGS LIMITED, incorporated in the Islands of
Bermuda whose registered office is at Cedar Avenue, Hamilton, Bermuda
(the "Company"); and
(2) JULIAN XXXXXXX XXXXXX of Baywatch, 0 Xxxxxxxxxxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxx (hereinafter referred to as the "Executive").
IT IS AGREED as follows:
1. INTERPRETATION
(i) In this Agreement:
"Affiliate" means any entity directly
or indirectly controlling,
controlled by, or under
common control with the
Company; or any other
entity designated by the
Board in which the Company
or an Affiliate has an
interest.
"Board" means the Board of
Directors of the Company
from time to time;
"Group" means the Company and its
Affiliates (and "Group
Company" means the Company
or any one of its
Affiliates).; and
"Service Agreement" shall mean the
service agreement entered
into between the Executive
and the Company dated [ ],
as subsequently amended.
2. TERMINATION DATE
The Executive's employment with the Company [will end][ended] on [date]
(the "Termination Date").
3. PAYMENT OF SALARY ETC
The Company will continue to provide the Executive with his salary and
all other contractual benefits up to the Termination Date in the normal
way. Within 14 days of the Termination Date the Company will also pay
the Executive in respect of his accrued but untaken holiday (less such
deductions for income tax and national insurance as are required by
law).
20
4. TERMINATION SUMS
Subject to the Executive agreeing to all of the conditions set out
below, the Company will pay the Executive the following sums:
(i) $[appropriate figure to be inserted] in respect of the
Executive's entitlement to an annual incentive award for the
year in which the termination of the Executive's employment
with the Company occurs, as calculated in accordance with
Clause 19.2 (b) of the Service Agreement;
(ii) the sum of $[appropriate figure to be inserted] in respect of
the Executive's entitlement to a Severance Payment, as
calculated and defined in accordance with Clauses 19.2(c) and
19.4 of the Service Agreement. 50% of the Severance Payment
will be paid within 14 days of the Termination Date. The
remaining 50% of the Severance Payment will be paid in four
equal installments strictly in accordance with and subject to
the terms of Clause 19.3 of the Service Agreement;
(iii) the sum of $[appropriate figure to be inserted] in respect of
the Executive's entitlement to the unpaid balance of all
previously earned cash bonus and other incentive awards with
respect to performance periods which have been completed as
at the Termination Date but not yet paid, as calculated in
accordance with Clause 19.2(d) of the Service Agreement; and
(iv) [the sum of $[appropriate figure to be inserted] in respect
of the Executive's entitlement to payment under Clause
15.2(b) of the Service Agreement, such sum to be paid as and
when any such excise tax as referred to in that Clause
15.2(b) is payable]
The sums set out in (i) to [(iv)] above will be subject to such
deductions for income tax and national insurance as are required by
law). Save as set out in (iii) and (iv) above, the above sums will be
paid to the Executive within [14] days of the date of signature by his
of this Agreement and signature by his legal adviser of the attached
certificate. Payment will be made by transfer to the Executive's bank
account.
5. SHARE OPTIONS
[The Company confirms that the extent to which share options held by
the Executive as at the Termination Date shall be exercisable following
the Termination Date will be determined solely in accordance with terms
of the agreements under which such share options were granted.] or
[Other than in relation to share options granted to the Executive prior
to the date of the Service Agreement, the Company confirms that all
share options granted to the Executive have vested and will remain
exercisable for the remainder of their terms.]
21
6. WAIVER OF CLAIMS
The Executive accepts the terms set out in this Agreement in full and
final settlement of all and any claims that he has or may have against
the Company, the Board or any other Group Company or any of its or
their current or former shareholders, directors, officers, employees or
agents, whether contractual (whether known or unknown, existing now or
in the future), statutory or otherwise, arising out of or in connection
with his employment with the Company or the termination of his
employment and his directorship of the Company and any Group Company or
his resignation therefrom. The Executive also agrees to waive
irrevocably and release the Company, the Board and all Group Companies
(and all of its or their current or former shareholders, directors,
officers, employees or agents) from and against any claims whether
contractual (whether known or unknown, existing now or in the future),
statutory or otherwise, arising out of or in connection with his
employment with the Company or the termination of his employment and
his directorship of the Company and any Group Company or his
resignation therefrom. This waiver shall not apply in relation to any
claim relating to his pension rights that have accrued up to the
Termination Date.
7. CONFIRMATION OF NO BREACHES
The Executive confirms and warrants to the Company that he has not at
any time during his employment committed a fundamental breach of the
terms of the Service Agreement.
8. SATISFACTION OF STATUTORY CONDITIONS
The Executive is aware of his rights under the Employment Xxx 0000 and
the Human Rights Amendment Act 1987 and has informed the Company of any
and all claims that he might seek to bring arising from his employment
or termination of employment. This agreement relates to his claims
under the Employment Xxx 0000 and the Human Rights Amendment Xxx 0000.
9. RESIGNATION OF DIRECTORSHIP
At the same time as executing this Agreement the Executive will resign
with immediate effect from his directorship of the Company and from all
directorships and offices held with other Group Companies (and all
related trusteeships) by signing and delivering the attached letters of
resignation.
10. POST-TERMINATION RESTRAINTS
The Executive acknowledges that the provisions of Clause 11
(Confidentiality) and Clause 14 (Restrictive Covenants) of the Service
Agreement will (to the extent that they are applicable in the
circumstances of the termination of the Executive's employment
22
with the Company) remain in full force and effect notwithstanding the
termination of his employment.
11. RETURN OF COMPANY PROPERTY
Before any payment under Clause 4 above is made, the Executive will, in
accordance with Clause 19.1(b) of the Service Agreement, deliver up to
the Company all vehicles, keys, credit cards, correspondence,
documents, specifications, reports, papers and records (including any
computer materials such as discs or tapes) and all copies thereof and
any other property (whether or not similar to the foregoing or any of
them) belonging to the Company or any other Group Company which may be
in his possession or under his control, and (unless prevented by the
owner thereof) any such property belonging to others which may be in
his possession or under his control and which relates in any way to the
business or affairs of the Company or any other Group Company or any
supplier, agent, distributor or customer of the Company or any other
Group Company, and he confirms that he has not retained any copies
thereof.
12. CONFIDENTIALITY
Save by reason of any legal obligation or to enforce the terms of this
letter, the Executive will not:
(a) disclose the existence or terms of this Agreement to anyone
(other than to the Executive's professional advisers, the
Inland Revenue or any other competent authority or the
Executive's spouse);
(b) directly or indirectly disseminate, publish or otherwise
disclose (or allow to be disseminated, published or otherwise
disclosed) by any means (whether oral, written or otherwise)
or medium (including without limitation electronic, paper,
radio or television) any information directly or indirectly
relating to the termination of the Executive's employment; or
(c) make any derogatory or disparaging comments about the
Company, any Group Company or any of its or their
shareholders, directors, officers, employees or agents.
13. NO ADMISSION OF LIABILITY
This agreement is made without any admission on the part of the Company
or any Group Company that it has or they have in any way breached any
law or regulation or that the Executive has any claims against the
Company or any Group Company.
14. TAX INDEMNITY
The Executive hereby agrees to be responsible for the payment of any
tax and employee's national insurance contributions imposed by any
competent taxation authority in respect of any of the payments and
benefits provided under this Agreement (other than for the avoidance of
doubt, any tax and/or employee's national insurance contributions
deducted
23
or withheld by the Company in paying the sums to the Executive). The
Executive further agrees to indemnify the Company and all Group
Companies and keep them indemnified on an ongoing basis against any
claim or demand which is made by any competent taxation authority
against the Company or any Group Company in respect of any liability of
the Company or any Group Company to deduct an amount of tax or an
amount in respect of tax or any employee's national insurance
contributions from the payments made and benefits provided under this
Agreement, including any related interest or penalties imposed by any
competent taxation authority.
15. ENTIRE AGREEMENT
This letter sets out the entire agreement between the Executive and the
Company and, save as set out in Clauses 5 and 10 above, supersedes all
prior arrangements, proposals, representations, statements and/or
understandings between the Executive, the Company and any Group
Company.
16. APPLICABLE LAW
This agreement is subject to Bermuda law and the exclusive jurisdiction
of the Bermuda courts.
------------------------------------
Julian Xxxxxxx Xxxxxx
-----------------------------------
dated
-------------------------------------
For and on behalf of Aspen Insurance Holdings Limited
-------------------------------------
dated
24
To the board of Directors
Aspen Insurance Holdings Limited
[date]
Dear Sirs
ASPEN INSURANCE HOLDINGS LIMITED (THE "COMPANY")
I hereby irrevocably and unconditionally resign from the office of Director of
the Company with immediate effect, and I acknowledge and confirm that I have no
claim of whatsoever kind outstanding for compensation or otherwise against the
Company, its servants, officers, agents or employees in respect of the
termination of my appointment.
Yours faithfully
SIGNED as a DEED )
and DELIVERED )
by Julian Xxxxxxx Xxxxxx )
in the presence of: )
Witness signature:
Witness Name:
Witness address:
[NOTE: SEPARATE INDIVIDUAL SIMILAR LETTERS OF RESIGNATION SHOULD BE PRODUCED FOR
ANY OTHER GROUP COMPANIES OF WHICH THE INDIVIDUAL IS A DIRECTOR]
25
