EXHIBIT 10.4
SERVICE AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 2002.
BETWEEN:
MONTPELIER REINSURANCE LTD., whose registered office is situate at Xxxxxxxxx
Xxxxx, 0 Xxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx (xxx "Company"); and
C. XXXXXXX XXXXXXXX, III, c/o 00 Xxxxxxxxxx Xxxxxx, XX Xxx 0000, Xxxxxxxx XX XX,
Xxxxxxx (xxx "Executive").
WHEREAS the parties desire to record the terms and conditions upon which the
Executive is employed by the Company.
NOW THEREFORE in consideration of the mutual covenants and promises herein
contained
IT IS HEREBY AGREED as follows:
1. Interpretation
1.1. In this Agreement unless the context otherwise requires the following
words and expressions shall have the following meanings:
this "Agreement" means this service agreement and includes all
schedules hereto;
the "Board" means the board of directors of the Company;
the "Companies Act" means the Companies Xxx 0000;
"Pounds" or "(pound)" means British Pounds Sterling;
"Group Company" means and includes any company which is from time to
time a holding company ( as defined by Section 86 of the Companies Act,
but irrespective of whether it is a Bermuda company or an overseas
company) of the Company, a subsidiary company (as so defined) of the
Company, a subsidiary company (as so defined) of a holding company (as
so defined) of the Company or in which the Company owns at least 50% of
the issued share capital;
the "Parties" means the parties to this Agreement;
1.2. In this Agreement unless the context otherwise requires:
1.2.1. references to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions from time to
time and shall include references to any provisions of which
they are re-enactments (whether with or without modification);
and
1.2.2. references to clauses and schedules are references to clauses
hereof and schedules hereto; references to sub-clauses or
paragraphs are, unless otherwise stated, references to
sub-clauses of the clause or paragraphs of the schedule in
which the reference appears;
1.2.3. references to the singular shall include the plural and vice
versa and references to the masculine shall include the
feminine and/or neuter and vice versa; and
1.2.4. references to persons shall include companies, partnerships,
associations and bodies of persons, whether incorporated or
unincorporated.
2. Appointment
The Company hereby appoints the Executive and the Executive hereby
agrees to serve the Company as Executive Vice President - Chief
Reinsurance Officer subject to the terms and conditions hereinafter
contained.
3. Term
The appointment of the Executive hereunder began on 1 January 2002 and
shall continue unless and until terminated in accordance with the
provisions hereinafter contained.
4. Duties and Responsibilities
During the continuance of his employment hereunder:
4.1. The Executive shall perform such duties and exercise such powers in
relation to the business of the Company or of any Group Company as may
from time to time reasonably be assigned to or vested in him by the
Board and shall give to the Board such information regarding the
affairs of the Company and any Group Company as it shall require and at
all times and in all respects conform to and comply with the reasonable
directions and regulations made by the Board. The Executive agrees that
he shall not conduct any business activity on behalf of the Company in
the United States of America other than marketing the Company's
products and save to the extent provided under any contract with any
other Group Company. The Executive shall perform such services for any
Group Company (without further remuneration except as otherwise agreed)
and shall accept such offices in any such Group Companies as the Board
may reasonably require. Provided, however, neither the Executive's
material responsibilities as Executive Vice President - Chief
Reinsurance Officer nor his location in Bermuda shall be changed
without his consent.
4.2. The Executive shall well and faithfully serve the Company and the Group
Companies and use his best endeavours to promote, develop and extend
their businesses and interests giving at all times the full benefit of
his knowledge, expertise, technical skill and ingenuity.
4.3. The Executive shall not without the consent of the Board directly or
indirectly engage in any other business or be concerned or interested
in any other business of a similar nature
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to or which would or might compete with the business for the time being
carried on by the Company or any Group Company save that he may (but
without prejudice to clause 4.2) be interested as a holder or
beneficial owner of not more than 5% of any class of stock, shares or
debentures in any company (other than the Company, in which case, such
limit shall not apply) whose stock, shares or debentures are listed or
dealt in on an appointed stock exchange (as defined in the Companies
Act).
4.4. The Company reserves the right to require the Executive not to attend
work/and or not to undertake all or any of his duties hereunder during
a period of up to 12 months immediately preceding the termination of
his employment, provided always that the Company shall continue to pay
the Executive's salary and contractual benefits for such period. This
Clause 4.4 shall not affect the general right of the Company to suspend
the Executive for good cause.
5. Remuneration and Reimbursement
5.1. The Company shall pay to the Executive by way of remuneration for his
services hereunder a base salary at the rate (subject as hereinafter
provided) of US$400,000 per annum. Such salary shall be inclusive of
any director's fees payable to the Executive by the Company or any
Group Company and accordingly either the Executive shall pay over or
procure to be paid over to the Company all such fees received or
receivable by him or his remuneration hereunder shall be reduced pro
tanto. The said salary shall be payable by equal semi-monthly
instalments in arrears on the day appointed by the Board for the
payment of employees' salaries or pro rata where the Executive is only
employed hereunder during part of the month. The Compensation Committee
of the Company's Board, subject to ratification by the Board, may
increase or reduce the Executive's salary on each anniversary of the
date of this Agreement, but not below the amount of the Executive's
starting salary. In addition, the Executive shall be eligible for an
annual cash bonus award initially in the range of up to 50% of base
salary, with the possibility of such award percentage increasing
thereafter.
5.2. The Company shall also pay to the Executive all reasonable travelling,
hotel and other out-of-pocket expenses which are properly incurred by
him in or about the performance of his duties hereunder and for which
vouchers (if so required) are provided to the reasonable satisfaction
of the Board.
5.3. The Company will reimburse the Executive for up to US$50,000 in
expenses incurred by the Executive in establishing a residence in
Bermuda, including, as applicable, cost of furnishings.
5.4. The Company will reimburse the Executive for all reasonable moving and
temporary housing expenses, plus a tax gross-up payment to reimburse
the Executive for any income taxes paid by the Executive on the
reimbursement (a "gross-up for taxes"), including travel and lodging
for the Executive's family for house hunting, school search and
commuting until relocation is completed. Such reimbursement shall also
include any real estate commissions that the Executive may incur by the
sale of his primary residence
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in the United States and the cost of moving and/or storage of personal
property in the United States while the Executive is employed pursuant
to this Agreement.
5.5. The Executive shall be entitled to participate in:
(i) the Company's medical and Dental Plan
(ii) a suitable pension arrangement in accordance with Bermuda law;
and
(iii) Any other employment benefit plans generally available to
executives in the Company of the Executive's stature, to the
extent not duplicative of benefits otherwise provided by the
Company.
5.6. During the Executive's appointment under this Agreement, he shall
receive a housing allowance of US$12,000 per month, grossed-up for
taxes.
5.7. The Company shall reimburse the Executive for all reasonable expenses,
grossed-up for taxes, incurred by the Executive and his dependents in
connection with their relocation to the city or area of Executive's
choice in the United States following the expiration or termination of
this Agreement.
5.8. The Company shall reimburse the Executive for all reasonable attorney's
fees and expenses that he incurs in reviewing the terms and conditions
of the Executive's employment with the Company. In addition, the
Company will reimburse the Executive for reasonable fees for accounting
services that he incurs for the preparation and filing of United States
federal and state income taxes while he is employed by the Company or
that arise from compensation that he receives from the Company.
Reimbursement for all such expenses for legal and accounting services
shall be grossed-up for taxes.
6. Normal Hours and Holidays
The Executive shall conform to such hours of work as may from time to
time reasonably be required of him and shall not be entitled to receive
any additional remuneration for work outside his normal hours. In
addition to the usual public holidays the Executive shall, subject as
mentioned in the Schedule, be entitled without loss of remuneration to
25 days holiday in each year to be taken at such time or times as may
be approved by the Chief Executive Officer of the Company. Any
entitlement to holiday remaining at the end of any year may be carried
forward to the next succeeding year but no further. The entitlement to
holiday (and on termination of employment holiday pay in lieu of
holiday) accrues pro rata throughout each year, provided that fractions
of days shall be disregarded in calculating entitlement to holiday or
payment in lieu of holiday. The Executive is also expected to attend
meetings of approved professional and community organizations, which
attendance will not be considered holiday leave or result in any loss
of remuneration. The Company shall reimburse the Executive for the cost
of coach air-fair for the Executive and his family for two round trips
per year to a destination in the United States of his choice,
grossed-up for taxes.
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7. Confidentiality
7.1. The Executive shall not either during the continuance of his employment
hereunder (otherwise than in the proper performance of his duties
hereunder) or at any time after the termination thereof divulge to any
person whomsoever and shall use his reasonable endeavours to prevent
the publication or disclosure of any trade secret or other confidential
information concerning the business, finances, accounts, dealings,
transactions or affairs of the Company or any Group Company or of any
of their respective clients entrusted to him or arising or coming to
his knowledge during the course of his employment hereunder or
otherwise.
7.2. The Executive shall upon the termination of his employment hereunder
immediately deliver up to the Company all fee schedules, lists of
clients, correspondence and other documents, papers and property
belonging to the Company or any Group Company or related to any of the
matters referred to in clause 7.1 which may have been prepared by him
or have come into his possession in the course of his employment
hereunder and shall not retain any copies thereof.
8. Change of Status
8.1. The liquidation, reconstruction or amalgamation of the Company shall
not affect the Executive's rights under this Agreement.
8.2. Unless this Agreement has been terminated under clause 9, if for any
reason the Executive shall either:
8.2.1. at the Company's request resign as a director of the Company
or any Group Company; or
8.2.2. be removed from office as a director of the Company or any
Group Company;
then, notwithstanding his so ceasing to be a director, this
Agreement shall not automatically terminate and thereupon (and
without any claim against the Company in respect of such loss
of office) the Executive's employment hereunder shall continue
for the remaining period of this Agreement and all the terms
and conditions of this Agreement shall with the necessary
variations apply to the Executive's employment but in any
event, the Executive's basic annual salary will not at any
time be less than the Executive's starting salary under this
agreement.
9. Termination
9.1. This Agreement shall be subject to termination by the Company by
summary notice in writing:
9.1.1. if, after reasonable accommodation, the Executive shall at any
time be prevented by illness (mental or physical) or accident
from performing his material duties for a period of 6
consecutive months or if he shall be absent from his duties by
reason of illness or accident for more than 180 working days
in any consecutive twelve
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months (provided that any such periods may be extended at the
sole discretion of the Board);
9.1.2. if the Executive shall have failed or neglected efficiently
and diligently to discharge his material duties hereunder
having received a written warning for the misconduct within
the previous 6 months or shall have committed any serious
breach of his obligations hereunder or shall have been guilty
of conduct tending to bring himself or the Company or any
Group Company into disrepute or calculated or likely to affect
prejudicially the interests of the Company or any Group
Company.
9.2. Subject to 9.1 above, this Agreement shall be subject to termination at
any time by notice:
9.2.1. if by the Company, then upon 12 months' written notice; or
9.2.2. if by the Executive, upon 6 months' written notice. The
Company reserves the right to terminate the Executive's
appointment by payment in lieu of notice.
9.3. The termination of this Agreement by either party shall be without
prejudice to any claim which the Company or the Executive may have for
damages arising from any breach thereof giving rise to such termination
or otherwise.
9.4. Until this Agreement is terminated pursuant to clause 9.1 or clause
9.2, the Executive shall remain entitled to receive his salary payable
hereunder in full notwithstanding illness or other incapacity.
10. Consequence of Termination
Upon the termination of this Agreement howsoever arising, the Executive shall at
any time or from time to time thereafter upon the request of the Company resign
as a director of the Company and such offices held by him in any of the Group
Companies as may be so requested and should he fail to do so, the Company is
hereby irrevocably authorised to appoint some person in his name and on his
behalf to sign and do any documents or things necessary or requisite to give
effect thereto. Notwithstanding anything else to the contrary herein, should
this Agreement be terminated pursuant to section 9.1.1, the Executive shall
continue to receive his salary for a period of 12 months following the
termination of this Agreement.
11. Non-Competition
11.1. Since the Executive has obtained in the course of his employment prior
to the date hereof and is likely to obtain in the course of his
employment hereunder knowledge of the trade secrets and also other
confidential information in regard to the business of the Company and
of any Group Company with which he becomes associated, the Executive
hereby agrees with the Company that in addition to the restrictions
contained in clause 4.3 he will not in Bermuda, the United States of
America, the United Kingdom or the European Economic Community
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11.1.1. during the period of 6 months following the termination of his
employment hereunder (howsoever caused) either on his own
account or for any other person, firm or company directly or
indirectly be engaged in or concerned with any business or
undertaking which is engaged in or carries on in Bermuda, the
United Kingdom, the European Economic Community any insurance
business which competes or seeks to compete with the business
carried on by the Company or any other Group Company at the
date of termination.
11.1.2. During the period of 6 months following the termination
aforesaid either on his own account or for any other person,
firm or company directly or indirectly solicit, interfere with
or endeavour to entice away from the Company or any Group
Company the custom of any person, firm or company who at the
date of termination aforesaid or who in the period of 12
months immediately prior to such date was a customer or client
of or in the habit of dealing with the Company or any Group
Company or who at such date was to his knowledge negotiating
with the Company or any Group Company in relation to all or
part of its business.
11.1.3. During the period of 6 months following the termination
aforesaid either on his own account or for any other person,
firm or company solicit the services of or endeavour to entice
away from the Company or any Group Company any director,
employee or consultant of the Company or any Group Company
(whether or not such person would commit any breach of his
contract of employment or engagement by reason of leaving the
service of such company) nor shall the Executive knowingly
employ or aid or assist in or procure the employment by any
other person, firm or company of any such person.
11.1.4. Provided, however, that Company shall pay to Executive during
the said 6 month non-competition period an amount equal to
Executive's total compensation (salary, bonus and benefits)
over the preceding 12 month period, in 6 equal monthly
instalments.
11.1.5. The Company shall be relieved of its obligations under clause
11.1.4 if, within 2 weeks of termination of this Agreement,
the Company provides written notice to the Executive releasing
him from the provisions of Section 11 of this Agreement.
11.2. While the restrictions aforesaid are considered by the Parties to be
reasonable in all the circumstances it is agreed that if any of such
restrictions shall, taken together, be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the
legitimate interests of the Company or any Group Company but would be
adjudged reasonable if part of the wording thereof were deleted or
modified the said restrictions shall apply with such words deleted or
modified.
11.3. The Executive hereby agrees that he will at the request and cost of the
Company enter into a direct agreement or undertaking with any Group
Company whereby he will accept restrictions and provisions
corresponding to the restrictions and provisions herein contained (or
such of them as may be appropriate in the circumstances) in relation to
such services and such area and for such period as such company or
companies may
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reasonably require for the protection of its or their legitimate
interests provided that the terms of such restrictions and provisions
will not be more onerous than the restrictions and provisions of this
agreement.
12. Untrue Statements
The Executive shall not knowingly at any time make any untrue statement
in relation to the Company or any Group Company and in particular shall
not after the termination of his employment hereunder wrongfully
represent himself as being employed by or connected with the Company or
any Group Company.
13. Schedule
The provisions set out in the schedule hereto shall apply as if
incorporated in this Agreement.
14. Delegation
The Company may at any time and from time to time delegate its power
and authority under this Agreement to any Group Company and such
delegation (or the revocation thereof) shall be effective upon the
Company's giving written notice of the same to the Executive.
15. Notices
Notices may be given by either Party by pre-paid first class post or by
hand delivery addressed to the other Party at (in the case of the
Company) its registered office for the time being and (in the case of
the Executive) his last known address. Any such notice given by post
shall be deemed to have been served on the second week day after
despatch (public holidays excepted) and any notice so given by hand
shall be deemed to have been served when delivered if delivered during
normal business hours or, if delivered outside such hours, at the next
time after delivery when normal business hours commence.
16.1. Miscellaneous
The expiration or termination of this Agreement howsoever arising shall
not operate to affect such of the provisions hereof as are expressed or
intended to remain in full force and effect notwithstanding such
termination.
16.2. If any of the clauses, conditions, covenants or restrictions of this
Agreement or any deed or document emanating from it shall be found to
be void but would be valid if some part thereof were deleted or
modified, then such clause, condition, covenant or restriction shall
apply with such deletion or modification as may be necessary to make it
valid and effective.
16.3. This Agreement shall be binding and enure for the benefit of the
successors of the Parties but shall not be assignable.
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16.4. This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the Parties relating to its
subject matter.
16.5. The headings in this Agreement are inserted for convenience only and
shall not affect the construction of this Agreement.
16.6. This Agreement may be executed in counterparts each of which when
executed and delivered shall constitute an original but all such
counterparts together shall constitute one and the same instrument.
16.7. No provision in this Agreement may be amended unless such amendment is
agreed to in writing, signed by the Executive and by a duly authorised
officer of the Company. No waiver by either Party of any breach by the
other Party of any condition or provision of this Agreement to be
performed by such other Party shall be deemed a waiver of a similar or
dissimilar condition or provision at the same or any prior or
subsequent time. Any waiver must be in writing and signed by the
Executive or a duly authorised officer of the Company, as the case may
be.
16.8. This Agreement shall be governed by and construed in accordance with
the laws of Bermuda and the Parties hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of Bermuda.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
SIGNED by )
on behalf of the Montpelier Re Holdings Ltd. )
in the presence of )
/s/
-------------------------------------------------
Witness
SIGNED by C. Xxxxxxx Xxxxxxxx, III )
in the presence of: )
/s/ C. Xxxxxxx Xxxxxxxx, III
-------------------------------------------------
/s/
-------------------------------------------------
Witness
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THE SCHEDULE
1. Hours of Work: The Executive shall conform to such hours of work as may
reasonably be required of him for the proper performance of his duties
hereunder and shall not be entitled to receive any additional
remuneration for work outside his normal hours.
2. Medical and Other Insurance: The Executive will be entitled to
participate in the Company medical, dental, disability, life,
accidental death and travel accident insurance plans and other
insurance plans on the same terms as the Company's executive employees.
3. Pension Provisions: The Executive will be entitled to participate in
the Company's pension plan from time to time subject to the provisions
of such pension plan in effect at the time.
4. Incentive Plans: The Executive will be entitled to participate in the
Montpelier Annual Incentive Plan, the Montpelier Long-Term Incentive
Plan and any other incentive plan for which the Executive is eligible,
from time to time subject to the provisions of such plans in effect at
the time.
5. Policies: The Executive shall adhere to the Company's policies and
procedures, a copy of which has been given to the Executive. It
contains details of Company policies along with descriptions of
disciplinary and grievance procedures, dress code and other policies
relevant to the Executive's employment. The Company reserves the right
to vary the policies from time to time.
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