EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT 10.26
EXECUTION COPY
THIS EXECUTIVE EMPLOYMENT AGREEMENT, dated as of the 15th day of November, 2009, is
between Wind River Reinsurance Company, Ltd., a Bermuda corporation with its principal offices in
Hamilton, Bermuda (the “Company”) and Xxxx X. Xxxxxxx, an individual residing at Woodbourne Place
#7, 27 Woodbourne Avenue, Pembroke HM 08, Bermuda (the “Executive”).
WHEREAS, the Company desires that Executive be employed by the Company in the capacity of
President; and
WHEREAS, the parties desire to enter into this Agreement to set forth the terms and conditions
of Executive’s employment.
NOW, THEREFORE, in consideration of the premises and mutual covenants contained herein and for
other good and valuable consideration, the receipt of which is mutually acknowledged, the Company
and the Executive agree as follows:
TERM OF EMPLOYMENT; RENEWAL. The Company agrees to employ the Executive and
the Executive accepts employment with the Company for the period commencing as of November
15th, 2009 (the “Effective Date”) and ending on June 9, 2012 (such initial period, as
extended below, shall be referred to as the “Employment Term”). Subject to a successful
application for the renewal of the Executive’s work permit and/or the ability of the Executive to
be granted a work permit, the term of this Agreement will automatically renew at the expiration of
the then current term for an additional one-year period unless, at least one hundred and
twenty (120) days prior to the expiration date of the then current term, either party shall give
written notice of non-renewal to the other, in which event this Agreement shall
terminate at the end of the term then in effect. To the extent that the Executive continues
employment with the Company following the expiration of the Employment Term without having reached
agreement on a new written agreement, and subject to the existence of a current work permit
permitting the Executive to continue to be employed with the Company, the Executive shall continue
his employment on the same terms as contained in this Agreement.
POSITION AND DUTIES. The Executive shall serve as the President of the Company, reporting to
the President and Chief Executive Officer (“CEO”) of United America Indemnity, Ltd. (“UAI”) or such
person designated by the CEO and shall have such authority and duties, consistent with such
position, as may from time to time be specified by the CEO, the CEO’s designee or the Board of
Directors of United America Indemnity, Ltd. (“UAI Board”). At the request of the CEO, the designee
or UAI Board, the Executive shall also serve, without additional compensation, as an officer or
director of any Affiliates of the Company that are involved in the business of the Company and/or
its Affiliates. For purposes hereof, an “Affiliate” means any company that is controlled by, under
common control with, or that controls the Company. The Executive’s principal place of business
shall be at the Company’s principal executive offices in Hamilton, Bermuda, subject to business
travel.
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ENGAGEMENT IN OTHER EMPLOYMENT. The Executive shall devote his business time, energies and
talents to the business of the Company and shall comply with each of the Company’s corporate
governance and ethics guidelines, conflict of interests policies and code of conduct applicable to
all Company employees or senior executives as adopted by the UAI Board from time-to-time. The
Executive first shall obtain the consent of the UAI Board in writing before engaging in any other
business or commercial activities, duties or pursuits. Notwithstanding the foregoing, nothing
shall preclude the Executive from (i) engaging in charitable activities and community affairs and
(ii) managing his personal investments and affairs.
COMPENSATION.
(a) ANNUAL DIRECT SALARY. During the term of this Agreement, as compensation for services
rendered to Company under this Agreement while Executive is employed with the Company, the
Executive shall be entitled to receive from the Company an annual direct salary of not less than
$250,000 per year, subject to all applicable federal, state and/or local tax and other
withholdings, commencing as of Executive’s date of employment (the “Annual Direct Salary”).
Executive’s Annual Direct Salary shall be payable in substantially equal biweekly installments, and
shall be prorated for any partial employment period. The Annual Direct Salary shall be reviewed by
the CEO and/or UAI Board no later than April of each year this Agreement is in effect, commencing
with calendar year 2010, and may be adjusted in the discretion of the CEO and/or UAI Board after
taking into account the prevailing market value of the position and the then current pay increase
practice of the Company. In no event shall the Annual Direct Salary be decreased without the
express written consent of the Executive.
(b) ANNUAL BONUS.
| (i) | In respect of 2009, Executive shall be eligible for a bonus opportunity recommended by the CEO and as approved by the UAI Board. The CEO’s recommendation will take into consideration the various positions held by the Executive during 2009. Such bonus will be payable as set forth in Section 4(b)(ii)(1) and (2) on or before March 15, 2010 if Executive is employed and in good standing as of such date. | ||
| (ii) | In respect of each full calendar year (commencing with the 2010 accident year, determined in accordance with generally accepted accident year insurance accounting methodology consistently applied (and verified by the Company’s independent auditors)) during which Executive served as the Company’s President during the entirety of such year (Bonus Year), the Company shall provide Executive with a bonus opportunity of $300,000 (Annual Bonus) based on the achievement by the Company (in whole or in part, as the case may be) of accident year targets and other measures of performance as recommended by the CEO and as determined and approved by the UAI Board with such bonus to be awarded and paid as follows: |
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(1) One-third (1/3) of each Annual Bonus shall be satisfied by
the issuance of restricted shares of Class A Stock, as of March 15 of
the year following the Bonus Year, with such issuance conditioned on
(x) the Executive being actively employed in good standing by the
Company as of such date (or if such date is not a business day, the
immediately preceding business day) (valued for this purpose at the
closing price of the Class A Stock on the last trading day of the
relevant Bonus Year as reported in the Wall Street Journal)
and (y) the achievement by the Company for such Bonus Year (in whole
or in part, as the case may be) of accident year targets and other
measures of performance as recommended by the Chairman of UAI, Ltd.
and as approved by the UAI Board. Such restricted shares shall vest
and become transferable on each of the first four (4) anniversaries of
the issuance thereof, provided that vesting of such shares shall cease
at such time as (1) Executive resigns from the Company, (2) Executive
is terminated by the Company for Cause, or (3) Executive does not
comply with the restrictive covenants and obligations set forth in
Section (7) herein, along with his obligations, if applicable, under
any release which he is required to provide in favor of the Company
and those under any separation agreement to which he is party with the
Company and/or its Affiliates (collectively, the “Post-Termination
Obligations”). (The terms of the Restricted Shares shall be otherwise
subject to the UAI Ltd. form of “Restricted Share Agreement” attached
hereto). With respect to the grant and vesting of the bonus
restricted shares or the payment of the cash portion of the bonus as
provided for below, the UAI Board’s good faith determination as to the
satisfaction of any accident year targets and/or target performance
measures shall be final and binding.
(2) Two-thirds (2/3) in the form of a cash payment, to be paid to
the Executive on or before March 15 following the applicable Bonus
Year, subject to the achievement by the Company for such Bonus Year of
accident year targets and other performance measures as recommended by
the Chairman of UAI, Ltd. and as approved by the UAI Board, provided
that the Executive is employed in good standing as of such payment
date.
| (iii) | Notwithstanding the provisions of Section 4(b)(ii), Executive acknowledges and agrees that the Company and/or the UAI Board may elect to modify the payment of the annual bonus for the 2010 accident year or any subsequent year such that it is paid in different increments and/or over a longer period of time without amending this Agreement. The Company acknowledges that the Executive’s annual bonus opportunity shall not be reduced without the Executive’s written consent. |
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(c) HOUSING ALLOWANCE. During the Employment Term, the Company will provide Executive with
housing or will provide Executive with a housing allowance. The terms of which to be mutually
agreed upon by the Company and the Executive.
(d) TRAVEL ALLOWANCE. During the Employment Term, the Company will reimburse the Executive or
the Executive’s spouse for a round trip coach ticket every other week to and/or from Philadelphia,
PA and Bermuda.
(e) CHANGE OF CONTROL. Upon a change of control of UAI, Ltd. as defined in the Annex attached
hereto, all unvested restricted shares and unvested options held by the Executive shall accelerate
and vest in full (and thereafter become exercisable).
FRINGE BENEFITS, VACATION TIME, EXPENSES, PERQUISITES AND SHAREHOLDING GUIDELINES.
(f) EMPLOYEE BENEFIT PLANS. The Executive shall be entitled to participate in or receive
benefits under all corporate employment benefit plans, including, but not limited to, any pension
plan, savings plan, medical or health-and-accident plan or arrangement generally made available by
the Company to similarly situated executives as a group, subject to and on a basis consistent with
the terms, conditions and overall administration of such plans and arrangements.
(g) The Executive shall be entitled to the number of paid vacation days in each calendar year
determined by the Company from time to time for its senior executive officers, but not less than
four (4) weeks in any calendar year (prorated in any calendar year during which the Executive is
employed hereunder for less than the entire such year in accordance with the number of days in such
calendar year during which he is so employed). The Executive shall also be entitled to all paid
holidays, sick days and personal days given by the Company to its senior executive officers, as
well as Bermuda Public Holidays.
(h) During the term of his employment hereunder, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by him (in accordance with the policies
and procedures established by the Company from time to time) in performing services hereunder,
provided that the Executive properly accounts, therefore, in accordance with Company policy.
PROTECTION OF COMPANY INFORMATION. During the period of his employment, or at any later time
following the termination of his employment for any reason, the Executive shall hold in a fiduciary
capacity for the benefit of the Company and its affiliates, and shall not, without the written
consent of the Board, knowingly disclose to any person, other than an employee of the Company or a
person to whom disclosure is reasonably necessary or appropriate in connection with the performance
by the Executive of his duties as an executive of the Company, or use for any purpose other than to
perform his duties hereunder, any “Confidential Information” of the Company or any of its
Affiliates obtained by him while in the employ of the Company. The Confidential Information
protected by this provision shall include all computer software and files, policy expirations,
telephone lists, customer lists, prospect lists, marketing information, information regarding
managing general agents, pricing policies, contract forms, customer information,
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copyrights and patents, the identity of Company and Affiliate employees, Company and Affiliate
books, records, files, financial information, business practices, policies and procedures,
underwriting policies and practices of the Company and of any Affiliate of the Company, information
about all services and products of the Company and its Affiliates, names of users or purchasers of
the products or services of the Company or its affiliates, methods of promotion and sale and all
information which constitutes trade secrets under the law of any state in which the Company or any
of its Affiliates does business. No information shall be treated as Confidential Information if it
is generally available public knowledge at the time of disclosure or use by Executive, provided
that information shall not be deemed to be publicly available merely because it is embraced by
general disclosures or because individual features or combinations thereof are publicly available.
The Executive agrees that any breach of the restrictions set forth in this Section will result in
irreparable injury to the Company and/or its Affiliates for which there is no adequate remedy at
law and the Company and its Affiliates shall, in addition to any other remedies available to them,
be entitled to injunctive relief and specific performance in order to enforce the provisions hereof
and shall be entitled to recover its attorneys’ fees and costs incurred in connection with seeking
such relief or otherwise as a result of a breach by the Executive of the terms of this section.
Notwithstanding the foregoing provisions, if the Executive is required to disclose any such
confidential or proprietary information pursuant to applicable law or a subpoena or court order,
the Executive shall promptly notify the Company, in writing, of any such requirement so
that the Company or the appropriate affiliate may seek an appropriate protective order or other
appropriate remedy or waive compliance with the provisions hereof. The Executive shall reasonably
cooperate with the Company to obtain such a protective order or other remedy. If such order or
other remedy is not obtained prior to the time the Executive is required to make the disclosure, or
the Company waives compliance with the provisions hereof, the Executive shall disclose only that
portion of the confidential or proprietary information which he is advised by counsel that he is
legally required to so disclose. All records, files, memoranda, reports, customer lists, drawings,
plans, documents and the like that the Executive uses, prepares or comes into contact with during
the course of the Executive’s employment shall remain the sole property of the Company and/or its
affiliates, as applicable. The Executive shall execute and deliver the Company’s standard “work
for hire” agreement regarding ownership by the Company of all rights in its confidential and
business materials.
RESTRICTIVE COVENANTS.
(i) NON-COMPETITION AGREEMENT. The Executive acknowledges and agrees that the business and
operations of the Company are international in scope, and that the Company operates in multiple
business segments in the course of conducting its business. In consideration of this Agreement,
the Executive covenants and agrees that during his employment with the Company, and for a period of
twelve (12) months following the termination of such employment for any reason, the Executive shall
not (i) engage, whether as owner, manager, operator, agent, employee, consultant or otherwise,
directly or indirectly, in any insurance related business competitive with the business of the
Company (including, without limitation, any insurance business that is comprised of similar lines
of products or coverage or that derives revenues or premiums from similar marketing or production
techniques or through the use of a Producer or Producers, ((as defined below)) (or any reinsurance
business providing services to the foregoing) (a “Competitive Business”), (ii) engage, whether as
an owner, manager, operator, agent,
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employee, consultant or otherwise, directly or indirectly, in any insurance related business
with a Producer or Producers (as defined below) of the Company, or (iii) use any information
obtained in the course of the Executive’s employment by the Company for the purpose of notifying
individuals of the Executive’s willingness to provide services after such termination in
competition with the Company or in breach of this Agreement. Ownership of less than 5% of the
securities of any publicly traded company will not violate this Section 7(a). “Producer” or
“Producers” shall mean managing general agents, wholesale general agents, and other wholesale
and/or retail producers, brokers or distributors of property and casualty insurance business
underwritten by the Company.
In the event that this paragraph or paragraph (c ) below shall be determined by any court of
competent jurisdiction to be unenforceable in part by reason of its being too great a period of
time or covering too great a geographical area, or as a result of the scope of any prohibition or
restriction on post-termination activity being too broad, it shall be in full force and in effect
as to that period of time or geographical area or scope of post-termination activity determined to
be reasonable by the court. To the extent the Executive violates the provisions of this paragraph
and paragraph (c) below the duration of such violations shall not reduce or be applied against the
twelve (12) month post-termination periods set forth therein.
(j) RETURN OF MATERIALS. Upon termination of employment with the Company, the Executive shall
promptly deliver to the Company all Company or Affiliate property of any kind, including but not
limited to: all electronic or paper documents (including correspondence, manuals, letters, notes,
binders, files, reports and notebooks), computers and other electronic devices, mobile telephones,
computer disks and drives, software, reports and any other document or tangible item that contains
or reflects Confidential Information as defined in Section 6 of this Agreement.
(k) NON-SOLICITATION OF EMPLOYEES AND CUSTOMERS. Should the Executive’s employment with the
Company be terminated for any reason, for a period of twelve (12) months following such termination
the Executive shall not: (i) contact, recruit, employ, entice, induce or solicit, directly or
indirectly, any employee, officer, director, agent, consultant or independent contractor employed
by or performing services for the Company or any of its Affiliates to leave the employ of or
terminate services to the Company or such Affiliate, including, without limitation, for the purpose
of working with the Executive, with the entity with which the Executive has affiliated (as an
employee, consultant, officer, director, stockholder or otherwise), or with any other entity; (ii)
directly or indirectly, transact or otherwise engage in insurance-related business with, or seek,
either in his individual capacity or on behalf of any other entity, whether directly or indirectly,
to solicit, communicate with or contact or advise, or transact or otherwise engage in (or provide
services with respect to) any insurance-related business with or otherwise solicit for competitive
purposes (x) any party who is or was a customer of the Company or any of its Affiliates during
Executive’s employment by the Company or at any time during the said twelve (12) month period, or
(y) any party who was identified as a prospective customer of the Company or any of its Affiliates
during Executive’s employment by the Company; or (iii) directly or indirectly engage in or
participate in any effort or act to induce any customer of the Company or any of its Affiliates to
take any action which might be disadvantageous to the Company or its Affiliates. For purposes of
this Agreement, “customer” shall include, without limitation, any policyholder, managing general
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agent, wholesale general agent, broker, Producer or re-insurer with whom the Company or its
Affiliates has transacted business.
(l) WORK FOR HIRE: All original works of authorship which have been or are made by Executive
within the scope of and during the period of his employment with the Company and which are
protectable by copyright are “works for hire” and the Company or its designee shall own all rights
therein.
(m) ASSIGNMENT OF INVENTION: Executive shall disclose promptly in writing to the Company, all
inventions, including discoveries, concepts and ideas, patentable or not, hereafter made or
conceived solely or jointly by Executive during employment with the Company (or its Affiliates), or
within six months after the termination of Executive’s employment, if based on or related to
proprietary information of the Company or its Affiliates known by Executive, provided such
invention, discovery, concepts and ideas relate in some manner to the business or activities of the
Company. Executive agrees that in connection with any invention covered by this paragraph,
Executive shall, on request of the Company, promptly execute a specific assignment of title to the
Company or its Affiliates and do anything else reasonably necessary to enable the Company or its
Affiliates to secure a patent therefore in the United States and foreign countries.
(n) COOPERATION: Executive agrees to be available to the Company from time to time to answer
questions or provide information relating to Company matters that he worked on during his
employment at the Company or its Affiliates for a period of six (6) months following his
termination of employment for any reason (the “Cooperation Period”). The Company shall make
reasonable efforts to minimize any burden placed on Executive during the Cooperation Period and
shall not unreasonably interfere in Executive’s obligations to any subsequent employer. In the
event that Executive would reasonably be required to incur any cost or expense to communicate with
the Company or travel to any location requested by the Company, the Company shall advance any such
travel or other costs reasonably incurred by Executive to comply with and perform his obligations
during the Cooperation Period.
(o) NO FURTHER COMPANY OBLIGATIONS: In the event Executive breaches any of his covenants in
Sections 6 and 7, and in addition to any other remedies available to the Company and its Affiliates
(i) the Company and its Affiliates shall be released from any obligation to make payments under
Section 9 of this Agreement and (to the extent permitted by applicable law) to provide benefits or
make payments under all employee benefit plans in which Executive participates, and (ii) the
Company shall be entitled to reimbursement from the Executive of severance payments made to the
Executive by the Company following termination of employment with the Company.
(p) REASONABLENESS OF PROVISIONS: The Executive acknowledges and agrees that the terms set
forth in Sections 6 and 7: (i) are reasonable in light of all of the circumstances; (ii) are
sufficiently limited to protect the legitimate interests of the Company and its subsidiaries; (iii)
impose no undue hardship on the Executive; (iv) are not injurious to the public, and (v) Executive
has received adequate consideration pursuant to Sections 4 and 9 . The Executive further
acknowledges and agrees that (x) the Executive’s breach of the provisions of Sections 6 and 7 will
cause the Company irreparable harm, which cannot be adequately compensated by money
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damages and which the Company has no adequate remedy in law, and (y) if the Company elects to
prevent the Executive from breaching such provisions by obtaining an injunction against the
Executive, there is a reasonable probability of the Company’s eventual success on the merits. The
Executive consents and agrees that if the Executive commits any such breach or threatens to commit
any breach, the Company shall, in addition to any other remedy available to it and in lieu of
Section 14 hereof, be entitled to temporary and permanent injunctive relief and specific
performance in an action from a court of competent jurisdiction, without posting any bond or other
security and without the necessity of proof of actual damage, in addition to, and not in lieu of,
such other remedies as may be available to the Company for such breach, including the recovery of
money damages, the recovery of its attorneys’ fees and costs incurred in doing so, and
reimbursement of costs incurred in securing a qualified replacement as a result of any breach by
the Executive.
TERMINATION.
(q) The Executive’s employment hereunder shall terminate upon his death, retirement,
resignation, or the expiration of this Agreement. Upon the Executive’s death, any sums then due
him shall be paid to the executor, administrator or other personal representative of the
Executive’s estate.
(r) If the Executive becomes disabled (as certified by a licensed physician selected by the
Company) and is unable to perform or complete his duties under this Agreement for a period of 180
consecutive days or 180 days within any twelve-month period, the Company shall have the option to
terminate this Agreement by giving written notice of termination to the Executive. Such
termination shall be without prejudice to any right the Executive has under the disability
insurance program maintained by the Company.
(s) The Company may terminate the Executive’s employment hereunder for Cause. For the
purposes of this agreement, the Company shall have “Cause” to terminate the Executive’s employment
hereunder upon (i) the Executive substantially failing to perform his material duties hereunder
after notice from the Company and failure to cure such violation within 10 days of said notice (to
the extent the Board reasonably determines such failure to perform is curable and subject to
notice) or violating any material Company policies, including, without limitation, the Company’s
corporate governance and ethics guidelines, conflicts of interests policies and code of conduct
applicable to all Company employees or senior executives, (ii) the engaging by the Executive in any
malfeasance, fraud, dishonesty or gross misconduct adverse to the interests of the Company or its
affiliates, (iii) the material violation by the Executive of any of the provisions of Sections 3, 6
or 7 hereof or other provisions of this Agreement, (iv) a breach by the Executive of any
representation or warranty contained herein, (v) the Board’s determination that the Executive has
exhibited incompetence or gross negligence in the performance of his duties hereunder, (vi) receipt
of a final written directive or order of any governmental body or entity having jurisdiction over
the Company requiring termination or removal of the Executive, or (vii) the Executive being charged
with a felony or other crime involving moral turpitude.
(t) The Company may choose to terminate the Executive’s employment at any time without Cause
or reason, and subject at all times to the consideration set forth in Section 9(b).
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(u) The Executive may resign upon ninety (90) days’ advance written notice to the Company.
During the advance written notice period, the Company may in its discretion elect to terminate the
Executive at any time but shall continue to have payment obligations with respect to salary,
benefits, housing allowance and travel allowance for the remainder of the ninety (90) day advance
written notice period.
PAYMENTS UPON TERMINATION.
(v) If the Executive’s employment shall be terminated because of death, disability,
Executive’s resignation other than pursuant to Section 9(b)(ii) below, or for Cause, the Company
shall pay the Executive (or his executor, administrator or other personal representative, as
applicable) his full Annual Direct Salary through the date of termination of employment at the rate
in effect at the time of termination and the Company shall have no further obligations to the
Executive under this Agreement (and the Executive shall not be entitled to payment of any unpaid
bonus or incentive award).
(w) If the Executive’s employment is terminated by the Company without Cause, then the Company
shall pay to the Executive, as full and complete liquidated damages hereunder, an amount equal to
the Executive’s then Annual Direct Salary determined on a monthly basis and multiplied by twelve
(12), with such amount payable in twelve (12) equal monthly installments. The Company shall also
maintain in full force and effect, for the continued benefit of the Executive for twelve (12)
months, any medical or health-and-accident plan or arrangement of the Company in which the
Executive is a participant at the time of such termination of employment; provided that the
Executive shall remain responsible for continuing to pay his share of the costs of such coverage;
provided further that the Company shall not be under any duty to maintain such coverage if the
Executive becomes eligible for coverage under any other employer’s insurance and the Executive
shall give the Company prompt notice of when such eligibility occurs. No payments or benefits
shall be provided hereunder (i) unless and until the Company has first received a signed general
release from the Executive in a form acceptable to the Company releasing the Company and Affiliates
and any other parties identified by the Company and Affiliates therein, and (ii) to the extent that
the Executive has breached any of his post-termination obligations hereunder.
NOTICE. For the purposes of this Agreement, notices and all other communications provided for
in the Agreement shall be in writing and shall be deemed to have been duly given when delivered or
mailed by United States certified mail, return receipt requested, postage prepaid, addressed as
follows:
| If to the Executive: | Xxxx X. Xxxxxxx | |||||
| Woodburne Place #7 | ||||||
| 00 Xxxxxxxxx Xxxxxx | ||||||
| Xxxxxxxx XX 00 | ||||||
| Xxxxxxx | ||||||
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| If to the Company: | Wind River Reinsurance Company, Ltd. | |||||
| Xxxxxx Xxxxx | ||||||
| Xxxxxxxx Xxxxx | ||||||
| 00 Xxxxxxxx Xxxxxx | ||||||
| PO Box HM 16 | ||||||
| Xxxxxxxx XX CX | ||||||
| Bermuda | ||||||
| With copies to: | United America Indemnity Group, Inc. | |||||
| Three Xxxx Xxxxx Xxxx, Xxxxx 000 | ||||||
| Xxxx Xxxxxx, XX 00000 | ||||||
| Attn: General Counsel | ||||||
| Fox Xxxxx & Company, LLC | ||||||
| 000 Xxxxx Xxxx, Xxxxx 0000 | ||||||
| Xxxxxx Xxxx, XX 00000 | ||||||
| Attn: Xxxx X. Xxx |
or to such other address as any party may have furnished to the others in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
SUCCESSORS. This Agreement shall be binding upon the Executive, his heirs, executors or
administrator, and the Company, and any successor to or assigns of the Company. This Agreement is
not assignable by Executive. This Agreement is assignable by the Company to any Affiliate or to a
successor to or purchaser of the Company’s business.
ENFORCEMENT OF SEPARATE PROVISIONS. Should provisions of this Agreement be ruled
unenforceable for any reasons, the remaining provisions of this Agreement shall be unaffected
thereby and shall remain in full force and effect.
AMENDMENT. This Agreement may be amended or canceled only by mutual agreement of the parties
in writing without consent of any other person and, so long as the Executive lives, no person other
than the parties hereto, shall have any rights under or interest in this Agreement or the subject
matter hereof.
ARBITRATION. In the event that any disagreement or dispute whatsoever shall arise between the
parities concerning this Agreement, such disagreement or dispute shall be submitted to the Judicial
Arbitration and Mediation Services, Inc (“JAMS”) for resolution in a confidential private
arbitration in accordance with the comprehensive rules and procedures of JAMS, including the
internal appeal process provided for in Rule 34 of the JAMS rules with respect to any initial
judgment rendered in an arbitration. Any such arbitration proceeding shall take place in
Philadelphia, Pennsylvania before a single arbitrator (rather than a panel of arbitrators). The
parties agree that the arbitrator shall have no authority to award any punitive or exemplary
damages and waive, to the full extent permitted by law, any right to recover such damages in such
arbitration. Each party shall each bear their respective costs (including attorneys’ fees, and
there shall be no award of attorney’s fees) and shall split the fee of the arbitrator. Judgment
upon the final award
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rendered by such arbitrator, after giving effect to the JAMS internal appeal process, may be
entered in any court having jurisdiction thereof. If JAMS is not in business or is no longer
providing arbitration services, then the American Arbitration Association shall be substituted for
JAMS for the purposes of the foregoing provisions. Each party agrees that it shall maintain
absolute confidentiality in respect to any dispute between them.
15. COMPLIANCE WITH SECTION 409A AND SECTION 162(m). All bonus and severance payments
hereunder are intended to comply with Sections 162(m) and 409A of the Internal Revenue Code of
1986, as amended (the “Code”), and to the extent applicable shall be governed by the Company’s
incentive award plans and paid in a manner and at such time so as to result in tax deductibility to
the Company and otherwise comply with the provisions of Section 409A.
16. LAW GOVERNING. This Agreement shall be governed by and construed in accordance with the
laws of Bermuda.
17. ENTIRE AGREEMENT. This Agreement supersedes any and all prior agreements, either oral or
in writing, between the parties with respect to the employment of the Executive by the Company and
this Agreement contains all the covenants and agreements between the parties with respect to the
Executive’s employment.
18. ACKNOWLEDGEMENT. Executive acknowledges that he has carefully read and fully understands
this Agreement and that the Company has provided him sufficient time to discuss such Agreement with
an attorney.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
| ATTEST: | Wind River Reinsurance Company, Ltd. | |||||||
/s/ Xxxxxxxx Xxxxxxx
|
By: | /s/ Xxxx Xxxxxx
|
||||||
WITNESS: |
||||||||
| /s/ Xxxxxx Xxxxx | /s/ Xxxx X. Xxxxxxx | |||||||
| Xxxx X. Xxxxxxx | ||||||||
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ANNEX
CHANGE IN CONTROL
For purposes of this Agreement:
(x) “Change of Control” shall mean (i) the acquisition of all or substantially all of the
assets of UAI by an Unaffiliated Person, (ii) a merger, consolidation, statutory share exchange or
similar form of corporate transaction involving UAI after which the resulting entity is controlled
by an Unaffiliated Person, or (iii) the acquisition by an Unaffiliated Person of sufficient voting
shares of UAI to cause the election of a majority of UAI’s Directors.
(y) “Unaffiliated Person shall mean a “person” (as such term is defined in Section 3(a)(9) of
the Securities Exchange Act of 1934 and as such term is used in Section 13(d)(3) and 14(d)(2) of
such Act) or a group of “persons” which is not an Affiliate of Fox Xxxxx & Company, LLC (“Fox
Xxxxx”), the members thereof, or Fox Xxxxx Capital Fund II, L.P.
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