Exhibit 10.8
FORM OF PLATINUM UNDERWRITERS REINSURANCE, INC.
RUN-OFF SERVICES AGREEMENT
This Agreement, dated as of [ ], 2002 is entered into by and
between Platinum Underwriters Reinsurance Inc., a Maryland insurance company
("PLATINUM"), and St. Xxxx Fire and Marine Insurance Company, a Minnesota
insurance company ("FIRE AND MARINE").
RECITALS:
WHEREAS, The St. Xxxx Companies, Inc., a Minnesota corporation
and the ultimate parent of Fire and Marine ("ST. XXXX"), and Platinum
Underwriters Holdings, Ltd., a Bermuda company and the ultimate parent of
Platinum ("PARENT"), have entered into a Formation and Separation Agreement,
dated as of May [ ], 2002 (the "FORMATION AND SEPARATION AGREEMENT"), pursuant
to which St. Xxxx and Parent have set forth terms governing St. Paul's
sponsorship of the organization of Parent and its subsidiaries, actions to be
taken in respect of Parent's initial public offering of its common shares (the
"PUBLIC OFFERING"), and the ongoing relationships between St. Xxxx and its
subsidiaries and Parent and its subsidiaries following the effective date of the
Public Offering (the "Closing Date");
WHEREAS, Fire and Marine has issued certain reinsurance
contracts, which contracts will not be renewed following the Closing Date (the
"RUN-OFF CONTRACTS") and has issued and may issue or renew certain reinsurance
contracts which will be one hundred percent (100%) reinsured by Platinum (the
"REINSURANCE CONTRACTS");
WHEREAS, pursuant to Section 3.01(c) of the Formation and
Separation Agreement, St. Xxxx and Parent have agreed that Parent's Post-closing
Subsidiaries shall, at the request of St. Xxxx and its Post-closing
Subsidiaries, provide to St. Xxxx and its Post-closing Subsidiaries, following
the Closing Date, certain services reasonably necessary to administer the
Run-off Contracts and the Reinsurance Contracts.
NOW, THEREFORE, in furtherance of the transactions
contemplated by the Formation and Separation Agreement and in consideration of
the premises and the mutual covenants and agreements contained therein and
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. RUN-OFF SERVICES TO BE PROVIDED.
(a) DESCRIPTION OF RUN-OFF SERVICES. Platinum shall provide from
time to time after the Closing Date, at the reasonable request of Fire and
Marine, the services of senior personnel with appropriate expertise and
experience that are reasonably acceptable to Fire and Marine as may be
reasonably necessary to oversee the administration of the Run-off Contracts and
the Reinsurance Contracts by Fire and Marine, including such services as
specified in Exhibit A hereto (the "RUN-OFF SERVICES").
(b) STANDARD FOR RUN-OFF SERVICES. Platinum shall provide each of
the Run-off Services in such manner as Fire and Marine may reasonably request
from time to time for purposes of this Agreement; PROVIDED that Platinum shall
not be required to provide, or cause to be provided, the Run-off Services at a
standard materially higher than the standard generally provided by Platinum in
respect of other business of Platinum. Platinum shall maintain all licenses and
authorizations required for it to provide the Run-off Services pursuant to this
Agreement.
(c) PERIOD OF RUN-OFF SERVICES. Platinum hereby agrees to provide
Run-off Services for up to a period of two years following the date hereof;
PROVIDED that Platinum shall in good faith consider requests by Fire and Marine
to reasonably extend the time period for Run-off Services in light of the
circumstances at the time of such request. Platinum and Fire and Marine shall
agree upon the terms that will govern the provision of Run-off Services to be so
provided at the time Fire and Marine makes such request.
(d) PRICE OF RUN-OFF SERVICES. With respect to the provision of
Run-off Services, Fire and Marine shall pay to Platinum or the Platinum
Subsidiary designated by Platinum the "actual cost" to Platinum or its
Subsidiary (which shall consist of Platinum's or such Subsidiary's direct and
reasonable indirect costs), as the case may be, as certified in good faith by
Platinum. For greater certainty, the parties agree that "actual cost" will
include any incremental and out-of-pocket costs incurred by Platinum in
connection with the Run-off Services, including the conversion, acquisition and
disposition cost of software and equipment acquired for the purposes of
providing the Run-off Services and the cost of establishing requisite systems
and data feeds and hiring necessary personnel.
(e) RUN-OFF SERVICES COORDINATORS. (i) Platinum and Fire and
Marine each agrees to assign a Run-off Services coordinator as set forth in
paragraph (ii) below and to provide other reasonably necessary assistance to
cooperate in determining the extent of Run-off Services to be provided.
-2-
(ii) Platinum and Fire and Marine shall each designate one
Run-off Services coordinator having skills and experience acceptable to the
other party who will provide continuous oversight and coordination of, and
communicate concerning disputes with respect to, the Run-off Services, who will
be available to Platinum and Fire and Marine during normal business hours and
who will be responsible for providing for or delegating the provision of
assistance regarding the Run-off Services. The Run-off Services coordinators
will cooperate on a regular basis to plan for the delivery of Run-off Services,
including the timetable for the provision of such services and the incurring of
related costs. Platinum and Fire and Marine may from time to time substitute the
persons serving as Run-off Services coordinators with other persons qualified to
serve in those positions.
(f) COOPERATION. Upon the terms and subject to the conditions and
other agreements set forth herein, each party agrees to use its commercially
reasonable efforts to take, or cause to be taken, all actions, and to do, or
cause to be done, and to assist and cooperate with the other party in doing, all
things necessary or advisable to perform the transactions contemplated by this
Agreement. In particular, Fire and Marine shall permit (but shall not require)
Platinum to place one or more of its employees on-site at Fire and Marine, and
shall provide such employees with the facilities reasonably necessary to
administer the Run-off Contracts and the Reinsurance Contracts as contemplated
in Section 1(a) and Exhibit A. Fire and Marine shall have the right to review
the qualifications and experience of Platinum's employees prior to providing
them with access to Fire and Marine's facilities. Such facilities shall include
providing Platinum's employees with workspace reasonably requested at the site
where Fire and Marine is servicing its reinsurance run-off operations to the
extent such workspace is available to be provided to Platinum, and access to
Fire and Marine's reinsurance and accounting systems to the extent necessary,
PROVIDED, HOWEVER, that Fire and Marine shall not be required to provide such
access to the extent such reinsurance and accounting systems relate to other
than the Run-off Contracts and the Reinsurance Contracts. All such access shall
be during the normal working hours of Fire and Marine and shall be required to
be provided only in such a manner as not to unreasonably interfere with the
normal operations of Fire and Marine. Platinum agrees that the employees who
will have access to Fire and Marine's facilities and information are limited to
using such facilities and information solely and exclusively for the purposes of
providing administration of the Run-off Contracts and the Reinsurance Contracts
as contemplated hereunder, and fulfilling its obligations under this Agreement.
Platinum also agrees that the employees shall not attempt to gain access to any
information relating to contracts other than the
-3-
Run-off Contracts and the Reinsurance Contracts. Any non-public information that
is not related to the Run-off Contracts and the Reinsurance Contracts shall be
considered confidential information and proprietary and Platinum and its
employees agree not to use such information for any purpose and not to disclose
the information to any third parties except as required by applicable law or
governmental authority.
(g) REGULATORY MATTERS. Platinum will cooperate, and will cause
each of its Post-closing Subsidiaries providing Run-off Services hereunder to
cooperate, with each of St. Xxxx and its Post-closing Subsidiaries and any
regulatory authorities to satisfy any regulatory requirements applicable to
entities that provide Run-off Services to St. Xxxx or its Post-closing
Subsidiaries.
(h) LICENSES. St. Xxxx will xxxxx to Platinum and/or its
Post-closing Subsidiaries licenses to use any service marks, trademarks and
other intellectual property rights necessary for Platinum and its Post-closing
Subsidiaries to provide the Run-off Services in accordance with the provisions
of this Agreement.
2. BILLING; TAXES.
No later than 30 days following the last day of each calendar
quarter, Platinum shall provide Fire and Marine with a report setting forth an
itemized list of the Run-off Services provided to Fire and Marine during such
last calendar quarter, in a form agreed to by the parties. Fire and Marine shall
promptly (and in no event later than 30 days after receipt of such report,
unless Fire and Marine is contesting the amount set forth in the report in good
faith) pay to Platinum by wire transfer in immediately payable funds all amounts
payable as set forth in such report. Fire and Marine shall be solely responsible
for, and shall reimburse and indemnify Platinum, and hold it harmless on an
after-tax basis, for any taxes payable with respect to or by reason of the
provision of any Service under this Agreement, other than net income taxes
imposed upon Platinum with respect to amounts payable under Section 1(d) of this
Agreement, and such reimbursement and indemnity obligation shall be in addition
to Fire and Marine's obligation to pay for such Service.
3. CONFIDENTIAL INFORMATION.
Platinum agrees to be bound to the provisions of Section 11.03
of the Formation and Separation Agreement as if it were the Company thereunder.
-4-
4. RELATIONSHIPS AMONG THE PARTIES, RECIPIENTS AND PROVIDERS.
Nothing in this Agreement shall cause the relationship between
Platinum on the one hand and Fire and Marine on the other to be deemed to
constitute an agency, partnership or joint venture. The terms of this Agreement
are not intended to constitute any of the parties and their Affiliates a joint
employer for any purpose. Each of the parties agrees that the provisions of this
Agreement as a whole are not intended to, and do not, constitute control of the
other party (or any Affiliates thereof) or provide it with the ability to
control such other party (or any Affiliates thereof), and each party hereto
expressly disclaims any right or power under this Agreement to exercise any
power whatsoever over the management or policies of the other (or any Affiliates
thereof). Nothing in this Agreement shall oblige either party hereto to act in
breach of the requirements of any law, rule or regulation applicable to it,
including securities and insurance laws, written policy statements of securities
commissions, insurance and other regulatory authorities, and the by-laws, rules,
regulations and written policy statements of relevant securities and
self-regulatory organizations.
5. INDEMNIFICATION.
(a) Fire and Marine shall indemnify and hold harmless, to
the full extent permitted by law, Platinum, its Post-closing Subsidiaries and
their respective officers, directors and employees ("PLATINUM INDEMNITIES") from
and against any and all Losses of any of the Platinum Indemnitees arising out of
or based upon any actions taken or refrained from being taken by any such
Platinum Indemnitee at the direction of Fire and Marine pursuant to this
Agreement, or any breach by Fire and Marine of any of its covenants under this
Agreement.
(b) Platinum shall indemnify and hold harmless, to the
full extent permitted by law, Fire and Marine and its officers, directors and
employees ("FIRE AND MARINE INDEMNITEES") from and against any and all Losses of
any of the Fire and Marine Indemnitees arising out of or based upon the
negligence or willful misconduct of any person providing Run-off Services, or
any breach by Platinum of any of its covenants under this Agreement.
Notwithstanding anything to the contrary in this Agreement, the maximum amount
of indemnifiable losses which may be recovered from Platinum hereunder shall
under no circumstances exceed the aggregate fees paid to Platinum by St. Xxxx
pursuant to Section 1(d).
(c) Except with respect to claims relating to actual
fraud, the
-5-
indemnification provisions set forth in this section are the sole and exclusive
remedy of the parties hereto for any and all claims for indemnification under
this Agreement.
6. FORCE MAJEURE/DELAY.
No party will be responsible if it is prevented from
complying, either totally or in part, with any of the terms or provisions of
this Agreement by reason of an Event of Force Majeure (as defined below), and
such party shall have no liability to the other party in connection therewith;
PROVIDED, that such party shall have a duty reasonably to mitigate, or cause to
be mitigated, any such failure to comply. As used in the Agreement, an "EVENT OF
FORCE MAJEURE" means any of the following: fires, floods, earthquakes, elements
of nature or acts of God; acts of war, terrorism, riots, civil disorders,
rebellions or revolutions; strikes, lockouts or labor difficulties; power
outages, equipment failures, computer viruses or malicious acts of third
parties; and laws, orders, proclamations, regulations, ordinances, demands or
requirements of governmental authorities.
7. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICT OF LAWS PRINCIPLES.
8. DISPUTE RESOLUTION.
(a) MANDATORY ARBITRATION. The parties hereto shall promptly
submit any dispute, claim, or controversy arising out of or relating to this
Agreement and/or the provision of Services hereunder, including effect,
validity, breach, interpretation, performance, or enforcement (collectively, a
"DISPUTE") to binding arbitration in New York, New York at the offices of
Judicial Arbitration and Mediation Services, Inc. ("JAMS") before an arbitrator
(the "ARBITRATOR") in accordance with JAMS' Comprehensive Arbitration Rules and
Procedures and the Federal Arbitration Act, 9 U.S.C. xx.xx. 1 ET SEQ. The
Arbitrator shall be a former judge selected from JAMS' pool of neutrals. The
parties agree that, except as otherwise provided herein respecting temporary or
preliminary injunctive relief, binding arbitration shall be the sole means of
resolving any Dispute. Judgment on any award of the Arbitrators may be entered
by any court of competent jurisdiction.
(b) COSTS. The costs of the arbitration proceeding and any
proceeding in court to confirm or to vacate any arbitration award or to obtain
temporary or preliminary
-6-
injunctive relief as provided in paragraph (c) below, as applicable (including,
without limitation, actual attorneys' fees and costs), shall be borne by the
unsuccessful party and shall be awarded as part of the Arbitrator's decision,
unless the Arbitrator shall otherwise allocate such costs in such decision.
(c) INJUNCTIVE RELIEF. The parties hereto may seek or obtain
temporary or preliminary injunctive relief in a court for any breach or
threatened breach of any provision hereof pending the hearing before and
determination of the Arbitrator. Fire and Marine hereby agrees that it shall
continue to provide, or cause its Affiliates to provide, any and all Services
pending the hearing before and determination of the Arbitrator, it being agreed
and understood that the failure to so provide may cause irreparable harm to Fire
and Marine and its Affiliates and that the putative breaching party has assumed
all of the commercial risks associated with such breach or threatened breach of
any provision hereof by such party.
(d) COURTS. The parties agree that the State and Federal courts in
The City of New York shall have jurisdiction for purposes of enforcement of
their agreement to submit Disputes to arbitration and of any award of the
Arbitrator.
9. ASSIGNMENT.
Neither this Agreement nor the rights or obligations hereunder
shall be assignable by either party hereto, by operation of law or otherwise,
without the prior written consent of the other party hereto, and any purported
assignment shall be null and void. Subject to the foregoing, this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
10. ENTIRE AGREEMENT.
This Agreement and the Formation and Separation Agreement
constitute the entire agreement, and supersede all prior agreements and
understandings (oral and written), by and among the parties hereto with respect
to the subject matter hereof.
11. NO THIRD PARTY RIGHTS.
Nothing contained in this Agreement, express or implied,
establishes or creates, or is intended or will be construed to establish or
create, any right in or remedy of, or any duty or obligation to, any third
party.
-7-
12. NOTICES.
All notices, requests, claims, demands, and other
communications hereunder will be in writing and shall be deemed to have been
duly given if delivered by hand (with receipt confirmed), or by certified mail,
postage prepaid and return receipt requested, or by facsimile addressed as
follows (or to such other address as a party may designate by written notice to
the others) and shall be deemed given on the date on which such notice is
received:
If to Fire and Marine:
The St. Xxxx Companies, Inc.
000 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attn.: General Counsel
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx X. Xxxxxxxx
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
If to Platinum:
Platinum Underwriters Holdings, Ltd.
[ ]
Xxxxxxxx XX 11
Bermuda
Attn.: Secretary
Facsimile: (441) [ ]
With a copy to:
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxxxxx LLP
-8-
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
13. COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument.
14. AMENDMENT; MODIFICATION.
The parties may by written agreement, subject to any
regulatory approval as may be required, (a) extend the time for the performance
of any of the obligations or other acts of the parties hereto; (b) waive any
inaccuracies in the documents delivered pursuant to this Agreement, and (c)
waive compliance with or modify, amend or supplement any of the agreements
contained in this Agreement or waive or modify performance of any of the
obligations of any of the parties hereto. This Agreement may not be amended or
modified except by an instrument in writing duly signed on behalf of the parties
hereto.
15. WAIVER.
No failure by any party to take any action or assert any right
hereunder shall be deemed to be a waiver of such right in the event of the
continuation or repetition of the circumstances giving rise to such right,
unless expressly waived in writing.
16. SEVERABILITY.
To the extent any provision of this Agreement shall be invalid
or unenforceable, it shall be considered deleted herefrom and the remaining
provisions of this Agreement shall be unaffected and shall continue in full
force and effect.
17. SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS.
Each of the parties recognizes and acknowledges that neither
Fire and Marine nor Platinum would contemplate the provision of Run-off Services
hereunder unless this Agreement was executed and that a breach by a party of any
covenants or other commitments contained in this Agreement will cause the other
party to sustain
-9-
injury for which it would not have an adequate remedy at law for money damages.
Therefore, each of the parties agrees that in the event of any such breach, the
aggrieved party shall be entitled to the remedy of specific performance of such
covenants or commitments and preliminary and permanent injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity, and the parties further agree to waive any requirement for the
securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
18. HEADINGS.
Headings contained in this Agreement are for reference
purposes only. They shall not affect in any way the meaning or interpretation of
this Agreement.
19. DEFINITIONS; FORMATION AND SEPARATION AGREEMENT.
Capitalized terms used but not defined in this Agreement have
the meanings specified in the Formation and Separation Agreement.
20. EFFECTIVENESS.
This Agreement shall become effective contingent upon the
consummation of the Public Offering, without any further action by either of the
parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed and delivered by their duly authorized officers as of the date first
above written.
ST. XXXX FIRE AND MARINE INSURANCE
COMPANY
By:
--------------------------------
Name:
Title:
PLATINUM UNDERWRITERS
REINSURANCE INC.
-10-
By:
--------------------------------
Name:
Title:
-11-
