FLAGSTONE RÉASURANCE SUISSE SA (BERMUDA) and GARY PRESTIA EMPLOYMENT AGREEMENT
FLAGSTONE
RÉASURANCE SUISSE SA (BERMUDA)
and
XXXX
XXXXXXX
_______________________________
_______________________________
THIS AGREEMENT is made as of
the 26th Day of August, 2008 between Flagstone Réassurance Suisse SA
(Bermuda), a Bermuda registered permit company whose principal office is
situated at Xxxxxxxx House, 00 Xxxxxx Xxxxxx, Xxxxxxxx XX 11, Bermuda (the
“Company”); and Xxxx
Xxxxxxx of Apt 404, #5 Parliament Street, Hamilton, HM12, Bermuda (the
“Employee”). This agreement supersedes any other previously dated
agreements made between the Employee and the Company or any of its
affiliates.
WHEREBY
IT IS AGREED as follows:
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1)
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Definitions
and Interpretation
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Headings
in this document do not affect interpretation and are for convenience
only. In addition to the words and expressions hereinbefore defined the
following words and expressions shall have the meanings hereinafter
ascribed to them:
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a)
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“Affiliate” means a
company which is a subsidiary of another company or 2 or more companies
which are both subsidiaries of the same company or each of them is
controlled by the same person. For the purposes of this
definition, "control", when used with respect to any company, means the
power to direct the management and policies of such company, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing;
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b)
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“Bonus Payment Date” has
the meaning set out in paragraph 6 of Schedule 1;
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c)
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“Business Day” means any
day normally treated as a business day in Bermuda;
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d)
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“Cause”
means:
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(i)
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a
material breach by the Employee of any contract between the Employee and
the Company;
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(ii)
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the
wilful and continued failure or refusal by the Employee to perform any
duties reasonably required by the Company, after notification by the
Company of such failure or refusal, and failing to correct such behaviour
within 20 days of such notification;
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(iii)
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commission
by the Employee of a criminal offence or other offence of moral
turpitude,
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(iv)
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perpetration
by the Employee of a dishonest act or common law fraud against the Company
or a client thereof;
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(v)
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the
Employee wilfully engaging in misconduct which is materially injurious to
the Company, including without limitation, the disclosure of any trade
secrets, financial models, or computer software to persons outside the
Company without the consent of the Company.
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e)
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“Commencement Date” has
the meaning set out in paragraph 3 of Schedule 1;
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f)
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“Employment” means the
employment of the Employee pursuant to this Agreement;
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g)
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“Intellectual Property
Rights” means rights in inventions, patents, trademarks, service
marks, design rights (whether registrable or otherwise), trade and
business names, copyrights (including rights in computer software),
database rights and semiconductor topography rights (whether or not any of
these is registered and including applications for registrations) and all
rights or terms of protection of a similar nature or having equivalent or
similar effect to any of these which may subsist anywhere in the
world;
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h)
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“Staff Policy Manual”
means such document or documents produced by the Company which set out the
policies and procedures of the Company and which may be amended from time
to time;
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i)
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“Termination Date” means
the date on which the Employee’s employment with the Company ceases either
for reason of the conclusion of the fixed term of the Employment or for
reason of the termination of the Employment in accordance with the
provisions of this Agreement.
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2)
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Appointment
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a)
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The
Company hereby appoints the Employee and the Employee hereby accepts the
position set out in
paragraph 1 of Schedule 1 and shall have such responsibilities as
the Company may from time to time direct.
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b)
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The
foregoing appointment shall be subject to:-
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i)
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satisfactory
reference/background checks conducted by or on behalf of the Company;
and
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ii)
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where
applicable, this appointment shall be subject to the grant and maintenance
of appropriate work permits
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c)
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The
Employee may be expected from time to time to perform duties for and on
behalf of other entities within the Flagstone group of Companies including
but not limited to affiliates, subsidiaries, branches and any other entity
that is controlled by, directly or indirectly, Flagstone Reinsurance
Holdings Limited, for which the Employee may or may not receive additional
remuneration.
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2
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3)
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Duration
of Appointment
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The
Employment shall be deemed to have commenced on the Commencement Date and
shall continue unless terminated in accordance with the provisions of this
Agreement.
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4)
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Place
of Employment
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The
Employee’s place of employment is set out in paragraph 2 of Schedule
1.
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5)
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Compensation
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a)
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Salary,
Benefits and Deductions from Salary
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i)
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The
salary payable to the Employee shall be the sum as set out in paragraph 4
of Schedule 1, and shall be payable by equal monthly instalments in
arrears on the last Business Day of each month.
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ii)
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The
Company shall review the salary annually in January and the rate of salary
may, at the Company’s sole discretion, be increased effective from the
date of review.
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iii)
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The
Company shall be required by law to deduct from the Employee’s salary the
amounts set out in paragraph 5 of Schedule 1.
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b)
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Bonus
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i)
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The
Company may, but shall not be obliged to, pay an annual bonus in
accordance with this paragraph 6 of Schedule 1.
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ii)
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Bonuses
payable on the first Bonus Payment Date will be assessed on salary earned
by the Employee since the January 1st
2008 and December 31, 2008 and thereafter on the calendar
year.
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iii)
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The
Company shall not be liable to pay any bonus to the Employee if the
Termination Date occurs between Bonus Payment Dates even if the
termination was not for cause at law.
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6)
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Vacation
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The
Employee shall be entitled to paid vacation in accordance with paragraph 7
of Schedule 1, such vacation to be taken in accordance with the Staff
Policy Manual.
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3
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7)
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Amendments
and Waivers
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(a)
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No
amendments to the provisions of this Agreement shall be effective unless
in writing and signed by the parties hereto or their duly authorized
representatives.
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(b)
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All
rights, remedies and powers conferred upon the parties hereto are
cumulative and shall not be deemed or construed to be exclusive of any
other rights, remedies or powers now or hereafter conferred upon the
parties hereto or either of them by law or otherwise.
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(c)
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Any
failure at any time to insist upon or enforce any such right, remedy or
power shall not be construed as a waiver thereof.
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8)
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Warranty
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The
Employee represents and warrants that he is not a party to any agreement,
contract (whether of employment or otherwise) or understanding, which
would in any way restrict or prohibit him from:
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a)
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Undertaking
or performing any of the duties of the Employment in accordance with the
terms and conditions of this Agreement; or
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b)
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Utilizing
any materials which the Employee proposes to use in the course of his
employment with the Company whether in hard copy or stored in an
electronic storage device.
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9)
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Covenants
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a)
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The
Employee expressly covenants that all Intellectual Property Rights
relating in anyway to the business activities (or incidental to the use of
company time and or property) of the Company or its Affiliates which may
be discovered, invented, improved or developed by the Employee during his
Employment with the Company, whether during regular office hours or
otherwise and whosesoever discovered, invented, improved or developed will
be the exclusive and sole property of the Company and its
Affiliates.
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b)
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The
Employee undertakes to disclose promptly to the Company and hereby assigns
to the Company without further compensation, all rights, title and
interest in the said discoveries, inventions, improvements and
developments whether conceived and developed solely by the Employee or
jointly with others and will on the request of the Company execute all
documents and do all such things as may be requested by the Company or its
Affiliates to confirm or perfect the rights title and interest in such
property provided that the Company will bear all costs and expenses
associated therewith.
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4
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10)
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Notice
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a)
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Any
notice required or authorized hereunder shall be in writing and may be
served:-
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i)
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by
personal delivery; or
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ii)
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by
first class post if to an address in the same country as the sender;
or
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iii)
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by
air mail post if to an address outside the sender's country;
or
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iv)
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by
facsimile; or
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v)
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by
email with a receipt evidencing that the recipient has read the
email.
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b)
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In
proving service of any notice hereunder it shall be sufficient to
prove:-
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i)
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in
the case of a notice delivered personally, that it was left at the address
for notices herein or any substituted address;
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ii)
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in
the case of a notice sent by post, that the envelope containing the notice
was properly addressed to the address for notices herein or any
substituted address, stamped and posted, in which case it will be deemed
effective three days after the date on which it was posted;
and
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iii)
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in
the case of a notice sent by facsimile, that it was properly transmitted
to the last known facsimile number; and
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iv)
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in
the case of a notice sent by email that the computer of the person sending
the email message has generated a receipt evidencing that the recipient
has read the email message.
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c)
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The
address for service of notices on the Company is at its principal place of
business.
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d)
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The
address for service of notices on the Employee is at his residence on the
records of the Company.
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11)
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Confidentiality
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a)
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The
Employee shall not at any time during his employment (except as is
necessary and proper in the course of his employment) or at any time after
the Termination Date disclose to any person any information as to the
practice, business dealings or affairs of the Employer, its affiliates or
any of the Employer’s customers or clients or as to any other matters
which may come to his knowledge by reason of his employment with the
Company.
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5
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b)
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The
Employee shall at the time of executing this Agreement execute the
undertaking of Secrecy attached in Schedule 2.
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12)
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Notice
of Termination
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Subject
to Clause 13, this Agreement may be terminated in accordance with
paragraph 8 of Schedule 1.
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13)
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Summary
Dismissal for Cause
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The
Company reserves the right to summarily dismiss the Employee for
Cause.
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14)
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Misuse
of Company Property
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a)
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The
Employee shall not use any of the Company’s property including, but not
limited to computer equipment and software, for personal use except
moderate use of the Internet and email by the Employee, which does not
interfere with the performance of their duties, and which does not include
the reading or viewing of offensive or illegal
material.
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b)
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The
Company reserves the right to read all paper and computer files of the
Employee on premises and any information stored on any electronic device
which is the property of the Company.
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15)
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Outside
Employment
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The
Employee shall not be permitted to hold any outside directorships or
employment without the written consent of the Company.
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16)
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Staff
Policy Manual
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The
Employee agrees to abide by the terms of the Company Staff Policy Manual
as amended from time to time. The Company Staff Policy Manual shall be
available to the Employee.
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17)
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Miscellaneous
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This
Agreement shall be subject to the additional terms set out in paragraph 9
of Schedule 1.
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18)
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Whole
Agreement
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6
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This
Agreement constitutes the whole agreement between the
parties. All other agreements (if any) for service between the
Company and the Employee or any other member of the Group are hereby
abrogated and superseded.
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19)
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Law
and Jurisdiction
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i)
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The
terms of this Agreement shall be governed by and construed in accordance
with the laws of the Islands of Bermuda.
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ii)
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All
disputes, controversies or claims arising out of, relating to, or in
connection with, this contract, or breach, termination or validity
thereof, shall be finally settled by arbitration. The
arbitration shall be conducted in accordance with the Bermuda
International Conciliation and Arbitration Xxx 0000, except as same may be
modified herein or by mutual agreement of the parties. The seat
of the arbitration shall be Bermuda, and it shall be conducted in the
English language. The arbitration shall be conducted by one
arbitrator who shall be selected by BIBA (Bermuda International Business
Association) in the event that the parties fail to agree. The
arbitral award shall be in writing, shall state reasons for the award, and
be final and binding on the parties. The award may include an
award of costs, including reasonable attorneys’ fees and
disbursements. Judgment on the award may be entered by any
court having jurisdiction thereof or having jurisdiction over the parties
or their assets.
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IN WITNESS WHEREOF the parties
hereto have set their hands the date first above written.
Flagstone
Réassurance Suisse SA (Bermuda)
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Xxxxxx
Xxx
Chief Administrative Officer |
Xxxx
Xxxxxxx
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7
Schedule
1
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1. Position
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Chief
Underwriting Officer – North America
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2. Place
of employment:
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The
Employee’s place of employment shall be at the Company’s office in
Bermuda; however the Company may require the Employee, in the performance
of his duties, to travel from Bermuda to such other places and for such
times as is reasonably necessary for the proper discharge of the
Employee’s duties.
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3. Commencement
Date:
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1st
October, 2008 Subject to Immigration Approval
(Internal
Transfer from FSR – group start date 1 Jan 06 - current work permit start
date 21/May/06)
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4. Salary:
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USD
$520,000 per annum.
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5. Deductions
from Salary:
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a) Social
Insurance: This is a government administered
contributory pension scheme and the contributions are split evenly between
the Company and the Employee.
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b) Payroll
Tax: The Company will withhold the maximum permissible
under Bermuda law from the Employee’s salary, and the balance will be paid
by the Company.
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c) Medical Insurance: The
Company is required to provide you with Medical Insurance under a
Bermuda-approved scheme. Half of the cost of this insurance will be
withheld from the Employee’s salary.
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6. Bonus
and Bonus Payment Date:
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a) The
Employee may be paid a bonus of up to 75% of salary in
accordance to Paragraph 5 section 1 - 3.
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b) The
Bonus Payment date shall be in Q1 of each year commencing Q1,
2009
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8
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7. Vacation:
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The
Employee will be entitled to 25 days vacation per annum.
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8. Notice
of Termination:
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This
Agreement may be terminated by either party giving 90 days notice in writing to the other;
however, the Company may, in its sole discretion, pay salary in lieu of
notice of termination given by the Company.
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9. Miscellaneous
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a. Housing
Subsidy
The
Employee will be entitled to receive a Housing Subsidy of $60,000 per
annum, to be paid in arrears in twelve equal monthly
instalments.
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9
Schedule
2
Undertaking
of Secrecy
TO: Flagstone Réassurance Suisse SA
(Bermuda)
I HEREBY
UNDERTAKE THE FOLLOWING:-
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1.
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That
during the course of my employment with Flagstone Réassurance Suisse SA
(Bermuda), I will keep secret the affairs and concerns of Flagstone Reinsurance Holdings
Limited and its affiliates (the “Company”), and the nature and
particulars of the Company including, but not limited to its investors,
clients, transactions, trading models and trading strategies, or the
financial results or performance figures of the Company or any client or
strategy that may come to my attention during the course of my employment
with the Company (“Confidential
Information”).
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2.
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That
after my departure from the Company, I will not disclose to any person the
affairs of the Company, including, but not limited to its investors,
clients, transactions, trading models and trading strategies or the
financial results or performance figures of the Company or any client or
strategy that may come to my attention during the course of my employment
with the Company.
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3.
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That
upon my departure from the Company, I will not take with me any
Confidential Information belonging to or concerning the Company, or its
clients, whether in printed form or on any electronic storage
device.
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4.
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In
the event that I do have in my possession any Confidential Information
following my departure from the Company, I undertake to deliver such
information to the Company within 3 days of my departure. If
personal delivery of such information is either not possible or
inconvenient, I undertake to contact the President of the Company and
arrange a suitable method of disposal of such confidential information
within three days of my departure.
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I hereby
acknowledge that any breach of this undertaking may result in my dismissal from
the Company, and that my obligations under this undertaking continue after the
termination of my employment with the Company.
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Signature
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Name
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Xxxx
Xxxxxxx
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Witness
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Date
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10
