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Exhibit 4.13
AMENDMENT TO
EMPLOYMENT AGREEMENT
THIS AGREEMENT, dated as of December 12, 1995, is made by and between
GCR Holdings Limited, a Cayman Islands exempt limited liability company (the
"Company"), Global Capital Reinsurance Limited, a subsidiary of the Company
organized under the laws of Bermuda to engage in worldwide property catastrophe
reinsurance (the "Operating Company"), and XXXX XXXXXXXXXXX, (hereinafter called
the "Employee").
W I T N E S S E T H :
WHEREAS, the Company, the Operating Company and the Employee entered
into an Employment Agreement dated as of March 28, 1994 (the "Prior Agreement"),
setting forth the terms and conditions of the Employee's employment with the
Operating Company; and
WHEREAS, the Company, the Operating Company and the
Employee desire to amend the Prior Agreement in certain
respects; and
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the parties hereto agree to
amend the Prior Agreement, effective as of October 1, 1995, as follows (unless
the context otherwise requires, section references are to sections of the Prior
Agreement):
Section 6. Investment Options.
The paragraph below shall be inserted following the first paragraph of
Section 6 and shall apply retroactively, as of March 28, 1994, to all Investment
Options outstanding as of the date hereof. Without limiting the foregoing, the
adjustment provided for in the third sentence of the following paragraph shall
be made with respect to the cash distribution made by the Company to the
shareholders in August 1995.
"Notwithstanding the immediately preceding paragraph, the
number of Ordinary Shares subject to and the exercise price for each
outstanding Investment Option shall be adjusted as follows. If there is
any change in the number or nature of outstanding shares of the
Company's capital stock by reason of a share
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dividend, recapitalization, merger, consolidation, scheme of
arrangement, share split, combination or exchange, share repurchase or
otherwise, or if there is any non-cash distribution in respect of any
such shares, which in any such case has a dilutive or anti-dilutive
effect on the Ordinary Shares, the number of Ordinary Shares subject to
each outstanding Investment Option, the exercise price thereof and/or
other terms thereof shall be appropriately adjusted by the Board of
Directors of the Company (or any committee thereof), whose
determination shall be conclusive, so as to restore the Option holder
to his rights thereunder. In addition (but without duplication of any
adjustment made pursuant to the preceding sentence), the exercise price
for each outstanding Investment Option shall be reduced by the amount
of all cash dividends that are declared by the Company and are paid or
payable to shareholders of record as of a time before the exercise of
the Investment Option that would have been paid or payable to the
Employee had the Ordinary Shares which are the subject of the
Investment Option (as adjusted, if applicable, in accordance with the
preceding sentence) been held by the Employee as of such time;
provided, however, that in no event shall the exercise price of the
Investment Options be reduced below the nominal value of the Ordinary
Shares. Without limiting the foregoing, the adjustment provided for in
the preceding sentence shall apply with respect to the cash
distribution made by the Company to its shareholders in August 1995."
The following paragraph shall be inserted at the end of Section 6:
"The Employee shall become a party to the Company's Amended
and Restated Shareholders' Agreement, which is to become effective
immediately prior to the closing for the Company's proposed initial
public offering, by executing and delivering to the Company such
documentation as the Company reasonably may request (which may subject
the Investment Options and other options obtained pursuant to the
Company's share option plans and securities acquired pursuant thereto
to the transfer restrictions set forth in such agreement) promptly
after such request is made.
Section 11. Termination.
Each of (i) the second paragraph of Section 14(c), (ii) the third
paragraph of Section 14(d) and (iii) the second
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paragraph of Section 14(e), shall be deleted in its entirety.
The second sentence of the first paragraph of Section 11(f) shall be
deleted and replaced in its entirety with the following sentence:
"In addition, the Employee shall be entitled to receive one (1) year's
salary from the date on which the Employee's employment is terminated,
but only if the Employee performs such consulting services during such
one year period as the Company shall require (including but not limited
to winding up the affairs of the Company or helping to start other
similar enterprises)."
The second paragraph of Section 11(f) shall be deleted and replaced in
its entirety with the following paragraph:
"In such event, the Employee will receive payment for such Ordinary
Shares at the same time, and on the same basis, as the other holders of
the Ordinary Shares."
Section 13. Confidential Information.
The term "Sponsors" in Section 13 shall be replaced with "Board of
Directors of the Company."
Section 19. Notices.
The address of the Employee, the Company and the Operating Company as
set forth in Section 19 shall be replaced with the following addresses:
To Employee: Xxxx Xxxxxxxxxxx
c/o Global Capital Reinsurance Limited
Sofia House
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX00 Xxxxxxx
fax: 000-000-0000
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To the
Company: GCR Holdings Limited
Sofia House
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX00 Xxxxxxx
fax: 000-000-0000
To the
Operating
Company: Global Capital Reinsurance Limited
Sofia House
00 Xxxxxx Xxxxxx
Xxxxxxxx, XX00 Xxxxxxx
fax: 000-000-0000
Section 22. Change of Control.
The following provisions shall be inserted as Section 22:
"(a) If the Employee is employed by the Operating Company (or
successor thereto) sixty (60) days following the date on which a Change
of Control (as defined in Section 22(d)) occurs, then the Operating
Company (or successor thereto) shall make a lump sum cash payment to
the Employee on such date in an amount equal to the Employee's annual
base salary as of the date on which the Change of Control occurs.
(b) Notwithstanding any other provision contained herein, the
Employee's Investment Options and other options issued under the
Company's share option plans that are not then exercisable shall become
exercisable (and be deemed to be vested) on the date on which the
Change of Control occurs. In addition, restricted Ordinary Shares
granted under any of the Company's share option plans shall immediately
vest upon a Change of Control.
(c) If (i) the Employee is terminated by the Operating Company
(or successor thereto) without Serious Cause or (ii) the Employee
terminates employment with the Operating Company (or successor thereto)
for Good Reason, within the period commencing on the date that a Change
of Control is proposed and ending on the first anniversary of the date
in which
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such Change of Control occurs, then the Employee shall be entitled to
receive (in lieu of the benefits described in Section 11(e)): (1) any
accrued but unpaid salary, (2) a lump sum payment equal to two times
such Employee's annual base salary as of the date of termination, (3)
any earned but unpaid bonus from a prior fiscal year, (4) unreimbursed
expenses incurred prior to the date of termination, (5) automobile and
housing allowances for one year following the date of termination and
(6) relocation expenses as described in Section 9(a) from Bermuda to
the United States.
The Employee shall not be entitled to any benefits or other
entitlements under this Section 22 unless a Change of Control actually
occurs.
(d) A "Change of Control" of the Operating Company shall be
deemed to have occurred if (i) any "person" (as such term is defined in
Section 3(a)(9) and as used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act")), excluding the
Company or any of its subsidiaries, a trustee or any fiduciary holding
securities under an employee benefit plan of the Company or any of its
subsidiaries, an underwriter temporarily holding securities pursuant to
an offering of such securities or a corporation owned, directly or
indirectly, by shareholders of the Company in substantially the same
proportion as their ownership of the Company, is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50%
or more of the combined voting power of the Company's then outstanding
securities ("Voting Securities"); (ii) during any period of not more
than two years, individuals who constitute the Board of Directors of
the Company (the "Board") as of the beginning of the period and any new
director (other than a director designated by a person who has entered
into an agreement with the Company to effect a transaction described in
clause (i) or (iii) of this sentence) whose election by the Board or
nomination for election by the Company's shareholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at such time or whose election or nomination
for election was previously so approved, cease for any reason to
constitute a majority thereof; (iii) the shareholders of the Company
approve a merger, consolidation or reorganization or a court of
competent jurisdiction approves a scheme of arrangement of the Company,
other than a merger, consolidation,
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reorganization or scheme of arrangement which would result in the
Voting Securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into Voting Securities of the surviving entity) at least 50%
of the combined voting power of the Voting Securities of the Company or
such surviving entity outstanding immediately after such merger,
consolidation, reorganization or scheme of arrangement; or (iv) the
shareholders of the Company approve a plan of complete liquidation of
the Company or any agreement for the sale or disposition by the Company
of all or substantially all of the Company's assets.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
/s/ Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx
GCR Holdings Limited
By: /s/ Xxxxx X. Xxxxxxxxxx
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Global Capital
Reinsurance Limited
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
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