PLATINUM UNDERWRITERS HOLDINGS, LTD. The Belvedere Building 69 Pitts Bay Road Pembroke HM08 Bermuda
EXHIBIT 10.2
PLATINUM UNDERWRITERS HOLDINGS, LTD.
Xxx Xxxxxxxxx Xxxxxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX00 Xxxxxxx
Xxx Xxxxxxxxx Xxxxxxxx
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX00 Xxxxxxx
April 29, 2010
Xx. Xxxxx X. Xxxxxx
0X Xxxxxxxxxx Xxxx
Xxxxxxxx XX00 Xxxxxxx
0X Xxxxxxxxxx Xxxx
Xxxxxxxx XX00 Xxxxxxx
Dear Xxx:
This letter agreement (“Letter Agreement”) will confirm the agreements reached between
Platinum Underwriters Holdings, Ltd. (the “Company”) and you regarding your retirement from
and the termination of your employment with the Company, and your entering into a consulting
agreement dated the date hereof (the “Consulting Agreement”) with the Company’s wholly
owned subsidiary Platinum Administrative Services, Inc. (“PASI”), in the form attached as
Exhibit A hereto. The Company and you agree as follows:
1. Retirement and Termination of Employment Relationship.
You will retire, and your employment with the Company will terminate, effective August 10,
2010 (the “Retirement Date”), and you will resign as Chief Financial Officer on May 31,
2010, as Executive Vice President on August 10, 2010 and from all other positions with the Company
and any affiliate of the Company as of the date requested by the Company but no later than the
Retirement Date.
2. Transition Period.
(a) Transition Period. This Letter Agreement will govern and apply during the period
from the date hereof through the Retirement Date (the “Transition Period”) and subsequent
periods as provided herein, and supersedes the Employment Agreement dated June 1, 2007 between you
and the Company (the “Employment Agreement”), which is hereby terminated with no further
force and effect. Without limiting the generality of the foregoing, (i) your retirement and the
termination of your employment pursuant hereto on the Retirement Date will in no event be treated
as a termination without “Cause,” termination for “Cause” or a resignation for “Good Reason” under
the Employment Agreement, this Letter Agreement, any Company plan or any award agreement to which
you are a party, and (ii) after the date hereof, you will have no right under the Employment
Agreement, this Letter Agreement, any Company plan or any award agreement to which you are a party
to resign for “Good Reason” as defined therein.
(b) Assistance. During the Transition Period, you will continue to perform your
duties and responsibilities as Chief Financial Officer until May 31, 2010 and as Executive Vice
President until the Retirement Date, and you will assist in the transition of your duties and
responsibilities to the new Executive Vice President and Chief Financial Officer.
(c) Salary. During the Transition Period, the Company will continue to pay you a base
salary at the annual rate of $425,000 (the “Base Salary”), payable in accordance with the
Company’s payroll practices in effect from time to time.
(d) Housing and Car Allowance. The Company will continue to pay you a housing
allowance of $24,000 per month and a car allowance of $700 per month from the date hereof through
July 31, 2010.
(e) Employee Benefits and Perquisites. During the Transition Period, you and your
eligible dependents will continue to be eligible to participate in the employee benefit plans,
arrangements and perquisites that are generally available to senior executives of the Company,
subject to the terms and conditions of such plans, arrangements and perquisites. The Company’s
Board of Directors reserves the right to amend or terminate any employee benefit plan, arrangement
or perquisite at any time and to adopt any new plan, arrangement or perquisite.
(f) Business Expenses. During the Transition Period, the Company will continue to
reimburse you for all reasonable expenses and disbursements in carrying out your duties and
responsibilities under this Letter Agreement in accordance with the Company’s policy for senior
executives as in effect from time to time.
(g) Termination Without Cause During the Transition Period. If during the Transition
Period your employment is terminated by the Company without “Cause” (as defined below), the
Consulting Agreement will terminate and be of no force and effect, and you will be entitled to
receive a lump sum cash payment equal to the sum of (i) one year’s Base Salary and Target Bonus,
and (ii) any earned but unpaid Base Salary or other amounts (including reimbursable expenses and
any vested amounts or benefits under the Company’s otherwise applicable employee benefit plans or
programs) accrued and owing through the date of termination, subject to Sections 5 and 9 hereof.
(h) Other Termination During the Transition Period. If during the Transition Period
your employment is terminated for any reason other than a termination by the Company without
“Cause,” the Consulting Agreement will terminate and be of no force and effect and you will not be
entitled to any payments under this Section 2 other than any earned but unpaid Base Salary or other
amounts (including reimbursable expenses and any vested amounts or benefits under the Company’s
otherwise applicable employee benefit plans or programs) accrued and owing through the date of
termination.
(i) Definition of Cause. For purposes of this Letter Agreement, “Cause” means
(i) your willful and continued failure to substantially perform your duties and responsibilities
hereunder; (ii) your conviction of, or plea of guilty or nolo contendere to, a felony or other
crime involving moral turpitude, (iii) your engagement in any malfeasance or
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fraud or dishonesty of a substantial nature in connection with your position with the Company
or its subsidiaries, or other willful act that materially damages the reputation of the Company or
its subsidiaries, or (iv) your breach of any of the provisions of Section 8 hereof in any material
respect during the Transition Period.
3. Separation Payments and Benefits.
(a) Severance. You will not be entitled to any severance under the Employment
Agreement or under any other agreement or plan of the Company upon your retirement and the
termination of your employment on the Retirement Date.
(b) Prorated Bonus. Provided that you continue to be employed through the Retirement
Date and you have executed on August 1, 2010 and have not thereafter revoked the Release, as
defined below, you will be paid your 2010 target bonus prorated through the Retirement Date, which
amounts to $258,493, on August 10, 2010, subject to Section 9 hereof. No other bonuses or
incentive compensation awards will be granted to you by the Company or any of its subsidiaries
after the date hereof.
(c) Relocation. The Company will reimburse you for documented expenses of relocating
to California up to $50,000 provided that (i) you continue to be employed through the Retirement
Date, or (ii) your employment is terminated by the Company without Cause during the Transition
Period.
(d) Other Payments and Benefits. You will be paid any unpaid Base Salary and any
unreimbursed expenses as of the Retirement Date under the Company’s expense reimbursement policy,
payable within thirty (30) days after the Retirement Date. In addition, you will be entitled to
receive from the Company a lump-sum cash payment in respect of your accrued and unused vacation
time as of the Retirement Date, payable within thirty (30) days after the Retirement Date. As of
the date hereof, you have eighteen (18) days of accrued and unused vacation time. Except as
specifically provided herein, this Letter Agreement shall have no effect on your rights after the
date hereof to payments or other benefits due to you pursuant to the terms of any employee benefit
plan, program or arrangement of the Company.
4. Outstanding Equity Awards.
(a) EIP Awards. You are a party to EIP Share Unit Award Agreements with the Company
dated as of February 21, 2008, February 23, 2009 and February 22, 2010. Pursuant to Section
4(b)(iii) thereof, and provided that you continue to be employed through the Retirement Date, you
will receive a prorated payment of each such award, based upon the period of your service with the
Company and the performance levels achieved by the Company for the performance cycle applicable to
such award as of the end of the fiscal quarter following the Retirement Date, as determined in good
faith by the Company’s Compensation Committee. Such amounts will be paid after February 10, 2011
and on or prior to February 28, 2011, subject to Sections 5 and 9 hereof. In the event that you
are not employed by the Company through the Retirement Date, your rights under the EIP Share Unit
Award Agreements shall be determined in accordance with the terms of such EIP Share Unit Award
Agreements.
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(b) Time-Based Share Unit Awards. You are a party to Time-Based Share Unit Award
Agreements with the Company dated as of August 1, 2006, May 30, 2007 and February 21, 2008. Any
portion of any such award that is not vested on the Retirement Date will be forfeited in accordance
with the terms thereof.
(c) Share Options. You are a party to Nonqualified Share Option Agreements with the
Company executed as of March 3, 2003, February 24, 2005, August 1, 2006, May 30, 2007 and
February 21, 2008. Any options granted pursuant thereto that are not vested on the Retirement Date
will be forfeited in accordance with the terms thereof. In addition, any unexercised options
granted pursuant thereto that have become vested prior to the Retirement Date will remain
exercisable until the expiration of forty-five (45) days following the Retirement Date, and if not
so exercised such vested options will terminate.
(d) Restricted Shares. You are a party to a Restricted Share Award Agreement dated as
of July 24, 2008. Any restricted shares granted pursuant thereto that are not vested on the
Retirement Date will be forfeited in accordance with the terms thereof.
(e) Other Equity Awards. No new equity awards will be granted to you by the Company
or any of its subsidiaries after the date hereof.
5. Waiver, Release and Agreement.
The receipt of the payments and benefits provided to you under this Letter Agreement will be
conditioned upon the execution and non-revocation by you thereafter of the Full and Complete
Waiver, Release and Agreement in the form attached as Exhibit B hereto (the
“Release”). If the Release is not executed, valid and irrevocable prior to August 10,
2010, then any unpaid amounts due under Sections 2(g), 3 or 4(a) hereof shall be forfeited,
provided that all other terms and conditions of this Letter Agreement will remain in full force and
effect.
Simultaneously with the execution and delivery of this Letter Agreement, the Consulting
Agreement is being executed and delivered by the parties thereto.
7. Miscellaneous Provisions.
(a) Withholding of Taxes. All payments or benefits required to be provided by the
Company to you under this Letter Agreement shall be subject to the withholding of such amounts
relating to taxes and other payroll deductions as the Company may reasonably determine it should
withhold pursuant to any applicable law, regulation or Company policy.
(b) Entire Agreement. This Letter Agreement, the Release, the Consulting Agreement
and the Employment Agreement as modified hereby constitute the entire agreement among the Company,
PASI and you with respect to the subject matter hereof and, except as specifically provided herein
or therein, supersede any and all prior agreements and understandings among you, the Company, PASI
or any of their subsidiaries or affiliates with respect to the subject matter hereof, whether
written or oral. Any amendment or termination of this Letter Agreement must be in writing and
signed by you and the Company.
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(c) Counterparts. This Letter Agreement may be executed in any number of counterparts
which together shall constitute but one agreement.
(d) Assignment. This Letter Agreement shall be binding on and inure to the benefit of
the Company’s successors and permitted assigns and, in your case, your estate, heirs and legal
representatives. Other than as provided herein, the rights and obligations described in this
Letter Agreement may not be assigned by you without the prior written consent of the Company, and
may not be assigned by the Company without your prior written consent.
(e) Dispute Resolution. All disputes arising under or related to this Letter
Agreement shall be settled by arbitration under the Commercial Arbitration Rules of the American
Arbitration Association then in effect as the sole and exclusive remedy of either party. Such
arbitration shall be held in New York City. Any judgment on the award rendered by such arbitration
may be entered in any court having jurisdiction over such matters. Each party’s costs and expenses
of such arbitration, including reasonable attorney fees and expenses, shall be borne by such party.
(f) Notices. All notices under this Letter Agreement shall be in writing and shall be
deemed effective (i) when delivered in person, (ii) five (5) days after deposit thereof in the
mail, postage prepaid, for delivery as registered or certified mail, addressed to the respective
party at the address set forth below or to such other address as may hereafter be designated by
like notice, or (iii) upon confirmed receipt of a facsimile or an electronic transmission. Unless
otherwise notified as set forth above, notice shall be sent to each party as follows:
You, to:
The address maintained in the Company’s records
The Company, to:
Platinum Underwriters Holdings, Ltd.
The Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxxxx
Executive Vice President, General Counsel
and Chief Administrative Officer
Facsimile: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxxxxx.xxx
The Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxxxx
Executive Vice President, General Counsel
and Chief Administrative Officer
Facsimile: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxxxxx.xxx
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With a copy to:
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Email: xxxxxxx@xx.xxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Email: xxxxxxx@xx.xxx
(g) Governing Law. This Letter Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without reference to rules relating
to conflict of laws.
(h) Headings. The headings in this Letter Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or interpretation of this
Letter Agreement.
(i) Severability. If any provision of this Letter Agreement is determined by a court
of competent jurisdiction to be not enforceable in the manner set forth in this Letter Agreement,
you and the Company agree that it is the intention of the parties hereto that such provision should
be enforceable to the maximum extent possible under applicable law. If any provision of this
Letter Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect the validity or enforceability of any other provision of this Letter Agreement (or any
portion thereof).
(j) Acknowledgement. You acknowledge that the Company has advised you to seek and
have the services and advice of legal counsel in reviewing and understanding this Letter Agreement
and the Release prior to executing same, and that you have had the opportunity to obtain such
services and advice in reviewing and understanding this Letter Agreement and the Release prior to
such execution. You further acknowledge that the Release contained herein is intended to be
legally binding and to cancel any and all of your rights against the Company, and that you fully
understand this Letter Agreement and the Release and the legal effect thereof.
(k) Bermuda Department of Immigration. The Company is required to notify the Bermuda
Department of Immigration of the change in your employment status on May 31, 2010 and on the
Retirement Date. You are required to return your Bermuda work permit to the Company on the
Retirement Date and, following the Retirement Date, your work permit becomes invalid immediately.
In accordance with the regulations of the Bermuda Department of Immigration, you will have two
weeks following the Retirement Date to leave Bermuda.
8. Restrictive Covenants.
(a) Nondisclosure of Confidential Information. You acknowledge that during the course
of your performance of services as an employee of the Company and as a consultant to PASI you have
had and will have access to and knowledge of certain information
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that the Company considers confidential, and the release of such information to unauthorized
persons would be detrimental to the Company. As a consequence, you hereby agree and acknowledge
that you owe a duty to the Company not to disclose or use, and agree that during and after your
performance of services for the Company and PASI you will not disclose or use, any Confidential
Information (as hereinafter defined), except (i) as may be necessary or appropriate to perform
services for the Company or PASI, provided your are acting in good faith and in their best
interests, or (ii) with the prior written consent of the Company or PASI. You will return to the
Company all Confidential Information in your possession or under your control whenever the Company
shall so request, and in any event will promptly return all such Confidential Information if this
Letter Agreement or the Consulting Agreement is terminated, and will not retain any copies thereof.
For purposes hereof, the term “Confidential Information” shall mean any information used
by or belonging or relating to the Company that is not known generally to the industry in which the
Company is or may be engaged and which the Company maintains on a confidential basis, including,
without limitation, any and all trade secrets and proprietary information, information relating to
the Company’s business and services, customer lists and records, business processes, procedures or
standards, know-how, manuals, business strategies, records, financial information, in each case
whether or not reduced to writing or stored electronically, as well as any information that the
Company advises you should be treated as confidential information, but shall not include (i)
information which is independently obtained from a third party whose disclosure violates no duty of
confidentiality to the Company, or (ii) information that is required to be disclosed by law,
regulation or order of any court or regulatory commission, department or agency, provided that you
give prompt notice of such requirement to the Company to enable the Company to seek an appropriate
protective order or confidential treatment.
(b) Non-Competition. During the period from the date hereof and continuing through
February 28, 2011, you shall not, without the prior written consent of the Company, directly or
indirectly, engage in, hold an interest in, own, manage, operate, control, direct, be connected
with as a stockholder (other than as a holder of less than two percent (2%) of a publicly traded
security), joint venturer, partner, consultant or employee, or otherwise engage or participate in
or be connected in any manner with, (i) any reinsurance business, or (ii) any business directly
engaged in the sale of derivatives used primarily as an alternative to reinsurance.
(c) Non-Solicitation and Non-Hire. During the period from the date hereof and
continuing through November 10, 2011, you shall not, without the prior written consent of the
Company, directly or indirectly, solicit, hire or cause to be solicited or hired by an enterprise
with which you may ultimately become associated, any employee of the Company or any of its
subsidiaries or affiliates whose annual compensation exceeds $100,000.
(d) Enforcement. You acknowledge and agree that the provisions of this Section 8 are
reasonable and necessary for the successful operation of the Company. You further acknowledge that
if you breach any provision of this Section 8, the Company may suffer irreparable injury. It is
therefore agreed that the Company shall have the right to enjoin any such breach, without posting
any bond, if ordered by a court of competent jurisdiction. The existence of this right to
injunctive and other equitable relief shall not limit any other rights or remedies that the Company
may have at law or in equity including, without limitation, the right to
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monetary and compensatory damages. If any provision of this Section 8 is determined
by a court of competent jurisdiction to be unenforceable in the manner set forth herein, you and
the Company agree that it is the intention of the parties that such provision should be enforceable
to the maximum extent possible under applicable law. If any provisions of this Section 8 are held
to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision of this Section 8 (or any portion thereof). For purposes
of the restrictions of this Section 8, references to the “Company” shall include its affiliates.
The provisions of this Section 8 shall be applicable and shall survive for the time periods
specified herein without regard to the termination of this Letter Agreement.
9. Section 409A.
(a) Subject to Section 5 hereof, any payments under Sections 2(g), 3 and 4(a) hereof that are
considered Deferred Compensation (within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”)), other than any payment governed by a separate award agreement,
shall be made on the date that is sixty (60) days immediately following the date that you
experience a Separation from Service from the Company. Notwithstanding the foregoing, if you are a
Specified Employee (as defined under Section 409A of the Code) at the time of such Separation from
Service, any payments under this Letter Agreement that are considered Deferred Compensation that
would be made within the six-month period immediately following the Separation from Service shall
instead be made on the first business day following the date that is six months following such
Separation from Service (or upon your death, if earlier).
(b) All reimbursements and in-kind benefits provided under this Letter Agreement shall be made
or provided in accordance with the requirements of Section 409A of the Code, including, where
applicable, the requirement that (i) any reimbursement shall be for expenses incurred during your
lifetime (or during a shorter period of time specified in this Letter Agreement), (ii) the amount
of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may
not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the
last day of the calendar year following the year in which the expense is incurred (or such earlier
date if specified in this Letter Agreement), and (iv) the right to reimbursement or in-kind
benefits is not subject to liquidation or exchange for another benefit.
(c) To the extent applicable, it is intended that this Letter Agreement shall comply with the
provisions of Section 409A of the Code. This Letter Agreement shall be construed and applied in a
manner consistent with this intent.
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If this Letter Agreement correctly reflects your understanding, please sign and return one
copy to the Company for the Company’s records.
| Platinum Underwriters Holdings, Ltd. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | President and Chief Executive Officer | |||
The above Letter Agreement correctly reflects our understanding, and I hereby confirm my
agreement to the same as of the date first written above.
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx |
||||
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EXHIBIT A
THIS CONSULTING AGREEMENT (“Agreement”) is entered into as of the 29th day of April,
2010, by and between Platinum Administrative Services, Inc., a Delaware corporation (the
“Company”) and Xxxxx X. Xxxxxx (the “Consultant”).
WHEREAS, the Consultant is currently employed by the Company as its Executive Vice President
and Chief Financial Officer;
WHEREAS, the Consultant is a party to an employment agreement with Platinum Underwriters
Holdings, Ltd., a Bermuda company (“Platinum”), dated June 1, 2007 (the “Employment
Agreement”);
WHEREAS, Platinum and the Consultant have mutually agreed that the Consultant shall retire and
his employment with Platinum shall terminate effective August 10, 2010 pursuant to a letter
agreement dated the date hereof (the “Letter Agreement”); and
WHEREAS, the Company desires to retain the Consultant to perform consulting services after the
termination of his employment with Platinum, and the Consultant wishes to perform such consulting
services, under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of and in reliance upon the foregoing and the obligations and
agreements contained herein, the Company and the Consultant hereby agree as follows:
1. Consulting Services; Consulting Period.
The Consultant agrees to be available to provide up to 250 hours of consulting services
regarding accounting policy and interpretation, U.S. and Irish tax issues, financial reporting
processes of the Company and its affiliates and general matters of a financial nature, at the
request and direction of the President of the Company or upon his delegated authority (the
“Consulting Services”) from August 11, 2010 through February 28, 2011, subject to Section 5
hereof (the “Consulting Period”). The Consultant acknowledges that he may be required by
the Company to travel to New York or Bermuda up to three times during the Consulting Period to
perform the Consulting Services, with each trip having a duration of not more than five (5) days.
2. Consulting Fees.
The Company shall pay the Consultant for the performance of the Consulting Services an amount
equal to $200,000, prorated in the event of early termination pursuant to Section 5 hereof (the
“Consulting Fees”), payable in three equal
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installments on or prior to September 30, 2010, December 31, 2010 and February 28, 2011.
3. Status.
The Consultant acknowledges and agrees that his status at all times during his performance of
Consulting Services hereunder shall be that of an independent contractor, and not as an employee or
deemed employee of the Company or any of its affiliates. The parties hereto acknowledge and agree
that the Consulting Fees paid to the Consultant during the Consulting Period shall represent fees
for his services as an independent contractor, and shall therefore be paid without any deductions
or withholdings taken therefrom for taxes or any other purpose. The Consultant further
acknowledges that the Company makes no warranties as to any tax consequences regarding payment of
such Consulting Fees, and specifically agrees that the determination of any tax liability or other
consequences of the payment of such Consulting Fees is his sole and complete responsibility and
that he will pay all federal, state and local taxes assessed on such payments. The Consultant
acknowledges that, except as specifically provided in this Agreement or in the Letter Agreement, he
will not be eligible for any benefits provided to employees of the Company or any of its
affiliates.
4. Expenses.
The Company shall reimburse the Consultant for reasonable expenses incurred by the Consultant
in the performance of the Consulting Services, provided that the Consultant obtains the prior
approval of the President of the Company to the incurrence of such expense and furnishes
documentation of such expenses to the Company in accordance with the Company’s expense
reimbursement policy.
5. Termination.
This Agreement may be terminated by the Company or the Consultant at any time upon ninety (90)
days’ prior written notice to the other party. This Agreement shall automatically terminate upon
the death or Disability (as defined below) of the Consultant. In the event that the Consultant
breaches any provision of Section 8 of the Letter Agreement, the Company may terminate this
Agreement without notice to the Consultant. All rights and obligations of the parties hereunder
will expire upon termination of this Agreement, except for any payment obligations of the Company
for Consulting Services performed or expenses incurred pursuant to this Agreement by the Consultant
prior to the effective date of the termination of this Agreement. In the event that (i) the
Consultant does not execute the Full and Complete Waiver, Release and Agreement attached to Letter
Agreement on August 10, 2010 (the “Release”) or thereafter revokes the Release, or (ii) the
Consultant’s employment with Platinum is terminated prior to August 10, 2010, then this Agreement
shall be null and void with no force or effect whatsoever. For purposes of this Section 5,
“Disability” shall mean that the Consultant has been rendered unable to perform the
Consulting Services by reason of any medically determined physical or mental impairment that can be
expected to result in death or to last for a period of three or more consecutive months from the
first date of the
A-2
Consultant’s inability to perform the Consulting Services due to the disability, as determined
by the Company in its sole discretion.
6. Section 409A.
(a) Any payments under Section 2 hereof that are considered Deferred Compensation (within the
meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)),
other than any payment governed by a separate award agreement, shall be made on the date that is
sixty (60) days immediately following the date that the Consultant experiences a Separation from
Service from the Company (as defined under Section 409A of the Code). Notwithstanding the
foregoing, if the Consultant is a Specified Employee (as defined under Section 409A of the Code) at
the time of such Separation from Service, any payments under this Agreement that are considered
Deferred Compensation that would be made within the six-month period immediately following the
Separation from Service shall instead be made on the first business day following the date that is
six months following such Separation from Service (or upon the Consultant’s death, if earlier).
(b) All reimbursements and in-kind benefits provided under this Agreement shall be made or
provided in accordance with the requirements of Section 409A of the Code, including, where
applicable, the requirement that (i) any reimbursement shall be for expenses incurred during the
Consultant’s lifetime (or during a shorter period of time specified in this Agreement), (ii) the
amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year
may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any
other calendar year, (iii) the reimbursement of an eligible expense shall be made on or before the
last day of the calendar year following the year in which the expense is incurred (or such earlier
date if specified in this Agreement), and (iv) the right to reimbursement or in-kind benefits is
not subject to liquidation or exchange for another benefit.
(c) To the extent applicable, it is intended that this Agreement shall comply with the
provisions of Section 409A of the Code. This Agreement shall be construed and applied in a manner
consistent with this intent.
7. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement, the Letter Agreement, the Release and the
Employment Agreement as modified by the Letter Agreement constitute the entire agreement among the
Consultant, the Company and Platinum with respect to the subject matter hereof and, except as
specifically provided herein or therein, supersede any and all prior agreements and understandings
among the Consultant, the Company, Platinum or any of their subsidiaries or affiliates with respect
to the subject matter hereof, whether written or oral. Any amendment or termination of this
Agreement must be in writing and signed by the Consultant and the Company.
(b) Counterparts. This Agreement may be executed in any number of counterparts which
together shall constitute but one agreement.
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(c) Assignment. This Agreement shall be binding on and inure to the benefit of the
Company’s successors and permitted assigns and the Consultant’s estate, heirs and legal
representatives. Other than as provided herein, the rights and obligations described in this
Agreement may not be assigned by the Consultant without the prior written consent of the Company,
and may not be assigned by the Company without the Consultant’s prior written consent.
(d) Dispute Resolution. All disputes arising under or related to this Agreement shall
be settled by arbitration under the Commercial Arbitration Rules of the American Arbitration
Association then in effect as the sole and exclusive remedy of either party. Such arbitration
shall be held in New York City. Any judgment on the award rendered by such arbitration may be
entered in any court having jurisdiction over such matters. Each party’s costs and expenses of
such arbitration, including reasonable attorney fees and expenses, shall be borne by such party.
(e) Notices. All notices under this Agreement shall be in writing and shall be deemed
effective (i) when delivered in person, (ii) five (5) days after deposit thereof in the mail,
postage prepaid, for delivery as registered or certified mail, addressed to the respective party at
the address set forth below or to such other address as may hereafter be designated by like notice,
or (iii) upon confirmed receipt of a facsimile or an electronic transmission. Unless otherwise
notified as set forth above, notice shall be sent to each party as follows:
The Consultant, to:
Xx. Xxxxx X. Xxxxxx
000 X. Xxxxxxx Xxxxx Xxxxxxx #000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Email: xxxxxxxx@xxx.xxx
000 X. Xxxxxxx Xxxxx Xxxxxxx #000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Email: xxxxxxxx@xxx.xxx
The Company, to:
Platinum Administrative Services, Inc.
2 World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
President
Facsimile: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxxxxx.xxx
2 World Financial Center
000 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxxx
President
Facsimile: 000-000-0000
Email: xxxxxxxxxxxx@xxxxxxxxxx.xxx
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With a copy to:
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Email: xxxxxxx@xx.xxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: 000-000-0000
Email: xxxxxxx@xx.xxx
(f) Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without reference to rules relating to conflict
of laws.
(g) Headings. The headings in this Agreement are intended solely for convenience of
reference and shall be given no effect in the construction or interpretation of this Agreement.
(h) Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be not enforceable in the manner set forth in this Agreement, the
Consultant and the Company agree that it is the intention of the parties hereto that such provision
should be enforceable to the maximum extent possible under applicable law. If any provision of
this Agreement is held to be invalid or unenforceable, such invalidity or unenforceability shall
not affect the validity or enforceability of any other provision of this Agreement (or any portion
thereof).
IN WITNESS WHEREOF, the Consultant and the duly authorized representative of the Company have
signed this Agreement as of the date first above written.
| Platinum Administrative Services, Inc. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxxxxx | |||
| Title: | President | |||
| Consultant |
||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
A-5
EXHIBIT B
FULL AND COMPLETE WAIVER, RELEASE
AND AGREEMENT
AND AGREEMENT
(this “Release”)
I, Xxxxx X. Xxxxxx, in consideration of the benefits (the “Benefits”) provided in my
letter agreement with Platinum Underwriters Holdings, Ltd., dated April 29, 2010 (the “Letter
Agreement”), for myself and my heirs, executors, administrators and assigns, do hereby
knowingly and voluntarily release and forever discharge Platinum Underwriters Holdings, Ltd., and
its subsidiaries, affiliates, predecessors, successors, agents and representatives (collectively,
the “Companies”) and their respective current and former directors, officers and employees
from, and covenant not to xxx or proceed against any of the foregoing on the basis of, any and all
claims, actions and causes of action upon or by reason of any matter arising out of my employment
by the Companies and the cessation of said employment, and including, but not limited to, any
alleged violation of those federal, state and local laws prohibiting employment discrimination
based on age, sex, race, color, national origin, religion, disability, veteran or marital status,
sexual orientation, or any other protected trait or characteristic, or retaliation for engaging in
any protected activity, including, without limitation, the Age Discrimination in Employment Act of
1967 (the “ADEA”), 29 U.S.C. 621 et seq., as amended by the Older Workers Benefit
Protection Act, P.L. 101-433, the Equal Pay Act of 1963, 9 U.S.C. 206 et seq., Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., the Civil Rights Act of 1866, 42
U.S.C. 1981, the Civil Rights Act of 1991, 42 U.S.C. 1981a, the Americans with Disabilities Act, 42
U.S.C. 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., the Family and Medical
Leave Act of 1993, 28 U.S.C. 2601 and 2611 et seq., the New York State and New York City Human
Rights Laws, and equivalent provisions under Bermuda law (including, without limitation, the
Employment Xxx 0000 and the Human Rights Act 1981), whether KNOWN OR UNKNOWN, fixed or contingent,
which I ever had, now have, or may have, or which I, my heirs, executors, administrators or assigns
hereafter can, shall or may have, from the beginning of time through the date on which I sign this
Full and Complete Waiver, Release and Agreement (this “Release”), including without
limitation those arising out of or related to my employment or separation from employment with the
Companies (collectively the “Released Claims”). I specifically waive the benefit of any
statute or rule of law which, if applied to this Release, would otherwise exclude from its binding
affect any claims not now known by me to exist. This Release does not purport to waive (i) claims
arising under these laws after the date of this Release or any claims for breach of this Release,
(ii) claims relating to post-termination benefits provided under the terms of the Letter Agreement
or (iii) any claims to post-termination benefits under the terms of any employee benefit plan of
the Companies.
I further agree, promise and covenant that, to the maximum extent permitted by law, neither I
nor any person, organization, or other entity acting on my behalf has filed or will file any
complaint, charge, claim or suit or cause or permit to be filed, charged or claimed, any action for
damages or other relief (including injunctive, declaratory,
B-1
monetary or other relief) against the Companies or any other releasee involving any matter
occurring in the past up to the date of this Release, or involving or based upon any claims,
demands, causes of action, obligations, damages or liabilities which are the subject of this
Release. This Release shall not affect any rights I may have under the Older Workers Benefit
Protection Act to have a judicial determination of the validity of this Release and does not
purport to limit any right I may have to file a charge under the ADEA or other civil rights statute
or to participate in an investigation or proceeding conducted by the Equal Employment Opportunity
Commission or other investigative agency. This Release does, however, waive and release any right
to recover damages under the ADEA or other civil rights statute.
I hereby warrant and represent that I have made no sale, assignment, or other transfer, or
attempted sale, assignment, or other transfer, of any of the Released Claims. I fully understand
and agree that:
1. This Release is in exchange for the Benefits, to which I would otherwise not be
entitled;
2. I am hereby advised to consult and have had the opportunity to consult with an attorney
before signing this Release;
3. I have twenty-one (21) days from my receipt of this Release within which to consider
whether or not to sign it;
4. I have seven (7) days following my signature of this Release to revoke it; and
5. This Release shall not become effective or enforceable until the revocation period of seven
(7) days has expired.
If I choose to revoke this Release, I must do so by notifying Platinum Underwriters Holdings,
Ltd. in writing. This written notice of revocation must be faxed and mailed by first class mail
within the seven (7) day revocation period and addressed as follows:
Platinum Underwriters Holdings, Ltd.
The Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00 Xxxxxxx
Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxxxx
Executive Vice President, General Counsel
and Chief Administrative Officer
Fax: 000-000-0000
The Belvedere Building
00 Xxxxx Xxx Xxxx
Xxxxxxxx XX 00 Xxxxxxx
Xxxxxxxxx: Xxxxxxx X. Xxxxxxxxxxx
Executive Vice President, General Counsel
and Chief Administrative Officer
Fax: 000-000-0000
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with a copy to:
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: 000-000-0000
Xxxxx & XxXxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: 000-000-0000
This Release is the complete understanding between me and the Companies in respect of the
subject matter of this Release and supersedes all prior agreements relating to the same
subject matter. I have not relied upon any representations, promises or agreements of any
kind except those set forth herein in signing this Release.
In the event that any provision of this Release should be held to be invalid or
unenforceable, each and all of the other provisions of this Release shall remain in full force
and effect. If any provision of this Release is found to be invalid or unenforceable, such
provision shall be modified as necessary to permit this Release to be upheld and enforced to the
maximum extent permitted by law. This Release is to be governed by and construed and enforced
in accordance with the laws of the State of New York without reference to rules relating to
conflict of laws. This Release inures to the benefit of the Companies and their successors and
assigns. I have carefully read this Release, fully understand each of its terms and conditions,
and intend to abide by this Release in every respect. As such, I knowingly and voluntarily sign
this Release.
| Xxxxx X. Xxxxxx |
Dated: August 1, 2010
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