EXHIBIT 10.12.2
AMENDMENT TO EMPLOYMENT AGREEMENT
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AMENDMENT TO AGREEMENT, made as of March 16, 1998, by and among, Mid
Ocean Reinsurance Company Ltd., a Bermuda Corporation (the "Company"), Mid Ocean
Limited, a Cayman islands Corporation (the "Parent") and Exel Merger Company
Ltd. ("Newco") (collectively, the "Entities") and Xxxxx X.X. Xxxxxxx (the
"Executive").
WHEREAS, on August 19, 1996, the Company and the Parent, and the
Executive entered into an amended and restated employment agreement (the
"Agreement");
WHEREAS, the Parent, EXEL Limited and Newco, have entered into an
Agreement and Plan of Amalgamation, dated as of March 16, 1998; and
WHEREAS, the Entities wish to have the Executive continue his
employment with the Company following the consummation of such amalgamation, and
the Executive wishes to continue such employment with the Company.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the Entities and the
Executive hereby agree to amend the Agreement as follows:
1. Section 2 of the Agreement is hereby amended by deleting the
first sentence, and adding the following sentence in lieu thereof:
The term of employment under this Agreement shall commence upon
the consummation of the transactions (the "Transactions")
contemplated by the Agreement and Plan of Amalgamation, by and
among Parent, EXEL Limited and Exel Merger Company Ltd., dated as
of March 16, 1998 (such consummation date, the "Effective Date"),
and shall continue through the close of business on the third
anniversary of the Effective Date, subject to earlier termination
as provided in Section 9 below.
2. Section 3(a) of the Agreement is hereby amended by deleting the
first sentence in its entirety, and adding the following in lieu thereof:
The Executive shall be employed as President and Chief Executive
Officer of the Company, with such duties and responsibilities,
including but not limited to general management responsibilities
over the business and operations of the Company, as are customary
to such positions and shall undertake such additional duties and
responsibilities as may be reasonably assigned to him by the
Board of the Company.
3. Section 6 of the Agreement is hereby amended by deleting the
Section in its entirety, and adding the following in lieu thereof:
As of the Effective Date, the Executive will be awarded a Stock
Option for 40,000 shares of Common Stock of Exel Merger Company
Ltd. (the "Option") pursuant to the terms of the EXEL Limited
1991 Performance Incentive Program Plan (the "Option Plan") an
exercise price equal to fair market value on the date of grant.
The Option shall vest 33 1/3 per cent per year on each of the
first three anniversaries of the Effective Date, and shall be
subject to the terms and conditions generally applicable to
options granted under the Option Plan.
4. Section 9(d)(ii)(A) of the Agreement is hereby amended to read in
its entirety as follows:
(A)(1) Base Salary as provided in Section 4, above, at the rate
in effect in accordance with Section 4, above, immediately prior
to such termination, payable in equal monthly installments for
the greater of (A) 12 months following such termination or (B)
the balance of the term of employment; and (2) to the extent not
otherwise provided by the annual bonus plan, an amount equal to
the largest annual bonus awarded to the Executive in the three
year period prior to the year in which the date of termination
occurs, times the number of years (with partial years treated as
full years) remaining in the term of employment,
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5. The Executive hereby waives the application of Section 9(d)(iii)
of the Agreement in connection with the Transactions.
6. A new sentence is added at the end of Paragraph 11(b) to read as
follows:
During the term of the Executive's employment, and for a period
of 12 months following Executive's termination of employment with
the Company (other than a termination by the Company without
Cause or a termination by the Executive for Good Reason), the
Executive or any entity controlled by the Executive shall not
(except in the course of his duties under this Agreement) call
on, solicit or take away as a client or customer any person,
firm, association, partnership, corporation, or other entity that
is or was a client or customer of the Company, Parent or Exel
Merger Company Ltd. or any of their affiliates, including
actively sought prospective clients or customers, during the term
of the Agreement. In the event of the Company's termination of
Executive's employment for Cause or Executive's voluntary
termination of employment without Good Reason, the immediately
preceding sentence shall only apply if the Executive is paid
severance under Section 9(d)(ii) of the Agreement.
7. Section 19 is hereby amended by adding the following at the end
thereof:
If to Exel Merger Company Ltd.:
Exel Merger Company Ltd.
Cumberland House
One Victoria Street
Xxxxxxxx XX 11 Bermuda
Attn: General Counsel
8. A new Section 26 is hereby added to this Agreement to read as
follows:
With respect to 50% of the Executive's outstanding unvested stock
options and shares of restricted stock as of the Effective Date,
the Executive hereby waives on a pro rata basis, to the extent
applicable, accelerated exercisability and vesting as a result of
the Transactions (including shareholder approval of the
Transactions) and agrees that such options and restricted stock
shall continue to vest pursuant to their normal schedule;
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provided, that upon a termination of Executive's employment due
to Executive's death or disability (as described in Section
9(b)), or a termination by the Company without Cause, the
remaining balance of such options and shares of restricted stock
for which accelerated exercisability or vesting was waived shall
become immediately exercisable and/or vested.
9. This amendment to the Agreement shall take effect as of the
Effective Date, and shall in no event take effect in the event of the
termination and abandonment of the Amalgamation Agreement. In the event that the
Effective Date has not occurred on or prior to March 31, 1999, the parties will
enter into good faith negotiations with respect to the modification of this
amendment to the Agreement, to the extent requested by any of the parties
hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this amendment to
the Agreement as of the year and day first above written.
Mid-Ocean Reinsurance Company Ltd.
By:_________________________________
Mid-Ocean Limited
By:_________________________________
Exel Merger Company Ltd.
By:_________________________________
____________________________________
Xxxxx X. X. Xxxxxxx
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