EMPLOYMENT AGREEMENT
EXHIBIT
10.2
EXECUTION
COPY
THIS
EMPLOYMENT AGREEMENT
dated as
of July 3, 2007 (the "Effective Date"), by and between Maiden Holdings, Ltd.,
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Xxxx Xxxxxx, Xxxxxxxx XX 12, Bermuda, a Bermuda company (the "Company")
and
Xxxxxxxx X. Xxxxx, an individual residing at 00 Xxxx 00xx Xxxxxx, Xxxxxxxxx 0X, Xxx Xxxx, New York, 10024 ("Executive").
WITNESSETH
WHEREAS,
the
Company and Executive each desire to enter into this Employment Agreement (the
"Agreement") in order to set forth the terms and conditions of Executive's
employment during the period in which the Company establishes itself (the
"Transition Period"), intending to supersede any prior employment agreement,
written or oral, whether with the Company or other affiliates with regard to
this Transition Period employment with the Company.
NOW,
THEREFORE,
in
consideration of the mutual covenants and promises contained herein and other
good and valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1. Duties
and Responsibilities. It
is the
intention of the Company that Executive shall serve as Chief Operating Officer,
General Counsel and Secretary of the Company, at the pleasure of the board
of
directors of the Company (the "Board of Directors"), reporting on a day-to-day
basis directly to the President and
Chief
Executive Officer of the Company. Executive shall have such duties and
responsibilities, consistent with his title and position, as may be
assigned to him by the Board of Directors from time to time.
Executive's
principal place of work will be in Hamilton, Bermuda, but he shall be required
to travel as reasonably necessary to carry out his duties.
Executive
recognizes that, during the period of his employment hereunder, he owes an
undivided duty of loyalty to the Company and agrees to devote all of his
business time and attention to the performance of his duties and
responsibilities and to use his best efforts to promote and develop the business
of the Company. Subject to the approval of the Board of Directors, which shall
not be unreasonably withheld, Executive shall be entitled to serve on corporate,
civic, and/or charitable boards or committees and to otherwise reasonably
participate as a member in community, civic, or similar organizations and the
pursuit of personal investments which do not present any material conflicts
of
interest with the Company. If elected or appointed, Executive shall serve on
the
Board of Directors and/or the board of directors of the Company's affiliates
without additional compensation.
2. Employment
Period.
For the
Transition Period, commencing on the Effective Date hereof and ending December
31, 2007 (the "Employment Period"), subject always to Clause 5, the Company
hereby employs Executive in the capacities herein set forth. Executive agrees,
pursuant to the terms hereof, to serve in such capacities for the Employment
Period. If Executive has not entered into a successive employment agreement
with
the Company by the expiration of the Employment Period, this Agreement will
automatically renew on such date one time for an additional Employment Period
which will expire on June 30, 2008. If Executive has not entered into a
successive employment agreement by the expiration of this second Employment
Period, Executive will be treated as an at-will employee of the
Company.
3. Compensation
and Benefits.
(a) Salary.
The Company shall pay or cause an affiliate to pay Executive a salary at the
rate of $275,000 per annum during the Employment Period, payable in accordance
with the Company's normal payroll process (and such amount paid by the Company
shall be referred to herein as "Salary").
(b) Profit
Bonus. Executive
shall be eligible to receive a profit bonus in an amount equal to no less than
20% of Salary, to reflect the Executive's individual contribution to the
Company's profits for the fiscal year, as determined in the sole discretion
of
the Board of Directors. The Profit Bonus, if any, shall be paid on the date
following the date that the Company's completed consolidated financial
statements for the 2007 calendar year are issued, but in no event later than
June 30, 2008.
(c) Special
Bonus. It
is
understood and agreed that the Company intends to adopt a 2007 Share Incentive
Plan (the "Plan"). Executive shall be granted
options
to purchase under the Plan 75,000 shares of the Company's common shares, subject
to the terms and conditions of the Plan and respective award agreement.
Such
share options will be incentive share options within the meaning of Section
422
of the Internal Revenue Code of 1986, as amended (the "Code"), to the extent
permitted by law. Twenty-five percent of the options will become exercisable
on
the first anniversary of the date that the options are granted, with an
additional 6.25% of the options vesting each quarter thereafter based on
Executive's continued employment, and will expire ten years after the date
of
grant.
(d) Executive
shall also be entitled to the following benefits:
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(i)
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two
and one-half (2 ½) weeks of paid vacation for the Employment Period, or
such greater period as may be approved from time to time by Board
of
Directors to be taken at times mutually convenient to Executive and
the
Company. Compensation shall not be provided in lieu of unused vacation
time;
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(ii)
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paid
holidays and any and all other work-related leave (whether sick leave
or
otherwise) as provided to the Company's other executive employees;
and
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(iii)
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Executive
will participate in such benefit schemes to which executive employees
of
the Company, their dependents and beneficiaries generally are entitled
during the Employment Period, including, without limitation, medical,
dental, disability, life, retirement and other present or successor
plans
and practices of Company for which executive employees, their dependents
and beneficiaries are eligible.
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4. Reimbursement
of Expenses.
The
Company recognizes that Executive, in performing Executive's functions, duties
and responsibilities under this Agreement, may be required to spend sums of
money in connection with those functions, duties and responsibilities for the
benefit of the Company and, accordingly, shall reimburse Executive for travel
and other out-of-pocket expenses reasonably and necessarily incurred in the
performance of his functions, duties and responsibilities hereunder upon
submission of written statements and/or bills in accordance with the regular
procedures of the Company in effect from time to time.
5. Termination
By Company for Cause.
The
Company may discharge Executive for Cause at any time. Cause shall include
(i) a
material breach of this Agreement by Executive, but only if such material breach
is not cured within thirty (30) days following written notice by the Company
to
Executive of such breach, assuming such breach may be cured; (ii) Executive
is
convicted of any act or course of conduct involving moral turpitude; or (iii)
Executive engages in any willful act or willful course of conduct constituting
an abuse of office or authority which significantly and adversely affects the
business or reputation of the Company. No act, failure to act or course of
conduct on Executive's part shall be considered willful unless done, or omitted
to be done, by him not in good faith and without reasonable belief that his
action, omission or course of conduct was in the Company's best interests.
Any
written notice by the Company to Executive pursuant to this Clause 5 shall
set
forth, in reasonable detail, the facts and circumstances claimed to constitute
the Cause. If Executive is discharged for Cause, the Company, without any
limitations on any remedies it may have at law or equity, shall have no
liability for Salary or any other compensation and benefits to Executive after
the date of such discharge.
6. Non-Disclosure
of Confidential Information.
"Confidential Information" means all information known by Executive about the
Company's business plans, present or prospective customers, vendors, products,
processes, services or activities, including the costing and pricing of such
services or activities, employees, agents and representatives. Confidential
Information does not include information generally known, other than through
breach of a confidentiality agreement with the Company, in the industry in
which
the Company engages or may engage. Executive will not, while this Agreement
is
in effect or after its termination, directly or indirectly, use or disclose
any
Confidential Information, except in the performance of Executive's duties for
the Company, or to other persons as directed by the Board of Directors.
Executive will use reasonable efforts to prevent unauthorized use or disclosure
of Confidential Information. Upon termination of employment with the Company,
Executive will deliver to the Company all writings relating to or containing
Confidential Information, including, without limitation, notes, memoranda,
letters, electronic data, drawings, diagrams, and printouts, as well as any
tapes, discs, flash drives or other forms of recorded information. If Executive
violates any provision of this Clause 6 while this Agreement is in effect or
after termination, the Company specifically reserve the right, in appropriate
circumstances, to seek full indemnification from Executive should the Company
suffer any monetary damages or incur any legal liability to any person as a
result of the disclosure or use of Confidential Information by Executive in
violation of this Clause 6.
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7. Restrictive
Covenant.
(a) Prohibited
Activities.
Executive agrees that he shall not (unless he has received the prior written
consent of the Company), during the Employment Period and the period beginning
on the date of termination of employment and ending three (3) years thereafter
(together, the "Restriction Period"), directly or indirectly, for any reason,
for his own account or on behalf of or together with any other person or
firm:
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(i)
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hire
or solicit for employment or call on, directly or indirectly, through
any
person or firm, any senior employee who is at that time (or at any
time
during the one year prior thereto) employed by or representing the
Company
or its affiliates with the purpose or intent of attracting that senior
employee from the employ or representation of the Company or its
affiliates;
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(ii)
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call
on, solicit or perform services for, directly or indirectly through
any
person or firm, any person or firm that at that time is, or at any
time
within the one year prior to that time was, a customer of the Company
or
its affiliates with whom Executive had dealings, for the purpose
of
soliciting or selling any product or service in competition with
the
Company or its affiliates; or
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(iii)
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call
on, directly or indirectly through any person or firm, any entity
which
has been called on by the Company or an affiliate in connection with
a
possible acquisition by the Company or an affiliate with the knowledge
of
that entity's status as such an acquisition candidate, for the purpose
of
acquiring that entity or arranging the acquisition of that entity
by any
person or firm other than the Company or the
affiliate.
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(b) Damages.
Because
of (i) the difficulty of measuring economic losses to the Company as a result
of
any breach by Executive of the covenants in Clause 7(a), and (ii) the immediate
and irreparable damage which could be caused to the Company for which they
would
have no other adequate remedy, Executive agrees that the Company may enforce
the
provisions of Clause 7(a) by injunction and restraining order against Executive
if he breaches any of said provisions, without the necessity of providing a
bond
or other security.
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(c) Reasonable
Restraint.
The
parties hereto agree that Clauses 7(a) and 7(b) impose a reasonable restraint
on
Executive in light of the activities and business of the Company on the date
hereof and the current business plans of the Company.
8. Ownership
of Inventions.
Executive shall promptly disclose in writing to the Board of Directors all
inventions, discoveries, and improvements conceived, devised, created, or
developed by Executive in connection with his employment (collectively,
"Invention"), and Executive shall transfer and assign to the Company all right,
title and interest in and to any such Invention, including any and all domestic
and foreign patent rights, domestic and foreign copyright rights therein, and
any renewal thereof. Such disclosure is to be made promptly after the conception
of each Invention, and each Invention is to become and remain the property
of
the Company, whether or not patent or copyright applications are filed thereon
by the Company. Upon request of the Company, Executive shall execute from time
to time during or after the termination of employment such further instruments
including, without limitation, applications for patents and copyrights and
assignments thereof as may be deemed necessary or desirable by the Company
to
effectuate the provisions of this Clause 8.
9. Construction.
If the
provisions of Clause 7 should be deemed unenforceable, invalid, or overbroad
in
whole or in part for any reason, then any court of competent jurisdiction
designated in accordance with Clause 11 is hereby authorized, requested, and
instructed to reform such Clause 7 to provide for the maximum competitive
restraint upon Executive's activities (in time, product, geographic area and
customer or employee solicitation) which shall then be legal and
valid.
10. Damages
and Jurisdiction.
Executive agrees that violation of or threatened violation of Clauses 6, 7
or 8
would cause irreparable injury to the Company for which any remedy at law would
be inadequate, and the Company shall be entitled in any court of law or equity
of competent jurisdiction to preliminary, permanent and other injunctive relief
against any breach or threatened breach of the provisions contained in Clauses
6, 7 or 8 hereof, without providing bond or other security, and such
compensatory damages as shall be awarded. Further, in the event of a violation
of the provisions of Clause 7, the Restriction Period referred to therein shall
be extended for a period of time equal to the period that any violation
occurred.
11. Jurisdiction
and Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
Bermuda, without giving effect to the principles of conflict of laws thereof.
The Company and Executive hereby each consents to the exclusive jurisdiction
of
the Bermuda courts with respect to any dispute arising under the terms of this
Agreement and further consents that any process or notice of motion therewith
may be served by certified or registered mail or personal service, within or
without Bermuda, provided a reasonable time for appearance is allowed. Each
party acknowledges and agrees that any controversy which may arise under this
Agreement is likely to involve complicated and difficult issues, and therefore
each party hereby irrevocably and unconditionally waives any right such party
may have to a trial by jury with respect to any litigation directly or
indirectly arising out of or relating to this Agreement, or the breach,
termination or validity of this Agreement, or the transactions contemplated
by
this Agreement. The parties further agree that any judgment, order or injunction
granted by any court within Bermuda shall be enforceable in any jurisdiction
in
which the Company or its affiliates do business.
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12. Indemnification.
To the
fullest extent permitted by, and subject to, the Company's Certificates of
Incorporation and By-laws, the Company shall indemnify and hold harmless
Executive against any losses, damages or expenses (including reasonable
attorney's fees) incurred by him or on his behalf in connection with any
threatened or pending action, suit or proceeding in which he is or becomes
a
party by virtue of his employment by the Company or any affiliates or by reason
of his having served as an officer or director of the Company or any other
corporation at the express request of the Company, or by reason of any action
alleged to have been taken or omitted in such capacity.
13. Severability.
If any
provision of this Agreement is held to be invalid, illegal, or unenforceable,
that determination will not affect the enforceability of any other provision
of
this Agreement, and the remaining provisions of this Agreement will be valid
and
enforceable according to their terms.
14.
Withholding.
Any
payments provided for herein shall be reduced by any amounts required to be
withheld by the Company from time to time under any applicable Federal, State
or
local or non-U.S. employment or income tax laws or similar statutes or other
provisions of law then in effect.
15. Successors
to Company.
Except
as otherwise provided herein, this Agreement shall be binding upon and inure
to
the benefit of Executive and Executive's personal representatives, and the
Company and any successor or assign of the Company, including, without
limitation, any corporation acquiring, directly or indirectly, all or
substantially all of the assets of the Company, whether by merger,
consolidation, sale or otherwise (and such successor shall thereafter be deemed
embraced within the term "Company" for the purposes of this Agreement), but
shall not otherwise be assignable by the Company. The services to be provided
by
Executive hereunder may not be delegated nor may Executive assign any of his
rights hereunder.
16. No
Restrictions.
Executive represents and warrants that as of the Effective Date of this
Agreement, Executive will not be subject to any contractual obligations or
other
restrictions, including, but not limited to, any covenant not to compete, that
could interfere in any way with his employment hereunder.
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17. Miscellaneous.
(a) This
Agreement constitutes the entire understanding of the parties with respect
to
the subject hereof and may be modified only in writing.
(b) If
Executive should die while any amount would still be payable to him under this
Agreement if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to
Executive's estate or legal representative.
(c) The
failure of any of the parties hereto to enforce any provision hereof on any
occasion shall not be deemed to be a waiver of any provision or succeeding
breach of such provision or any other provision.
(d) All
notices under this Agreement shall be given by registered or certified mail,
return receipt requested, directed to parties at the following addresses or
to
such other addresses as the parties may designate in writing:
If
to the
Company:
0
Xxxx
Xxxxxx
Xxxxxxxx
XX 00 Xxxxxxx
Xxxxxxxxx:
Secretary
If
to
Executive:
Xxxxxxxx
X. Xxxxx
00
Xxxx
00xx Xx., Xxx. 0X
Xxx
Xxxx,
XX 00000
(e) In
furtherance and not in limitation of the foregoing, this Agreement supersedes
any employment agreement between the Company and Executive, written or oral,
and
any such agreement hereby is terminated and is no longer binding on either
party.
18. Key
Man Insurance Authorization.
At any
time during the term of this Agreement, the Company will have the right (but
not
the obligation) to insure the life of Executive for the sole benefit of the
Company and to determine the amount of insurance and type of policy. The Company
will be required to pay all premiums due on such policies. Executive will
cooperate with the Company in taking out the insurance by submitting to physical
examination, by supplying all information required by the insurance company,
and
by executing all necessary documents. Executive, however, will incur no
financial obligation by executing any required document, and will have no
interest in any such policy.
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19. Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
deemed to be duplicate originals.
By:____/s/
Max G. Caviet ______________ ____/s/
Xxxxxxxx X. Turin_______________
Max
G.
Caviet, Xxxxxxxx
X. Xxxxx
President,
Chief Executive Officer and
Director
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