EXHIBIT 10.20
XXXXX XXXXXXX FEW
AND
ASPEN INSURANCE LIMITED
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AMENDED AND RESTATED SERVICE AGREEMENT
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TABLE OF CONTENTS
CLAUSE PAGE
1. INTERPRETATION.............................................................1
2. AMENDMENT AND RESTATEMENT..................................................2
3. POSITION...................................................................2
4. TERM.......................................................................2
5. DUTIES.....................................................................2
6. REMUNERATION AND COMMISSION................................................3
7. PENSION AND INSURANCE BENEFITS.............................................4
8. EXPENSES...................................................................6
9. HOLIDAYS AND HOLIDAY PAY...................................................6
10. DISABILITY OR DEATH........................................................6
11. CONFIDENTIAL INFORMATION...................................................7
12. COPYRIGHT AND DESIGNS......................................................8
13. GRATUITIES AND CODES OF CONDUCT............................................8
14. RESTRICTIVE COVENANTS......................................................9
15. TERMINATION BY RECONSTRUCTION OR AMALGAMATION; CHANGE IN CONTROL..........10
16. TERMINATION OF EMPLOYMENT BY THE COMPANY FOR CAUSE........................11
17. TERMINATION OF EMPLOYMENT BY THE COMPANY WITHOUT CAUSE....................11
18. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE................................12
19. OBLIGATIONS UPON TERMINATION OF EMPLOYMENT; CERTAIN OTHER TERMINATIONS....13
20. EFFECT OF TERMINATION OF THIS AGREEMENT...................................14
21. GENERAL RELEASE...........................................................14
22. OTHER TERMS AND CONDITIONS................................................15
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23. NOTICES...................................................................15
24. PREVIOUS AND OTHER AGREEMENTS.............................................15
25. ENTIRE AGREEMENT/AMENDMENT................................................15
26. ASSIGNMENT................................................................16
27. SEVERABILITY..............................................................16
28. SUCCESSORS/BINDING AGREEMENT..............................................16
29. CO-OPERATION..............................................................16
30. GOVERNING LAW.............................................................16
31. COUNTERPARTS..............................................................16
AMENDED AND RESTATED SERVICE AGREEMENT
DATE: 10 March 2005
PARTIES:
(1) XXXXX XXXXXXX FEW of Xxxxxxx, 00 Xxxxxxx Xxxx, Paget, PG02 Bermuda (the
"Executive"); and
(2) ASPEN INSURANCE LIMITED incorporated in the Islands of Bermuda whose
registered office is at Canon's Court, 0xx Xxxxx, 00 Xxxxxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx (the "Company").
OPERATIVE TERMS:
1. INTERPRETATION
1.1 In this Agreement:
"Affiliate" means any entity directly or indirectly
controlling, controlled by, or under
common control withHoldings; or any other
entity designated by the Board of
Directors of Holdings in which Holdings or
an Affiliate has an interest;
"Board" means the Board of Directors of the
Company from time to time;
"Chief Executive Officer" means the Chief Executive Officer of
Holdings from time to time;
"Group" means Holdings and its Affiliates (and
"Group Company" means Holdings or any one
of its Affiliates);
"Holdings" means Aspen Insurance Holdings Limited, a
Bermuda limited company; and
"Manager" means Chief Executive Officer or such
other person as the Company may nominate
from time to time as the person to whom
the Executive shall report.
1.2 In this Agreement references to any statutory provision shall include
such provision as from time to time amended, whether before on or (in the
case of re-enactment or consolidation only) after the date hereof, and shall
be deemed to include provision of earlier legislation (as from time to time
amended) which have been re-enacted (with or without modification) or
replaced (directly or indirectly) by such
provision and shall further include all statutory instruments or orders from
time to time made pursuant thereto.
2. AMENDMENT AND RESTATEMENT
This Agreement shall serve as a complete amendment and restatement of the
Service Agreement entered into between Xxxxx Xxxxxxx Few and Wellington Re
Services Ltd, dated 21 June 2002 (the "Original Agreement"). Except as
otherwise provided herein, all terms of the Original Agreement shall be
superceded by the terms of this Agreement and, upon execution of this
Agreement, the Original Agreement shall be of no further force and effect.
3. POSITION
The Company shall employ the Executive as Head of Property Reinsurance and
Chief Underwriting Officer.
4. TERM
4.1 The Company shall employ the Executive, and the Executive shall serve
the Company, on the terms and conditions set forth in this Agreement,
beginning on the date hereof (the "Effective Date") and continuing unless
and until terminated in accordance with the provisions contained in this
Agreement.
4.2 Notwithstanding the provisions of Clause 4.1, the Executive's employment
shall terminate automatically when the Executive reaches the age of 60
years.
5. DUTIES
5.1 During his employment hereunder the Executive shall:
(a) report to the Manager and perform the duties and exercise the powers
and functions which from time to time may reasonably be assigned to or
vested in him by the Board or the Chief Executive Officer in relation to
the Company and any other Group Company to the extent consistent with
his job title set out in Clause 3 (without being entitled to any
additional remuneration in respect of such duties for any Group
Company);
(b) devote the whole of his working time, attention and ability to his
duties in relation to the Company and any other Group Company at such
place or places as the Board shall determine. The Executive shall work
at the Company's premises at Hamilton, Bermuda, or such other place as
the Company and the Executive shall mutually agree, provided that the
Executive shall not be required to reside outside Bermuda or the United
Kingdom;
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(c) comply with all reasonable requests, instructions and regulations
given or made by the Board (or by any one authorised by it) and promptly
provide such explanations, information and assistance as to the
performance of his duties assigned to him under this Agreement as the
Board or the Chief Executive Officer may reasonably require;
(d) faithfully and loyally serve the Company and each other Group
Company to the best of his ability and use his utmost endeavours to
promote its interests in all respects;
(e) not engage in any activities which would detract from the proper
performance of his duties hereunder, nor without the prior written
consent of the Board in any capacity including as director, shareholder,
principal, consultant, agent, partner or employee of any other company,
firm or person (save as the holder for investment of securities which do
not exceed three percent (3%) in nominal value of the share capital or
stock of any class of any company quoted on a recognised stock exchange)
engage or be concerned or interested directly or indirectly in any other
trade, business or occupation whatsoever; and
(f) comply (and shall use every reasonable endeavour to procure that his
spouse and minor children will comply) with all applicable rules of law,
stock exchange regulations, individual registration requirements (at a
cost to be borne by the Company) and codes of conduct of the Company and
any other Group Company in effect with respect to dealing in shares,
debentures or other securities of the Company or other Group Company.
5.2 Nothing herein shall preclude the Executive from (a) serving on the
boards of directors of a reasonable number of other corporations subject to
the approval of the Chief Executive Officer in each case, which approval
shall not be unreasonably withheld, (b) serving on the boards of a
reasonable number of trade associations subject to the approval of the Chief
Executive Officer, which approval shall not unreasonably be withheld, and/or
charitable organizations, (c) engaging in any charitable activities and
community affairs, and (d) managing his personal investments and affairs,
provided that such activities set forth in this Clause 5.2 do not
significantly interfere with the performance of his duties and
responsibilities to any Group Company.
6. REMUNERATION AND COMMISSION
6.1 The Executive shall be paid by way of remuneration for his services
during his employment hereunder a salary at the rate (the "Salary Rate") of
US$400,000 per annum, subject to increase pursuant to Clause 6.3. The
Company shall pay the Executive's proper and reasonable expenses relating to
the maintenance of the Executive's primary residence in Bermuda during the
term of his employment. Prior to such payment the Executive shall provide to
the Company any substantiation for such expenses requested
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by the Company. Notwithstanding the foregoing, the maximum amount the
Company shall pay in respect of housing allowance shall be $180,000.00 per
annum
6.2 The Executive shall be eligible for a cash bonus during his employment
hereunder of such amounts (if any) at such times and subject to such
conditions as the Compensation Committee of the Board of Directors of
Holdings (the "Compensation Committee") may in its absolute discretion
decide; provided, however, that notwithstanding the preceding language of
this Clause 6.2, the Executive shall participate in all management incentive
plans made available to the Company's senior executives at a level
commensurate with Executive's status and position at the Company.
6.3 The Company shall review the Salary Rate for increase at least once each
year, and any change in the Salary Rate resulting from such review will take
effect from 1 April. The Company's review shall take into consideration,
among other factors, the base salary paid to individuals performing similar
services at comparable companies based in Bermuda, the United Kingdom and
the United States, as well as other relevant local or global talent pool
comparables, it being expressly understood that while it is intended that
the Company shall consider these factors, it shall have no obligation to
take any specific action based on such factors.
6.4 The Executive's salary will be payable by equal monthly instalments;
each monthly instalment will be in respect of a calendar month and will be
paid on or before the last day of such calendar month. Where the employment
has begun or ended in a calendar month, salary in respect of that month will
be the proportion of a normal month's instalment which the days of
employment in that month bear to the total days in the month.
6.5 The Company may withhold from amounts payable under this Agreement all
applicable taxes that are required to be withheld by applicable laws or
regulations.
7. PENSION AND INSURANCE BENEFITS
7.1 During his employment hereunder, the Executive shall continue to be a
member of the UK pension scheme established by the Aspen Insurance UK
Services (the "Scheme") and the Company shall make contributions into the
Scheme (or procure that they are made) of such amount as determined by the
Scheme rules but based on a notional salary of (pound)180,000 per annum. The
Executive's membership in the Scheme shall be subject to the provisions
thereof as may be amended from time to time.
7.2 During his employment hereunder, the Executive shall be entitled to
participate in all employee benefit and perquisite plans and programs made
available to the Company's senior level executives or to its employees
generally, as such plans or programs may be in effect from time to time.
This will include being given corporate club membership of Xxxxxx'x Point.
7.3 During his employment hereunder, the Executive will be eligible for 2
Business Class return airfares per annum from Bermuda to the UK for himself,
spouse and dependent children. The Executive will also be eligible for
reimbursement of reasonable
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expenses if he is required to move location to take up employment with a
Group Company.
7.4 During his employment hereunder, the Company shall provide the Executive
with medical insurance, permanent health insurance, personal accident
insurance and life insurance (subject to the relevant insurers' terms and
conditions). The Board shall have the right to change the arrangements for
the provision of such benefits as it sees fit or, if in the reasonable
opinion of the Board, the Company is unable to secure any such insurance
under the rules of any applicable scheme or otherwise at reasonable rates to
cease to provide any or all of the insurances.
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8. EXPENSES
The Company shall reimburse to the Executive all traveling, hotel,
entertainment and other expenses properly and reasonably incurred by him in
the performance of his duties hereunder and properly claimed and vouched for
in accordance with the Company's expense reporting procedure in force from
time to time.
9. HOLIDAYS AND HOLIDAY PAY
9.1 In addition to public holidays in Bermuda, during his employment
hereunder, the Executive shall be entitled to 25 working days' paid holiday
per holiday year and, if applicable, such additional days as are set out in
the Company's standard terms and conditions of employment from time to time,
during each holiday year to be taken at such time or times as may be agreed
with the Manager. Except as otherwise provided in the Company's holiday
policy, the Executive may not carry forward any unused part of his holiday
entitlement to a subsequent holiday year and the Executive shall not be
entitled to any salary in lieu of untaken holiday.
9.2 For the holiday year during which the Executive's employment hereunder
commences or terminates he shall be entitled to such proportion of his
annual holiday entitlement as the period of his employment in each such
holiday year bears to one holiday year as set out in the Company's holiday
policy. Upon termination of his employment for whatever reason, he shall, if
appropriate, be entitled to salary in lieu of any outstanding holiday
entitlement.
10. DISABILITY OR DEATH
10.1 The Company reserves the right at any time to require the Executive (at
the expense of the Company) to be examined by a medical adviser nominated by
the Company and the Executive consents to the medical adviser disclosing the
results of the examination to the Company and shall provide the Company with
such formal consents as may be necessary for this purpose.
10.2 If the Executive shall be prevented by illness, accident or other
incapacity from properly performing his duties hereunder he shall report
this fact forthwith to the Company Secretary's office and if he is so
prevented for seven or more consecutive days he shall if required by the
Company provide an appropriate doctor's certificate.
10.3 If the Executive shall be absent from his duties hereunder owing to
illness, accident or other incapacity duly certified in accordance with the
provisions of clause 10.2 he shall be paid his full remuneration for any
period of absence of up to a maximum of 26 weeks in aggregate in any period
of 52 consecutive weeks and thereafter, subject to the provisions of clause
16, to such remuneration (if any) as the Board shall in its absolute
discretion allow.
10.4 If the Executive shall be, on the basis of a medical report supplied to
the Company following his having undergone a medical examination pursuant to
clause 10.1, in the opinion of the Board unfit ever to return to his duties
(but in such circumstances
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and prior to any action being taken under this clause, the Executive shall
have the right to have a second medical report from a duly qualified doctor
or medical adviser selected by the Executive and approved by the Board,
which approval shall not be unreasonably withheld) the Company shall be
entitled to place the Executive on permanent sick leave without pay or
benefits (other than permanent health insurance benefits) with effect from
any time on or after the commencement of payments under the permanent health
insurance arrangements referred to in clause 7.3.
10.5 In the event that the Executive's employment is terminated due to his
death, his estate or his beneficiaries, as the case may be, shall be
entitled to: (a) salary at his Salary Rate up to and including the end of
the month in which his death occurs, (b) the annual incentive award, if any,
to which the Executive would have been entitled to pursuant to Clause 6.2
for the year in which the Executive's death occurs, multiplied by a
fraction, the numerator of which is the number of days that the Executive
was employed during the applicable year and the denominator of which is 365,
and (c) the unpaid balance of all previously earned cash bonus and other
incentive awards with respect to performance periods which have been
completed, all of which amounts shall be payable in a lump sum in cash
within 30 days after his death, except that the pro-rated incentive award
shall be payable when such award would have otherwise been payable had the
Executive not died.
11. CONFIDENTIAL INFORMATION
11.1 Except as otherwise provided in this Section, the Executive shall not
during his employment hereunder or at any time after his termination for any
reason whatsoever disclose to any person whatsoever or otherwise make use of
any Confidential Information.
11.2 As used in this Section, the term "Confidential Information" shall mean
any confidential or secret information which he has or may have acquired in
the course of his employment relating to the Company or any other Group
Company or any customers or clients of the Company or any other Group
Company, including without limiting the generality of the foregoing:
(a) confidential or secret information relating to the past, current or
future business, finances, activities and operations of the Company or
any other Group Company;
(b) confidential or secret information relating to the past, current or
future business, finances, activities and operations of any third party
to the extent that such information was obtained by the Company or any
other Group Company pursuant to a confidentiality agreement;
but shall not include information that is generally known to, or recognised
as standard practice in, the industry in which the Company is engaged unless
such information is known or recognised as a result of the Executive's
breach of this covenant.
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11.3 The Executive will only use Confidential Information for the benefit of
the Company or any other Group Company in the course of his employment and
shall at all times exercise all due care and diligence to prevent the
unauthorised disclosure or use of Confidential Information.
11.4 In the event that the Executive becomes compelled by a court or
administrative order to disclose any of the Confidential Information other
than as permitted pursuant to this Section, he will provide prompt notice to
the Company so that the Company may seek a protective order or other
appropriate remedy. In the event the Company fails to seek, or seeks and
fails to obtain, such a protective order or other protective remedy, the
Executive will furnish only that portion of the Confidential Information
that, in the opinion of his counsel, he is legally required to furnish.
12. COPYRIGHT AND DESIGNS
12.1 The Executive hereby assigns to the Company all present and future
copyright, design rights and other proprietary rights if any for the full
term thereof throughout the world in respect of all works originated by him
at any time during the period of his employment by the Company or any other
Group Company whether during the course of his normal duties or other duties
specifically assigned to him (whether or not during normal working hours)
either alone or in conjunction with any other person and in which copyright
or design rights may subsist except only those designs or other works
written, originated, conceived or made by him wholly unconnected with his
service hereunder.
12.2 The Executive agrees and undertakes that he will execute such deeds or
documents and do all such acts and things as may be necessary or desirable
to substantiate the rights of the Company in respect of the matters referred
to in this Clause. To secure his obligation under this Agreement the
Executive irrevocably appoints the Company to be his attorney in his name
and on his behalf to execute such deeds or documents and do all such acts
and things as may be necessary or desirable to substantiate the rights of
the Company in respect of the matters referred to in this Clause.
12.3 The Executive hereby irrevocably waives all moral rights that he had or
may have in any of the works referred to in Clause 12.1, subject to the
exception therein.
13. GRATUITIES AND CODES OF CONDUCT
13.1 The Executive shall comply with all codes of conduct from time to time
adopted by the Board or the Board of Directors of Holdings.
13.2 The Executive shall not, except in accordance with the Holdings Gift
and Hospitality Policy and any other code of conduct adopted by the Board of
Holdings or with the prior written consent of the Board, directly or
indirectly accept any commission, rebate, discount, gratuity or gift, in
cash or in kind from any person who has or is likely to have a business
relationship with the Company or any other Group Company and shall notify
the Company upon acceptance by the Executive of any commission, rebate,
discount, gratuity or gift in accordance with the Holdings Gift and
Hospitality Policy or any such code of conduct from time to time.
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14. RESTRICTIVE COVENANTS
14.1 For the purpose of this Clause:
"THE BUSINESS" means the business of the Group or any Group Company at the
date of termination of the Executive's employment with which the Executive
has been concerned to a material extent at any time in the Relevant Period;
references to the "GROUP" and "GROUP COMPANIES" shall only be reference to
the Group and Group Companies in respect of which the Executive has carried
out material duties in the Relevant Period;
"RELEVANT PERIOD" shall mean the period of 24 months immediately preceding
the date of termination of the Executive's employment or, in the event that
the Company exercises all or any of its rights under Clause 18.3, the period
of 24 months immediately preceding the date on which it exercises such
rights;
"RESTRICTED PERSON" shall mean any person who or which has at any time
during the Relevant Period done business with the Company or any other Group
Company as customer or client or consultant and whom or which the Executive
shall have had personal dealings with, contact with or responsibility for
(each, in a business or commercial capacity) during the Relevant Period;
"KEY EMPLOYEE" shall mean any person who at the date of termination of the
Executive's employment is employed or engaged by the Company or any other
Group Company with whom the Executive has had material contact during the
Relevant Period and (a) is employed or engaged in the capacity of Manager,
Underwriter or otherwise in a senior capacity or in any other capacity as
may be agreed in writing between the Executive Committee and the Executive
from time to time and/or (b) is in the possession of Confidential
Information and/or (c) is directly managed by or reports to the Executive.
14.2 The Executive covenants with the Company that he will not in connection
with the carrying on of any business in competition with the Business during
his employment and, in the event of resignation by the Executive (whether
with or without Good Reason) or dismissal of the Executive by the Company
(whether with or without Cause) for the period of 12 months after the
termination of his employment (such period to be reduced by the amount of
time during which, if at all, the Company exercises all or any of its rights
under Clause 18.3) without the prior written consent of the Board either
alone or jointly with or on behalf of any person directly or indirectly:
14.2.1 canvass, solicit or approach or cause to be canvassed or solicited or
approached for orders in respect of any services provided and/or any
products sold by the Company or any other Group Company any Restricted
Person;
14.2.2 solicit or entice away or endeavour to solicit or entice away from
the Company or any other Group Company any Key Employee.
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14.3 The Executive further covenants with the Company that, in the event of
resignation by the Executive (whether with or without Good Reason) or the
dismissal of the Executive by the Company without Cause he will not, for the
period of 12 months after the termination of his employment (such period to
be reduced by the amount of time during which, if at all, the Company
exercises all or any of its rights under Clause 18.3), be employed, engaged,
interested in or concerned with any business or undertaking which is engaged
in or carries on business in the United Kingdom, Bermuda or the USA which is
or is about to be in competition with the Business;
14.4 The covenants contained in Clauses 14.2.1, 14.2.2 and 14.3 are intended
to be separate and severable and enforceable as such. It is expressly
understood and agreed that although the Executive and the Company consider
the restrictions contained in this Clause 14 to be reasonable, if a final
judicial determination is made by a court of competent jurisdiction that the
time or territory or any other restriction contained in this Agreement is an
unenforceable restriction against the Executive, the provisions of this
Agreement shall not be rendered void but shall be deemed amended to apply as
to such maximum time and territory and to such maximum extent as such court
may judicially determine to be enforceable. Alternatively, if any court of
competent jurisdiction finds that any restriction contained in this
Agreement is unenforceable, and such restriction cannot be amended so as to
make it enforceable, such finding shall not affect the enforceability of any
of the other restrictions contained herein.
14.5 The Executive acknowledges and agrees that the Company's remedies at
law for a breach of any of the provisions of Clauses 11, 12 or 14 would be
inadequate and the Company would suffer irreparable damages as a result of
such breach. In recognition of this fact, the Executive agrees that, in the
event of such a breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to obtain equitable relief in
the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be
available.
15. TERMINATION BY RECONSTRUCTION OR AMALGAMATION; CHANGE IN CONTROL
15.1 If the employment of the Executive hereunder shall be terminated solely
by reason of the liquidation of any Group Company for the purposes of
amalgamation or reconstruction or as part of any arrangement for the
amalgamation of the undertaking of such Group Company not involving
liquidation (in each case, other than a "Change in Control", as defined
below) and the Executive shall be offered employment with the amalgamated or
reconstructed company on the same terms as the terms of this Agreement, the
Executive shall have no claim against the Company or any Group Company in
respect of the termination of his employment by the Company.
15.2 If the employment of the Executive hereunder shall be terminated by the
Company without Cause or by the Executive with Good Reason within the
six-month period prior to a Change in Control or within the two-year period
after a Change in Control, in addition to the benefits provided in Clause
19.2, the Executive shall be
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entitled to the following benefits: other than share options and other
equity-based awards granted prior to the date of this Agreement, which shall
vest and be exercisable in accordance with the terms of their grant
agreements, all share options and other equity-based awards shall
immediately vest and remain exercisable for the remainder of their terms;
For purposes of this Agreement, "Change in Control" shall have the same
meaning as under the Aspen Insurance Holdings 2003 Share Incentive Plan as
in effect as of the date hereof.
16. TERMINATION OF EMPLOYMENT by the company FOR CAUSE
16.1 The Company, without prejudice to any remedy which it may have against
the Executive for the breach or non-performance of any of the provisions of
this Agreement, may by notice in writing to the Executive forthwith
terminate his employment for "Cause". In the event the Company terminates
the Executive's employment for Cause, the Executive shall be entitled to
salary at his Salary Rate through the date of termination.
For purposes of this Agreement, "Cause" shall mean circumstances where the
Executive:
(a) becomes bankrupt or makes any arrangement or composition with his
creditors; or
(b) is convicted of any criminal offence (other than an offence under
road traffic legislation for which a penalty other than imprisonment is
imposed); or
(c) is guilty of any serious misconduct, any conduct tending to bring
the Company or any other Group Company or himself into disrepute, or any
material breach or non-observance of any of the provisions of this
Agreement, or conducts himself in a way which is materially prejudicial
or calculated to be materially prejudicial to the business of the Group;
or
(d) is guilty of any repeated breach or non-observance of any code of
conduct or fails or ceases to be registered (where such registration is,
in the reasonable opinion of the Board, required for the performance of
his duties) by any regulatory body in Bermuda or elsewhere.
17. TERMINATION OF EMPLOYMENT BY THE COMPANY WITHOUT CAUSE
17.1 The Company may terminate the employment of the Executive at any time
during the employment hereunder without Cause by either (i) giving to the
Executive 12 months' prior notice in writing; or (ii) terminating the
employment of the Executive immediately and paying the Executive in lieu of
the notice to which he would have otherwise been entitled under (i) above
(which payment in lieu shall be deemed to be included within the Severance
Payment referred to in Clause 19.2).
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18. TERMINATION OF EMPLOYMENT BY THE EXECUTIVE
18.1 The Executive shall have the right to terminate his employment at any
time for Good Reason by immediate notice if, following submission of the
written notice by the Executive to the Company detailing the events alleged
to constitute Good Reason in accordance with this Clause, the Company shall
have failed to cure such events within the 30 day period following
submission of such notice. For purposes of this Agreement, "Good Reason"
shall mean (i) a reduction in the Executive's annual base salary or annual
bonus opportunity, or the failure to pay or provide the same when due, (ii)
a material diminution in the Executive's duties, authority, responsibilities
or title, or the assignment to the Executive of duties or responsibilities
which are materially inconsistent with his positions, (iii) the removal of
the Executive from the position described in Clause 3, (iv) an adverse
change in the Executive's reporting relationship, or (v) the Company's
requiring the Executive to be based at any office or location more than
fifty (50) miles from the Executive's office as of the date hereof;
provided, however, that no such event(s) shall constitute "Good Reason"
unless the Company shall have failed to cure such event(s) within 30 days
after receipt by the Company from the Executive of written notice describing
in detail such event(s).
18.2 The Executive shall have the right to terminate his employment at any
time without Good Reason upon giving 12 months' prior written notice to the
Company.
18.3 If the Executive gives notice to terminate his employment without Good
Reason under Clause 18.2 or if the Executive seeks to terminate his
employment without Good Reason and without the notice required by Clause
18.2 or the Company gives notice to terminate the Executive's employment
under Clause 17.1(i), then provided the Company continues to provide the
Executive with the salary and contractual benefits in accordance with this
Agreement, the Company has, at its discretion, the right for the period (the
"GARDEN LEAVE PERIOD") then outstanding until the date of the termination of
the Executive's employment:
(a) to exclude the Executive from any premises of the Company or any
Group Company and require the Executive not to attend at any premises of
the Company or any Group Company; and/or
(b) to require the Executive to carry out no duties; and/or
(c) to require the Executive not to communicate or deal with any
employees, agents, consultants, clients or other representatives of the
Company or any other Group Company; and/or
(d) to require the Executive to resign with immediate effect from any
offices he holds with the Company or any other Group Company (and any
related trusteeships); and/or
(e) to require the Executive to take any holiday which has accrued under
clause 9 during the Garden Leave Period.
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The Executive shall continue to be bound by the duties set out in Clause 5
(insofar as they are compatible with being placed on garden leave), the
restrictions set out in Clause 14.2 and all duties of good faith and
fidelity during the Garden Leave Period
19. OBLIGATIONS UPON TERMINATION OF EMPLOYMENT; CERTAIN OTHER TERMINATIONS
19.1 Upon the termination of his employment hereunder for whatever reason
the Executive shall:
(a) deliver up to the Company all keys, credit cards, correspondence,
documents, specifications, reports, papers and records (including any
computer materials such as discs or tapes) and all copies thereof and
any other property (whether or not similar to the foregoing or any of
them) belonging to the Company or any other Group Company which may be
in his possession or under his control, and (unless prevented by the
owner thereof) any such property belonging to others which may be in his
possession or under his control and which relates in any way to the
business or affairs of the Company or any other Group Company or any
supplier, agent, distributor or customer of the Company or any other
Group Company, and he shall not without written consent of the Board
retain any copies thereof;
(b) if so requested send to the Company Secretary a signed statement
confirming that he has complied with Clause 19.1(a); and
(c) not at any time make any untrue or misleading oral or written
statement concerning the business and affairs of the Company or any
other Group Company or represent himself or permit himself to be held
out as being in any way connected with or interested in the business of
the Company or any other Group Company (except as a former employee for
the purpose of communicating with prospective employers or complying
with any applicable statutory requirements).
19.2 In the event of a termination of Executive's employment hereunder by
the Executive with Good Reason or by the Company without Cause (other than
by reason of death), the Executive shall be entitled to (a) salary at his
Salary Rate through the date in which his termination occurs; (b) the lesser
of (x) the target annual incentive award for the year in which the
Executive's termination occurs, and (y) the average of the annual incentive
awards received by the Executive in the prior three years (or, if less the
number of prior years in which the Executive was employed by the Company),
multiplied by a fraction, the numerator of which is the number of days that
the Executive was employed during the applicable year and the denominator of
which is 365; (c) subject to Clause 19.3 below, the sum of (x) the
Executive's highest Salary Rate during the term of this Agreement and (y)
the average bonus under the Company's annual incentive plan actually earned
by the Executive during the three years (or number of complete years
employed by the Company, if fewer) immediately prior to the year of
termination (the sum of (x) and (y) hereafter referred to as the "Severance
Payment"), and (d) the unpaid balance of all previously earned cash bonus
and other incentive awards with respect to
13
performance periods which have been completed, but which have not yet been
paid, all of which amounts shall be payable in a lump sum in cash within 30
days after his termination. In the event that the Company terminates the
Executive's employment without Cause under the provisions of Clause 17.1(ii)
the parties acknowledge that the Severance Payment will be inclusive of the
Executive's rights to be paid in lieu of the 12 months' notice period to
which he is entitled under that Clause.
19.3 In the event that the Executive's employment is terminated by the
Company without Cause under the provisions of Clause 17.1 (i) and the
Company exercises all or any of its rights under Clause 18.3 during the 12
months' notice period, the Severance Payment shall be reduced by a sum equal
to the total salary and bonus payments received by the Executive during the
Garden Leave Period.
19.4 Notwithstanding any other provision contained in this Agreement, in the
event that the Executive breaches any material provision of the Shareholder
Agreement between Executive and the Company, if such breach has a material
adverse effect on the Group and, if capable of remedy, is not remedied by
the Executive within 21 days of the Executive's receipt of a notice from the
Company requiring remedy to be made, the Company shall have the right to
terminate the employment of the Executive; provided that, notwithstanding
any other provision of this Agreement, upon such a termination, the
Executive shall be entitled to receive only salary at the Salary Rate up to
and including the date of termination. For the purposes of Clause 14 such
termination shall be deemed to be a termination for Cause.
19.5 Upon any termination of employment, the Executive shall be entitled to
(a) any expense reimbursement due to him and (b) other benefits (if any) in
accordance with the applicable plans and programs of the Company.
19.6 In the event of any termination of employment under this Agreement, the
Executive shall be under no obligation to seek other employment and there
shall be no offset against amounts due the Executive under this Agreement on
account of any remuneration attributable to any subsequent employment that
he may obtain.
20. EFFECT OF TERMINATION OF THIS AGREEMENT
20.1 The expiry or termination of this Agreement however arising shall not
operate to affect any of the provisions hereof which are expressed to
operate or have effect thereafter and shall not prejudice the exercise of
any right or remedy of either party accrued beforehand.
21. GENERAL RELEASE
Notwithstanding any provision herein to the contrary, prior to payment of
any amount pursuant to Clauses 15.2 and 19.2, the Executive shall execute a
valid general release, in the form attached hereto (except to the extent
that the Company considers that a change in law or any current practice
existing at the date of termination requires a modification to such
release), pursuant to which the Executive shall release the Group and its
shareholders, directors, officers, employees and agents, to the maximum
extent permitted
14
by law, from any and all claims the Executive may have against the Group
that relate to or arise out of the Executive's employment or termination of
employment, except such claims arising under this Agreement.
22. OTHER TERMS AND CONDITIONS
22.1 Pursuant to the Original Agreement, the following particulars are given
in compliance with the requirements of section 1 of the Employment Rights
Xxx 0000:
(a) The Executive's hours of work shall be the normal hours of work of
the Company which are from 9.00 am to 6.00 pm together with such
additional hours as may be necessary without additional remuneration for
the proper discharge of his duties hereunder to the satisfaction of the
Board.
(b) If the Executive is dissatisfied with any disciplinary decision or
if he has any grievance relating to his employment hereunder he should
refer such disciplinary decision or grievance to the Board and the
reference will be dealt with by discussion at and decision of a duly
convened meeting of the Board.
23. NOTICES
Any notice to be given hereunder shall be in writing. Notice to the
Executive shall be sufficiently served by being delivered personally to him
or be being sent by first class post addressed to him at his usual or last
known place of residence, Notice to the Company shall be sufficiently served
by being delivered to the Company Secretary or by being sent by first class
post to the registered office of the Company. Any notice if so posted shall
be deemed served upon the third day following that on which it was posted.
24. PREVIOUS AND OTHER AGREEMENTS
This Agreement shall take effect in substitution for all previous agreements
and arrangements (whether written, oral or implied) between the Company and
the Executive (including, without limitation, the Original Agreement)
relating to his employment which shall be deemed to have been terminated by
mutual consent with effect from the commencement of this Agreement.
25. ENTIRE AGREEMENT/AMENDMENT
This Agreement contains the entire understanding of the parties with respect
to the employment of the Executive by the Company. There are no
restrictions, agreements, promises, warranties, covenants or undertakings
between the parties with respect to the subject matter herein other than
those expressly set forth herein. This Agreement may not be altered,
modified, or amended except by written instrument signed by the parties
hereto.
15
26. ASSIGNMENT
This Agreement, and all of the Executive's rights and duties hereunder,
shall not be assignable or delegable by the Executive. Any purported
assignment or delegation by the Executive in violation of the foregoing
shall be null and void ab initio and of no force and effect. This Agreement
may be assigned by the Company to a person or entity that is the successor
in interest to substantially all of the business operations of the Company.
Upon such assignment, the rights and obligations of the Company hereunder
shall become the rights and obligations of such successor person or entity.
Failure by such successor of the Company to expressly assume this Agreement
shall constitute an event of "Good Reason", entitling Executive to the
Benefits set forth in Clause 15 or 19, as applicable.
27. SEVERABILITY
In the event that any one or more of the provisions of this Agreement shall
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions of this Agreement
shall not be affected thereby.
28. SUCCESSORS/BINDING AGREEMENT
This Agreement shall inure to the benefit of and be binding upon personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees of the parties hereto.
29. CO-OPERATION
During employment by the Company and thereafter, the Executive shall provide
his reasonable co-operation in connection with any action or proceeding (or
any appeal from any action or proceeding) that relates to events occurring
during the Executive's employment; provided, however, that after the
Executive's employment by the Company has ended, (i) any request for such
co-operation shall accommodate the demands of the Executive's then existing
schedule and (ii) if any such request will involve more than a de minimis
amount of the Executive's time, the Executive shall be entitled to
reasonable compensation therefor.
30. GOVERNING LAW
Bermuda law shall apply to this Agreement.
31. COUNTERPARTS
This Agreement may be signed in counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument.
16
IN WITNESS whereof this Agreement has been duly executed and delivered
as a deed the day and year first before written.
SIGNED as a Deed )
and DELIVERED by )
XXXXX XXXXXXX FEW )
in the presence of: )
Witness Signature:
Witness Name:
Witness Address:
Witness Occupation:
----------------------------------
ASPEN INSURANCE LIMITED
By:
-------------------------------
Name:
Title:
17
DATED
----------------------------
ASPEN INSURANCE LIMITED (1)
AND
XXXXX XXXXXXX FEW (2)
------------------------------------------
SEVERANCE AGREEMENT
------------------------------------------
LEBOEUF, LAMB, XXXXXX & XXXXXX
0 XXXXXXX XXXXX
XXXXXXX XXXX
XXXXXX XX0X 0XX
TEL: x00 (0)00 0000 0000
FAX: x00 (0)00 0000 0000
xxx.xxxx.xxx
------------
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THIS AGREEMENT is made as of the 10th day of March 2005
BETWEEN:
(1) ASPEN INSURANCE LIMITED, incorporated in the Islands of Bermuda whose
registered office is at Canon's Court, 0xx Xxxxx, 00 Xxxxxxxx Xxxxxx,
Xxxxxxxx XX00, Xxxxxxx (the "Company"); and
(2) XXXXX XXXXXXX FEW of [address] (hereinafter referred to as the "EXECUTIVE").
1. INTERPRETATION
(i) In this Agreement:
"Affiliate" means any entity directly or indirectly
controlling, controlled by, or under
common control with the Company; or any
other entity designated by the Board in
which the Company or an Affiliate has an
interest.
"Board" means the Board of Directors of the
Company from time to time;
"Group" means the Company and its Affiliates (and
"Group Company" means the Company or any
one of its Affiliates).; and
"Service Agreement" shall mean the service
agreement entered into between the
Executive and the Company dated [ ], as
subsequently amended.
2. TERMINATION DATE
The Executive's employment with the Company [will end][ended] on [date] (the
"TERMINATION DATE").
3. PAYMENT OF SALARY ETC
The Company will continue to provide the Executive with his salary and all
other contractual benefits up to the Termination Date in the normal way.
Within 14 days of the Termination Date the Company will also pay the
Executive in respect of his accrued but untaken holiday (less such deductions
for income tax and national insurance as are required by law).
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4. TERMINATION SUMS
Subject to the Executive agreeing to all of the conditions set out below, the
Company will pay the Executive the following sums:
(i) $[appropriate figure to be inserted] in respect of the Executive's
entitlement to an annual incentive award for the year in which the
termination of the Executive's employment with the Company occurs, as
calculated in accordance with Clause 19.2 (b) of the Service Agreement;
(ii) the sum of $[appropriate figure to be inserted] in respect of the
Executive's entitlement to a Severance Payment, as calculated and
defined in accordance with Clauses 19.2(c) and 19.3 of the Service
Agreement; and
(iii) the sum of $[appropriate figure to be inserted] in respect of the
Executive's entitlement to the unpaid balance of all previously earned
cash bonus and other incentive awards with respect to performance
periods which have been completed as at the Termination Date but not
yet paid, as calculated in accordance with Clause 19.2(d) of the
Service Agreement.
The sums set out in (i) to (iii) above will be subject to such deductions
for income tax and national insurance as are required by law and will be
paid to the Executive within [14] days of the date of signature by his of
this Agreement. Payment will be made by transfer to the Executive's bank
account.
5. SHARE OPTIONS
[The Company confirms that the extent to which share options held by the
Executive as at the Termination Date shall be exercisable following the
Termination Date will be determined solely in accordance with terms of the
agreements under which such share options were granted.] or [Other than in
relation to share options granted to the Executive prior to the date of the
Service Agreement, the Company confirms that all share options granted to the
Executive have vested and will remain exercisable for the remainder of their
terms.]
6. WAIVER OF CLAIMS
The Executive accepts the terms set out in this Agreement in full and final
settlement of all and any claims that he has or may have against the Company,
the Board or any other Group Company or any of its or their current or former
shareholders, directors, officers, employees or agents, whether contractual
(whether known or unknown, existing now or in the future), statutory or
otherwise, arising out of or in connection with his employment with the
Company or the termination of his employment. The Executive also agrees to
waive irrevocably and release the Company, the Board and all Group Companies
(and all of its or their current or former shareholders, directors, officers,
employees or agents) from and against any claims whether contractual (whether
known or unknown, existing now or in the future), statutory or otherwise,
arising out of or in connection with his employment with the Company or the
termination of his employment. This waiver shall
20
not apply in relation to any claim relating to his pension rights that have
accrued up to the Termination Date.
7. CONFIRMATION OF NO BREACHES
The Executive confirms and warrants to the Company that he has not at any
time during his employment committed a fundamental breach of the terms of the
Service Agreement.
8. SATISFACTION OF STATUTORY CONDITIONS
The Executive is aware of his rights under the Employment Xxx 0000 and the
Human Rights Amendment Act 1987 and has informed the Company of any and all
claims that he might seek to bring arising from his employment or termination
of employment. This agreement relates to his claims under the Employment Xxx
0000 and the Human Rights Amendment Xxx 0000.
9. POST-TERMINATION RESTRAINTS
The Executive acknowledges that the provisions of Clause 11 (Confidentiality)
and Clause 14 (Restrictive Covenants) of the Service Agreement will (to the
extent that they are applicable in the circumstances of the termination of
the Executive's employment with the Company) remain in full force and effect
notwithstanding the termination of his employment.
10. RETURN OF COMPANY PROPERTY
Before any payment under Clause 4 above is made, the Executive will, in
accordance with Clause 19.1(b) of the Service Agreement, deliver up to the
Company all vehicles, keys, credit cards, correspondence, documents,
specifications, reports, papers and records (including any computer materials
such as discs or tapes) and all copies thereof and any other property
(whether or not similar to the foregoing or any of them) belonging to the
Company or any other Group Company which may be in his possession or under
his control, and (unless prevented by the owner thereof) any such property
belonging to others which may be in his possession or under his control and
which relates in any way to the business or affairs of the Company or any
other Group Company or any supplier, agent, distributor or customer of the
Company or any other Group Company, and he confirms that he has not retained
any copies thereof.
11. CONFIDENTIALITY
Save by reason of any legal obligation or to enforce the terms of this
letter, the Executive will not:
21
(a) disclose the existence or terms of this Agreement to anyone (other than
to the Executive's professional advisers, the Inland Revenue or any
other competent authority or the Executive's spouse);
(b) directly or indirectly disseminate, publish or otherwise disclose (or
allow to be disseminated, published or otherwise disclosed) by any means
(whether oral, written or otherwise) or medium (including without
limitation electronic, paper, radio or television) any information
directly or indirectly relating to the termination of the Executive's
employment; or
(c) make any derogatory or disparaging comments about the Company, any Group
Company or any of its or their shareholders, directors, officers,
employees or agents.
12. NO ADMISSION OF LIABILITY
This agreement is made without any admission on the part of the Company or
any Group Company that it has or they have in any way breached any law or
regulation or that the Executive has any claims against the Company or any
Group Company.
13. TAX INDEMNITY
The Executive hereby agrees to be responsible for the payment of any tax and
employee's national insurance contributions imposed by any competent
taxation authority in respect of any of the payments and benefits provided
under this Agreement (other than for the avoidance of doubt, any tax and/or
employee's national insurance contributions deducted or withheld by the
Company in paying the sums to the Executive). The Executive further agrees
to indemnify the Company and all Group Companies and keep them indemnified
on an ongoing basis against any claim or demand which is made by any
competent taxation authority against the Company or any Group Company in
respect of any liability of the Company or any Group Company to deduct an
amount of tax or an amount in respect of tax or any employee's national
insurance contributions from the payments made and benefits provided under
this Agreement, including any related interest or penalties imposed by any
competent taxation authority.
14. ENTIRE AGREEMENT
This letter sets out the entire agreement between the Executive and the
Company and, save as set out in Clauses 5 and 9 above, supersedes all prior
arrangements, proposals, representations, statements and/or understandings
between the Executive, the Company and any Group Company.
15. APPLICABLE LAW
This agreement is subject to Bermuda law and the exclusive jurisdiction of
the Bermuda courts.
22
--------------------------------------------
Xxxxx Xxxxxxx Few
--------------------------------------------
dated
--------------------------------------------
For and on behalf of Aspen Insurance Limited
--------------------------------------------
dated
23
