EXHIBIT 10.7
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into as of
December 19, 2002 (the "Execution Date") between Endurance Specialty Insurance
Ltd., a Bermuda company (the "Company"), and Xxxxxx Xxxx (the "Executive").
WHEREAS, the Company desires to employ the Executive to serve as its
Executive Vice President Reinsurance Operations, and the Executive desires to be
employed by the Company, upon the terms and subject to the conditions set forth
herein; and
WHEREAS, this Agreement replaces that certain Employment Agreement,
dated as of December 19, 2001, between the Company and the Executive (the
"Original Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Company and the Executive hereby agree as
follows:
1. EMPLOYMENT. (a) Term. The Company hereby agrees to employ the
Executive and the Executive hereby agrees to be employed by the Company upon the
terms and subject to the conditions contained in this Agreement. The term of
employment of the Executive by the Company pursuant to this Agreement (the
"Employment Period") shall commence as of December 19, 2002 (the "Effective
Date") and shall end on the first anniversary of the Effective Date, unless
earlier terminated pursuant to Section 4 hereof.
(b) Expiration of Term. At the expiration of the term of this
Agreement, the Company may in its sole discretion offer employment to the
Executive pursuant to a separate employment agreement. If at the expiration of
the term of this Agreement the Company does not offer the Executive employment
pursuant to a separate employment agreement, the terms of which are at least as
favorable (determined as set forth below) to the Executive as the terms of this
Agreement (a "Separate Employment Agreement"), the Company shall agree to enter
into with the Executive a general release and nonsolicitation agreement
substantially in the form of Exhibit A hereto (the "Release and Nonsolicitation
Agreement"). For purposes of determining whether the terms of a Separate
Employment Agreement are at least as favorable to the Executive as the terms of
this Agreement, (i) the Separate Employment Agreement shall include the terms of
this Agreement, including this Section 1(b) and (ii) the term of payment of Base
Salary set forth in Section l(a) of Exhibit A to the Separate Employment
Agreement and the term of continuation of benefits set forth in Sections l(c)
and (d) of Exhibit A to the Separate Employment Agreement in no event shall
extend beyond December 19, 2007. Notwithstanding any other provision of this
Section 1(b), the Company shall not be required to enter into the Release and
Nonsolicitation Agreement if this Agreement terminates for a reason set forth in
Section 4 of this Agreement.
2. POSITION AND DUTIES. (a) Position. The Company shall employ the
Executive during the Employment Period as its Executive Vice President
Reinsurance
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Operations. The Executive shall report to the Chief Executive Officer of the
Company (the "CEO"). During the Employment Period, the Executive shall perform
faithfully and loyally and to the best of the Executive's abilities the duties
assigned to the Executive hereunder and shall devote the Executive's full
business time, attention and effort to the affairs of the Company and its
subsidiaries and shall use the Executive's reasonable best efforts to promote
the interests of the Company and its subsidiaries. The Executive may engage in
charitable, civic or community activities, provided that such activities do not
interfere with the Executive's duties hereunder or violate the terms of any of
the covenants contained in Section 6, 7 or 8 hereof.
(b) Duties. The Executive shall perform such duties as are normally
associated with the position of Executive Vice President Reinsurance Operations
on behalf of the Company and its subsidiaries as may from time to time be
authorized or directed by the board of directors of the Company (the "Board") or
by the CEO. Subject to the powers, authority and responsibilities vested in the
Board, in duly constituted committees of the Board and in the CEO, the Executive
shall have the authority and responsibility for Reinsurance Operations. The
Executive shall perform such duties in accordance with the Company's operational
guidelines.
3. COMPENSATION. (a) Base Salary. During the Employment Period, the
Company shall pay to the Executive a base salary at the rate of US $400,000 per
annum ("Base Salary"), payable in accordance with the Company's executive
payroll policy provided that payment is at least once a month.
(b) Annual Bonus. The Executive shall be eligible as of the end of the
Employment Period to receive an annual incentive bonus payable in cash ("Annual
Bonus") which shall be paid no later than 90 days after the end of the
Employment Period. The Annual Bonus shall be based upon (i) the performance of
the Company, (ii) the performance of the business unit or units of the Company
for which the Executive is responsible and (iii) the Executive's personal
contribution to the success of the Company, each as determined by the CEO in his
sole discretion. The Annual Bonus shall not exceed 125% of the Executive's Base
Salary as in effect at the end of the Employment Period.
(c) Relocation Expenses. The Company shall pay the Executive's proper
and reasonable expenses relating to the relocation of the Executive's primary
residence in a manner agreeable to the Company and the Executive upon the
termination of the Executive's employment by the Company. Prior to such payment
the Executive shall provide to the Company any substantiation for such expenses
requested by the Company.
(d) Housing Allowance. 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 Employment Period (including the Executive's
proper and reasonable expenses relating to the Executive's initial down payment
on a resident in Bermuda or the initial security necessary to obtain such
residence (the "Down Payment"). Prior to such payment the Executive shall
provide to the Company any substantiation for
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such expenses requested by the Company. Notwithstanding the foregoing, the
maximum amount the Company shall pay pursuant to this Section 3(d) for expenses
other than the Down Payment shall be US $150,000, which maximum amount shall be
prorated if the Employment Period terminates prior to the expiration of this
Agreement on the first anniversary of the Effective Date.
(e) Tax Gross-Up. To the extent that the Executive incurs any United
States federal or state ordinary income tax liability on account of the housing
allowance specified in Section 3(d) hereof, the Company shall reimburse the
Executive for all such tax liability incurred and all United States federal and
state ordinary income tax liability incurred as a result of the tax gross-up
payments specified pursuant to this Section 3(e).
(f) Automobile. During the Employment Period, the Company shall provide
the Executive with the use of an automobile and shall reimburse the Executive
for all proper and reasonable expenses relating to the operation thereof.
(g) Country Club Membership. The Company shall reimburse the Executive
for the dues (not including initiation fees), and the expenses approved by the
Company, in connection with the Executive's membership during the Employment
Period in Trenton Country Club.
(h) Health Club Membership. The Company shall reimburse the Executive
for the dues (not including initiation fees) in connection with the Executive's
membership during the Employment Period in a health club mutually agreed to by
the Executive and the Company.
(i) Other Benefits. During the Employment Period, the Executive shall
be entitled to participate in (i) medical and dental plans paid for by the
Company which shall provide full medical, hospitalization and dental benefits to
the Executive and his dependents without any payment contribution by the
Executive; (ii) a suitable pension arrangement in accordance with Bermuda law;
(iii) a 401(k)-type plan in which the Company will match in cash at the rate of
100% any and all contributions by the Executive; and (iv) any other employee
benefit plans made generally available to executives of the Company (such
benefits set forth in items (i), (ii), (iii) and (iv) hereof being hereinafter
referred to as the "Employee Benefits"). In connection with business travel, the
Executive shall be entitled to first class air accommodations and to
participate, at the Company's expense, in an air travel club selected by the
Executive. The Executive shall be entitled to five weeks of paid vacation (which
unused portion thereof may be carried over to any subsequent period of
employment by the Company at the discretion of the CEO). The Executive also
shall be entitled to take time off for illness in accordance with the Company's
policy for executives and to receive all other fringe benefits as are from time
to time made generally available to executives of the Company.
The benefits provided to the Executive shall include both short and
long term disability insurance. The short term insurance shall provide for
payment of 100% of Base Salary. The long term policy shall provide at least 60%
of Base Salary up to the Executive's attainment of age 65. The Company agrees to
pay, up to the Executive's
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attainment of age 65, the Executive amounts which shall be the difference
between the amount paid by the long term disability insurance and the
Executive's Base Salary. The Company shall also provide the following insurance:
life insurance equal to three times his Base Salary; accidental death and
dismemberment equal to three times his Base Salary; and business travel accident
benefits equal to three times his Base Salary.
(i) Expense Reimbursement. During the Employment Period, the Company
shall reimburse the Executive, in accordance with the Company's policies and
procedures, for all proper and reasonable expenses incurred by the Executive in
the performance of the Executive's duties hereunder.
4. TERMINATION. (a) Death. Upon the death of the Executive, this
Agreement shall automatically terminate and all rights of the Executive and the
Executive's heirs, executors and administrators to compensation and other
benefits under this Agreement shall cease immediately, except that the
Executive's heirs, executors or administrators, as the case may be, shall be
entitled to:
(i) accrued Base Salary through and including the date of the
Executive's death;
(ii) other Employee Benefits, as specified in Section 3(i), to which
the Executive was entitled on the date of the Executive's death in accordance
with the terms of the plans and programs of the Company;
(iii) payment, in accordance with the Company's executive payroll
policy, for each year during the period commencing on the date of the
Executive's death and ending on December 19, 2006, of an amount equal to the
Base Salary, which amount shall be prorated for any partial year during such
period of payment;
(iv) the exercise of the Option (as defined in the Original Agreement)
in accordance with the 20% Vesting Schedule, determined as if the Executive
continuously had remained an employee of the Company until December 19, 2006,
through and including December 19, 2007 and, to the extent not exercised during
such period, the Option shall terminate; and
(v) the continuation until December 19, 2006 of the Employee Benefits,
as specified in Section 3(i), to which the Executive was entitled on the date of
the Executive's death, subject to such changes thereto as are generally
applicable to the executives of the Company from time to time.
(b) Disability. The Company may, at its option, terminate this
Agreement upon 30 days prior written notice to the Executive if the Executive,
because of physical or mental incapacity or disability, fails to perform the
essential functions of the Executive's position, with or without reasonable
accommodation, required of the Executive hereunder for a continuous period of
270 days or any 270 days during the Employment Period. Upon such termination,
all obligations of the Company hereunder shall cease immediately, except that
the Executive shall be entitled to:
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(i) accrued Base Salary through and including the effective date of the
Executive's termination of employment;
(ii) other Employee Benefits, as specified in Section 3(i), to which
the Executive is entitled upon termination of employment in accordance with the
terms of the plans and programs of the Company;
(iii) payment, in accordance with the Company's executive payroll
policy, for each year during the period commencing on the date of the
Executive's termination of employment and ending on December 19, 2006, of an
amount equal to the Base Salary, which amount shall be prorated for any partial
year during such period of payment;
(iv) the exercise of the Option (as defined in the Original Agreement)
in accordance with the 20% Vesting Schedule, determined as if the Executive
continuously had remained an employee of the Company until December 19, 2006,
through and including December 19, 2007 and, to the extent not exercised during
such period, the Option shall terminate; and
(v) the continuation until December 19, 2006 of the Employee Benefits,
as specified in Section 3(i), to which the Executive was entitled on the date of
the Executive's termination of employment, subject to such changes thereto as
are generally applicable to the executives of the Company from time to time.
(c) Serious Misconduct or Repeated Misconduct. (i) The Company may, at
its option, terminate the Executive's employment under this Agreement for
Serious Misconduct or Repeated Misconduct (as each term hereinafter is defined)
upon written notice to the Executive (the "Termination Notice"). The Termination
Notice shall state the particular action(s) or omission(s) giving rise to
termination for Serious Misconduct or Repeated Misconduct.
(ii) As used in this Agreement, the term "Serious Misconduct" shall
mean:
(A) the Executive's conviction of a felony or of any
crime involving moral turpitude, fraud, embezzlement
or theft;
(B) any willful and intentional breach by the Executive
of any one or more of the covenants contained in
Section 6, 7 or 8 hereof, as determined by a court or
an arbitrator (pending such determination, the
Executive shall continue to receive his salary and
benefits);
(C) any willful and intentional violation by the
Executive of any statutory or common law duty of
loyalty to the Company or any of its subsidiaries, as
determined by a court or an arbitrator (pending such
determination, the
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Executive shall continue to receive his salary and
benefits); or
(D) any other action or omission by the Executive which
is considered to be serious misconduct under The
Employment Xxx 0000.
(iii) As used in this Agreement, the terms "Repeated Misconduct" shall
mean any one or more of the following actions or omissions and, within six
months of the date the Executive receives from the Board and the CEO a written
warning thereof, a repetition of such act or omission:
(A) any gross negligence, willful misconduct or gross
insubordination by the Executive; or
(B) any other action or omission by the Executive which
is considered to be misconduct under The Employment
Xxx 0000.
(iv) If the Company terminates Executive's employment under this
Agreement for Serious Misconduct, the Option (as defined in the Original
Agreement) shall terminate automatically on the date of the Executive's
termination of employment, and all obligations of the Company hereunder shall
cease, except that the Executive shall be entitled to the payments and benefits
specified in Sections 4(b)(i) and 4(b)(ii) hereof.
(v) If the Company terminates the Executive's employment under this
Agreement for Repeated Misconduct, all obligations of the Company hereunder
shall cease, except that the Executive shall be entitled to:
(A) the payments and benefits specified in Sections
4(b)(i) and 4(b)(ii) hereof;
(B) provided that the Executive executes a general
release substantially in the form of Exhibit B hereto
(the "General Release"), an amount equal to the Base
Salary for each year during the period commencing on
the date of the Executive's termination of employment
and ending on December 19, 2006 (which amount shall
be prorated for any partial year during such period
of payment), payable in accordance with the Company's
executive payroll policy;
(C) provided that the Executive executes the General
Release, the continuation of the Employee Benefits,
as specified in Section 3(i), to which the Executive
was entitled on the date of the Executive's
termination of employment until December 19, 2006
(subject to such changes thereto as are
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generally applicable to the executives of the Company
from time to time); and
(D) the exercise of the Option (as defined in the
Original Agreement) to the extent it is exercisable
on the date of the Executive's termination of
employment, through and including the date which is
90 days following the date of the Executive's
termination of employment, it being understood that
the portion of the Option which is not exercisable on
the date of the Executive's termination of employment
shall terminate on such date and the portion of the
Option which is exercisable on the date of the
Executive's termination of employment, if not
exercised during such 90-day period, shall terminate
as of the end of such 90-day period.
Notwithstanding Section 4(c)(v)(B) hereof, the amount payable to the Executive
under such Section 4(c)(v)(B) shall be reduced by the amount of salary, bonus or
other compensation which the Executive earns from a subsequent employer that
relates to the period for which the amount is payable to the Executive under
such Section 4(c)(v)(B); provided, however, that in no event shall the amount
payable to the Executive under Section 4(c)(v)(B) hereof be reduced to an amount
that is less than US $50,000 (such US $50,000 amount being attributable to the
consideration paid to the Executive for the general release and being referred
to hereinafter as the "General Release Consideration"). The Executive shall use
reasonable efforts to seek other employment for this purpose. In the event that
any provision of Section 6, 7 or 8 of this Agreement is not performed by the
Executive in accordance with its terms or is otherwise breached by the
Executive, the Company's payment to the Executive of the amount under Section
4(c)(v)(B) hereof (other than the General Release Consideration) and the
Company's provision to the Executive of the Employee Benefits under Section
4(c)(v)(C) hereof immediately shall cease and the Executive's right to any such
amount or benefits immediately shall be forfeited.
(d) Voluntary Termination. Upon 30 days prior written notice to the
Company (or such shorter period as may be permitted by the Board), the Executive
may, during the Employment Period, voluntarily terminate the Executive's
employment with the Company for any reason. If the Executive voluntarily
terminates the Executive's employment pursuant to this Section 4(d), (i) the
Option (as defined in the Original Agreement) shall be exercisable only to the
extent it is exercisable on the date of the Executive's termination of
employment and thereafter may be exercised by the Executive until the date which
is 90 days following the date of the Executive's termination of employment, it
being understood that the portion of the Option which is not exercisable on the
date of the Executive's termination of employment shall terminate on such date
and the portion of the Option which is exercisable on the date of the
Executive's termination of employment, if not exercised during such 90-day
period, shall terminate as of the end of such 90-day period and (ii) all
obligations of the Company hereunder shall
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cease immediately, except that the Executive shall be entitled to the payments
and benefits specified in Sections 4(b)(i) and 4(b)(ii) hereof.
5. TAX WITHHOLDING. The Company shall deduct from the amounts payable
to the Executive pursuant to this Agreement the amount of taxes that the Company
is required to withhold pursuant to applicable laws, rules and regulations.
6. NONCOMPETITION; NONSOLICITATION. (a) General. The Executive
acknowledges that in the course of the Executive's employment with the Company
the Executive will become familiar with trade secrets and other confidential
information concerning the Company and its subsidiaries and that the Executive's
services will be of special, unique and extraordinary value to the Company and
its subsidiaries.
(b) Noncompetition. The Executive agrees that during the Employment
Period the Executive shall not in any manner, directly or indirectly, through
any person, firm or corporation, alone or as a member of a partnership or as an
officer, director, stockholder, investor or employee of or consultant to any
other corporation or enterprise or otherwise, engage or be engaged, or assist
any other person, firm, corporation or enterprise in engaging or being engaged,
in the Business (as defined in this Section 6(b)) in any geographic area in
which the Company or any of its subsidiaries is then conducting such business.
For purposes of this Agreement, the "Business" shall mean any property or
casualty coverages underwritten by the Company or any of its subsidiaries as an
insurer or reinsurer during the Employment Period or the one-year period
immediately preceding the commencement of the Employment Period.
(c) Nonsolicitation. The Executive further agrees that during the
Employment Period the Executive shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company or any of
its subsidiaries to terminate or abandon his or her employment for any purpose
whatsoever or (ii) in connection with the Business, call on, service, solicit or
otherwise do business with any customer of the Company or any of its
subsidiaries.
(d) Exceptions. Nothing in this Section 6 shall prohibit the Executive
from being (i) a stockholder in a mutual fund or a diversified investment
company or (ii) an owner of not more than two percent of the outstanding stocks
of any class of a corporation, any securities of which are publicly traded, so
long as the Executive has no active participation in the business of such
corporation.
(e) Reformation. If, at any time of enforcement of this Section 6, a
court or an arbitrator holds that the restrictions stated herein are
unreasonable and/or unenforceable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable
and/or enforceable under such circumstances shall be substituted for the stated
period, scope or area and that the court or arbitrator shall be allowed to
revise the restrictions contained herein to cover the maximum period, scope and
area permitted by law. This Agreement shall not authorize a court or arbitrator
to increase or broaden any of the restrictions in this Section 6.
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7. Confidentiality. The Executive shall not, at any time during the
Employment Period, make use of or disclose, directly or indirectly, any (i)
trade secret or other confidential or secret information of the Company or of
any of its subsidiaries or (ii) other technical, business, proprietary or
financial information of the Company or of any of its subsidiaries not available
to the public generally or to the competitors of the Company or to the
competitors of any of its subsidiaries ("Confidential Information"), except to
the extent that such Confidential Information (a) becomes a matter of public
record or is published in a newspaper, magazine or other periodical or on
electronic or other media available to the general public, other than as a
result of any act or omission of the Executive, (b) is required to be disclosed
by any law, regulation or order of any court or regulatory commission,
department or agency, provided that the Executive gives prompt notice of such
requirement to the Company to enable the Company to seek an appropriate
protective order, or (c) is required to be used or disclosed by the Executive to
perform properly the Executive's duties under this Agreement. Promptly following
the termination of the Executive's employment with the Company, the Executive
shall surrender to the Company all records, memoranda, notes, plans, reports,
computer tapes and software and other documents and data which constitute
Confidential Information which the Executive may then possess or have under the
Executive's control (together with all copies thereof).
8. Inventions. During the Employment Period the Executive hereby
assigns to the Company the Executive's entire right, title and interest in and
to all discoveries and improvements, patentable or otherwise, trade secrets and
ideas, writings and copyrightable material, which may be conceived by the
Executive or developed or acquired by the Executive during the Employment
Period, which may pertain directly or indirectly to the business of the Company
or any of its subsidiaries. The Executive agrees to disclose fully all such
developments to the Company upon its request, which disclosure shall be made in
writing promptly following any such request. The Executive shall, upon the
Company's request, execute, acknowledge, and deliver to the Company all
instruments and do all other acts which are necessary or desirable to enable the
Company or any of its subsidiaries to file and prosecute applications for, and
to acquire, maintain and enforce, all patents, trademarks and copyrights in all
countries.
9. Enforcement. The parties hereto agree that the Company and its
subsidiaries would be damaged irreparably in the event that any provision of
Section 6, 7 or 8 of this Agreement was not performed in accordance with its
terms or was otherwise breached and that money damages would be an inadequate
remedy for any such nonperformance or breach. Accordingly, the Company and its
successors and permitted assigns shall be entitled, in addition to other rights
and remedies existing in their favor, to an injunction or injunctions to prevent
any breach or threatened breach of any of such provisions and to enforce such
provisions specifically (without posting a bond or other security). The
Executive agrees that the Executive will submit to the personal jurisdiction of
the courts of Philadelphia, Pennsylvania in any action by the Company to enforce
an arbitration award against the Executive or to obtain interim injunctive or
other relief pending an arbitration decision.
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10. Representations. The Executive represents and warrants to the
Company that (a) the execution, delivery and performance of this Agreement by
the Executive does not and will not conflict with, breach, violate or cause a
default under any contract, agreement, instrument, order, judgment or decree to
which the Executive is a party or by which the Executive is bound, (b) the
Executive is not a party to or bound by any employment agreement, noncompetition
agreement or confidentiality agreement with any other person or entity and (c)
upon the execution and delivery of this Agreement by the Company, this Agreement
shall be the valid and binding obligation of the Executive, and a valid and
binding obligation of the Company, enforceable in accordance with its terms.
11. Survival. Sections 6, 7, 8 and 9 of this Agreement shall survive
and continue in full force and effect in accordance with their respective terms,
notwithstanding any termination of the Employment Period.
12. Arbitration. Except as otherwise set forth in Section 9 hereof, any
dispute or controversy between the Company and the Executive, whether arising
out of or relating to this Agreement, the breach of this Agreement, or
otherwise, shall be settled by arbitration in Philadelphia, Pennsylvania
administered by the American Arbitration Association, with any such dispute or
controversy arising under this Agreement being so administered in accordance
with its Commercial Rules then in effect, and judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. Notwithstanding any choice of law provision included
in this Agreement, the United States Federal Arbitration Act shall govern the
interpretation and enforcement of this arbitration provision.
13. Indemnification. With respect to any claim, loss, damage or expense
(including attorneys' fees) arising from the performance by the Executive of his
duties as an officer or director of the Company, the Executive shall be entitled
to indemnification by the Company to the fullest extent permitted by law and to
reimbursement under any directors' and officers' liability insurance of the
Company that may be in effect from time to time.
14. Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed given when (a) delivered
personally or by overnight courier to the following address of the other party
hereto (or such other address for such party as shall be specified by notice
given pursuant to this Section) or (b) sent by facsimile to the following
facsimile number of the other party
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hereto (or such other facsimile number for such party as shall be specified by
notice given pursuant to this Section), with the confirmatory copy delivered by
overnight courier to the address of such party pursuant to this Section 14:
If to the Company, to:
Endurance Specialty Insurance Ltd.
00 Xxx-Xx-Xxxxx Xxxx
Xxxxx 000
Xxxxxxxx XX 00, Xxxxxxx
Xxxxxxxxx: Chief Executive Officer
Facsimile: (000) 000-0000
If to the Executive, to the residence, address or residence facsimile
number of the Executive set forth in the records of the Company.
15. SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement or the validity, legality or enforceability of such provision in any
other jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
16. ENTIRE AGREEMENT. This Agreement, including Exhibit A, Exhibit B
and the Non-Qualified Stock Option Agreement dated as of December 17, 2002,
between Endurance Specialty Holdings Ltd. and the Executive, constitutes the
entire agreement and understanding between the parties with respect to the
subject matter hereof and supersedes and preempts any prior understandings,
agreements (including any employment agreements) or representations by or
between the parties, written or oral, which may have related in any manner to
the subject matter hereof. Any employment agreement entered into between the
Company and the Executive prior to the date of this Agreement shall be of no
further force or effect.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable by the
Executive and the Executive's heirs, executors, administrators and legal
representatives, and by the Company and its successors and assigns. In the event
that following the termination of the Executive's employment the Executive shall
die at a time when the Executive is entitled to the continuation of any payments
or benefits hereunder, such payments or benefits shall continue to be provided
to the Executive's heirs, executors, administrators or legal representatives. In
the event the Company sells or transfers ownership to a successor or assign, the
Company agrees to require as a condition of the sale or transfer that the
successor or assign assume this Agreement, with the rights and obligations
attached thereto.
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18. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of Bermuda, without regard to
principles of conflict of laws.
19. AMENDMENT AND WAIVER. The provisions of this Agreement may be
amended or waived only by the written agreement of the Company and the
Executive, and no course of conduct or failure or delay in enforcing the
provisions of this Agreement shall affect the validity, binding effect or
enforceability of this Agreement.
20. COUNTERPARTS. This Agreement may be executed in two counterparts,
each of which shall be deemed to be an original and both of which together shall
constitute one and the same instrument.
21. SEPARATE EMPLOYMENT AGREEMENT. The parties hereto agree and
acknowledge that (i) this Agreement constitutes a Separate Employment Agreement
(as defined in the Original Agreement) and satisfies the requirements of Section
1(b) of the Original Agreement and (ii) the employment agreement entered into by
the parties on December 19, 2002 is null and void.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
Endurance Specialty Insurance Ltd.
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------------------------
Title: Chief Executive Officer
------------------------------------------------
Xxxxxx Xxxx
/s/ Xxxxxx X. Xxxx
------------------------------------------------------
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EXHIBIT A
GENERAL RELEASE AND NONSOLICITATION AGREEMENT
This General Release and Nonsolicitation Agreement (this "Release and
Nonsolicitation Agreement") is entered into as of December 19, 2001 between
Endurance Specialty Insurance Ltd., a Bermuda company (the "Company"), and
Xxxxxx Xxxx (the "Executive").
WHEREAS, the employment agreement between the Company and the Executive
(the "Employment Agreement") has expired and the Executive's employment with the
Company is terminating;
WHEREAS, the Executive has had 21 days to consider the form of this
Release and Nonsolicitation Agreement;
WHEREAS, the Company advised the Executive in writing to consult with
an attorney before signing this Release and Nonsolicitation Agreement;
WHEREAS, the Executive acknowledges that the payments and benefits to
be provided to the Executive pursuant to Section 1 of this Release and
Nonsolicitation Agreement are in consideration of, and are sufficient to
support, the general release set forth in Section 2 of this Release and
Nonsolicitation Agreement and the covenants set forth in Section 3 of this
Release and Nonsolicitation Agreement; and
WHEREAS, the Executive understands that the Company regards the
representations and covenants by the Executive in this Release and
Nonsolicitation Agreement as material and that the Company is relying on such
representations and covenants in providing the Executive with the payments and
benefits set forth in Section 1 of this Release and Nonsolicitation Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the Company and the Executive hereby agree as
follows:
1. Payments and Benefits. (a) Payments. The Company shall pay to the
Executive for each year during the period commencing on the date of the
termination of the Executive's employment and ending on December 19 2007, an
amount equal to the Base Salary (as defined in the Employment Agreement), which
amount shall be prorated for any partial year during such period of payment.
Payment of such Base Salary amount pursuant to this Section 1 shall be in
accordance with the Company's executive payroll policy. In addition, the Company
shall pay to the Executive as of each December 31, 2002, December 31, 2003,
December 31, 2004, December 31, 2005, December 31, 2006 and December 31, 2007, a
cash amount of US $100,000, to the extent that such amount previously shall not
have been paid to the Executive as an annul bonus during the Executive's
employment by the Company. The first US $50,000 paid to the Executive pursuant
to this Section 1(a) shall be paid to the Executive as consideration for the
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general release set forth in Section 2 of this Release and Nonsolicitation
Agreement (the "General Release Consideration").
(b) Continued Vesting of Stock Option. The Option (as defined in the
Employment Agreement, dated as of December 19, 2001, between the Company and the
Executive (the "Original Agreement")) granted to the Executive at the
commencement of the Executive's employment by the Company to purchase from the
Company 291,758 Ordinary Shares shall be exercisable in accordance with the 20%
Vesting Schedule (as defined in the Original Agreement), determined as if the
Executive continuously had remained an employee of the Company until December l9
, 2006, through and including March 31, 2007 and, to the extent not exercised
during such period, the Option shall terminate.
(c) Continuation of Benefits. The Employee Benefits (as defined in the
Employment Agreement) to which the Executive was entitled on the date of the
Executive's termination of employment shall continue until December l9, 2007
subject to such changes thereto as are generally applicable to the executives of
the Company from time to time.
(d) Continuation of Automobile Allowance and Country Club Membership.
The Company's reimbursement of the Executive for all proper and reasonable
expenses relating to the operation of an automobile, as specified in Section
3(h) of the Employment Agreement, and reimbursement of the Executive for dues
and certain expenses relating to the Executive's country club membership, as
specified in Section 3(i) of the Employment Agreement, shall continue until
December 19, 2007.
2. General Release. (a) General. The Executive, on behalf of the
Executive and anyone claiming through the Executive, hereby agrees not to xxx
the Company or any division, subsidiary, affiliate or other related entity of
the Company (whether or not such entity is wholly owned) or any of the past,
present or future directors, officers, administrators, trustees, fiduciaries,
employees, agents, attorneys or shareholders of the Company or any of such other
entities, or the predecessors, successors or assigns of any of them (hereinafter
referred to as the "Released Parties"), and agrees to release and discharge,
fully, finally and forever, the Released Parties from any and all claims, causes
of action, lawsuits, liabilities, debts, accounts, covenants, contracts,
controversies, agreements, promises, sums of money, damages, judgments and
demands of any nature whatsoever, in law or in equity, both known and unknown,
asserted or not asserted, foreseen or unforeseen, which the Executive ever had
or may presently have against any of the Released Parties arising from the
beginning of time up to and including the effective date of this Release and
Nonsolicitation Agreement, including, without limitation, all matters in any way
related to the Executive's employment by the Company or any of its affiliates,
the terms and conditions thereof, any failure to promote the Executive and the
termination or cessation of the Executive's employment with the Company or any
of its affiliates, and including, without limitation, any and all claims arising
under (i) The Employment Xxx 0000, the Human Rights Xxx 0000 or the Commission
for Unity and Racial Equality Xxx 0000, each enacted in Bermuda and as may be
amended from time to time or (ii) the Civil Rights Act of 1964,
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the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age
Discrimination in Employment Act, the Older Workers' Benefit Protection Act, the
Family and Medical Leave Act, the Americans With Disabilities Act or the
Employee Retirement Income Security Act of 1974, each enacted in the United
States and as may be amended from time to time, or any other Bermuda, United
States or foreign statute, regulation, ordinance or order, or pursuant to any
common law doctrine; provided, however, that nothing contained in this Release
and Nonsolicitation Agreement shall apply to, or release the Company from, any
obligation of the Company contained in the Employment Agreement or this Release
and Nonsolicitation Agreement. The General Release Consideration is accepted by
the Executive as being in full accord, satisfaction, compromise and settlement
of any and all claims or potential claims, and the Executive expressly agrees
that, except for the payments and benefits provided to the Executive under
Section 1 of this Release and Nonsolicitation Agreement and as provided in
Section 2(b) of this Release and Nonsolicitation Agreement, (i) Executive is not
entitled to, and shall not receive, any further recovery of any kind from the
Company or any of the other Released Parties and (ii) in the event of any
further proceedings whatsoever based upon any matter released herein, neither
the Company nor any of the other Released Parties shall have any further
monetary or other obligation of any kind to the Executive, including any
obligation for any costs, expenses or attorneys' fees incurred by or on behalf
of the Executive. The Executive agrees that the Executive has no present or
future right to employment with the Company or any of the other Released
Parties.
(b) Unenforceability. In the event that the general release set forth
in Section 2(a) of this Release and Nonsolicitation Agreement is found by an
arbitrator or other appropriate decisionmaker to be unenforceable and the
Executive subsequently obtains a monetary award payable by the Company or any of
the other Released Parties, the arbitrator or other decisionmaker shall have the
authority to reduce such monetary award by the lesser of (i) the General Release
Consideration and (ii) the amount of the monetary award.
(c) Representations. The Executive expressly represents and warrants
that the Executive is the sole owner of the actual and alleged claims, demands,
rights, causes of action and other matters that are released herein; that the
same have not been transferred or assigned or caused to be transferred or
assigned to any other person, firm, corporation or other legal entity; and that
the Executive has the full right and power to grant, execute and deliver the
general release, undertakings and agreements contained herein.
3. Nonsolicitation. (a) General. The Executive acknowledges that in the
course of the Executive's employment with the Company the Executive has become
familiar with trade secrets and other confidential information concerning the
Company and its subsidiaries and that the Executive's services were of special,
unique and extraordinary value to the Company and its subsidiaries. The
Executive agrees that during the period commencing on the date of the
Executive's termination of employment and ending on December 19, 2007, the
Executive shall not (i) in any manner, directly or indirectly, induce or attempt
to induce any employee of the Company or any of its subsidiaries to terminate or
abandon his or her employment for any purpose whatsoever
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or (ii) in connection with any Business (as defined in the Employment Agreement)
call on, service, solicit or otherwise do business with any customer of the
Company or any of its subsidiaries unless either is to comply with the
stipulation for re-employment as outlined in Section 4(c) of the Employment
Agreement.
(b) Reformation. If, at any time of enforcement of this Section 3, a
court or an arbitrator holds that the restrictions stated herein are
unreasonable and/or unenforceable under circumstances then existing, the parties
hereto agree that the maximum period, scope or geographical area reasonable
and/or enforceable under such circumstances shall be substituted for the stated
period, scope or area and that the court or arbitrator shall be allowed to
revise the restrictions contained herein to cover the maximum period, scope and
area permitted by law. This Release and Nonsolicitation Agreement shall not
authorize a court or arbitrator to increase or broaden any of the restrictions
in this Section 3.
4. Tax Withholding. The Company shall deduct from the amount payable to
the Executive pursuant to this Release and Nonsolicitation Agreement the amount
of taxes that the Company is required to withhold pursuant to applicable laws,
rules and regulations.
5. Breach of Agreement. In the event that any provision of Section 3 of
this Release and Nonsolicitation Agreement is not performed by the Executive in
accordance with its terms or is otherwise breached by the Executive, the Company
immediately shall cease providing the Executive with the payments and benefits
set forth in Sections 1(a), (c) and (d) of this Release and Nonsolicitation
Agreement, other than the General Release Consideration, and the Executive's
right to any such payments and benefits immediately shall be forfeited.
6. Enforcement. The Executive acknowledges that the Company and its
subsidiaries would be damaged irreparably in the event that any provision of
Section 3 of this Release and Nonsolicitation Agreement was not performed in
accordance with its terms or was otherwise breached and that money damages would
be an inadequate remedy for any such nonperformance or breach. Accordingly, the
Executive agrees that the Company and its successors and permitted assigns shall
be entitled, in addition to other rights and remedies existing in their favor,
to an injunction or injunctions to prevent any breach or threatened breach of
such provision and to enforce such provision specifically (without posting a
bond or other security). The Executive agrees that the Executive will submit to
the personal jurisdiction of the courts of Bermuda in any action by the Company
to enforce an arbitration award against the Executive or to obtain interim
injunctive or other relief pending an arbitration decision.
7. ACKNOWLEDGMENT BY EXECUTIVE. BY EXECUTING THIS RELEASE AND
NONSOLICITATION AGREEMENT, THE EXECUTIVE EXPRESSLY ACKNOWLEDGES THAT THE
EXECUTIVE HAS READ THIS RELEASE AND NONSOLICITATION AGREEMENT CAREFULLY, THAT
THE EXECUTIVE FULLY UNDERSTANDS ITS TERMS AND CONDITIONS, THAT THE EXECUTIVE HAS
BEEN ADVISED TO CONSULT WITH AN ATTORNEY
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PRIOR TO EXECUTING THIS RELEASE AND NONSOLICITATION AGREEMENT, THAT THE
EXECUTIVE HAS BEEN ADVISED THAT THE EXECUTIVE HAS 21 DAYS WITHIN WHICH TO
DECIDE WHETHER OR NOT TO EXECUTE THIS RELEASE AND NONSOLICITATION AGREEMENT AND
THAT THE EXECUTIVE INTENDS TO BE LEGALLY BOUND BY IT. DURING A PERIOD OF SEVEN
DAYS FOLLOWING THE DATE OF THE EXECUTIVE'S EXECUTION OF THIS RELEASE AND
NONSOLICITATION AGREEMENT, THE EXECUTIVE SHALL HAVE THE RIGHT TO REVOKE THE
RELEASE OF CLAIMS SET FORTH IN SECTION 2 OF THIS RELEASE AND NONSOLICITATION
AGREEMENT BY SERVING WITHIN SUCH PERIOD WRITTEN NOTICE OF REVOCATION.
8. Arbitration. Except as otherwise set forth in Section 6 hereof, any
dispute or controversy between the Company and the Executive, whether arising
out of or relating to this Release and Nonsolicitation Agreement, the breach of
this Release and Nonsolicitation Agreement, or otherwise, shall be settled by
arbitration in Bermuda administered by the American Arbitration Association,
with any such dispute or controversy arising under this Release and
Nonsolicitation Agreement being so administered in accordance with its
Commercial Rules then in effect, and judgment on the award rendered by the
arbitrator may be entered in any court having jurisdiction thereof. The
arbitrator shall have the authority to award any remedy or relief that a court
of competent jurisdiction could order or grant, including, without limitation,
the issuance of an injunction. However, either party may, without inconsistency
with this arbitration provision, apply to any court having jurisdiction over
such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is
otherwise resolved. Except as necessary in court proceedings to enforce this
arbitration provision or an award rendered hereunder, or to obtain interim
relief, neither a party nor an arbitrator may disclose the existence, content or
results of any arbitration hereunder without the prior written consent of the
Company and the Executive. Notwithstanding any choice of law provision included
in this Release and Nonsolicitation Agreement, the United States Federal
Arbitration Act shall govern the interpretation and enforcement of this
arbitration provision.
9. Entire Agreement. The Employment Agreement, this Release and
Nonsolicitation Agreement and the Non-Qualified Stock Option Agreement, dated as
of December 17, 2002, between Endurance Specialty Holdings Ltd. and the
Executive (the "Option Agreement") constitute the entire understanding between
the parties. The Executive has not relied on any oral statements that are not
included in the Employment Agreement, this Release and Nonsolicitation Agreement
or the Option Agreement.
10. Severability. If any provision of this Release and Nonsolicitation
Agreement shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision hereof, and this Release
and Nonsolicitation Agreement shall be construed and enforced as if such
provision had not been included herein.
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11. Successors and Assigns. This Release and Nonsolicitation Agreement
shall be enforceable by the Executive and the Executive's heirs, executors,
administrators and legal representatives, and by the Company and its successors
and assigns. In the event that the Executive shall die at a time when the
Executive is entitled to the continuation of any payments or benefits hereunder,
such payments or benefits shall continue to be provided to the Executive's
heirs, executors, administrators or legal representatives.
12. Governing Law. This Release and Nonsolicitation Agreement shall be
construed, interpreted and applied in accordance with the internal laws of
Bermuda without regard to the principles of conflicts of laws.
13. Counterparts. This Release and Nonsolicitation Agreement may be
executed in two counterparts, each of which shall be deemed to be an original
and both of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Release and
Nonsolicitation Agreement as of the date first written above.
Endurance Specialty Insurance Ltd.
By:_________________________________________
Title:______________________________________
Xxxxxx Xxxx
____________________________________________
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EXHIBIT B
GENERAL RELEASE
This General Release is executed by Xxxxxx Xxxx (the "Executive").
WHEREAS, the Executive's employment with Endurance Specialty Insurance
Ltd., a Bermuda company (the "Company"), is terminating;
WHEREAS, the Executive has had 21 days to consider the form of this
General Release;
WHEREAS, the Company advised the Executive in writing to consult with
an attorney before signing this General Release;
WHEREAS, the Executive acknowledges that the amount to be paid to the
Executive pursuant to Section 4(c)(v)(B) of the employment agreement between the
Company and the Executive (the "Employment Agreement"), and the benefits to be
provided to the Executive pursuant to Section 4(c)(v)(C) of the Employment
Agreement, are in consideration of, and are sufficient to support, the general
release set forth in Section 2 of this General Release; and
WHEREAS, the Executive understands that the Company regards the
representations and covenants by the Executive in this General Release as
material and that the Company is relying on such representations and covenants
in paying the Executive the amount set forth in Section 4(c)(v)(B) of the
Employment Agreement and in providing the Executive the benefits set forth in
Section 4(c)(v)(C) of the Employment Agreement.
THE EXECUTIVE THEREFORE AGREES AS FOLLOWS:
1. Payments. The Executive's employment with the Company shall
terminate on __________________, and the Executive shall receive a certain
amount pursuant to Section 4(c)(v)(B) of the Employment Agreement and certain
benefits pursuant to Section 4(c)(v)(C) of the Employment Agreement in
accordance with the terms and subject to the conditions thereof.
2. General Release. (a) General. The Executive, on behalf of the
Executive and anyone claiming through the Executive, hereby agrees not to xxx
the Company or any division, subsidiary, affiliate or other related entity of
the Company (whether or not such entity is wholly owned) or any of the past,
present or future directors, officers, administrators, trustees, fiduciaries,
employees, agents, attorneys or shareholders of the Company or any of such other
entities, or the predecessors, successors or assigns of any of them (hereinafter
referred to as the "Released Parties"), and agrees to release and discharge,
fully, finally and forever, the Released Parties from any and all claims, causes
of action, lawsuits, liabilities, debts, accounts, covenants,
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contracts, controversies, agreements, promises, sums of money, damages,
judgments and demands of any nature whatsoever, in law or in equity, both known
and unknown, asserted or not asserted, foreseen or unforeseen, which the
Executive ever had or may presently have against any of the Released Parties
arising from the beginning of time up to and including the effective date of
this General Release, including, without limitation, all matters in any way
related to the Executive's employment by the Company or any of its affiliates,
the terms and conditions thereof, any failure to promote the Executive and the
termination or cessation of the Executive's employment with the Company or any
of its affiliates, and including, without limitation, any and all claims arising
under (i) The Employment Xxx 0000, the Human, Rights Xxx 0000 or the Commission
for Unity and Racial Equality Xxx 0000, each enacted in Bermuda and as may be
amended from time to time or (ii) the Civil Rights Act of 1964, the Civil Rights
Act of 1991, the Civil Rights Act of 1866, the Age Discrimination in Employment
Act, the Older Workers' Benefit Protection Act, the Family and Medical Leave
Act, the Americans With Disabilities Act or the Employee Retirement Income
Security Act of 1974, each enacted in the United States and as may be amended
from time to time, or any other Bermuda, United States or foreign statute,
regulation, ordinance or order, or pursuant to any common law doctrine;
provided, however, that nothing contained in this General Release shall apply
to, or release the Company from, any obligation of the Company contained in the
Employment Agreement or this General Release. The General Release Consideration
(as defined in Section 4(c)(v) of the Employment Agreement) is accepted by the
Executive as being in full accord, satisfaction, compromise and settlement of
any and all claims or potential claims, and the Executive expressly agrees that,
except for the amount payable to the Executive under Section 4(c)(v)(B) of the
Employment Agreement, the benefits to be provided to the Executive under Section
4(c)(v)(C) of the Employment Agreement and as provided in Section 2(b) of this
General Release, (i) the Executive is not entitled to, and shall not receive,
any further recovery of any kind from the Company or any of the other Released
Parties and (ii) in the event of any further proceedings whatsoever based upon
any matter released herein, neither the Company nor any of the other Released
Parties shall have any further monetary or other obligation of any kind to the
Executive, including any obligation for any costs, expenses or attorneys' fees
incurred by or on behalf of the Executive. The Executive agrees that the
Executive has no present or future right to employment with the Company or any
of the other Released Parties.
(b) Unenforceability. In the event that the general release set forth
in Section 2(a) of this General Release is found by an arbitrator or other
appropriate decisionmaker to be unenforceable and the Executive subsequently
obtains a monetary award payable by the Company or any of the other Released
Parties, the arbitrator or other decisionmaker shall have the authority to
reduce such monetary award by the lesser of (i) the General Release
Consideration and (ii) the amount of the monetary award.
(c) Representations. The Executive expressly represents and warrants
that the Executive is the sole owner of the actual and alleged claims, demands,
rights, causes of action and other matters that are released herein; that the
same have not been transferred or assigned or caused to be transferred or
assigned to any other person, firm, corporation or other legal entity; and that
the Executive has the full right and power to
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grant, execute and deliver the general release, undertakings and agreements
contained herein.
3. ACKNOWLEDGMENT BY EXECUTIVE. BY EXECUTING THIS GENERAL RELEASE, THE
EXECUTIVE EXPRESSLY ACKNOWLEDGES THAT THE EXECUTIVE HAS READ THIS GENERAL
RELEASE CAREFULLY, THAT THE EXECUTIVE FULLY UNDERSTANDS ITS TERMS AND
CONDITIONS, THAT THE EXECUTIVE HAS BEEN ADVISED TO CONSULT WITH AN ATTORNEY
PRIOR TO EXECUTING THIS GENERAL RELEASE, THAT THE EXECUTIVE HAS BEEN ADVISED
THAT THE EXECUTIVE HAS 21 DAYS WITHIN WHICH TO DECIDE WHETHER OR NOT TO EXECUTE
THIS GENERAL RELEASE AND THAT THE EXECUTIVE INTENDS TO BE LEGALLY BOUND BY IT.
DURING A PERIOD OF SEVEN DAYS FOLLOWING THE DATE OF THE EXECUTIVE'S EXECUTION OF
THIS GENERAL RELEASE, THE EXECUTIVE SHALL HAVE THE RIGHT TO REVOKE THIS GENERAL
RELEASE BY SERVING WITHIN SUCH PERIOD WRITTEN NOTICE OF REVOCATION.
4. ENTIRE AGREEMENT. The Employment Agreement and this General Release
constitute the entire understanding between the parties. The Executive has not
relied on any oral statements that are not included in the Employment Agreement
or this General Release.
5. SEVERABILITY. If any provision of this General Release shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
any other provision hereof, and this General Release shall be construed and
enforced as if such provision had not been included herein.
6. GOVERNING LAW. This General Release shall be construed, interpreted
and applied in accordance with the internal laws of Bermuda without regard to
the principles of conflicts of laws.
Date: _______________________________ ____________________________
Xxxxxx Xxxx
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