[Exhibit 10.3]
ADVISORY AGREEMENT
THIS ADVISORY AGREEMENT (the "Agreement") is made as of the 7th day of
December, 2005, between Validus Holdings, Ltd. (including its successors and
assigns, the "Company"), a company with limited liability organized under the
laws of Bermuda, and Aquiline Capital Partners LLC (the "Advisor"), a Delaware
limited liability company.
The parties hereto hereby agree as follows:
1. Services Rendered by the Advisor to the Company. The Advisor has and
shall continue to, by and through itself and its officers, employees and
representatives as it shall designate in its sole discretion from time to time,
provide advisory and consulting services in relation to the affairs of the
Company and its subsidiaries with respect to:
(a) the formation and initial capitalization of the Company and its
subsidiaries;
(b) subject to the authority of the Company's board of directors (the
"Board"), the structure and timing of public and private offerings of debt
and equity securities of the Company and its subsidiaries and other
financings;
(c) subject to the authority of the Board, property dispositions or
acquisitions; and
(d) such other advice directly related or ancillary to the advisory
services, in the case of (a)-(c) above, as may be mutually agreeable to
each of them and the Board.
The Advisor shall at all times be an independent contractor and nothing in
this Agreement shall be construed to constitute the Advisor as an agent or a
partner of the Company.
2. Fees. In consideration for services rendered to date, as well as
services to be rendered, the Company agrees to pay an advisory fee (the
"Advisory Fee") to the Advisor (or its designee) in an amount equal to
$1,000,000 per annum, such fee being being due in full on the date that is
thirty days following the first funding of the Company's offering of common
shares and each anniversary of the date hereof.
3. Term. This Agreement shall become effective upon its execution, and
shall automatically terminate on the day before the fifth anniversary of the
date hereof (the "Termination Date"); provided, that the Company may terminate
this Agreement at any time after the date hereof upon payment in full to the
Advisor of the remaining Advisory Fees that would otherwise be paid by the
Company if the Agreement were terminated on the Termination Date.
Notwithstanding the foregoing, the provisions of Paragraph 6 shall survive the
termination date.
4. Change of Control; First Public Offering. Prior to the Termination Date,
upon the earlier to occur of (a) a Change of Control (as defined in the Bye-laws
of the Company (the "Bye-laws") and (b) the First Public Offering (as defined in
the Bye-laws), the Company shall immediately pay in full to the Advisor the
remaining Advisory Fees that would otherwise be paid by the Company if the
Agreement were terminated on the Termination Date and this Agreement shall
terminate.
5. Expenses. The Company agrees to pay on demand all of the Advisor's
reasonable documented out-of-pocket expenses directly incurred in connection
with providing services under this Agreement.
6. Indemnity. In consideration of the execution and delivery of this
Agreement by the Advisor, the Company hereby agrees to indemnify, exonerate and
hold each of the Advisor and its affiliates, and each of their respective,
equityholders, directors, officers, fiduciaries, employees and agents
(collectively, the "Indemnitees") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities and damages, and expenses
in connection therewith, including without limitation reasonable attorneys' fees
and disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnitees or any of them as a result of, or arising out of, or relating to the
execution, delivery, performance, enforcement or existence of this Agreement or
the transactions contemplated hereby or thereby except for any such Indemnified
Liabilities arising solely on account of such Indemnitee's gross negligence or
willful misconduct, and if and to the extent that the foregoing undertaking may
be unenforceable for any reason, the Company hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. None of the Indemnitees
shall be liable to the Company or any of its affiliates for any act or omission
suffered or taken by such Indemnitee that does not constitute gross negligence
or willful misconduct
7. Miscellaneous.
(a) No amendment or waiver of any term, provision or condition of this
Agreement shall be effective, unless in writing and executed by each of the
Advisor and the Company. No waiver on any one occasion shall extend to or
effect or be construed as a waiver of any right or remedy on any future
occasion. No course of dealing of any person nor any delay or omission in
exercising any right or remedy shall constitute an amendment of this
Agreement or a waiver of any right or remedy of any party hereto.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to any choice
or conflict of law provision or rule that would cause the application of
the laws of any other jurisdiction.
(c) This Agreement contains the entire understanding of the parties
with respect to the subject matter hereof and supersedes any prior
communication or agreement with respect thereto.
(d) All notices, demands, and communications of any kind which any
party may require or desire to serve upon any other party under this
Agreement shall be in writing and shall be served upon such other party as
specified below by personal delivery to the address set forth for it below
or to such other address as such party shall have specified by notice to
each other party or by mailing a copy thereof by certified or registered
mail, or by any reputable overnight courier service, postage prepaid, with
return receipt requested, addressed to such party and copied persons at
such addresses. In the case of service by personal delivery, it shall be
deemed complete on the first business day after the date of actual delivery
to such address. In case of service by mail or by overnight courier, it
shall be deemed complete, whether or not received, on the third day after
the date of mailing as shown by the registered or certified mail receipt or
courier service receipt. Notwithstanding the foregoing, notice to any party
or copied person of change of address shall be deemed complete only upon
actual receipt by an officer or agent of such party or copied person.
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If to the Company, at:
Validus Holdings, Ltd.
Mintflower Place
8 Par-La-Ville Road, Third Floor
Xxxxxxxx HMO8 Bermuda
Attn: Xxxxxx Xxxxxx
If to the Advisor, at:
Aquiline Capital Partners, LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(e) If in any judicial proceedings a court shall refuse to enforce any
provision of this Agreement, then such unenforceable provision shall be
deemed eliminated from this Agreement for the purpose of such proceedings
to the extent necessary to permit the remaining provisions to be enforced.
(f) This Agreement may be executed in any number of counterparts and
by each of the parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and all of which together
shall constitute one and the same agreement.
[signature page follows]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be duly
executed and delivered as of the date first above written.
VALIDUS HOLDINGS, LTD.
By:
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Name: Xxxxxx X. Xxxxxx
Title: Chief Executive Officer
AQUILINE CAPITAL PARTNERS LLC
By:
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Name:
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Title:
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