Exhibit 10.11.4
EMPLOYMENT AGREEMENT
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XXXXXX X. XXXXXXXX, XX.
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SERVICE AGREEMENT
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(amended and restated as of August 19, 1996)
AGREEMENT, made and entered into this 19/th/ day of August, 1996 by
and between Mid Ocean Reinsurance Company Ltd., a Bermuda corporation (the
"COMPANY"), Mid Ocean Limited, a Cayman Islands corporation (the "PARENT"), and
Xxxxxx X. Xxxxxxxx, Xx. (the "EXECUTIVE").
WHEREAS, on November 1, 1992, the Company and the Executive entered
into a Service Agreement (the "1992 AGREEMENT") pursuant to which the Company
agreed to have the Executive serve, and the Executive agreed to serve, as
Chairman of its Board of Directors (the "BOARD") and a member of its Executive
Committee, subject to the terms and condition of the 1992 Agreement; and
WHEREAS, on June 23, 1993, the Company, Parent and the Executive
agreed to amend the 1992 Agreement (as amended, the "PRIOR AGREEMENT") to
provide, among other things, that Executive would serve as Chairman of Parent's
Board of Directors (the "PARENT BOARD"), subject to the terms and conditions of
the Prior Agreement;
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WHEREAS, the Company, Parent and Executive desire to amend and restate
the Prior Agreement as set forth herein;
WHEREAS, the Executive wishes to continue to serve as Chairman of the
Board and the Parent Board and a member of the Executive Committees of the Board
and the Parent Board under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the Company, the
Executive and the Parent (the "PARTIES") agree as follows:
1. TERM OF SERVICE.
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The term of service under this Agreement shall commence on August 19,
1996 (the "DATE OF THE AGREEMENT") and shall continue through the close of
business on the third anniversary of the Date of the Agreement, subject to
earlier termination as provided in Section 8, below. Thereafter such term shall
automatically be renewed for successive one-year periods unless the Company and
Parent give notice in writing to the Executive or the Executive gives notice in
writing to the Company and Parent at least six months prior to the then
scheduled expiration date that the term is not to so renew.
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2. POSITIONS, DUTIES AND RESPONSIBILITIES.
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(A) GENERAL. It is the intention of the Parties that the
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Executive shall serve throughout his term of service hereunder as Chairman of
the Board and a member of the Executive Committee of the Board with the duties,
responsibilities and authorities normally associated with those positions. It is
understood that the Executive will not become a resident of Bermuda. The amount
of time the Executive will spend in Bermuda and Europe shall be in the
discretion of the Executive, except for the amount of time necessary for him to
attend meetings of the Board and of committees of the Board of which he is a
member. The Executive's services under this Agreement shall be performed outside
the United States.
(B) ADDITIONAL DUTIES. In addition to the positions, duties and
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responsibilities of the Executive with respect to his positions at the Company
as set forth in the preceding paragraph (a), the Executive shall also serve
throughout his term of service hereunder as Chairman of the Parent Board and a
member of the Executive Committee of the Parent Board, with the duties,
responsibilities and authorities normally associated with those positions. It
is understood that the Executive will not become a resident of the Cayman
Islands.
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(C) PERMITTED ACTIVITIES. Anything herein to the contrary
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notwithstanding, nothing shall preclude the Executive from (i) serving on the
boards of directors of a reasonable number of other corporations or the boards
of a reasonable number of trade associations and/or charitable organizations,
(ii) engaging in charitable, community and other business affairs and (iii)
managing his personal investments and affairs, provided such activities do not
materially interfere with the proper performance of his duties and
responsibilities as the Company's Chairman of the Board and Parent's Chairman of
the Board.
3. BASE FEE.
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The Executive shall be paid a Base Fee by the Company at an annual
rate of US$325,000, payable in accordance with the Company's regular pay
practices. Such Base Fee shall be subject to review for Increase at the
discretion of the Executive Committee of the Parent Board.
4. ANNUAL BONUS.
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In addition to the Base Fee provided for in Section 3, above, the
Executive may be awarded such annual bonuses as may be determined by the
Executive Committee of the Parent Board, based on whatever incentive programs
have been adopted
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by the Company or Parent for senior executives of the Company or Parent, as well
as the performance of the Executive and the performance of the Company or
Parent. Any bonus shall be paid in cash in a lump sum promptly following
determination thereof.
5. SHARE PURCHASE OPTION.
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Concurrently with the execution of the 1992 Agreement, the Company and
the Executive entered into a Share Purchase Option in the form attached thereto
as Exhibit A (the "OPTION"), granting to the Executive the right to purchase
those shares of Outstanding Stock (as defined in such Exhibit A) as described
herein.
6. EMPLOYEE BENEFIT PROGRAMS.
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During the term, of the Executive's service under this Agreement, the
Executive shall be entitled to participate in all employee benefit programs of
the Company or Parent as are in effect from time to time and in which senior
executives of the Company or Parent are eligible to participate except that he
shall not be entitled to participate in any pension plan. To the extent the
Executive is not eligible to participate in any such program (other than the
pension plan) he shall be provided with the after-tax economic equivalent of the
benefits provided under the program in which he is unable to par-
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ticipate. In addition, if necessary, the Executive shall be provided interim
coverage until such time as the Company or Parent has adopted a program of
employee benefit coverages. Coverage may, in the discretion of the Company or
Parent, be provided through purchase of separate insurance contracts, through
self-insurance or, to the extent the Executive is permitted to continue to
maintain on a contributory basis the benefits he presently receives from Xxxxx &
XxXxxxxx Companies, Inc., by reimbursing the Executive for the cost thereof on a
basis that keeps the Executive whole after taxes.
7. BUSINESS EXPENSE REIMBURSEMENT AND FRINGE
BENEFITS.
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(A) EXPENSE REIMBURSEMENT. During the term of the Executive's service
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under this Agreement, the Executive shall be entitled to receive reimbursement
by the Company or Parent for all reasonable out-of-pocket travel expenses,
entertainment expenses and other expenses incurred by him in performing services
under this Agreement, provided that the Executive submits reasonable
documentation with respect to such expenses. This shall include, without
limitation, reimbursements of any such costs for air fare (which the Executive
shall be entitled to on a first-class basis), hotel accommodations and meals.
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(B) FRINGE BENEFITS. During the term of the Executive's service under
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this Agreement, the Executive shall be entitled to participate in any of the
Company's or Parent's executive fringe benefits in accordance with the terms and
conditions of such arrangements as are in effect from time to time for the
Company's or Parent's senior executives. In all events, the Executive shall be
entitled during the term of his service to the following:
(i) reimbursement of the cost (including initiation fees and annual
dues) of membership in one club in Bermuda,
(ii) air fare for up to 12 round-trip first-class non-business trips
per year by the Executive or members of his family between New York, New
York, Newark, New Jersey or Nantucket, Massachusetts and Bermuda and for up
to four round-trip first-class non-business trips by the Executive or his
wife between New York, Newark, Nantucket or Bermuda and London, England
(the benefit under this Section 7(b)(ii) being in addition to any
reimbursement of airfare described in Section 7(a), above), and
(iii) reimbursement by the Company for the reasonable cost of
financial and tax planning, such reimbursement not to exceed US$10,000 per
year.
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8. TERMINATION OF SERVICE.
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(A) TERMINATION DUE TO DEATH. In the event the Executive dies
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during the term of his service under this Agreement, the Executive's spouse, if
she survives him, shall be entitled to receive the Executive's Base Fee as
provided in Section 3, above, at the rate in effect immediately prior to
termination, through the end of the month in which the Executive dies and
thereafter shall be entitled to receive payments at the rate of US$162,500 per
year (or, if greater, one half the Base Fee at the rate in effect at the time of
his death) for a period of three years from the date of his death. In the event
the Executive's spouse dies during such three-year period, such payments shall
thereafter be made to the beneficiary designated by the Executive or, in the
absence of such designation, to the estate or other legal representative of the
Executive. In the event that the Executive's spouse does not survive him, the
estate or other legal representative of the Executive shall be entitled to
receive the Base Fee as provided in Section 3, above, at the rate in effect at
the time of his death, through the end of the month in which the Executive dies.
In addition to the above, the estate or other legal representative of the
Executive shall be entitled to:
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(i) any annual bonus awarded but not yet paid under Section 4, above,
(ii) a pro rata bonus for the year of death, if the Executive
Committee of the Board so determines,
(iii) the rights under the Option as provided in Section 5, above, in
accordance with the terms thereof except to the extent the Option has been
transferred, and
(iv) any other rights and benefits available to him under employee
benefit programs of the Company and Parent, or their equivalent, as
provided in Section 6, above, and under business expense reimbursement and
fringe benefit programs as described in Section 7, above, determined in
accordance with the applicable terms and provisions of such programs.
(B) TERMINATION DUE TO DISABILITY. In the event the Executive's
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service with the Company or Parent is terminated due to his disability, as
determined under the Company's or Parent's long-term disability plan, the
Executive shall be entitled to:
(i) the Base Fee as provided in Section 3, above, through the end of
the month in which the Executive's service terminates due to disability.
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(ii) any annual bonus awarded but not yet paid under Section 4, above,
(iii) the rights under the Option as provided in Section 5, above, in
accordance with the terms thereof except to the extent the Option has been
transferred, and
(iv) any other rights and benefits available to him under employee
benefit programs of the Company and Parent, or their equivalent, as
provided in Section 6, above, including, without limitation, the terms of
any Long Term Disability Plan, and under the business expense reimbursement
and fringe benefit programs as described in Section 7, above, determined in
accordance with the applicable terms and provisions of such programs.
(C) TERMINATION FOR CAUSE.
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(i) The service of the Executive under this Agreement may be
terminated by Parent or the Company for Cause. For this purpose "CAUSE"
shall mean:
(A) conviction of the Executive of a felony involving moral
turpitude, or
(B) the Executive, in carrying out his duties for the Company or
Parent under this Agreement has
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been guilty of (I) gross neglect or (III) gross misconduct; provided,
however, that any act, or failure to act, by the Executive shall not
constitute Cause for purposes of this Section 8(c)(i)(B) if such act,
or failure to act, was committed, or omitted, by the Executive in good
faith and in a manner he reasonably believed to be in the best
interests of the Company or Parent.
(ii) In the event of a termination for Cause under Section 8(c)(i),
above, the Executive shall be entitled only to:
(A) the Base Fee as provided in Section 3, above, at the rate in
effect at the time of his termination of service for Cause, through
the date on which termination for Cause occurs,
(B) the rights, if any, under the Option as provided in Section 5,
above, determined in accordance with the terms thereof except to the
extent the Option has been transferred, and
(C) other rights and benefits, if any, available to him under
employee benefit programs of the Company and Parent, or their
equivalent, as provided
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in Section 6, above, and under business expense reimbursement and
fringe benefit programs as described in Section 7, above, determined
in accordance with the applicable terms and provisions of such
programs.
(D) TERMINATION WITHOUT CAUSE.
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(i) Anything in this Agreement to the contrary notwithstanding, the
Executive's service may be terminated without Cause as provided in this
Section 8(d). A termination due to disability, as described in Section
8(b), above, or a termination for Cause, as described in Section 8(c),
above, shall not be deemed a termination without Cause under this Section
8(d).
(ii) In the event the Executive's service is terminated without Cause
(X) prior to a "Change in Control" of Parent (as defined in Exhibit A
hereto) or (y) following the first anniversary of a Change in Control, the
Executive shall be entitled to:
(A) the Base Fee as provided in Section 3, above, at the rate in
effect in accordance with Section 3, above, immediately prior to such
termination, payable in equal monthly installments for a period of 24
months following the date of such termination,
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(B) any annual bonus awarded but not yet paid under Section
4, above,
(C) the rights under the Option as provided in Section 5,
above, in accordance with the terms thereof except to the extent
the Option has been transferred,
(D) continued coverage under the employee benefit programs
of the Company and Parent, or their equivalent, as provided in
Section 6, above, in which the Executive was participating at the
time of his termination of service for the period of Base Fee
continuation; provided, however, that any such continued coverage
shall be offset by comparable coverage provided to the Executive
in connection with subsequent employment or other service and, to
the extent the Company or Parent is unable to continue such
coverage, the Company shall provide the Executive with
economically equivalent benefits determined on an after-tax
basis, and
(E) other rights and benefits available to him under
employee benefit programs of the Company and Parent, or their
equivalent, as provided in Section 6, above, and under business
expense reimbursement
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and fringe benefit programs as described in Section 7, above,
determined in accordance with the applicable terms and provisions
of such programs.
(iii) In the event the Executive's service hereunder is
terminated by the Company or Parent without Cause within the 12 month
period following a Change in Control (the "POST-CHANGE PERIOD") or the
Executive terminates his employment for "GOOD REASON" (as defined in
Exhibit B hereto) during the Post-Change Period, the Executive shall
be entitled to:
(A) the Base Fee as provided in Section 3, above, at the
rate in effect in accordance with Section 3, above, immediately
prior to such termination, payable in equal monthly installments
for a period of 24 months following the date of such termination,
(B) an amount equal to two times the largest bonus awarded
to the Executive in the three-year period prior to the year in
which a Change in Control occurs, paid in equal monthly
installments for the period of Base Fee continuation,
(C) an amount equal to the annual bonus that would have
been awarded to the Executive in respect
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of the year in which the Change in Control occurs, multiplied by
a fraction, the numerator of which is the number of months or
fraction thereof in which the Executive was employed by the
Company and Parent in such year, and the denominator of which is
12,
(D) the rights under the Option as provided in Section
5, above, in accordance with the terms thereof except to the
extent the Option has been transferred,
(E) continued coverage under the employee benefit programs
of the Company and Parent, or their equivalent, as provided in
Section 6, above, in which the Executive was participating at the
time of his termination of service for the period of Base Fee
continuation; provided, however, that any such continued coverage
shall be offset by comparable coverage provided to the Executive
in connection with subsequent employment or other service and, to
the extent the Company or Parent is unable to continue such
coverage, the Company or Parent shall provide the Executive with
economically equivalent benefits determined on an after-tax
basis, and
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(F) other rights and benefits available to him under
employee benefit programs of the Company or Parent, or their
equivalent, as provided in Section 6, above, and under business
expense reimbursement and fringe benefit programs as described in
Section 7, above, determined in accordance with the applicable
terms and provisions of such programs.
(iv) If, at any time during the term of the Executive's
service hereunder, the Executive fails to be elected (or re-elected,
as appropriate) as Chairman of the Board and the Parent Board, or is
otherwise removed from the Board and the Parent Board involuntarily,
or fails to be appointed (or reappointed, as appropriate) to the
Executive Committee of the Board and the Parent Board, the Executive
shall have the right to terminate his service, and, if prior to a
Change in Control, such termination shall be deemed a termination by
the Company and Parent without Cause under Section 8(d)(ii), above,
or, if following a Change in Control, such termination shall be deemed
a termination without Cause under Section 8(d)(iii), above, provided
the Executive, in either case, shall have given the Company and Parent
written notice of his decision and shall not within 10 business days
thereafter have been reinstated to the relevant positions.
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(E) VOLUNTARY TERMINATION BY THE EXECUTIVE. The Executive may
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voluntarily terminate his service prior to the expiration of the term of his
service under this Agreement. Such termination shall constitute a voluntary
termination and, except as provided in Section 8(d)(iii), in such event the
Executive shall be limited to the same rights and benefits as applicable to a
termination by the Company for Cause as provided in Section 8(c), above. A
voluntary termination under this Section 8(e) shall not be deemed a breach of
this Agreement. A termination of the Executive's service due to disability as
described in Section 8(b), above, a termination by the Executive which the
Executive is entitled to treat as & termination by the Company pursuant to
Section 8(d)[ or 8(e)], above, or a termination by the Executive under Section
8(d)(iii), above, shall not be deemed a voluntary termination within the meaning
of this Section 8(e).
9. NO-MITIGATION; NO OFFSET.
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In the event of any termination of service under Section 8, above, 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.
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10. NONCOMPETITION AND NONSOLICITATION.
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(A) NONCOMETITION. During the term of his service and, except in
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the case of a termination of the term of his service pursuant to Section 8(d) or
(e), above, for a period of 12 months thereafter, the Executive shall not,
directly or indirectly, whether as an employee, consultant, partner, principal,
agent, distributor, representative or stockholder (except as a less than one
percent stockholder of a publicly traded company or a less than five percent
stockholder of a privately held company), engage in any activities within the
United States or Bermuda if such activities involve insurance or reinsurance of
United States based entities or exposures that are competitive with the
businesses that (i) are then being conducted by the Company or Parent and (ii)
during the period of the Executive's service were either being conducted by the
Company or Parent or actively being developed by the Company or Parent. The
Executive's service as a director of any company in the insurance, reinsurance
or related businesses shall not be deemed engaging in any activity that is
competitive within the meaning of the preceding sentence. For purposes of this
Section 10, the Company or Parent shall be deemed to include any entity that was
affiliated with the Company or Parent during the period of the Executive's
service as well as the time in question (meaning any entity 50% of the equity in
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which is owned by the Company or Parent during the period of the Executive's
service as well as the time in question).
(B) NONSOLICITATION. During the term of the Executive's service under
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this Agreement, and for a period of 12 months following termination of service,
the Executive shall not encourage any employee of the Company or Parent to leave
the employ of the Company or Parent except as may be in the interests of the
Company or Parent during the course of carrying out his duties under Section 2,
above.
11. CONFIDENTIAL INFORMATION.
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The Executive covenants that he shall, not, without the prior written
consent of the Board or Parent Board or a person authorized by the Board or
Parent Board, disclose to any person, other than an employee of the Company or
Parent or other person to whom disclosure is necessary to the performance by the
Executive of his duties in the service of the Company or Parent, any
confidential proprietary information about the Company or Parent or their
business, unless and until such information has become known to the public
generally (other than as a result of unauthorized disclosure by the Executive)
or unless he is required to disclose such information by a court or by a
governmental body with apparent authority to require such dis-
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closure. The foregoing covenant by the Executive shall be without limitation as
to time and geographic application.
12. WITHHOLDING.
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Anything in this Agreement to the contrary notwithstanding, all
payments required to be made by the Company or Parent hereunder to the Executive
shall be subject to withholding of such amounts relating to taxes as either the
Company or Parent may reasonably determine it should withhold pursuant to any
applicable law or regulation. In lieu of withholding such amounts, in whole or
in part, either the Company or Parent may, in its sole discretion, accept other
provision for payment of taxes as required by law, provided it is satisfied that
all requirements of law affecting in its responsibilities to withhold such taxes
have been satisfied.
13. PARENT SERVICES.
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(A) LIABILITY. The Parent hereby agrees to be jointly and
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severally liable together with the Company for the payment to the Executive of
his Base Fee, bonus, business expense reimbursement and termination of
employment provisions of this Agreement.
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(B) RESPONSIBILITY. All of the other terms and provisions of
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this Agreement relating to the Executive's employment by the Company shall
likewise apply mutatis mutandis to the Executive's employment by the Parent,
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including, without limitation, Sections 1, 6, 7, 8, 9, 10, 11, 12, 17 and 18, it
being understood that if the Executive terminates his service under the Service
Agreement he shall be required to do so with respect to both the Company and the
Parent and that a termination of the Executive's services by the Company or the
Parent shall be deemed a termination by both.
14. ENTIRE AGREEMENT.
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This Agreement, together with the Exhibits, contains the entire
agreement between the Parties concerning the subject matter hereof and
supersedes all prior agreements, understandings, discussions, negotiations and
undertakings, whether written or oral, between the Company, Parent and the
Executive with respect thereto.
15. ASSIGNABILITY; BINDING NATURE.
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This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors, heirs and assigns. No rights or
obligations of the Executive under this Agreement may be assigned or transferred
by the Executive
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other than his rights to compensation and benefits hereunder, which may be
transferred by will or operation of law subject to the limitations of this
Agreement. The Parties recognize that the Executive also may transfer his rights
under the Option as therein provided. No rights or obligations of the Company or
Parent under this Agreement may be assigned or transferred by the Company or
Parent except that such rights or obligations may be assigned or transferred
pursuant to a merger or consolidation in which the Company or Parent is not the
continuing entity, or the sale or liquidation of all or substantially all of the
assets of the Company or Parent, provided that the assignee or transferee is the
successor to all or substantially all of the assets of the Company or Parent and
such assignee or transferee assumes the liabilities, obligations and duties of
the Company or Parent, as contained in this Agreement, either contractually or
as a matter of law.
16. INDEMNIFICATION.
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The Executive shall be provided indemnification by each of Parent and
the Company to the maximum extent permitted under the laws of their respective
jurisdictions of incorporation and their respective charter documents. In
addition, he shall be covered by a directors' and officers' liability policy
with coverage for him to the extent of US$50,000,000.
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17. EXCISE TAX ADJUSTMENT PAYMENTS.
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(A) PAYMENTS. In the event that it is determined bait any
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payment or distribution by the Company or Parent to or for the benefit of
Executive, whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, other than any payment pursuant to
this Section 17(a) (a "PAYMENT"), would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1996, as amended (the "CODE"), or
any interest or penalties with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as the "EXCISE TAX"), then Executive shall be entitled to receive
from the Company or Parent, within 15 days following the determination described
in Section 17(b), below, an additional payment ("EXCISE TAX ADJUSTMENT PAYMENT")
in an amount such that after payment by Executive of all applicable Federal,
state and local taxes (computed at the maximum marginal rates and including any
interest or penalties imposed with respect to such taxes), including any Excise
Tax, imposed upon the Excise Tax Adjustment Payment, Executive retains an amount
of the Excise Tax Adjustment Payment equal to the Excise Tax imposed upon the
Payments.
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(B) DETERMINATIONS. All determinations required to be made under this
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Section 17, including whether an Excise Tax Adjustment Payment is required and
the amount of such Excise Tax Adjustment Payment, shall be made by KPMG Peat
Marwick LLP, or such other national accounting firm as the Company or Parent may
designate prior to a Change of Control, which shall provide detailed supporting
calculations to the Company and the Executive within 15 business days of the
date of termination of Executive's employment. Except as hereinafter provided,
any determination by KPMG Peat Marwick LLP, or such other national accounting
firm as the Company or Parent may designate prior to a Change of Control, shall
be binding upon the Company, Parent and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination hereunder, it is possible that (x) certain Excise Tax
Adjustment Payments will not have been made by the Company or Parent which
should have been made (an "UNDERPAYMENT"), or (y) certain Excise Tax Adjustment
Payments will have been made which should not have been made (an "OVERPAYMENT"),
consistent with the calculations required to be made hereunder. In the event of
an Underpayment, such Underpayment shall be promptly paid by the Company or
Parent to or for the benefit of the Executive. In the event that the Executive
discovers that an Overpayment shall have occurred, the
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amount thereof shall be promptly repaid to the Company or Parent.
18. SETTLEMENT OF DISPUTES.
----------------------
Any dispute between the Parties arising from or relating to the terms
of this Agreement or the Executive's service with the Company or Parent shall be
resolved by arbitration held in New York City in accordance with the rules of
the American Arbitration Association. All costs associated with any
arbitration, including all legal expenses, for both Parties shall be borne by
the Company and Parent.
19. Amendment or Waiver.
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No provision in this Agreement may be amended unless such amendment is
agreed to in writing, signed by the Executive and by a duly authorized officer
of the Company and Parent. No waiver by any Party of any breach by any other
Party of any condition or provision of this Agreement to be performed by such
other Party shall be deemed a waiver of a similar or dissimilar condition or
provision at the same or any prior or subsequent time. Any waiver must be in
writing and signed by the Executive or a duly authorized officer of the Company
and Parent, as the case may be.
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20. NOTICES.
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Any notice required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally or sent by courier, or by certified or registered mail, postage
prepaid, return receipt requested, duly addressed to the Party concerned at the
address indicated below or to such changed address as such Party may
subsequently by similar process give notice of:
If to the Company: Mid Ocean Reinsurance Company, Ltd.
Xxxxxxxx Xxxxx,
00 Xxx-xx-Xxxxx Xxxx
2 Church Street
Xxxxxxxx, XX EX
Bermuda
If to the Parent: Mid Ocean Limited
Xxxxxxxx Xxxxx
00 Xxx-xx-Xxxxx Xxxx
Xxxxxxxx XX XX
Bermuda
If to the Executive: Xxxxxx X. Xxxxxxxx, Xx.
00 Xxxxxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxxxx 00000
21. SEVERABILITY.
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In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, in whole or in part,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain
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in full force and effect to the fullest extent permitted by law.
22. SURVIVORSHIP.
------------
The respective rights and obligations of the Parties shall survive any
termination of this Agreement to the extent necessary to the intended
preservation of such rights and obligations.
23. REFEREES.
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In the event of the Executive's death or a judicial determination of
his incompetence, reference in this Agreement to the Executive shall be deemed,
where appropriate, to refer to his estate or other legal representative.
24. GOVERNING LAW.
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This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of New York without reference to the
principles of conflict of law.
25. HEADINGS.
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The headings of the sections contained in this Agreement are for
convenience only and shall not be deemed to con-
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trol or affect the meaning or construction of any provision of this Agreement.
26. COUNTERPARTS.
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This Agreement may be executed in one or more counterparts.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
MID OCEAN REINSURANCE COMPANY LTD.
By:_____________________________
MID OCEAN LIMITED
By:_____________________________
________________________________
XXXXXX X. XXXXXXXX, XX.
EXHIBIT A
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CHANGE IN CONTROL
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A "Change in Control" shall be deemed to have occurred if:
(i) on or after the date hereof, any person (which, for all purposes
hereof, shall include, without limitation, an individual, sole
proprietorship, partnership, unincorporated association,
unincorporated syndicated unincorporated organization, trust,
body corporate and a trustee, executor, administrator or other
legal representative), or any group (within the meaning of
Section 13(d)(3) of the United States Securities Exchange Act of
1934, as amended), becomes the beneficial owner, directly or
indirectly, of securities of the Parent representing, or acquires
the right to control or direct, or to acquire through the
conversion or exchange of securities or the exercise of warrants
or other rights to acquire securities ("Beneficial Owner"), 20%
or more of the combined voting power of the Parent's then
outstanding securities ("Significant Owner") (excluding any
person who or group which, together with all affiliates and
associates of such
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person or group, would on the date of this Agreement but for this
clause be a Significant Owner as long as such person or group
does not subsequently become the Beneficial Owner of any
additional securities of the Parent in any manner other than a
change in the aggregate number of the outstanding securities of
the Parent and other than a change to any purchase or acquisition
permitted by the first full paragraph of the second page of that
Standstill Agreement dated June 2, 1995 between Parent and EXEL
Limited) and, for the purposes hereof "voting power" means the
right to vote for the election of directors; or
(ii) at any time subsequent to the execution of this contract there
shall be elected or appointed to the Parent Board any director or
directors whose appointment or election by the Parent's
shareholders was not approved by a vote of at least a majority of
the directors then still in office who were either directors at
the date hereof or whose election or appointment or nomination
for election was previously so approved.
