EXHIBIT 10.3
DATED 24 January 2002
BETWEEN
MONTPELIER MARKETING SERVICES (UK) LIMITED
AND
XXXXXXX XXXXXX
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SERVICE AGREEMENT
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LeBoeuf, Lamb, Xxxxxx & XxxXxx
No. 0 Xxxxxxx Xxxxx
Xxxxxxx Xxxx
Xxxxxx XX0X 0XX
Ref: AG/mv
SERVICE AGREEMENT
THIS AGREEMENT is made the 24th day of January, 2002
BETWEEN:
MONTPELIER MARKETING SERVICES (UK) LIMITED, whose registered office is situate
at 0xx Xxxxx, 0 Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxx XX0X 0XX (the "Company");
and
XXXXXXX XXXXXX of 0, Xxxx Xxxx, Xxxxx Xxx Xxxx, Xxxxxxxx, Xxxxxxx (the
"Executive").
WHEREAS the parties desire to record the terms and conditions upon which the
Executive is employed by the Company.
NOW THEREFORE in consideration of the mutual covenants and promises herein
contained
IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement unless the context otherwise requires the following
words and expressions shall have the following meanings:
this "Agreement" means this service agreement and includes all schedules
hereto;
the "Bermudian Service Agreement" means the service agreement dated 12th
December 2001 entered into between Montpelier Re Holdings Limited,
Montpelier Reinsurance Limited and the Executive;
the "Board" means the board of directors of the Company;
the "Companies Act" means the Companies Xxx 0000;
"Group" means Montpelier Re Holdings Limited ("Holdings") and its
subsidiaries (as defined by the Companies Act) or any company in which
Holdings owns at least 50% of the issued share capital, and "Group
Company" shall be construed accordingly;
the "Parties" means the parties to this Agreement;
1.2 In this Agreement unless the context otherwise requires:
1.2.1 references to statutory provisions shall be construed as
references to those provisions as amended or re-enacted or as
their application is modified by other provisions from time to
time and shall include references to any provisions of which they
are re-enactments (whether with or without modification); and
1.2.2 references to clauses and schedules are references to clauses
hereof and schedules hereto; references to sub-clauses or
paragraphs are, unless otherwise stated, references to sub-clauses
of the clause or paragraphs of the schedule in which the reference
appears;
1.2.3 references to the singular shall include the plural and vice versa
and references to the masculine shall include the feminine and/or
neuter and vice versa; and
1.2.4 references to persons shall include companies, partnerships,
associations and bodies of persons, whether incorporated or
unincorporated.
2. Appointment
2.1 The Company hereby appoints the Executive and the Executive hereby agrees
to serve the Company as a Director and Chairman subject to the terms and
conditions hereinafter contained.
3. Term
3.1 The appointment of the Executive hereunder shall (subject as hereinafter
provided) be for the period from the 1st day of January, 2002, up to and
including the 31st day of December, 2004, unless and until terminated in
accordance with the provisions hereinafter contained unless both parties
agree in writing to extend the contract for a period to be determined.
4. Duties and Responsibilities
During the continuance of his employment hereunder:
4.1 The Executive shall perform such duties and exercise such powers in
relation to the business of the Company or of any Group Company as may
from time to time reasonably be assigned to or vested in him by the Board.
In particular, the Executive will act as Chairman of the Board of
Directors of the Company, and will involve himself actively in the
marketing and promotional activities of the Company. The Executive shall
at no time engage in the following activities on behalf of any Group
Company:
(a) offer insurance to anyone;
(b) negotiate any terms of any insurance contracts;
(c) exercise discretion as to whether or not to refer risks to any Group
Company, but rather will refer all risks to the relevant Group
Company in the absence of explicit instructions to the contrary;
(d) accept premiums;
(e) bind risks;
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(f) negotiate and settle claims;
(g) receive notification of claims and instruct loss adjusters;
(h) determine underwriting strategy;
(i) issue policy documentation to policyholders; and
(j) imply, directly or indirectly, to a third party that the Company has
authority to engage in any of the activities set forth in (a)
through (i) above.
The Executive shall give to the Board such information regarding the
affairs of the Company and any Group Company as it shall require and at
all times and in all respects conform to and comply with the reasonable
directions and regulations made by the Board. The Executive shall perform
such services for any Group Company (without further remuneration except
as otherwise agreed) and shall accept such offices in any such Group
Companies as the Board may reasonably require.
4.2 The Executive shall well and faithfully serve the Company and the Group
Companies and use his best endeavours to promote, develop and extend their
businesses and interests giving at all times the full benefit of his
knowledge, expertise, technical skill and ingenuity.
4.3 The Executive shall not without the consent of the Board directly or
indirectly engage in any other business or be concerned or interested in
any other business of a similar nature to or which would or might compete
with the business for the time being carried on by the Company or any
Group Company save that he may (but without prejudice to clause 4.2) be
interested as a holder or beneficial owner of not more than 5% of any
class of stock, shares or debentures in any company (other than the
Company, in which case, such limit shall not apply) whose stock, shares or
debentures are listed or dealt in on a recognised stock exchange (as
defined in the Companies Act).
4.4 The Executive's principal place of employment is at 000 Xxxxxxxxx Xxxxxx,
Xxxxxx XX0 or such other address as may be established as the Company's
office.
4.5 The Executive shall carry out his duties under this Agreement in the
United Kingdom, and the Company reserves the right to require the
Executive to work at any location in London as the Company may in its
absolute discretion from time to time decide.
4.6 The Executive may be required to travel in the United Kingdom and overseas
(including Europe and the United States) in the proper performance of his
duties, although the Executive will not, without his prior consent, be
required to work any continuous period abroad in excess of one month.
5. Remuneration and Reimbursement
5.1 The Company shall pay to the Executive by way of remuneration for his
services hereunder director's fees at the rate (subject as hereinafter
provided) of (pound)60,000 per
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annum. The said fees shall be payable by equal monthly instalments in
arrears on the day appointed by the Board for the payment of employees'
salaries or pro rata where the Executive is only employed hereunder
during part of the month. The Compensation Committee of the Board,
subject to ratification by the Board, may increase or reduce the
Executive's fees on 31 December in each year, but not below an amount of
(pound)60,000 per annum.
5.2 The Executive shall be entitled to participate in:
(i) the Group's UK pension scheme; the Company will make a contribution
equivalent to 10% of the Executive's fees into such scheme;
(ii) any other UK specific schemes in which the Executive is entitled to
participate;
in addition to any benefits to which he is entitled pursuant to the
Bermudian Service Agreement.
The details of these schemes are set out in separate documents, copies of
which will be provided on request. The schemes may be changed at the
Company's discretion.
5.3 The Company shall also pay to the Executive all reasonable travelling,
hotel and other out-of-pocket expenses which are properly incurred by him
in or about the performance of his duties hereunder and for which vouchers
(if so required) are provided to the reasonable satisfaction of the Board.
5.4 The Executive agrees that the Company may deduct from his pay any sums
which the Executive may owe the Company including, without limitation, any
overpayments or loans made to him by the Company or losses suffered by the
Company as a result of the Executive's breach of this Agreement.
6. Normal Hours and Holidays
The Executive shall conform to such hours of work as may from time to time
reasonably be required of him and shall not be entitled to receive any
additional remuneration for work outside his normal hours. The Executive
agrees that any cap on the average working time imposed by the Working
Time Regulations 1998 will not apply to him. In addition to the usual
public holidays the Executive shall be entitled without loss of
remuneration to 25 days holiday in each year, but such days shall be
inclusive of, and not in addition to, holidays to which the Executive is
entitled pursuant to the Bermudian Service Agreement.
7. Confidentiality
7.1 The Executive shall not either during the continuance of his employment
hereunder (otherwise than in the proper performance of his duties
hereunder) or at any time after the determination thereof divulge to any
person whomsoever and shall use his reasonable endeavours to prevent the
publication or disclosure of any trade secret or other confidential
information concerning the business, finances, accounts, dealings,
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transactions or affairs of the Company or any Group Company or of any of
their respective clients entrusted to him or arising or coming to his
knowledge during the course of his employment hereunder or otherwise.
7.2 The Executive shall upon the termination of his employment hereunder
immediately deliver up to the Company all fee schedules, lists of clients,
correspondence and other documents, papers and property belonging to the
Company or any Group Company or related to any of the matters referred to
in clause 7.1 which may have been prepared by him or have come into his
possession in the course of his employment hereunder and shall not retain
any copies thereof.
8. Change of Status
8.1 If, before the expiration or determination of this Agreement, the
employment of the Executive hereunder shall be terminated by reason of the
liquidation of the Company for the purpose of reconstruction or
amalgamation and he shall be offered employment with any concern or
undertaking resulting from such reconstruction or amalgamation on terms
and conditions not less favourable (financially and in personal status)
than the terms of this Agreement, then he shall have no claim against the
Company in respect of the termination of his employment hereunder save in
respect of accrued benefits.
8.2 If for any reason the Executive shall either:
8.2.1 at the Company's request resign as a director of the Company or
any Group Company; or
8.2.2 be removed from office as a director of the Company or any Group
Company;
then, notwithstanding his so ceasing to be a director, this Agreement
shall not automatically terminate and thereupon (and without any claim
against the Company in respect of such loss of office) the Executive's
employment hereunder shall continue for the remaining period of this
Agreement and all the terms and conditions of this Agreement shall with
the necessary variations apply to the Executive's employment but in any
event, the Executive's basic annual remuneration will not at any time be
less than (pound)60,000 per annum.
9. Termination
9.1 This Agreement shall terminate automatically upon termination of the
Bermudian Service Agreement.
9.2 This Agreement shall be subject to termination by the Company by summary
notice in writing without pay in lieu of notice:
9.2.1 if the Executive shall become of unsound mind or be or become a patient
for the purpose of any statute relating to mental health;
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9.2.2 if the Executive shall at any time be prevented by illness or
accident from performing his duties for a period of 6 consecutive
months or if he shall be absent from his duties by reason of
illness or accident for more than 180 working days in any
consecutive twelve months (provided that any such periods may be
extended at the sole discretion of the Board); and
9.2.3 if the Executive terminates his employment for any reason prior to
the expiration of this Agreement or if the Executive shall have
failed or neglected efficiently and diligently to discharge his
duties hereunder having received a written warning for the
misconduct within the previous 6 months or shall have committed
any serious breach of his obligations hereunder or shall have been
guilty of conduct tending to bring himself or the Company or any
Group Company into disrepute or calculated or likely to affect
prejudicially the interests of the Company or any Group Company or
shall have committed an act of bankruptcy or compounded with his
creditors generally.
9.3 The termination by the Company of this Agreement shall be without
prejudice to any claim which the Company may have for damages arising from
any breach thereof by the Executive giving rise to such termination.
9.4 This Agreement shall not, save as hereinbefore set out in this Clause, be
subject to termination by notice or otherwise by the Company or by the
Executive.
9.5 Until this Agreement is terminated pursuant to clause 9.2, the Executive
shall remain entitled to receive his remuneration payable hereunder in
full notwithstanding illness or other incapacity.
9.6 After notice of termination has been given by either party or if the
Executive seeks to resign without notice then provided the Company
continues to pay the Executive the contractual benefits in accordance with
this Agreement, the Company has at its discretion the right for the period
(the "Garden Leave Period") then outstanding until the termination date of
this Agreement to:
9.6.1 exclude the Executive from the Company's premises and require the
Executive not to attend at the Company's premises; and/or
9.6.2 require the Executive to carry out no duties; and/or
9.6.3 require the Executive not to communicate or deal with employees,
agents, consultants, clients or other representatives of the
Company;
Provided always that the maximum permitted Garden Leave Period shall be
six months.
10. Consequence of Termination
Upon the termination of this Agreement howsoever arising, the Executive
shall at any time or from time to time thereafter upon the request of the
Company resign, without claim for compensation for loss of office, as a
director of the Company and such offices
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held by him in any of the Group Companies as may be so requested and
should he fail to do so, the Company is hereby irrevocably authorised to
appoint some person in his name and on his behalf to sign and do any
documents or things necessary or requisite to give effect thereto.
11. Non-Competition
11.1 Since the Executive has obtained in the course of his employment prior to
the date hereof and is likely to obtain in the course of his employment
hereunder knowledge of the trade secrets and also other confidential
information in regard to the business of the Company and of any Group
Company with which he becomes associated, the Executive hereby agrees with
the Company that in addition to the restrictions contained in clause 4.3
he will not:
11.1.1 during the period of 6 months following the termination of his
employment hereunder (howsoever caused) either on his own account
or for any other person, firm or company directly or indirectly be
engaged in or concerned with any business or undertaking which is
engaged in or carries on in the United Kingdom any insurance
business which competes or seeks to compete with the marketing
business carried on by the Company or the reinsurance business
carried out by any other Group Company for which the Company is
carrying out marketing and promotional activities at the date of
termination.
11.1.2 During the period of 6 months following the termination aforesaid
either on his own account or for any other person, firm or company
directly or indirectly solicit, interfere with or endeavour to
entice away from the Company or any Group Company the custom for
reinsurance business of any person, firm or company who at the
date of termination aforesaid or who in the period of 12 months
immediately prior to such date was a customer or client of the
Company or any Group Company with whom the Executive was actively
concerned or who at such date was negotiating with the Executive
in relation to all or part of the Group's business.
11.1.3 During the period of 12 months following the termination aforesaid
either on his own account or for any other person, firm or company
solicit the services of or endeavour to entice away from the
Company or any Group Company any director, or executive of the
Company or any Group Company with whom the Executive was actively
concerned (whether or not such person would commit any breach of
his contract of employment or engagement by reason of leaving the
service of such company) nor shall the Executive knowingly employ
or aid or assist in or procure the employment by any other person,
firm or company of any such person.
11.2 While the restrictions aforesaid are considered by the Parties to be
reasonable in all the circumstances it is agreed that if any of such
restrictions shall, taken together, be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the legitimate
interests of the Company or any Group Company but would be adjudged
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reasonable if part of the wording thereof were deleted or modified the
said restrictions shall apply with such words deleted or modified.
11.3 The Executive hereby agrees that he will at the request and cost of the
Company enter into a direct agreement or undertaking with any Group
Company whereby he will accept restrictions and provisions corresponding
to the restrictions and provisions herein contained (or such of them as
may be appropriate in the circumstances) in relation to such services and
such area and for such period as such company or companies may reasonably
require for the protection of its or their legitimate interests provided
that the terms of such restrictions and provisions will not be more
onerous than the restrictions and provisions of this agreement.
12. Untrue Statements
The Executive shall not knowingly at any time make any untrue statement in
relation to the Company or any Group Company and in particular shall not
after the determination of his employment hereunder wrongfully represent
himself as being employed by or connected with the Company or any Group
Company.
13. Intellectual Property
13.1 The Executive may make, discover or create Intellectual Property in the
course of his duties under this Agreement and agrees that in this respect
he has a special obligation to further the interests of the Company.
13.2 Subject to the provisions of the Patents Xxx 0000, the Registered Designs
Xxx 0000 and the Copyright Designs and Patents Xxx 0000 if at any time
during his employment under this Agreement the Executive makes or
discovers or participates in the making or discovery of any Intellectual
Property relating to or capable of being used in the business for the time
being carried on by the Company or any Group Companies full details of the
Intellectual Property shall immediately be communicated by him to the
Company and shall be the absolute property of the Company. At the request
and expense of the Company the Executive shall give and supply all such
information data drawings and assistance as may be requisite to enable the
Company to exploit the Intellectual Property to the best advantage and
shall execute all documents and do all things which may be necessary or
desirable for obtaining patent or other protection for the Intellectual
Property in such parts of the world as may be specified by the Company and
for vesting the same in the Company or as it may direct.
13.3 The Executive irrevocably appoints the Company to be his agent in his name
and on his behalf to sign, execute or do any such instrument or thing and
generally to use his name for the purpose of giving to the Company (or its
nominee) the full benefit of the provisions of this clause and in favour
of any third party a certificate in writing signed by any director or the
secretary of the Company that any instrument or act falls within the
authority conferred by this clause shall be conclusive evidence that such
is the case.
13.4 If the Intellectual Property is not the property of the Company, the
Company shall, subject to the provisions of the Patents Xxx 0000, have the
right to acquire for itself or its
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nominee his rights in the Intellectual Property within 3 months after
disclosure pursuant to this clause on fair and reasonable terms to be
agreed or settled by a single arbitrator.
13.5 The Executive waives all of his moral rights (as defined in the Copyright,
Designs and Patents Act 1988) in respect of any acts of the Company or any
acts of third parties done with the Company's authority in relation to any
Intellectual Property which is the property of the Company by virtue of
this clause.
13.6 Rights and obligations under this clause shall continue in force after
termination of this Agreement in respect of Intellectual Property made
during the Executive's employment under this Agreement and shall be
binding upon his representatives.
14. Discipline and Grievance Procedures
14.1 If the Executive has a grievance, regarding the employment, he should, in
the first instance speak to the Group's Chairman. If the grievance is not
resolved to his satisfaction, he should then refer to the grievance
procedure, which will be provided to him with his letter of employment.
14.2 The disciplinary procedures applicable to the Executive will be provided
to him with his letter of employment.
14.3 The disciplinary and grievance procedures do not form part of this
Agreement.
15. Delegation
The Company may at any time and from time to time delegate its power and
authority under this Agreement to any Group Company and such delegation
(or the revocation thereof) shall be effective upon the Company's giving
written notice of the same to the Executive.
16. Notices
Notices may be given by either Party by pre-paid first class post or by
hand delivery addressed to the other Party at (in the case of the Company)
its registered office for the time being and (in the case of the
Executive) his last known address. Any such notice given by post shall be
deemed to have been served on the second week day after dispatch (public
holidays excepted) and any notice so given by hand shall be deemed to have
been served when delivered if delivered during normal business hours or,
if delivered outside such hours, at the next time after delivery when
normal business hours commence.
17. Miscellaneous
17.1 The expiration or termination of this Agreement howsoever arising shall
not operate to affect such of the provisions hereof as are expressed or
intended to remain in full force and effect notwithstanding such
termination.
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17.2 If any of the clauses, conditions, covenants or restrictions of this
Agreement or any deed or document emanating from it shall be found to be
void but would be valid if some part hereof were deleted or modified, then
such clause, condition, covenant or restriction shall apply with such
deletion or modification as may be necessary to make it valid and
effective.
17.3 This Agreement shall be binding and enure for the benefit of the
successors of the Parties but shall not be assignable.
17.4 This Agreement (together with any documents referred to herein)
constitutes the whole agreement between the Parties relating to its
subject matter.
17.5 The headings in this Agreement are inserted for convenience only and shall
not affect the construction of this Agreement.
17.6 This Agreement may be executed in counterparts each of which when executed
and delivered shall constitute an original but all such counterparts
together shall constitute one and the same instrument.
17.7 No provision in this Agreement may be amended unless such amendment is
agreed to in writing, signed by the Executive and by a duly authorised
officer of the Company. No waiver by either Party of any breach by the
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
tune. Any waiver must be in writing and signed by the Executive or a duly
authorised officer of the Company, as the case may be.
17.8 This Agreement shall be governed by and construed in accordance with the
law of England and the Parties hereby irrevocably submit to the
non-exclusive jurisdiction of the English courts.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first written above.
SIGNED by )
on behalf of Montpelier Marketing Services (UK) Limited )
in the presence of: )
/s/
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Witness
SIGNED by Xxxxxxx Xxxxxx )
in the presence of:
/s/
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Witness
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
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