This
EMPLOYMENT AGREEMENT is made and entered into as of this 27th day
of June 2008 by and between Darwin Professional Underwriters,
Inc., a Delaware corporation (the “ Company ”),
and Mark I. Rosen (“ Employee ”).
WHEREAS,
Employee is currently employed by the Company;
WHEREAS,
Employee is a party to an amended and restated employment agreement
with Company, dated November 11, 2005 (the “ Prior
Agreement ”); and
WHEREAS,
in connection with the transactions contemplated by the Merger
Agreement, the Company desires to enter into a new agreement (this
“ Agreement ”) embodying the terms of
Employee’s continued employment with the Company that will,
except as otherwise provided herein, supersede the Prior Agreement
and cause the Prior Agreement to terminate and be of no further
force or effect, and Employee desires to enter into this Agreement
and to accept such employment, subject to the terms and provisions
of this Agreement.
NOW,
THEREFORE, in consideration of the promises and mutual covenants
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are mutually acknowledged, the
Company and Employee hereby agree as follows:
(a)
“ Accrued Obligations ” shall mean (i) all
accrued but unpaid Base Salary through the date of termination of
Employee’s employment; (ii) any unpaid or unreimbursed
expenses incurred in accordance with Company policy, including
amounts due under Section 7 hereof to the extent incurred
prior to termination of employment; (iii) any benefits
provided under the Company’s employee benefit plans upon a
termination of employment, in accordance with the terms therein,
including rights to equity in Holdings pursuant to any plan or
grant; and (iv) rights to indemnification by virtue of
Employee’s position as an employee.
(b)
“ Agreement ” shall have the meaning set forth
in the recitals hereto.
(c)
“ Annual Bonus ” shall have the meaning set
forth in Section 4(b) below.
(d)
“ Base Salary ” shall mean the salary provided
for in Section 4(a) or any increased salary granted to Employee
pursuant to Section 4(a) below.
(e)
“ Board ” shall mean the Board of Directors of
the Company.
(f)
“ Cause ” shall mean (i) Employee’s
willful failure (except where due to physical or mental
incapacity), willful neglect or willful refusal to substantially
perform his duties; (ii) any willful or intentional act of Employee
with regard to any member of the Company
Group that has
the effect of injuring the reputation or business of any member of
the Company Group in a material manner; (iii) Employee’s
conviction of, or plea of guilty or nolo contendere to, the
commission of a criminal act that would constitute a felony in the
United States; (iv) the commission by Employee of an act of
fraud, embezzlement or material dishonesty against any member of
the Company Group (other than a good faith expense account
dispute); or (v) Employee’s breach of any material provision
of this Agreement.
(g)
“ Closing Date ” shall have the meaning set
forth in the Merger Agreement.
(h)
“ Code ” shall mean the United States Internal
Revenue Code of 1986, as amended.
(i)
“ Company ” shall have the meaning set forth in
the preamble hereto.
(j)
“ Company Group ” means Holdings together with
any direct or indirect subsidiary.
(k)
“ Competitive Activities ” shall mean any
business activities in which any member of the Company Group is
engaged, or has committed plans to engage, during the Term of
Employment.
(l)
“ Confidential Information ” shall have the
meaning set forth in Section 9(a) below.
(m)
“ Darwin ” shall have the meaning set forth in
the recitals hereto.
(n)
“ Delay Period ” shall have the meaning set
forth in Section 16.
(o)
“ Developments ” shall have the meaning set
forth in Section 9(e) below.
(p)
“ Disability ” shall mean any physical or mental
disability or infirmity that has prevented the performance of
Employee’s duties in all material respects for a period of
one hundred eighty (180) consecutive calendar days.
(q)
“ Employee ” shall have the meaning set forth in
the preamble hereto.
(r)
“ Good Reason ” shall mean, without
Employee’s written consent, (i) a material diminution in
Employee’s employment duties or responsibilities, or the
assignment to Employee of duties that are materially inconsistent
with his position; (ii) any reduction in Base Salary or an
established Annual Bonus (if any); (iii) a change in
Employee’s principal place of employment beyond a 35 mile
radius from the location in Section 3(c),
(iv) Holdings’ failure to offer to Employee prior to
June 30, 2009, the position of global head of claims of Allied
World Assurance Company, Ltd, which offer shall not require
Employee to relocate his principal place of employment from the
location in Section 3(c) (it being acknowledged that such position
will likely require substantial travel outside the U.S. for
business purposes); or (v) any breach by the Company of any
material provision of this Agreement.
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(s)
“ Holdings ” shall mean Allied World Assurance
Company Holdings, Ltd, a Bermuda corporation and the
Company’s ultimate parent.
(t)
“ Interfering Activities ” shall mean
(i) encouraging, soliciting or inducing, or in any manner
attempting to encourage, solicit or induce, any Person employed by,
as agent of, or a service provider to, any member of the Company
Group, to terminate (or, in the case of an agent or service
provider, reduce) such Person’s employment, agency or
service, as the case may be, with any member of the Company Group;
provided, that the foregoing shall not be violated by general
advertising not targeted at employees of any member of the Company
Group nor by serving as a reference upon an employee’s
request with regard to an entity with which Employee is not
affiliated; or (ii) encouraging, soliciting or inducing, or in
any manner attempting to encourage, solicit or induce any customer,
supplier (including insurance brokers), licensee or other business
relation of any member of the Company Group to cease doing business
with or reduce the amount of business conducted with any member of
the Company Group, or in any way interfere with the relationship
between any such customer, supplier (including insurance brokers),
licensee or business relation and any member of the Company
Group.
(u)
“ Merger Agreement ” shall mean that certain
Agreement and Plan of Merger, dated as of June [ • ],
2008, by and among Darwin, Holdings, and [MergerCo].
(v)
“ Non-Interference Period ” shall mean the
period commencing on the Closing Date and ending on the twelve
(12) month anniversary of the date of such
termination.
(w)
“ Non-Compete Period ” shall mean the period
commencing on the Closing Date and:
(i)
in the case of Employee’s termination of employment hereunder
by the Company for Cause, ending on the date of such
termination;
(ii)
in the case of Employee’s termination of employment hereunder
by the Company without Cause or by Employee for Good Reason, ending
on the twelve (12) month anniversary of the date of such
termination; or
(iii)
in the case of Employee’s termination of employment hereunder
by the Employee without Good Reason or as a result of his
Disability, ending on the date of such termination; provided,
however , that the Company may elect to extend the Non-Compete
Period up to an additional twelve (12) months following the
date of such termination by providing Employee written notice of
such election within five (5) business days following such
termination specifying the applicable period of extension, in which
case, the Company shall be required to continue, through the end of
the Non-Compete Period, as so extended, (A) to pay Employee
his Base Salary, in accordance with the Company’s regular
payroll practices, and (B) to provide participation under the
Company’s health and other insurance plans, or if such
continued participation in is not permissible, provide Employee
with coverage that is economically equivalent to Employee through
alternative arrangements, or the cash value of such coverage, in a
manner that places the Employee in a net economic position that is
at least equivalent to
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the position in
which the Employee would have been had such alternative
arrangements not been used by the Company.
(x)
“ Person ” shall mean any individual,
corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust (charitable or
non-charitable), unincorporated organization or other form of
business entity.
(y)
“ Prior Agreement ” shall have the meaning set
forth in the recitals hereto.
(z)
“ Release Expiration Date ” shall have the
meaning set forth in Section 8(g) below.
(aa)
“ Severance Term ” shall mean the twelve
(12) month period immediately following Employee’s
termination by the Company without Cause or by Employee with Good
Reason.
(bb)
“ Term of Employment ” shall mean the period
specified in Section 2 below.
Section 2.
Acceptance and Term of Employment .
The
Company agrees to employ Employee and Employee agrees to serve the
Company on the terms and conditions set forth herein. The Term of
Employment shall commence on the Closing Date and shall continue
until Employee is terminated as provided in Section 8
hereof.
Section 3.
Position, Duties and Responsibilities; Place of Performance
.
(a) During
the Term of Employment, Employee shall be employed and serve as the
Executive Vice President, General Counsel and Chief Claims Officer
of the Company (together with such other position or positions
consistent with Employee’s title as the Board or the officer
of the Company Group to which Employee reports shall specify from
time to time) and shall have such duties typically associated with
such title. In the event the position of global head of claims
becomes available, Employee shall be offered such position in
addition to those positions set forth herein and shall have such
duties typically associated with such additional title. Subject to
the foregoing, Employee also agrees to serve as an officer and/or
director of any other member of the Company Group, in each case
without additional compensation.
(b) Subject
to the terms and conditions set forth in this Agreement, Employee
shall devote his full business time, attention and efforts to the
performance of his duties under this Agreement and shall not engage
in any other business or occupation during the Term of Employment,
including, without limitation, any activity that (x) conflicts
with the interests of any member of the Company Group,
(y) interferes with the proper and efficient performance of
his duties for the Company or (z) interferes with the exercise
of his judgment in the Company’s best interests.
Notwithstanding the foregoing, nothing herein shall preclude
Employee from (i) serving, with the prior written consent of
the Company, as a member of the board of directors or advisory
boards (or their equivalents in the case of a non-corporate entity)
of non-competing businesses and charitable organizations,
(ii) engaging in charitable activities and
community
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affairs, and
(iii) subject to the terms and conditions set forth in
Section 9 hereof, managing his personal investments and
affairs; provided, however , that the activities set out in
clauses (i), (ii) and (iii) shall be limited by Employee
so as not to materially interfere, individually or in the
aggregate, with the performance of his duties and responsibilities
hereunder.
(c) Employee’s
principal place of employment shall be at the Company’s
Farmington, Connecticut, office, although Employee understands and
agrees that he may be required to travel from time to time for
business reasons.
Section 4.
Compensation .
During
the Term of Employment, Employee shall be entitled to the following
compensation:
(a)
Base Salary . Employee shall be paid an annualized Base
Salary, payable in accordance with the regular payroll practices of
the Company, of not less than $346,094, subject to increase, if
any, as may be approved in writing by the Company, but not to
decrease from the then current Base Salary.
(b)
Annual Bonus . Employee shall be eligible for an annual
incentive bonus award determined by the Company in respect of each
fiscal year during the Term of Employment (the “ Annual
Bonus ”). The Annual Bonus shall be earned and payable in
accordance with the policies of the Company as in effect from time
to time.
(c)
Equity Plan Participation . During the Term of Employment,
Employee shall be eligible to participate in the equity incentive
plans maintained by Holdings.
(d)
Darwin LTIP . For purposes of clarification but without
providing duplication of benefits under the Prior Agreement, upon
the Closing Date, (i) all LTIP interests held by Employee
under the Darwin Professional Underwriters, Inc. Long Term
Incentive Plan (as amended, effective November 11, 2005) shall
fully and immediately vest, with payouts to the Employee in respect
of his interests in outstanding “Profit Pools”
thereunder to be made at the times, in the amounts, and in the
manner provided therein as if the Closing Date had not occurred,
and (ii) all shares of restricted Darwin stock held by
Employee as of the Closing Date shall fully and immediately
vest.
(e)
Parachute Payments . With respect to any “parachute
payments” (within the meaning of Section 280G of the
Code) that are paid to Employee in connection with the transactions
contemplated by the Merger Agreement, the provisions of
Section 8 of the Prior Agreement shall remain in full force
and effect.
Section 5.
Employee Benefits .
During
the Term of Employment, Employee shall be entitled to participate
in health, insurance, retirement and other perquisites and benefits
generally provided to other similarly situated employees of the
Company that are made available and as are in effect from time to
time. Employee shall also be entitled to the same number of
holidays, vacation and sick
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days as are
generally allowed to similarly situated employees of the Company in
accordance with the Company policy in effect from time to
time.
Section 6.
“Key-Man” Insurance .
At
any time during the Term of Employment, the Company shall have the
right to insure the life of Employee for the sole benefit of the
Company, in such amounts, and with such terms, as it may determine.
All premiums payable thereon shall be the obligation of the
Company. Employee shall have no interest in any such policy, but
agrees to reasonably cooperate with the Company in taking out such
insurance by submitting to physical examinations, supplying all
information reasonably required by the insurance company, and
executing all necessary documents, provided that no financial
obligation or liability is imposed on Employee by any such
documents.
Section 7.
Reimbursement of Business Expenses .
Employee
is authorized to incur reasonable business expenses in carrying out
his duties and responsibilities under this Agreement and the
Company shall promptly reimburse him for all such reasonable
business expenses incurred in connection with carrying out the
business of the Company, subject to documentation in accordance
with the Company’s policy, as in effect from time to
time.
Section 8.
Termination of Employment .
(a)
General . The Term of Employment shall terminate upon the
earliest to occur of (i) Employee’s death, (ii) a
termination by reason of a Disability, (iii) a termination by
the Company with or without Cause, and (iv) a termination by
Employee with or without Good Reason. Upon any termination of
Employee’s employment for any reason, except as may otherwise
be requested by the Company in writing and agreed upon in writing
by Employee, Employee shall resign from any and all directorships,
committee memberships or any other positions Employee holds with
any member of the Company Group. Notwithstanding anything herein to
the contrary, the payment (or commencement of a series of payments)
hereunder of any nonqualified deferred compensation (within the
meaning of Section 409A of the Code) upon a termination of
employment shall be delayed until such time as Employee has also
undergone a “separation from service” as defined in
Treas. Reg. 1.409A-1(h), at which time such nonqualified
deferred compensation (calculated as of the date of
Employee’s termination of employment hereunder) shall be paid
(or commence to be paid) to Employee on the schedule set forth in
this Section 8 as if Employee had undergone such termination
of employment (under the same circumstances) on the date of his
ultimate “separation from service.”
(b)
Termination due to Death or Disability . Employee’s
employment shall terminate automatically upon his death. The
Company may terminate Employee’s employment immediately upon
the occurrence of a Disability, such termination to be effective
upon Employee’s receipt of written notice of such
termination. In the event Employee’s employment is terminated
due to his death or Disability, Employee or his estate or his
beneficiaries, as the case may be, shall be entitled to:
(i)
The Accrued Obligations;
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(ii)
Any unpaid Annual Bonus in respect to any completed fiscal year
which has ended prior to the date of such termination, such amount
to be paid at the same time it would otherwise be paid to Employee
had no such termination occurred, but in no event later than the
last day of the Company’s fiscal year in which such
termination occurs;
(iii)
A pro rata Annual Bonus (determined using any target Annual Bonus
if such termination occurs during the fiscal year in which the
Closing Date falls, and using the highest Annual Bonus paid or
payable for the two immediately prior fiscal years for terminations
after the fiscal year in which the Closing Date falls) based on the
number of days elapsed from the commencement of such fiscal year
through and including the date of such termination, such amount to
be paid within five (5) business days of such termination;
and
(iv)
Vesting, as of the date of such termination, in the number of
equity-based awards, if any, which would otherwise have vested
during the one (1) year period immediately following such
termination (without regard to any subsequent vesting
events).
Except as set
forth in this Section 8(b), following Employee’s
termination by reason of his death or Disability, Emplo
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