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INDEMNIFICATION
AGREEMENT
THIS AGREEMENT is made the [27th] day
of September, 2007 by and between Endurance Specialty Holdings
Ltd., a Bermuda company (the “Company”), and [Name of
Officer], who serves as an officer of the Company on the date
hereof (the “Indemnitee”).
WHEREAS, the Indemnitee serves as an
officer of the Company;
WHEREAS, the Company wishes the
Indemnitee to continue to serve as an officer of the Company and
the Indemnitee is willing, under certain circumstances, to continue
in such capacity; and
WHEREAS, as an inducement to continued
service as a officer by the Indemnitee and its other directors and
officers, the Company has determined to provide additional
protection to the Indemnitee as set forth herein.
NOW, THEREFORE, in consideration of
the Indemnitee’s continued and future service to the Company,
the parties agree as follows:
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1.
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Indemnification
. The Company agrees to indemnify the
Indemnitee to the full extent permitted by Bermuda law, as it
exists now and as it may be amended in the future to permit
additional indemnification for the Indemnitee.
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2.
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Additional Indemnification and
Payment of Expenses .
Without limiting the indemnification provided in Section 1 and
subject to the limitations, terms and conditions of this Agreement,
including, but not limited to, the limitations in Section 10, the
Company agrees, to the fullest extent permitted by applicable law
as in effect at any time during the term of this Agreement,
to:
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a.
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indemnify the Indemnitee against all
judgments for both compensatory and punitive damages, fines,
penalties and settlements incurred in connection with any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative
(including, but not limited to, any action by or in the right of
the Company), to which the Indemnitee is, was or at any time
becomes a party, or is threatened to be made a party, by reason of
the fact that the Indemnitee is, was or at any time becomes a
director, officer, employee, agent or fiduciary of the Company, or
is or was serving or at any time serves at the request of the
Company as a director, officer, employee, agent, or fiduciary of
another corporation, partnership, joint venture, trust or other
enterprise or with respect to any employee benefit plan (or its
participants or beneficiaries) of the Company or any such other
enterprise, and
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b .
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pay all costs, charges and other
expenses, including, but not limited to, attorneys’ fees,
costs of appearance, attachment and similar bonds (hereinafter
referred to as “Expenses”) incurred in connection with
the investigation, defense and appeal of any action, suit or
proceeding described in Section 2(a), provided, that no monies
shall be paid under this Section 2(b) unless the payment of such
monies shall be authorized in the specific case upon a
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determination that indemnification of
the Indemnitee would be proper in the circumstances because the
Indemnitee has met the standard of conduct which would entitle the
Indemnitee to the indemnification thereby provided and such
determination has been made:
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i.
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by the Board of Directors (the
“Board”) of the Company, by a majority vote at a
meeting duly constituted by a quorum of directors not party to the
proceedings or matter with regard to which the indemnification is,
or would be claimed;
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ii.
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in the case such a meeting cannot be
constituted by lack of a disinterested quorum, by independent legal
counsel in a written opinion; or
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iii.
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by a majority vote of the shareholders
of the Company entitled to vote upon Company matters generally
(after giving effect to any adjustments to the voting power imposed
pursuant to the Company’s bye-laws).
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3.
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Maintenance of D&O
Insurance . The Company
currently maintains directors’ and officers’ liability
insurance with a limit of coverage of $70,000,000 (the
“D&O Policies”).
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a.
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So long as the Indemnitee shall
continue to serve in any capacity described in Section 2 and
thereafter so long as the Indemnitee shall be subject to any
possible action, suit or proceeding by reason of the fact that the
Indemnitee served in any of said capacities, the Company will
purchase and maintain in effect for the benefit of the Indemnitee
one or more valid, binding and enforceable policies of
directors’ and officers’ liability insurance providing,
in all respects, coverage and amounts at least comparable to that
provided pursuant to the D&O Policies.
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b.
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Notwithstanding Section 3(a), the
Company shall not be required to maintain directors’ and
officers’ liability insurance in effect if such insurance is
not reasonably available or if, in the reasonable business judgment
of the Board as it may exist from time to time, either (i) the
premium cost for such insurance is substantially disproportionate
to the amount of insurance or (ii) the coverage is so limited by
exclusions that there is insufficient benefit provided by such
insurance.
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c.
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If the Company, acting under Section
3(b), does not purchase and maintain in effect directors’ and
officers’ liability insurance, the Company shall indemnify
and hold harmless the Indemnitee to the full extent of the coverage
which would otherwise have been provided by the D&O
Policies.
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d.
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The Company shall pay all Expenses
incurred by the Indemnitee in connection with any action, suit or
proceeding to enforce the Indemnitee’s rights under the
D&O Policies.
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4.
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Procedure for Determination of
Entitlement to Indemnification . To obtain indemnification under this Agreement,
Indemnitee shall submit to the Company a written request, including
therein or therewith such documentation and information as is
reasonably available to Indemnitee and is reasonably necessary to
determine whether and to what extent Indemnitee is entitled to
indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board in
writing that Indemnitee has requested indemnification.
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5.
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Presumptions and Effect of Certain
Proceedings .
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a.
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In making a determination with respect
to entitlement to indemnification hereunder, the person or persons
or entity making such determination shall presume that Indemnitee
is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with
Section 4 of this Agreement, and the Company shall have the burden
of proof to overcome that presumption in connection with the making
of any determination contrary to that presumption.
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b.
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If the person, persons or entity
empowered or selected to determine whether Indemnitee is entitled
to indemnification hereunder shall not have made a determination
within thirty (30) days after receipt by the Company of the request
therefor, the requisite determination of entitlement shall be
deemed to have been made and Indemnitee shall be entitled to
indemnification hereunder.
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c.
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The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, a plea
of nolo
contendere or its equivalent, or an entry of an order of
probation prior to judgment, does not create a presumption that
Indemnitee did not meet the requisite standard of conduct described
herein for indemnification.
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6.
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Defense of Claims
. With respect to any action, suit or
proceeding described in Section 2, the Company may elect to assume
the investigation and defense of such action, suit or proceeding
with counsel it selects with the consent of the Indemnitee, which
consent shall not be unreasonably withheld. After notice to the
Indemnitee from the Company of its election to assume the
investigation and defense of such action, suit or proceeding, the
Company shall not be liable to the Indemnitee under this Agreement
for any expenses subsequently incurred by the Indemnitee in
connection with the investigation and defense of such action, suit
or proceeding other than for services requested by the Company or
the counsel it selected. The Indemnitee shall have the right to
employ his own counsel, but the Expenses incurred by the Indemnitee
after notice from the Company of its assumption of the
investigation and defense shall be at the expense of the
Indemnitee. Notwithstanding the foregoing, however, the Indemnitee
shall be entitled to separate counsel in any action, suit or
proceeding brought by or on behalf of the Company or as to which
counsel for the Indemnitee reasonably concludes that there is a
conflict of interest between the Company and the Indemnitee,
provided that the Company shall not be required to pay the expenses
of more than one such separate counsel for persons it is
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indemnifying in any one action, suit
or proceeding unless the counsel originally chosen to represent
such Indemnitees as a group reasonably concludes that substantial
and material conflicts of interest prevent such counsel from acting
for the Indemnitees as a single client.
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7.
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Payment of Expenses
. The Indemnitee’s reasonable
Expenses incurred in connection with any action, suit or proceeding
described in Section 2 or 3(d) shall be paid by the Company as they
accrue, and, in any event, within twenty (20) days after the
Company has received written request therefor from or on behalf of
the Indemnitee. The Company shall continue to make such payments
unless and until there has been a final adjudication by a court of
competent jurisdiction establishing that the Indemnitee is not
entitled to be indemnified for such Expenses in accordance with
Section 10 of this Agreement.
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8.
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Indemnitee’s
Reimbursement . The
Indemnitee agrees to reimburse the Company for all amounts paid by
the Company pursuant to Sections 1, 2, 3(c), 3(d), 6, and 7 of this
Agreement in the event and to the extent, but only in the event and
only to the extent, that there is a final adjudication by a court
of competent jurisdiction establishing that the Indemnitee is not
entitled to be so indemnified or to have such Expenses paid by the
Company.
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9.
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Contribution
. If the indemnification or payments
of Expenses provided by this Agreement should be unavailable or
insufficient to hold the Indemnitee harmless, then the Company
agrees that, for purposes of this Section, the Company shall be
treated as if it were a party to the threatened, pending or
completed action, suit or proceeding in which the Indemnitee was
involved and that the Company shall contribute to the amounts paid
or payable by the Indemnitee as a result of Expenses, judgments for
both compensatory and punitive damages, fines, penalties and
amounts paid in settlement. The amount of contribution provided by
this Section shall be determined by (i) the relative benefits
accruing to the Company on the one hand and the Indemnitee on the
other which arose out of the acts or omissions underlying the
threatened, pending or completed action, suit or proceeding in
which the Indemnitee was involved, (ii) th
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