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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 pro
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