Exhibit 10.1 

 

AMENDED AND RESTATED 

EMPLOYMENT AGREEMENT

 

 

THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is dated as of August 1, 2004 (the “Effective Date”), and is entered into between Max Re Capital Ltd., formerly known as Maximus Capital Holdings, Ltd. (the“Company”) and Robert Cooney (“Executive”). 

 

WHEREAS, the Company employs Executive as its President and Chief Executive Officer and Chairman of its Board of Directors (the “Board”) pursuant to the terms of an Employment Agreement between the Company and Executive datedAugust 1, 1999 (the “Prior Agreement”); and 

 

WHEREAS,the Company desires to continue to retain the services of Executive and Executive desires to continue to work for and be employed by the Company in the capacity set forth above; and 

 

WHEREAS, the parties now desire to enter into this Amended and Restated Employment Agreement (the “Agreement”)setting forth the terms and conditions of the employment relationship of Executive with the Company; 

 

NOW, THEREFORE, in consideration of the mutual premises, covenants and agreements set forth below, it is hereby agreed as follows: 

 

ARTICLE I. 

 

EMPLOYMENT, DUTIES AND RESPONSIBILITIES

 

 

(a) The Company shall continue to employ Executive as President and Chief Executive Officer of the Company. Executive agrees to devote his full businesstime, efforts and energies to the performance of his duties hereunder. Executive agrees to continue to serve as the Chairman of the Board and/or on the board of any affiliate as a director and/or to serve as an officer of any affiliate at a levelcommensurate with his position as may be reasonably requested by the Board without additional compensation. Executive further agrees to serve as the principal representative of any Bermuda insurance or reinsurance subsidiary of the Company, for thepurposes of the Bermuda Insurance Act 1978 (as amended). Executive’s principal office location and the executive offices of the Company shall be in Bermuda. Notwithstanding the foregoing, to the extent the following do not materially interferewith the performance of Executive’s duties hereunder, Executive shall be permitted to (i) manage his personal affairs; (ii) be involved with charitable and professional activities and (iii) with the 

 

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consent of the Board, which consent shall not be unreasonably withheld, conditioned or delayed, serve on the board ofdirectors of non-charitable entities. 

 

(b) Executive agreesthat, so long as he is employed by the Company, he will not own, directly or indirectly, any controlling or substantial stock or other beneficial interest in any business enterprise which is engaged in, or competitive with, any business engaged inby the Company. Notwithstanding the foregoing, Executive (i) shall be permitted to maintain his equity holdings in his prior employer and (ii) may own, directly or indirectly, up to one percent (1%) of the outstanding capital stock or debt of anybusiness having a class of capital stock that is traded on any national stock exchange or on the over-the-counter market and upon approval of the Board or as otherwise set forth on Exhibit B attached hereto on the Effective Date, may be a passiveinvestor in investment entities so long as his interest therein is less than one percent (1%). 

 

1.2 Duties and Responsibilities. Executive shall have such authority, duties and responsibilities as are customary and consistent with his position and such other duties and responsibilities as are determinedfrom time to time by the Board and commensurate with his position. During the Term, Executive shall report solely and directly to the Board. 

 

ARTICLE II. 

 

TERM

 

2.1 Term. The term of employment under this Agreement (the “Initial Term”) shall commence on August 1, 2004 (the “Commencement Date”) and subject to earlier termination under Article V, continue for a period offive (5) years; provided, that, commencing on the fifth anniversary of the Commencement Date, the Initial Term shall automatically renew for successive one year periods (the “Additional Term”), subject to earlier terminationunder Section 5, unless either party provides written notice of non-renewal to the other at least ninety (90) days prior to the end of the Initial Term or the then Additional Term. The Initial Term and any Additional Term shall be referred to underthis Agreement as the “Term”. Upon termination of the Term or as soon thereafter as possible, howsoever terminated, Executive shall deliver to the Company and each affiliate of the Company, if applicable, letters of resignation fromdirectorships, officerships and any appointment as principal representative (referred to in Section 1.1 above). This obligation shall survive termination of the Executive’s employment. 

 

ARTICLE III. 

 

COMPENSATION

 

3.1 Salary, Bonuses and Benefits. As compensation and consideration for the performance by Executive of his obligations under this Agreement,Executive shall be entitled to the following (subject, in each case, to the provisions of Article V hereof): 

 

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(a) The Company shall pay Executive a base salary during the Term, payable in accordance with the normalpayment procedures of the Company as they may exist from time to time and subject to such withholdings and other normal employee deductions as may be required by law, at the rate of $675,000 (U.S.) per annum. The Company agrees to review suchcompensation not less frequently than annually during the Term commencing in January, 2006. Once increased, the base salary shall not be reduced. The base salary as increased from time to time shall be referred to herein as “Base Salary”.

 

(b) Executive shall participate during the Term in suchpension, life insurance, health, disability and major medical insurance plans, and in such other employee benefit plans and programs and fringes and perquisites, for the benefit of the employees of the Company, as may be maintained from time to timeduring the Term, in each case to the extent and in the manner available to other senior executives or officers of the Company and subject to the terms and provisions of such plans or programs. In addition, Executive shall receive an automobileallowance of up to $46,000 every 4 years for a car purchase, the payment of country club dues not to exceed $10,000 (U.S.) annually, and the payment of a housing allowance not to exceed $10,000 (U.S.) per month, or, if more favorable to Executive inthe aggregate, as otherwise provided by the Company for senior executive officers of the Company. Notwithstanding the foregoing, Executive’s housing allowance shall be no less than any other executive officer of the Company. 

 

(c) For each calendar year beginning with 2004 (the “Bonus Year”),the Company shall pay a bonus to Executive based on pre-established performance goals established by the Board with a target bonus of 100% of Base Salary and a range from 0% to 250% of Base Salary (the “Bonus”). 

 

(d) Executive shall be entitled to six weeks of paid vacation in accordancewith the Company policy as it may exist from time to time (but not necessarily consecutive vacation weeks) during each year of the Term. 

 

(e) As soon as practicable following the Effective Date, the Company shall grant Executive 100,000 restricted common shares (the “RestrictedStock”) pursuant to the Company’s stock incentive plan and consistent with the terms set forth in this paragraph (e). 

 

(i) 33-1/3% of the Restricted Stock shall vest on December 31, 2005 if the book value of the underlying common shares measured as of December 31, 2004 isat least 10% greater on December 31, 2005 (such number which is exactly 10% more than the book value on December 31, 2004 to be referred to as “Baseline 1”); provided, that, Executive is still employed by the Company on the vesting date(“Tranche l”); 

 

(ii) 33-1/3% of the Restricted Stockshall vest on the December 31, 2006 if the book value of the underlying common shares is at least 10% greater than Baseline 1 on December 31, 2006 (such number which is exactly 10% more 

 

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than Baseline 1 to be referred to as “Baseline 2”); provided, that, Executive is still employed by the Companyon the vesting date (“Tranche 2”). If Tranche 1 does not vest on December 31, 2005, but Baseline 2 is achieved as of December 31, 2006, then Tranche 1 shall vest as of such date; provided, that, Executive is still employed by the Companyon the vesting date. 

 

(iii) 33-1/3% of the Restricted Stockshall vest on December 31, 2007 if the book value of the underlying common shares is at least 10% greater than Baseline 2 on December 31, 2007 (such number which is exactly 10% more than Baseline 2 to be referred to as “Baseline 3”);provided, that, Executive is still employed by the Company on the vesting date. If Tranche 1 and/or Tranche 2 are not vested on December 31, 2005 and/or December 31, 2006, as the case may be, but Baseline 3 is achieved as of December 31, 2007, thenboth such tranches shall vest as of such date; provided, that, Executive is still employed by the Company on the vesting date. 

 

Example: Assume the book value of a common share is $100 on December 31, 2004. Therefore, Baseline 1 is $110, Baseline 2 is $121 and Baseline 3 is $133.1. As such,as long as the book value is at least $133.1 by December 31, 2007, 100% of the Restricted Stock shall vest if Executive is employed as of the relevant vesting date(s). 

 

(iv) Notwithstanding the foregoing, if Executive’s employment is terminated by the Company without Cause (as definedbelow) or Executive’s employment is terminated by the Executive for Good Reason (as defined below) on or following a Change in Control (as defined below) or in the event of Executive’s retirement at the end of the Term, all unvestedRestricted Stock granted in accordance with this paragraph (e) and any future equity awards granted to Executive by the Company shall become immediately vested in full upon such termination. 

 

(v) In the event Executive dies or Executive’s employment is terminatedby the Company for Disability (as defined below) at any time during the Term, all unvested Restricted Stock granted under this paragraph (e) shall become immediately vested upon such termination. 

 

For purposes of this Agreement, a Change in Control shall mean (i) any sale,lease, exchange or other transfer (in one or a series of related transactions) of all or substantially all of the assets of the Company or Max Re Ltd.; (ii) any “person” as such term is used in Section 13(d) and Section 14(d) of theSecurities Exchange Act of 1934, as amended (the “Exchange Act”) is or becomes, directly or indirectly, the “beneficial owner” as defined in Rule 13d-3 under the Exchange Act of securities of the Company that represent 51% ormore of the combined voting power of the Company’s then outstanding voting securities; or (iii) during any period of two consecutive years, individuals who at the beginning of such period constituted the Board (together with any new directorswhose election by the Board whose nomination by the shareholders of the Company was approved by a vote of the Board then still in office who are either directors at the beginning of such period or whose election or nomination for election was sopreviously approved) cease for any reason to constitute a majority of the Board then in office. 

 

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3.2 Prior Loans. The terms and conditions of any loans previously made by the Company to Executiveshall be unaffected by this Agreement and shall continue to be governed by the Prior Agreement and any loan documents previously executed by Executive. 

 

3.3 Expenses. The Company will reimburse Executive for reasonable business-related expenses incurred by him in connection with the performance ofhis duties hereunder during the Term in accordance with the Company’s policies relating to business-related expenses as in effect from time to time during the Term. 

 

ARTICLE IV. 

 

EXCLUSIVITY, ETC.

 
 4.1Restrictive Covenants. 
 

(a) Return of Property and Nondisclosure. Upon termination or expiration of his employment, Executive will promptly deliver to the Company alldata, lists, information, memoranda, documents and all other property belonging to the Company or containing “Confidential Information” (as defined below), including, among other things, that which relates to services performed byExecutive for the Company or any affiliate, or was created or obtained by Executive while performing services for the Company or any affiliate or by virtue of Executive’s relationship with the Company or any affiliate, except that Executiveshall have no obligation to deliver to the Company his rolodex, calendars and any documents containing Executive’s personal contacts or information. Except (i) as required in order to perform his obligations under this Agreement, (ii) as mayotherwise be required by law or any legal process, or (iii) as is necessary in connection with any adversarial proceeding against the Company (in which case Executive shall use his reasonable best efforts in cooperating with the Company in obtaininga protective order against disclosure by a court of competent jurisdiction), Executive shall not, without the express prior written consent of the Company, disclose or divulge to any other person or entity, or use or modify for use, directly orindirectly, in any way, for any person or entity, any of the Company’s or any affiliate’s Confidential Information at any time (during or after Executive’s employment). For purposes of this Agreement, “ConfidentialInformation” of the Company shall mean any valuable, competitively sensitive data and information related to the Company’s or any affiliate’s business including, without limitation Trade Secrets (as defined below) that are notgenerally known by or readily available to the Company’s or any affiliate’s competitors other than as a result of an improper disclosure directly or indirectly by Executive. “Trade Secrets” shall mean information or data of theCompany or any affiliates including, but not limited to, technical or non-technical data, financial information, programs, devices, methods, techniques, drawings, processes, financial plans, product plans, or lists of actual or potential customersor suppliers, that: (A) derive economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from 

 

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their disclosure or use; and (B) are the subject of efforts that are reasonable under the circumstances to maintain theirsecrecy. 

 

(b) Post-Employment Property. Executive agreesthat any and all intellectual property that Executive invents, discovers, originates, makes, conceives, creates or authors either solely or jointly with others and that is the result of or is substantially derived from Confidential Information shallbe the sole and exclusive property of the Company unless in the public domain. Executive shall promptly and fully disclose all such property to the Company, shall provide the Company with any information that it may reasonably request about suchproperty and shall execute such agreements, assignments or other instruments as may be reasonably requested by the Company to reflect such ownership by the Company. 

 

(c) Protection of the Business; Nonsolicitation. During the Term and until the second anniversary of Executive’sDate of Termination (as defined below) for any reason, Executive will not anywhere within the geographical areas in which the Company or any subsidiary (the “Designated Entities”) are conducting their business operations or providingservices as of the Date of Termination, pursue any Company or subsidiary project known to Executive and which the Designated Entities are actively pursuing, developing or attempting to develop as of the Date of Termination (or within six (6) monthsprior to the Date of Termination) while the Company is (or is contemplating actively) pursuing such project directly or indirectly, alone, in association with or as a shareholder, principal, agent, partner, officer, director, employee or consultantof any other organization. During the Term and until the second anniversary of Executive’s Date of Termination, Executive shall not solicit any officer, employee (other than secretarial staff) or consultant of any of the Designated Entities toleave the employ of any of the Designated Entities. 

 

(d)Non-Disparage. The parties acknowledge and agree that they will not defame or publicly criticize the services, business, integrity, veracity or personal or professional reputation of the other party, and in the case of the Company, itsofficers, directors, partners, employees, affiliates, or agents thereof in either a professional or personal manner, except that the foregoing shall not limit normal competitive activities. 

 

(e) Blue Pencil. If, at any time, the provisions of this Section 4.1shall be determined to be invalid or unenforceable under any applicable law, by reason of being vague or unreasonable as to area, duration or scope of activity, this Section 4.1 shall be considered divisible and shall become and be immediatelyamended to only such area, duration and scope of activity as shall be determined to be reasonable and enforceable by the court or other body having jurisdiction over the matter; and Executive and the Company agree that this Section 4.1 as so amendedshall be valid and binding as though any invalid or unenforceable provision had not been included herein. 

 

4.2 Remedies. Executive acknowledges that the Company’s remedy at law for a breach by him of the provisions of this Article IV will beinadequate. Accordingly, in the event of a breach or threatened breach by Executive of any provision of this Article IV, the Company shall be entitled to seek injunctive relief in Bermuda or elsewhere in 

 

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addition to any other remedy it may have. If any of the provisions of, or covenants contained in, this Article IV arehereafter construed to be invalid or unenforceable in any jurisdiction, the same shall not affect the remainder of the provisions or the enforceability thereof in any other jurisdiction, which shall be given full effect, without regard to theinvalidity or unenforceability in such other jurisdiction. If any of the provisions of, or covenants contained in, this Article IV are held to be unenforceable in any jurisdiction because of the duration or geographical scope thereof, the partiesagree that the court making such determination shall have the power to reduce the duration or geographical scope of such provision or covenant and, in its reduced form, such provision or covenant shall be enforceable; provided,however, that the determination of such court shall not affect the enforceability of this Article IV in any other jurisdiction. 

 

ARTICLE V. 

 

TERMINATION

 

5.1 Termination by the Company with Cause. The Company shall have the right to terminate Executive’s employment at any time with “Cause” by providing a Notice of Termination to Executive not more than thirty (30) daysafter the Board’s actual knowledge of the Cause event, and such termination shall not be deemed to be a breach of this Agreement. For purposes of this Agreement, “Cause” shall mean (i) habitual drug or alcohol use which impairs theability of Executive to perform his duties hereunder; (ii) Executive’s conviction during the Term by a court of competent jurisdiction, or a pleading of “no contest” or guilty to a felony or the equivalent if outside the UnitedStates; (iii) Executive’s engaging in fraud, embezzlement or any other illegal conduct with respect to the Company which acts are materially harmful to, either financially, or to the business reputation of, the Company; (iv) Executive’swillful violation of Article IV hereof; (v) Executive’s willful failure or refusal to perform his duties hereunder (other than such failure caused by Executive’s Disability or while on vacation), after a written demand for performance isdelivered to Executive by the Board that specifically identifies the manner in which the Board believes that Executive has failed or refused to perform his duties, or (vi) Executive otherwise breaches any material provision of this Agreement whichis not cured, if curable, within 30 days after written notice thereof. Executive will be given the opportunity within five (5) calendar days of receipt of such notice to meet with the Board to defend such act or acts or failure to act. No act orfailure to act by Executive shall be deemed “willful” unless done, or omitted to be done, (i) by Executive not in good faith and (ii) without a reasonable belief that his action or omission was in the best interest of the Company. However,acts or failures to act will not be deemed to be “willful” if Executive is specifically directed to take (or not take) such action by the Board, unless Executive in good faith believes such directives are illegal and Executive promptlynotifies the Board thereof. 

 

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5.2. Death. In the event Executive dies during the Term, his employment shall automaticallyterminate effective on the date of his death and such termination shall not be deemed to be a breach of this Agreement. 

 

5.3. Disability. In the event that Executive shall suffer a mental or physical disability which shall have prevented him from performing hismaterial duties hereunder for a period of at least one-hundred eighty (180) consecutive days or one-hundred eighty (180) non-consecutive days within any 365 day period, the Company shall have the right to terminate Executive’s employment for“Disability,” such termination to be effective upon the giving of notice thereof to Executive in accordance with Section 6.3 hereof and such termination shall not be deemed to be a breach of this Agreement. In such event, Executive’semployment hereunder shall terminate effective on the 30th day after receipt of such notice by the Executive (the“Disability Effective Date”); provided, that, Executive shall not have returned to full-time performance of his duties hereunder within thirty (30) days following receipt of such notice. 

 

5.4. Good Reason. Executive may terminate his employment with theCompany for “Good Reason” within thirty (30) days after Executive has knowledge of the occurrence, without Executive’s written consent, of one of the following events that has not been cured, if curable, within thirty (30) days aftera Notice of Termination has been given by Executive to the Company and such termination shall not be deemed to be a breach of this Agreement. For purposes of this Agreement, “Good Reason” shall mean: (i) any material and adverse change toExecutive’s duties or authority which is inconsistent with his title and position set forth herein, (ii) a diminution of Executive’s title or position; (iii) the relocation of Executive’s office outside of Bermuda; (iv) a reduction ofExecutive’s Base Salary; (v) a material reduction of Executive’s benefits provided under Section 3.1 other than a reduction permitted under terms and conditions of the applicable Company policy or benefit plan; or (vi) a failure by theCompany to comply with any other material provisions of this Agreement. 

 

5.5. Without Good Reason. Executive may terminate his employment with the Company without Good Reason by giving written notice to the Company as provided in Section 6.3. Such notice must be provided to the Company at least thirty(30) days prior to such termination. Such termination shall not be deemed to be a breach of this Agreement. 

 

5.6. Without Cause. The Company shall have the right to terminate Executive’s employment hereunder without Cause by providing Executive withwritten notice of termination as provided in Section 6.3, and such termination shall not in and of itself be, nor shall it be deemed to be, a breach of this Agreement. 

 

5.7. Expiration of the Term. Executive’s employment shall terminate upon the expiration of the Term, and suchtermination shall not in and of itself be, nor shall it be deemed to be, a breach of this Agreement. Notwithstanding the foregoing, in the event such termination is a result of the Company providing a notice of non-renewal of the 

 

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Term under Section 2.1 of this Agreement, Executive shall be entitled to the benefits set forth in Section 5.10(c).

 

5.8. Notice of Termination. Any termination ofExecutive’s employment by the Company for Cause, or by Executive for Good Reason, shall be communicated by Notice of Termination to the other party hereto given in accordance with Section 6.3 of this Agreement. For purposes of this Agreement, a“Notice of Termination” means a written notice which (i) indicates the specific termination provision in this Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed toprovide a basis for termination of Executive’s employment under the provision so indicated and (iii) if the Date of Termination (as defined below) is other than the date of receipt of such notice, specifies the termination date. The failure byExecutive or the Company to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Good Reason or Cause shall not waive any right of Executive or the Company, respectively, hereunder or preclude Executiveor the Company, respectively, from asserting such fact or circumstance in enforcing Executive’s or the Company’s rights hereunder. 

 

5.9. Date of Termination. “Date of Termination means (i) if Executive’s employment is terminated by the Company for Cause or by Executivefor Good Reason, the date of receipt of the Notice of Termination or any later date specified therein (but not more than thirty (30) days), as the case may be (although such Date of Termination shall retroactively cease to apply if the circumstancesproviding the basis of termination for Cause or Good Reason are cured in accordance with Section 5.1 or 5.4 of this Agreement, respectively), (ii) if Executive’s employment is terminated by the Company other than for Cause, the Date ofTermination shall be the date set forth in the Notice of Termination (iii) if Executive’s employment is terminated by Executive without Good Reason, the Date of Termination shall be the date set forth in the Notice of Termination, but no soonerthan thirty (30) days after such Notice of Termination is received by the Company and (iv) if Executive’s employment is terminated by reason of death or Disability, the Date of Termination shall be the date of Executive’s death or theDisability Effective Date, as the case may be. 

 

5.10.Compensation upon Termination. In the event of the termination of Executive’s employment during or at the end of the Term, the Company shall provide Executive with the payments and benefits set forth below. Executive acknowledges andagrees that the payments set forth in this Section 5.10 constitute liquidated damages for any claim of breach of contract under this Agreement as it relates to termination of his employment during the Term. Notwithstanding the foregoing, ifExecutive is entitled to the payments set forth in Section 5.10(b), Section 5.10(c) or Section 5.10(d) of this Agreement, Executive shall execute and agree to be bound by an agreement relating to the waiver and general release of any and all claims(other than claims for the compensation and benefits payable under Section 5.10(b), Section 5.10(c) or Section 5.10(d), as the case may be) arising out of or relating to Executive’s employment and termination of employment (the“Release”). Such Release shall be made substantially in the form attached hereto as Exhibit A, subject to such changes as may be required to preserve the intent thereof for changes in applicable law. 

 

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(a) In the event of termination of Executive’s employment by the Company for Cause or by Executivewithout Good Reason, or by reason of expiration of the Term in accordance with Executive’s notice of non-renewal of the term to the Company under Section 2.1 of this Agreement, the Company shall pay Executive his accrued, but unpaid Base Salaryand unpaid business expenses through the Date of Termination. To the extent required by law or as otherwise provided by Company policy, Executive shall also be paid his accrued, but unpaid vacation pay through the Date of Termination. 

 

(b) In the event of Executive’s death or the termination of hisemployment due to Disability, the Company shall pay to Executive (or his beneficiary(ies) or estate, as the case may be) an amount equal to the sum of (i) his accrued, but unpaid Base Salary through the date of termination of employment, (ii)earned, but unpaid Bonus for the year prior to the year of termination, (iii) a pro-rata portion of his Bonus for the year of death or termination for Disability, as determined in the good faith opinion of the Board based on the relative achievementof performance targets through the Date of Termination, (iv) accrued vacation pay through the Date of Termination (the sum of the amounts in clauses (i) through (iv) hereof referred to as “Accrued Amounts”), as soon as practicablefollowing the Date of Termination. Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive in accordance with the terms and provisions of any agreements, plans or programs of the Company. 

 

(c) In the event Executive’s employment is terminated pursuant toSection 5.4 or Section 5.6 or if the Company delivers notice of non-renewal of the Term under Section 2.1 effective at the end of the Term, the Company shall pay Executive, the Accrued Amounts and a cash payment equal to a pro-rata amount,calculated on a daily basis, between $675,000 (U.S.) and $1,850,000 (U.S.) (the “Severance Amount”), with $1,850,000 (U.S.) corresponding to a termination on the Commencement Date and $675,000 (U.S.) corresponding to a termination on thefifth anniversary thereof. If the Term is renewed in accordance with Section 2.1 and this clause (c) becomes applicable thereafter, the Severance Amount shall be equal to $675,000 (U.S.) for any such termination following the fifth anniversary ofthe Commencement Date. Notwithstanding the foregoing, if such termination should occur following a Change in Control, in lieu of the Severance Amount, Executive shall receive a lump sum payment equal to three times his then current Base Salary andlast paid Bonus, if any. 

 

(d) (i) Anything in this Agreement tothe contrary notwithstanding, in the event that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in ownership or effectivecontrol of the Company or a change in the ownership of a substantial portion of the assets of the Company, in either case, within the meaning of Section 280G(b)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) and theregulations promulgated thereunder (a “Change in Ownership”), to or for the benefit of Executive (the “Payments”) is subject to the excise 

 

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tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to suchexcise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then, the Company shall pay to Executive an additional payment (a “Gross-Up Payment”) inan amount such that after payment by Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y)the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-UpPayment is to be made. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for thecalendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction infederal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of theGross-Up Payment in Executive’s adjusted gross income. Notwithstanding the foregoing provisions of this Section 5.10(d)(i), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subjectto the Excise Tax if the Payments were reduced by an amount that is less than $50,000 (U.S.), then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executivewithout giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section5.10(c), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of theamounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. 

 

(ii) Subject to the provisions of Section 5.10(d)(i), all determinations required to be made under this Section 5.10(d),including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as ofthe date immediately prior to the Change in Ownership (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from theCompany or Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In the event that the Accounting Firm is serving as accountant or auditor for the individual,entity or group effecting the Change in Ownership, Executive may appoint another U.S. nationally recognized public accounting firm to make the determinations required 

 

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hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses ofthe Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 5.10(d)with respect to any Payments made to Executive shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion tosuch effect, and to the effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty. In the event the Accounting Firmdetermines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and Executive. 

 

(iii) As a result of the uncertainty in the application of Section 4999 ofthe Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have beenmade (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine theamount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Executive forhis Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid tothe Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contest or disputes with theInternal Revenue Service in connection with the Excise Tax. 

 

(e) Except as provided in this Agreement, Executive’s rights upon termination of employment with respect to incentive awards shall be governed by the terms and conditions of the plan and any agreements or as established by the Companywith respect to such awards. 

 

(f) Except as provided in thisSection 5.10, Executive shall not be entitled to compensation as a result of any termination of his employment with the Company. 

 

ARTICLE VI. 

 

MISCELLANEOUS

 

6.1 Mitigation; Offset. Except as specifically provided hereunder, Executive shall not be required to mitigate damages resulting from his termination of employment 

 

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and the amounts payable to Executive pursuant to this Agreement shall not be offset or reduced by any other compensationearned by Executive other than with respect to any loans between the Company and Executive. 

 

6.2 Benefit of Agreement; Assignment; Beneficiary. 

 

(a) This Agreement shall inure to the benefit of and be binding upon the Company and its successors, including, without limitation, any assignment to a corporation or person which may acquire all or substantially allof the Company’s assets or business, or with or into which the Company may be consolidated or merged. This Agreement shall also inure to the benefit of, and be enforceable by, Executive and his personal or legal representatives, executors,administrators, successors, heirs, distributees, devisees and legatees. If Executive should die while any amount would still be payable to Executive hereunder if he had continued to live, all such amounts shall be paid in accordance with the termsof this Agreement to Executive’s beneficiary, devisee, legatee or other designee, or if there is no such designee, to Executive’s estate. 

 

(b) The Company shall require any successor (whether direct or indirect, by operation of law, by purchase, merger, consolidation or otherwise) to all orsubstantially all of the business and/or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.

 

6.3 Notices. Any notice required or permitted hereundershall be in writing and shall be sufficiently given if personally delivered or if sent by registered or certified mail, postage prepaid, with return receipt requested, addressed: (a) in the case of the Company to its principal executive offices,Attention: Corporate Secretary, or to such other address and/or to the attention of such other person as the Company shall designate by written notice to Executive; and (b) in the case of Executive, to the Company’s address or to suchother address as Executive shall designate by written notice to the Company. Any notice given hereunder shall be deemed to have been given at the time of receipt thereof by the person to whom such notice is given, if in person, or two (2) daysfollowing depositing such notice in the mail or its equivalent. 

 

6.4 Entire Agreement; Amendment. This Agreement contains the entire agreement of the parties hereto with respect to the terms and conditions of Executive’s employment during the Term and except as otherwise provided herein,supersedes any and all prior agreements and understandings, including, without limitation, the Prior Agreement, whether written or oral, between the parties hereto with respect to compensation due for services rendered hereunder. This Agreement maynot be changed or modified except by an instrument in writing signed by both of the parties hereto. 

 

6.5 Waiver. The waiver by either party of a breach of any provision of this Agreement shall not operate or be construed as a continuing waiver oras a consent to or waiver of any subsequent breach hereof. 

 

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6.6 Headings. The Article and Section headings herein are for convenience of reference only, donot constitute a part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof. 

 

6.7 Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York withoutreference to the principles of conflict of laws. 

 

6.8.Agreement to Take Actions. Each party hereto shall execute and deliver such documents, certificates, agreements and other instruments, and shall take such other actions, as may be reasonably necessary or desirable in order to perform his orits obligations under this Agreement or to effectuate the purposes hereof. 

 

6.9. Survivorship. The respective rights and obligations of the parties hereunder shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights andobligations, including, but not limited to, Article IV. 

 

6.10.Validity. The invalidity or unenforceability of any provision or provisions of this Agreement shall not affect the validity or enforceability of any other provision or provisions of this Agreement which shall remain in full force and effect.

 

6.11. Counterparts. This Agreement may be executed inone or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument. 

 

6.12. Indemnification. The Company will indemnify and hold Executive harmless both during and after the Term to the fullest extent permitted by lawwith regard to actions or inactions in relation to the Executive’s duties as a director and officer of the Company and will, during and after the Term, maintain adequate directors and officers insurance for Executive to cover any such liability(but in no event less than that maintained for any other director or officer of the Company). 

 

6.13. Arbitration. Except as otherwise provided in Article IV of this Agreement, if any contest or dispute arises between the parties with respect to this Agreement, such contest or dispute shall be submittedto binding arbitration for resolution in Bermuda in accordance with the rules and procedures of the American Arbitration Association then in effect. The decision of the arbitrator shall be final and binding on both parties, and any court ofcompetent jurisdiction may enter judgment upon the award. Each party shall pay its own legal fees and expenses incurred in connection therewith. Notwithstanding the foregoing, following a Change in Control, the Company shall reimburse Executive forhis reasonable legal fees and expenses incurred in any such dispute if the arbitrator so decides and Executive is successful on any material claims raised in such dispute. 

 

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6.14. Withholding. All payments hereunder shall be subject to any required withholding of Federal,state and local taxes pursuant to any applicable law or regulation. 

 

6.15. Representation. Executive represents and warrants to the Company that (i) to the best of his knowledge, neither the execution and delivery of this Agreement nor the performance of his duties hereunder violates or will violatethe provisions of any other agreement to which he is a party or by which he is bound other than potential confidentiality issues under Bermuda law and (ii) he has Bermuda status under the meaning of Bermuda law. 

 

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IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement effective as of the datefirst above written. 

 

 

MAX RE CAPITAL LTD.

By:     
 
/s/    Keith S. Hynes
  
Name:  Keith S. Hynes

Title:    Executive Vice President and

   Chief Financial Officer

 
Executive: 
/S/    ROBERT J.COONEY
  
Name: Robert J. Cooney

 

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