Exhibit 10.1





Exhibit 10.1




[CONFORMED COPY]




NON-EXECUTIVE CHAIRMAN EMPLOYMENT AGREEMENT




This Non-Executive Chairman Employment Agreement (this “Agreement”), is dated as of February
26, 2010 and is entered into between Endurance Specialty Holdings Ltd. (the “Company”), and Kenneth
J. LeStrange (the “Executive”).



WHEREAS, while the Executive was serving as the Chairman, President and Chief Executive
Officer of the Company, the Executive and the Company entered into an Amended and Restated
Employment Agreement, dated December 22, 2008 and amended such agreement on March 11, 2009 and
August 13, 2009 (as amended, the “Old Employment Agreement”);



WHEREAS, the Executive and the Company wish for the Executive to become the Non-Executive
Chairman of the Company; and



WHEREAS, the Company and the Executive desire to enter into this Agreement in order to embody
the terms of the Executive’s continued employment as Non-Executive Chairman of the Company.



NOW, THEREFORE, in consideration of the premises and the mutual agreements contained herein,
the Company and the Executive hereby agree as follows:



ARTICLE I.




Definitions





1.1 “Board” shall mean the Board of Directors of the Company.



1.2 “Business” shall mean the brokerage, underwriting, advising or consulting of or
with respect to any line of property or casualty insurance or reinsurance underwritten by the
Company or any of its divisions, subsidiaries or affiliates as an insurer or reinsurer during the
Term.




1.3 “Cause” shall mean:




(a) any willful and material act of fraud, embezzlement or theft by the Executive in
connection with his duties hereunder or in the course of his employment hereunder or the
Executive’s admission or conviction of, or plea of nolo contendere to either, (i) a felony
or (ii) a misdemeanor involving moral turpitude, fraud, embezzlement, theft or
misrepresentation;




(b) any gross negligence or willful misconduct of the Executive resulting in a
demonstrable and material economic loss to the Company or any of its subsidiaries;


(c) any willful breach by the Executive of any one or more of the covenants contained
in Section 4.2, 4.3, 4.4 or 4.5 hereof, provided the Executive has received 15 calendar
days’ prior written notice of such breach in accordance with Section 6.3 of this Agreement;
or



 


 









 








(d) any willful and material violation of any statutory or common law duty of loyalty
to the Company or any of its subsidiaries. For purposes of determining Cause, no act or
failure to act on the Executive’s part shall be deemed “willful” unless done, or omitted to
be done, by the Executive not in good faith and without reasonable belief that the
Executive’s act, or failure to act, was in the best interest of the Company.




1.4 “Change in Control” shall mean:




(a) the acquisition by any individual, entity or group (a “Person”), including any
“person” within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), of beneficial ownership within the meaning of Rule
13d-3 promulgated under the Exchange Act, of 50% or more of either (i) the then outstanding
ordinary shares, par value $1.00 per share, of the Company (the “Outstanding Ordinary
Shares”) or (ii) the combined voting power of the then outstanding securities of the Company
entitled to vote generally in the election of directors pursuant to the Bye-Laws of the
Company (the “Outstanding Voting Securities”); excluding, however, the
following: (A) any acquisition directly from the Company (excluding any acquisition
resulting from the exercise of an exercise, conversion or exchange privilege unless the
security being so exercised, converted or exchanged was acquired directly from the Company),
(B) any acquisition by the Company, (C) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation controlled by the
Company or (D) any acquisition by any corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (c) of this definition of Change in Control;
provided, further, that for purposes of clause (B), if any Person (other
than the Company or any employee benefit plan (or related trust) sponsored or maintained by
the Company or any corporation controlled by the Company) shall become the beneficial owner
of 50% or more of the Outstanding Ordinary Shares or 50% or more of the Outstanding Voting
Securities by reason of an acquisition by the Company, and such Person shall, after such
acquisition by the Company, become the beneficial owner of any additional Outstanding
Ordinary Shares or any additional Outstanding Voting Securities and such beneficial
ownership is publicly announced, such additional beneficial ownership shall constitute a
Change in Control;




(b) individuals who, as of the date hereof, constitute the Board (the “Incumbent
Board”) cease for any reason to constitute at least a majority of such Board within a 24
month period; provided, that any individual who becomes a director of the Company
subsequent to the date hereof whose election, or nomination for election by the Company’s
shareholders, was approved by the vote of at least a majority of the directors then
comprising the Incumbent Board shall be deemed a member of the Incumbent Board; and
provided, further, that any individual who was initially elected as a
director of the Company as a result of an actual or threatened solicitation by a Person
other than the
Board for the purpose of opposing a solicitation by any other Person with respect to
the election or removal of directors, or any other actual or threatened solicitation of
proxies or consents by or on behalf of any Person other than the Board shall not be deemed a
member of the Incumbent Board;


 


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(c) the consummation of a reorganization, amalgamation, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company (a “Corporate
Transaction”); excluding, however, a Corporate Transaction pursuant to which
(i) all or substantially all of the individuals or entities who are the beneficial owners,
respectively, of the Outstanding Ordinary Shares and the Outstanding Voting Securities
immediately prior to such Corporate Transaction will beneficially own, directly or
indirectly, more than 55% of, respectively, the outstanding shares of common stock, and the
combined voting power of the outstanding securities entitled to vote generally in the
election of directors, as the case may be, of the corporation resulting from such Corporate
Transaction (including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets either
directly or indirectly) in substantially the same proportions relative to each other as
their ownership, immediately prior to such Corporate Transaction, of the Outstanding
Ordinary Shares and the Outstanding Voting Securities, as the case may be, (ii) no Person
(other than: the Company; any employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the Company; the corporation
resulting from such Corporate Transaction; and any Person which beneficially owned,
immediately prior to such Corporate Transaction, directly or indirectly, 50% or more of the
Outstanding Ordinary Shares or the Outstanding Voting Securities, as the case may be) will
beneficially own, directly or indirectly, 50% or more of, respectively, the outstanding
 shares of common stock of the corporation resulting from such Corporate Transaction or the
combined voting power of the outstanding securities of such corporation entitled to vote
generally in the election of directors and (iii) individuals who were members of the
Incumbent Board will constitute at least a majority of the members of the board of directors
of the corporation resulting from such Corporate Transaction; or




(d) the consummation of a plan of complete liquidation or dissolution of the Company.



1.5 “Change in Control Period” shall mean the period commencing six months prior to
the date of a Change in Control and ending on the second annual anniversary of the date of a Change
in Control.




1.6 “Code” means the Internal Revenue Code of 1986, as amended.



1.7 “Confidential Information” shall mean any confidential or proprietary information,
trade secrets, customer lists, drawings, designs, information regarding product development,
marketing plans, sales plans, manufacturing plans, management organization information, operating
policies or manuals, business plans, financial records, packaging design or other financial,
commercial, business or technical information relating to the Company or any of its divisions,
subsidiaries or affiliates, or that the Company or any of its divisions, subsidiaries or
affiliates may have received belonging to suppliers, customers or others who do business with
the Company or any of its divisions, subsidiaries or affiliates.


 


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1.8 “Date of Separation from Service” shall mean the following:




(a) if the Executive’s employment is terminated for Cause, the date specified in the
Notice of Separation from Service;




(b) if the Executive’s employment is terminated by the Executive’s death, the date of
the Executive’s death;




(c) if the Executive’s employment is terminated for Disability, 15 calendar days after
the Notice of Separation from Service is given (provided that the Executive shall not have
returned to the full-time performance of the Executive’s duties during such 15 calendar day
period);




(d) if the Executive’s employment is terminated by the Executive with Good Reason, 30
calendar days after the Notice of Separation from Service is given (provided that the
Company shall not have cured the event giving rise to the Executive’s right to voluntary
separation from service for Good Reason during such 30 calendar day period); and




(e) if the Executive’s employment is terminated by the Executive or the Company for any
other reason, the date specified in the Notice of Separation from Service (which, in the
case of a separation from service by the Executive, shall not be less than 14 calendar days
nor more than 30 calendar days from the date such Notice of Separation from Service is
given).



1.9 “Disability” shall mean any condition which (i) prevents the Executive from
substantially performing his duties under this Agreement for a period of at least 120 consecutive
days, or 180 non-consecutive days within any 365-day period, and (ii) causes the Executive to
become eligible for the Company’s long-term disability plan.



1.10 “Equity Incentive Awards” shall mean the equity incentive awards which are listed
on Exhibit A attached hereto.




1.11 “Good Reason” shall mean:




(a) a material diminution in the Executive’s base compensation;




(b) a material diminution in the Executive’s authority, duties or responsibilities; or




(c) any other action or inaction that constitutes a material breach by the Company of
this Agreement.



1.12 “Notice of Separation from Service” shall mean a notice that shall indicate the
specific separation from service provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for separation from
service of the Executive’s employment under the provision so indicated.


 


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1.13 “Term” shall mean the term of employment of the Executive with the Company as the
Company’s Non-Executive Chairman, which shall commence on March 1, 2010 and continue until the
earlier of (a) March 2, 2011 or (b) the Executive’s Date of Separation from Service.



ARTICLE II.




Employment, Duties and Responsibilities




2.1 Employment. During the Term, the Company agrees to employ the Executive and the
Executive hereby agrees to be employed as the Non-Executive Chairman of the Board upon the terms
and subject to the conditions contained in this Agreement.



2.2 Duties and Responsibilities. The Executive shall report exclusively to the Board.
The Executive shall have only such duties and responsibilities that are customary for a
non-executive chairman of the board, including but not limited to attendance at Board and committee
meetings and participation on Board update telephone conferences.



2.3 Base of Operation. The Executive’s principal base of operation for the
performance of his duties and responsibilities under this Agreement shall be the offices of the
Company in Pembroke, Bermuda; provided, however, that the Executive shall perform
such duties and responsibilities outside of Pembroke, Bermuda as shall from time to time be
reasonably necessary to fulfill his obligations hereunder. The Company and the Executive may at
any time during the Term mutually agree to change the principal base of operation for the
performance of the Executive’s duties and responsibilities. The Executive’s performance of any
duties and responsibilities shall be conducted in a manner consistent with any tax operating
guidelines promulgated from time to time by the Board.



ARTICLE III.




Compensation and Expenses




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




(a) Base Salary. Commencing on March 1, 2010, the Company shall pay to the
Executive a base salary of $350,000 per annum (“Base Salary”). Prior to March 1, 2010, the
Executive’s base salary shall be determined and paid in accordance with the Old Employment
Agreement. The Executive’s Base Salary shall be payable in accordance with the Company’s
normal payroll procedures and shall not during the Term be reduced without the written
consent of the Executive.




(b) Incentive and Long-Term Compensation. The Executive shall be eligible for
annual and long term incentive compensation for the year ended December 31, 2009, as
determined by the Board in accordance with the Company’s annual and long-term incentive plan
and the Old Employment Agreement. The Executive shall not be eligible for annual or long
term incentive compensation for the years ended December 31, 2010 or December 31, 2011.


 


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(c) Housing Expense Reimbursement. The Company shall reimburse the Executive
for expenses relating to the rental and maintenance of the Executive’s residence in Bermuda
which are properly and reasonably incurred by the Executive during the Term and are
reimbursable under the Company’s housing expense reimbursement policy, as amended from time
to time. Prior to such payment the Executive shall provide to the Company any written
substantiation for such expenses requested by the Company. The maximum amount of rental and
maintenance expenses the Company shall reimburse the Executive pursuant to this Section
3.1(c) shall be $200,000 per 12 month period, which maximum amount shall be prorated if the
Executive’s employment with the Company terminates prior to the scheduled expiration of the
Term.




(d) Travel Reimbursement. During the Term, the Company shall reimburse the
Executive for his cost of (i) his first class travel on a commercial airline between an
airport located within a reasonable distance from his primary residence in the United States
to Pembroke, Bermuda and (ii) appropriate livery service between each airport and either the
Executive’s primary residence in the United States or the Company’s office in Pembroke,
Bermuda, in each case during the Term. Prior to such payment the Executive shall provide to
the Company any written substantiation for such expenses requested by the Company.




(e) Tax Gross-Up. To the extent that the Executive incurs any United States
federal or state ordinary income tax liability on account of the housing expense
reimbursement and travel expense reimbursement specified in Section 3.1(c) and (d) hereof,
the Company shall reimburse the Executive for all such tax liability incurred and all United
States federal and state ordinary income tax liability incurred as a result of the tax
gross-up payments specified pursuant to this Section 3.1(e).




(f) Tax Preparation Expense Reimbursement. The Company shall reimburse the
Executive for the reasonable cost of the preparation of the Executive’s home country federal
and state income tax returns by KPMG, or an alternate tax preparation service provider
elected by the Executive and approved by the Company, for those calendar years falling
entirely within the Term; provided that the maximum amount of tax preparation expense
reimbursable by the Company pursuant to this sentence shall be $3,600 per annum. Prior to
such payment the Executive shall provide to the Company any written substantiation for such
expenses requested by the Company.




(g) Benefits. The Executive shall be eligible to participate in such 401(k)
savings plan, life insurance, health insurance, disability insurance and major medical
insurance benefits, and in such other employee benefit plans and programs for the benefit of
the employees and officers of the Company generally, as may be maintained from time to
time during the Term, in each case to the extent and in the manner available to other
employees of the Company, subject to the terms and provisions of such plan or program.


 


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(h) Indemnification/Liability Insurance. The Company shall indemnify the
Executive as required by the Bye-laws of the Company, and may maintain customary insurance
policies providing for indemnification of the Executive. In addition to the foregoing, the
Executive and the Company agree to enter into the Indemnification Agreement attached hereto
as Exhibit B concurrent with the execution and delivery of this Agreement.




(i) Continued Vesting of Equity Incentive Awards. The Executive’s resignation
from the positions of Chief Executive Officer and President of the Company and the
continuation of his employment with the Company as its Non-Executive Chairman shall not
constitute a termination of employment or a separation from service with respect to any of
the unvested Equity Incentive Awards, which unvested Equity Incentive Awards shall continue
to vest in accordance with their terms during the Term.




(j) Exercisability of Outstanding Options. The Executive’s resignation from
the positions of Chief Executive Officer and President of the Company and the continuation
of his employment with the Company as its Non-Executive Chairman shall not constitute a
termination of employment or a separation from service with respect to the options to
acquire shares of the Company held by the Executive on the date hereof, which options shall
remain fully vested and shall continue to be exercisable in accordance with their terms
during the Term and until the earliest of (i) 5:00 p.m. (Bermuda time) on December 14, 2011,
(ii) 90 calendar days after the expiration of the Term or (iii) such time as otherwise
specified in the Share Option Agreements, dated December 17, 2002 and February 7, 2003,
between the Company and the Executive (the “Share Option Agreements”), in the event of the
termination of Executive’s employment with the Company prior to the expiration of the Term
or the breach by the Executive of the Non-Competition Obligation (as defined in the Share
Option Agreements and the Company’s 2002 Stock Option Plan).




(k) Accrued and Unused Vacation. On March 15, 2010, the Company will pay to
the Executive $14,400 in a lump sum, less lawful and applicable deductions, which amount
represents the Executive’s earned but unused vacation for the first two months of 2010 which
is 4.16 days. The Executive will not be entitled to receive any other compensation in lieu
of accrued and unused vacation, whether accrued prior to, during or after the Term.




(l) Exemption from Share Ownership Guidelines. The Executive shall be exempt
from the Company’s Non-Employee Director and Executive Share Ownership Guidelines during the
Term.



3.2 Expenses; Other Benefits. During the Term, the Company shall provide the
Executive with the following expense reimbursements and perquisites:




(a) Business Expenses. The Company will reimburse the Executive for reasonable
business-related expenses incurred by the Executive in connection with the
performance of the Executive’s duties hereunder during the Term, subject, however, to
the Company’s policies relating to business-related expenses as in effect from time to time.


 


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(b) Other Benefits. The Company may also provide for or withdraw other
benefits for the Executive as it determines from time to time during the Term, consistent
with practices governing similarly situated senior executives of the Company.



3.3 Tax Withholding. The Company shall be permitted to deduct from the amounts
payable to the Executive pursuant to this Agreement the amount of taxes that the Company is
required to withhold pursuant to applicable laws, rules and regulations.



ARTICLE IV.




Exclusivity, Etc.




4.1 Exclusivity. The Executive agrees to devote such time as is reasonably required
for the performance of his duties as Non-Executive Chairman of the Board, it being understood and
agreed that the Executive may engage in charitable, civic or community activities, serve on
corporate boards or committees, manage personal investments, and deliver lectures and fulfill
speaking engagements, but only if, and to the extent that, such activities do not interfere with
the Executive’s duties hereunder or violate the terms of any of the covenants contained in Sections
4.2, 4.3, 4.4 or 4.5 hereof.




4.2 Non-Competition; Non-Solicitation.




(a) General. The Executive acknowledges that in the course of the Executive’s
employment with the Company the Executive will become familiar with trade secrets and other
confidential information concerning the Company and its subsidiaries and that the
Executive’s services will be of special, unique and extraordinary value to the Company and
its subsidiaries.




(b) Non-Competition During the Term. The Executive agrees that during the
Term, the Executive shall not in any manner, directly or indirectly, through any person,
firm or corporation, alone or as a member of a partnership or as an officer, director,
stockholder, investor, broker, advisor, employee of or consultant to any other corporation
or enterprise or otherwise, engage or be engaged, or assist any other person, firm,
corporation or enterprise in engaging or being engaged, in the Business in any geographic
area in which the Company or any of its subsidiaries is then conducting the Business.




(c) Non-Competition Following the Term. The Executive agrees that, during the
period from the Date of Separation from Service through and including the 120th
calendar day after the Date of Separation from Service, the Executive shall not in any
manner, directly or indirectly, act as an officer, director or employee of, or consultant or
advisor to, any of the entities listed on Exhibit C or their subsidiaries or controlled
affiliates.




(d) Non-solicitation. The Executive further agrees that during the Term and
the period from the Date of Separation from Service until the 12 month anniversary of the
Date of Separation from Service, the Executive shall not (i) in any manner, directly or
indirectly, induce or attempt to induce any employee of the Company or any of its divisions,
subsidiaries or affiliates to terminate or abandon his or her employment for any purpose
whatsoever or (ii) in connection with the Business, call on, service, solicit or otherwise
do business with any customer of the Company or any of its divisions, subsidiaries or
affiliates.


 


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(e) Exceptions. Nothing in this Section 4.2 shall prohibit the Executive from
being (i) a stockholder in a mutual fund or a diversified investment company or (ii) an
owner of not more than two percent of the outstanding stock of any class of a corporation,
any securities of which are publicly traded, so long as the Executive has no active
participation in the business of such corporation.




4.3 Confidential Information.




(a) General. The Executive agrees that the Executive will not, at any time
during or after the Term, make use of or divulge to any other person, firm or corporation
any Confidential Information which he may have learned in connection with his employment
hereunder.




(b) Exceptions. The Executive’s obligation under this Section 4.3 shall not
apply to any information which (i) is disclosed or used during the Term by the Executive as
required or appropriate in connection with his duties as Chairman, President and Chief
Executive Officer of the Company, (ii) is disclosed as required by a court of law, by any
governmental agency having supervisory authority over the business of the Company or any of
its divisions, subsidiaries or affiliates or by any administrative or legislative body,
including a committee thereof) with apparent jurisdiction to order the Executive to divulge,
disclose or make accessible such information, (iii) is disclosed to the Executive’s spouse,
attorney and/or his personal tax and financial advisors as reasonably necessary or
appropriate to advance the Executive’s tax, financial and other personal planning (iv) is
known publicly; (v) is in the public domain or hereafter enters the public domain without
the fault of the Executive; (vi) is known to the Executive prior to his receipt of such
information from the Company or any of its divisions, subsidiaries or affiliates, as
evidenced by written records of the Executive or (vii) is hereafter disclosed to the
Executive by a third party not under an obligation of confidence to the Company or any of
its divisions, subsidiaries or affiliates.




(c) Executive Obligations. The Executive agrees that he shall, immediately
after he gains knowledge of any required disclosure of Confidential Information pursuant to
clause (ii) of subsection (b) above, give the Company written notice promptly upon obtaining
knowledge of the required disclosure of Confidential Information and, in any event, prior to
such required disclosure of Confidential Information, and use commercially reasonable
efforts to cooperate with the Company (at the Company’s sole expense) in obtaining an
adequate protective order for such Confidential Information. The Executive further agrees
to properly advise any recipient of Confidential Information pursuant to clause (iii) of
subsection (b) above of the obligations of the Executive
hereunder, to obtain the agreement of such recipient to be bound by the terms of this
Section 4.3 as if a signatory to this Agreement and to be responsible for any breach by any
such recipient of the terms of this Section 4.3. The Executive further agrees not to remove
from the premises of the Company, or as applicable, the premises of any of its divisions,
subsidiaries or affiliates, except as an employee of the Company in pursuit of the business
of the Company, its divisions, subsidiaries or affiliates, or except as specifically
permitted in writing by the Board, any document or other object containing or reflecting any
Confidential Information. On or before the Date of Separation from Service, the Executive
shall forthwith deliver to the Company all such Confidential Information, including without
limitation all lists of customers, correspondence, accounts, records and any other documents
or property made or held by the Executive or under the Executive’s control in relation to
the business or affairs of the Company or its subsidiaries or affiliates, and no copy of any
such Confidential Information shall be retained by the Executive.


 


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4.4 Inventions. The Executive hereby assigns to the Company the Executive’s entire
right, title and interest in and to all discoveries and improvements, patentable or otherwise,
trade secrets, proprietary ideas, trademarks, trade names, Internet domain names, writings, and
copyrightable works that are conceived by the Executive or developed or acquired by the Executive
during the Term in connection with the Executive’s employment by the Company, the Executive’s
duties to the Company and the business of the Company or any of its subsidiaries or affiliates
(“Developments”); provided, that the foregoing assignment shall not apply to writings and
copyrightable works of a general nature about the Executive’s experience at the Company or about
the insurance industry that are created by the Executive outside of the Executive’s duties and
outside of normal working hours, subject in all cases to Section 4.3. The Executive agrees to
disclose fully all such Developments to the Company upon its request, which disclosure shall be
made in writing promptly following any such request. The Executive shall, upon the Company’s
request, execute, acknowledge and deliver to the Company all instruments and do all other acts
which are necessary or desirable to enable the Company or any of its subsidiaries to file and
prosecute applications for, and to acquire, maintain and enforce, all patents, trademarks and
copyrights in all countries.



4.5 Non-Disparagement. Each party hereto acknowledges and agrees that such party 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, its officers,
directors, partners, employees, affiliates or agents thereof, in either a professional or personal
manner, except that the foregoing shall not limit normal competitive activities; provided that, in
the case of the Executive, such competitive activities are in compliance with the Executive’s
obligations under Section 4.2.



4.6 Remedies. The Executive acknowledges that the Company’s remedy at law for a
breach by him of the provisions of this Article IV will be inadequate. Accordingly, in the event
of a breach or threatened breach by the Executive of any provision of this Article IV, the Company
shall be entitled to injunctive relief (without posting a bond or other security) in addition to
any other remedy it may have. If any of the provisions of, or covenants continued in, this Article
IV are hereafter 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 jurisdiction, which
shall be given full effect, without regard to the invalidity or unenforceability in such other
jurisdiction. If, at any time of enforcement of this Article IV, a court or an arbitrator
holds that the restrictions stated herein are unreasonable and/or unenforceable under circumstances
then existing, the parties hereto agree that the maximum period, scope or geographical area
reasonable and/or enforceable under such circumstances shall be substituted for the stated period,
scope or area and that the court or arbitrator shall be allowed to revise the restrictions
contained herein to cover the maximum period, scope and area permitted by law provided, however,
that the determination of such court or arbitrator shall not affect the enforceability of this
Article IV in any other jurisdiction. This Agreement shall not authorize a court or arbitrator to
increase or broaden any of the restrictions in this Article IV.


 


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4.7 Blue Pencil. If, at any time, the provisions of this Article IV shall 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 Article IV shall be considered
divisible and shall become and be immediately amended 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. The Executive and the Company agree that this Article IV as amended
pursuant to the immediately preceding sentence, shall be valid and binding as though any invalid or
unenforceable provision had not been included therein.



ARTICLE V.




Separation from Service





5.1 Involuntary Separation from Service.




(a) Separation from Service for Cause. The Company shall have the right to
sever the Executive’s service with the Company at any time for Cause by delivery of a Notice
of Separation from Service.




(b) Death. In the event the Executive dies during the Term, the Executive’s
service with the Company shall automatically be severed, such separation from service to be
effective on the date of the Executive’s death.




(c) Disability. In the event that the Executive suffers a Disability, the
Company shall have the right to sever the Executive’s service with the Company by delivery
of a Notice of Separation from Service.




(d) Separation from Service Without Cause. The Company may at any time sever
the Executive’s service with the Company by delivery of a Notice of Separation from Service
for any reason other than Cause or the Executive’s death or disability.




5.2 Executive Separation from Service.




(a) Separation from Service without Good Reason. The Executive may sever his
service with the Company at any time without Good Reason by delivery of a Notice of
Separation from Service to the Company.




(b) Separation from Service with Good Reason. The Executive may sever his
service with the Company for Good Reason only by delivery of Notice of Separation from
Service to the Company within 30 calendar days of the Executive first becoming aware of the
circumstances giving rise to the Executive’s right to sever his service with the Company for
Good Reason.


 


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5.3 Notice of Separation from Service. Any purported separation of the Executive’s
service with the Company (other than separation from service pursuant to Section 5.1(b) hereof)
shall be communicated by written Notice of Separation from Service to the other party hereto
delivered in accordance with Section 6.3 hereof.




5.4 Effect of Separation from Service. 




(a) Separation from Service by Company for Cause or by Executive without Good
Reason. In the event of any severance of the Executive’s service with the Company
during the Term (x) by the Company for Cause or (y) by the Executive without Good Reason,
the Company shall pay to or provide the Executive with the following compensation and
benefits:




(i) Any earned but unpaid Base Salary up to and including the Date of
Separation from Service, payable in accordance with the Company’s customary payroll
procedures;




(ii) Any unreimbursed business expenses incurred by the Executive in the
performance of his duties for the Company prior to the Date of Separation from
Service, upon receipt by the Company of documentation in such form as customarily
required by the Company to report business expenses, payable in accordance with the
Company’s customary business expense reimbursement procedures;




(iii) Any housing expense reimbursement payable in accordance with Section
3.1(c) until the earlier of (A) the end of the lease for the Executive’s residence
in Bermuda or (B) the three month anniversary of the Date of Separation from
Service, payable in accordance with the Company’s customary business housing
allowance reimbursement procedures; and




(iv) Any other benefits available to employees of the Company generally,
through and including the Date of Separation from Service, payable or deliverable in
accordance with the terms and conditions applicable to such benefits.




(b) Separation from Service as a Result of Death or Disability. In the event
of any severance of the Executive’s service with the Company during the Term as a result of
the Executive’s death or Disability, the Company shall pay to or provide the Executive (or
the Executive’s heirs) with the following compensation and benefits:




(i) Any earned but unpaid Base Salary up to and including the Date of
Separation from Service, payable in accordance with the Company’s customary payroll
procedures;




(ii) In the event the Date of Separation from Service is after December 31,
2010, a cash sum equal to 125% of the Executive’s Base Salary as of the Date of
Separation, which cash sum shall be payable on the first business day after the six
month anniversary of the Date of Separation from Service;


 


12









 






(iii) A cash sum equal to the 125% of the Executive’s Base Salary as of the
Date of Separation from Service multiplied by a fraction (x) the numerator of which
is the number of calendar days elapsed in the calendar year up to and including the
Date of Separation from Service and (y) the denominator of which is 365, which cash
sum shall be payable on the first business day after the six month anniversary of
the Date of Separation from Service;




(iv) Any unreimbursed business expenses incurred by the Executive in the
performance of his duties for the Company prior to the Date of Separation from
Service, upon receipt by the Company of documentation in such form as customarily
required by the Company to report business expenses, payable in accordance with the
Company’s customary business expense reimbursement procedures;




(v) Any housing expense reimbursement payable in accordance with Section 3.1(c)
until the earlier of (A) the end of the lease for the Executive’s residence in
Bermuda or (B) the three month anniversary of the Date of Separation from Service,
payable in accordance with the Company’s customary business housing allowance
reimbursement procedures;




(vi) Reimbursement for the reasonable cost of the preparation of the
Executive’s home country federal and state income tax returns by KPMG, or an
alternate tax preparation service provider elected by the Executive and approved by
the Company, for the calendar year during which the Date of Separation from Service
occurred; provided that the maximum amount of tax preparation expense reimbursable
by the Company pursuant hereto shall be $3,600 and the Company shall have received
from the Executive satisfactory written substantiation for such tax expenses, which
reimbursement shall be payable on the later to occur of the first business day after
the six month anniversary of the Date of Separation from Service or 15 business days
after the submission to the Company of satisfactory written substantiation for such
tax expenses, but in no event later than December 31st of the calendar year
following the calendar year during which the Date of Separation from Service
occurred;




(vii) Any proper and reasonable expense reimbursement relating to the
relocation of the Executive’s residence from Bermuda, in the event the Executive and
the Executive’s family relocate their permanent residence from Bermuda during the 12
months immediately following the Date of Separation from Service, which relocation
expense reimbursement shall be made in a manner
agreeable to the Company and the Executive and subject to receipt by the
Company of satisfactory written substantiation for such relocation expenses, which
reimbursement shall be payable on the later to occur of the first business day after
the six month anniversary of the Date of Separation from Service or 15 business days
after the submission to the Company of satisfactory written substantiation for such
relocation expenses, but in no event later than December 31st of the calendar year
following the calendar year during which the Date of Separation from Service
occurred; and


 


13









 






(viii) Any other benefits available to employees of the Company generally,
through and including the Date of Separation from Service, payable or deliverable in
accordance with the terms and conditions applicable to such benefits.




(c) Separation from Service by the Company without Cause or by the Executive with
Good Reason other than During a Change in Control Period. In the event of any severance
of the Executive’s service with the Company during the Term (x) by the Company without Cause
or (y) by the Executive with Good Reason, in either case other than during a Change in
Control Period, the Company shall pay to or provide the Executive with the following
compensation and benefits:




(i) Any earned but unpaid Base Salary up to and including the Date of
Separation from Service, payable in accordance with the Company’s customary payroll
procedures;




(ii) In the event the Date of Separation from Service is after December 31,
2010, a cash sum equal to 125% of the Executive’s Base Salary as of the Date of
Separation, which cash sum shall be payable on the first business day after the six
month anniversary of the Date of Separation from Service;




(iii) A cash sum equal to the 125% of the Executive’s Base Salary as of the
Date of Separation from Service multiplied by a fraction (x) the numerator of which
is the number of calendar days elapsed in the calendar year up to and including the
Date of Separation from Service and (y) the denominator of which is 365, which cash
sum shall be payable on the first business day after the six month anniversary of
the Date of Separation from Service;




(iv) A cash sum equal to the average cash annual incentive compensation paid by
the Company to the Executive in respect of the 2007, 2008 and 2009 performance
years, payable on the first business day after the six month anniversary of the Date
of Separation from Service;




(v) A cash sum equal to six months of the Executive’s Base Salary, payable on
the first business day after the six month anniversary of the Date of Separation
from Service and, thereafter, the continuation of the Executive’s Base Salary, paid
in accordance with the Company’s payroll policy, from the six month anniversary of
the Date of Separation from Service to the twelve month anniversary of the Date of
Separation from Service, if any;




(vi) A cash sum equal to the product of the following:




(A) the greater of (I) the unvested Equity Incentive Awards lapsing
immediately following the Date of Separation from Service which, absent such
Date of Separation from Service, would otherwise vest during the 12 month
period immediately following the Date of Separation from Service and (II)
50% of the Equity Incentive Awards lapsing immediately following the Date of
Separation from Service, multiplied by


 


14









 






(B) either (x) the per share closing price on the New York Stock
Exchange for Endurance Specialty Holdings Ltd. ordinary shares on the Date
of Separation from Service for Equity Incentive Awards with no exercise
price or (y) the difference between (1) the per share closing price on the
New York Stock Exchange for Endurance Specialty Holdings Ltd. ordinary
 shares on the Date of Separation from Service and (2) the applicable per
share exercise price for Equity Incentive Awards with an exercise price,
payable on the first business day after the six month anniversary of the
Date of Separation from Service.




(vii) The continuation during the 12 months immediately following the Date of
Separation from Service of the eligibility of the Executive, his spouse and his
dependent children to participate in the Company’s medical, dental, vision and life
insurance plans in which the Executive, his spouse and his dependent children
participated immediately preceding the Date of Separation from Service;
provided, however, that participation in such medical, dental,
vision and life insurance plans shall be subject to the Executive’s payment of the
applicable employee portion of the monthly premium cost, if any.




(viii) Any unreimbursed business expenses incurred by the Executive in the
performance of his duties for the Company prior to the Date of Separation from
Service, upon receipt by the Company of documentation in such form as customarily
required by the Company to report business expenses, payable in accordance with the
Company’s customary business expense reimbursement procedures;




(ix) Any housing expense reimbursement payable in accordance with Section
3.1(c) until the earlier of (A) the end of the lease for the Executive’s residence
in Bermuda or (B) the three month anniversary of the Date of Separation from
Service, payable in accordance with the Company’s customary business housing
allowance reimbursement procedures;




(x) Reimbursement for the reasonable cost of the preparation of the Executive’s
home country federal and state income tax returns by KPMG, or an alternate tax
preparation service provider elected by the Executive and approved by the Company,
for the calendar year during which the Date of Separation from Service occurred;
provided that the maximum amount of tax preparation expense
reimbursable by the Company pursuant hereto shall be $3,600 and the Company
shall have received from the Executive satisfactory written substantiation for such
tax expenses, which reimbursement shall be payable on the later to occur of the
first business day after the six month anniversary of the Date of Separation from
Service or 15 business days after the submission to the Company of satisfactory
written substantiation for such tax expenses, but in no event later than December
31st of the calendar year following the calendar year during which the Date of
Separation from Service occurred;


 


15









 






(xi) Any proper and reasonable expense reimbursement relating to the relocation
of the Executive’s residence from Bermuda, in the event the Executive and the
Executive’s family relocate their permanent residence from Bermuda during the 12
months immediately following the Date of Separation from Service, which relocation
expense reimbursement shall be made in a manner agreeable to the Company and the
Executive and subject to receipt by the Company of satisfactory written
substantiation for such relocation expenses, which reimbursement shall be payable on
the later to occur of the first business day after the six month anniversary of the
Date of Separation from Service or 15 business days after the submission to the
Company of satisfactory written substantiation for such relocation expenses, but in
no event later than December 31st of the calendar year following the calendar year
during which the Date of Separation from Service occurred; and




(xii) Any other benefits available to employees of the Company generally,
through and including the Date of Separation from Service, payable or deliverable in
accordance with the terms and conditions applicable to such benefits.




(d) Separation from Service by the Company without Cause or by the Executive with
Good Reason During a Change in Control Period. In the event of any severance of the
Executive’s service with the Company during the Term (x) by the Company without Cause or (y)
by the Executive with Good Reason, in each case during a Change in Control Period, the
Company shall pay to or provide the Executive with the following compensation and benefits:




(i) Any earned but unpaid Base Salary up to and including the Date of
Separation from Service, payable in accordance with the Company’s customary payroll
procedures;




(ii) In the event the Date of Separation from Service is after December 31,
2010, a cash sum equal to 125% of the Executive’s Base Salary as of the Date of
Separation from Service, which cash sum shall be payable on the first business day
after the six month anniversary of the Date of Separation from Service;




(iii) A cash sum equal to the 125% of the Executive’s Base Salary as of the
Date of Separation from Service multiplied by a fraction (x) the numerator of which
is the number of calendar days elapsed in the calendar year up to and including the
Date of Separation from Service and (y) the denominator of which
is 365, which cash sum shall be payable on the first business day after the six
month anniversary of the Date of Separation from Service;




(iv) A cash sum equal to (A) two times the Executive’s annual Base Salary as of
the Date of Separation from Service plus (B) two times the average cash annual
incentive compensation paid by the Company to the Executive in respect of the 2007,
2008 and 2009 performance years, payable on the first business day after the six
month anniversary of the Date of Separation from Service;


 


16









 






(v) A cash sum equal to (A) the product of the unvested Equity Incentive Awards
lapsing immediately following the Date of Separation from Service multiplied by (B)
either (x) the per share closing price on the New York Stock Exchange for Endurance
Specialty Holdings Ltd. ordinary shares on the Date of Separation from Service for
Equity Incentive Awards with no exercise price or (y) the difference between (1) the
per share closing price on the New York Stock Exchange for Endurance Specialty
Holdings Ltd. ordinary shares on the Date of Separation from Service and (2) the
applicable per share exercise price for Equity Incentive Awards with an exercise
price, payable on the first business day after the six month anniversary of the Date
of Separation from Service;




(vi) The continuation during the period from the Date of Separation from
Service until the 24 month anniversary of the Date of Separation from Service, of
the eligibility of the Executive, his spouse and his dependent children to
participate in the Company’s medical, dental, vision and life insurance plans in
which the Executive, his spouse and his dependent children participated immediately
preceding the Date of Separation from Service; provided, however,
that participation in such medical, dental, vision and life insurance plans shall be
subject to the Executive’s payment of the applicable employee portion of the monthly
premium cost, if any;




(vii) Any unreimbursed business expenses incurred by the Executive in the
performance of his duties for the Company prior to the Date of Separation from
Service, upon receipt by the Company of documentation in such form as customarily
required by the Company to report business expenses, payable in accordance with the
Company’s customary business expense reimbursement procedures;




(viii) Any housing expense reimbursement payable in accordance with Section
3.1(c) until the earlier of (A) the end of the lease for the Executive’s residence
in Bermuda or (B) the three month anniversary of the Date of Separation from
Service, payable in accordance with the Company’s customary business housing
allowance reimbursement procedures;




(ix) Reimbursement for the reasonable cost of the preparation of the
Executive’s home country federal and state income tax returns by KPMG, or an
alternate tax preparation service provider elected by the Executive and approved by
the Company, for the calendar year during which the Date of Separation from
Service occurred; provided that the maximum amount of tax preparation expense
reimbursable by the Company pursuant hereto shall be $3,600 per annum and the
Company shall have received from the Executive satisfactory written substantiation
for such tax expenses, which reimbursement shall be payable on the later to occur of
the first business day after the six month anniversary of the Date of Separation
from Service or 15 business days after the submission to the Company of satisfactory
written substantiation for such tax expenses, but in no event later than December
31st of the calendar year following the calendar year during which the Date of
Separation from Service occurred;


 


17









 






(x) Any proper and reasonable expense reimbursement relating to the relocation
of the Executive’s residence from Bermuda, in the event the Executive and the
Executive’s family relocate their permanent residence from Bermuda during the 12
months immediately following the Date of Separation from Service, which relocation
expense reimbursement shall be made in a manner agreeable to the Company and the
Executive and subject to receipt by the Company of satisfactory written
substantiation for such relocation expenses, which reimbursement shall be payable on
the later to occur of the first business day after the six month anniversary of the
Date of Separation from Service or 15 business days after the submission to the
Company of satisfactory written substantiation for such relocation expenses, but in
no event later than December 31st of the calendar year following the calendar year
during which the Date of Separation from Service occurred; and




(xi) Any other benefits available to employees of the Company generally,
through and including the Date of Separation from Service, payable or deliverable in
accordance with the terms and conditions applicable to such benefits.




5.5 Section 280G Gross Up.




(a) Gross-Up Obligation. 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 effective control 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 Code and the
regulations promulgated thereunder (a “Change in Ownership”), to or for the benefit of the
Executive (the “Payments”) is subject to the excise tax imposed by Section 4999 of the Code,
or any interest or penalties are incurred by the Executive with respect to such excise tax
(such excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the “Excise Tax”), then, subject to the limitation in Section
5.5(b), the Company shall pay to the Executive an additional payment (a “Gross-Up Payment”)
in an amount such that after payment by the Executive of all taxes (including any Excise
Tax, but excluding any taxes or penalties under Section 409A of the Code) 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 the Executive’s adjusted
gross income and the highest applicable
marginal rate of taxation for the calendar year in which the Gross-Up Payment 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 rate of taxation for the
calendar 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 in federal 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 the Gross-Up Payment in Executive’s adjusted gross
income.


 


18









 






(b) Limitation on Gross-Up Obligation. In the event the Executive is entitled
to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the
Payments were reduced by an amount that is less than 10% of the portion of the Payments that
would be treated as “parachute payments” under Section 280G of the Code, then the amounts
payable to the Executive under this Agreement shall be reduced (but not below zero) to the
maximum amount that could be paid to the Executive without giving rise to the Excise Tax
(the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to the Executive. The
reduction of the amounts payable hereunder, if applicable, shall be made by reducing first
the payments under Section 5.4(d)(iv), unless an alternative method of reduction is elected
by the 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 the amounts 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.




(c) Method of Determining Gross-Up. All determinations required to be made
under this Section 5.5, 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 KPMG, or such other public accounting firm as shall be
mutually agreed by the Company and the Executive (the “Accounting Firm”), which shall
provide detailed supporting calculations both to the Company and the Executive within 15
business days of receipt of notice from the Company or Executive that there has been a
Payment, or such earlier time as is requested by the Company. All fees and expenses of the
Accounting Firm shall be borne solely by the Company in connection with the performance of
the services hereunder. The Executive shall cooperate with the Company and the Accounting
Firm in connection with the determination of the Gross-Up Payment. The Gross-Up Payment
under this Section 5.5 with respect to any Payments made to the Executive shall be made no
later than the earlier of (i) 30 calendar days following the final determination of the
amount of the Gross-Up Payment by the Accounting Firm or (ii) the end of the taxable year
following the taxable year during which the Excise Tax is paid by the Executive. The final
determination of the amount of the Gross-Up Payment by the Accounting Firm shall be binding
upon the Company and the Executive. The parties hereto agree to cooperate with each other
and the Accounting Firm in connection with any contest or disputes with the Internal Revenue
Service in connection with the Excise Tax.




(d) Underpayment or Overpayment of Gross-Up. In the event that the
calculations prepared by the Accounting Firm result in the Gross-Up Payment made by the
Company on behalf of the Executive being in excess of the amount (“Overpayment”) or
insufficient to fulfill the Company’s obligations under Section 5.5(a), subject to the
limitation set forth in Section 5.5(b) (“Underpayment”), the Accounting Firm, upon receipt
of written notice from either the Executive or the Company, with a copy to the other party
to this Agreement, shall determine the amount of the Underpayment or Overpayment, if any.
In the event the Accounting Firm determines there is an Underpayment, the Company shall
promptly pay to the Executive the amount of such Underpayment, which payment shall be made
by the Company no later than the end of the taxable year following the taxable year during
which the Excise Tax is paid by the Executive. In the event there is an Overpayment, the
Executive shall promptly pay to the Company the amount of the Overpayment; provided, that in
the event the Executive has previously paid the applicable Excise Tax to the Internal
Revenue Service, the Executive shall not be obligated to pay to the Company the amount of
the Overpayment until the Executive has received the applicable refund from the Internal
Revenue Service. All fees and expenses of the Accounting Firm in calculating the
Underpayment or Overpayment shall be borne solely by the Company. The Executive shall
cooperate with the Company and the Accounting Firm in connection with the determination of
the Underpayment or Overpayment.


 


19









 





5.6 Executive Release. The Executive agrees to execute the Executive Release attached
hereto as Exhibit D within 180 calendar days of the Date of Separation from Service and such
execution by the Executive of such Executive Release shall be a condition precedent to the delivery
to the Executive by the Company of any payment or benefit under Section 5.4(c) or Section 5.4(d).
In addition, the Executive Agrees that, to the extent applicable, a portion of the payments made by
the Company to the Executive under Section 5.4(c) or Section 5.4(d) shall be deemed severance pay
in lieu of notice under the Bermuda Employment Act 2000 and that the Company shall have no other
liability to the Executive thereunder.



5.7 Resignations. The resignation by the Executive from all director and officer
positions held by the Executive with the Company and any subsidiary or affiliate of the Company
shall be a condition precedent to the delivery to the Executive by the Company of any payment or
benefit under Section 5.4 (other than in connection with a separation of the Executive’s service
with the Company as a result of the Executive’s death).



5.8 Compliance with Restrictive Covenants. The Executive’s continued compliance with
the restrictive covenants set forth in Sections 4.2, 4.3, 4.4 and 4.5 shall be a condition
precedent to the receipt by the Executive of the payments and benefits set forth in Sections
5.4(b)(iii), 5.4(b)(vi), 5.4(b)(vii), 5.4(c)(iii), 5.4(c)(iv), 5.4(c)(v), 5.4(c)(vi), 5.4(c)(vii),
5.4(c)(x), 5.4(c)(xi), 5.4(d(iii), 5.4(d)(iv), 5.4(d)(v), 5.4(d)(vi), 5.4(d)(ix) and 5.4(d)(x) on
or after the Date of Separation from Service and, in the event the Executive breaches one or more
of the covenants set forth in Sections 4.2, 4.3, 4.4 or 4.5, the Company shall be entitled to
recover from the Executive the value of any payment or benefit made or provided by the Company to
the Executive pursuant to the above-referenced Sections of this Agreement on and after the first
date of such breach.



5.9 Equity Incentive Awards. The Executive’s rights with respect to his Equity
Incentive Awards upon any separation from his service with the Company shall be governed
exclusively by the terms and conditions of the Plans and any award agreements executed by the
Executive in connection with such Equity Incentive Awards. For the avoidance of doubt, under no
circumstances shall the Executive be entitled to any cash payment under Section 5.4(c)(vi) or
Section 5.4(d)(v) with respect to any Equity Incentive Award which is either exercisable or
convertible in accordance with its terms at any time after the Date of Separation from Service.


 


20









 





5.10 Other Compensation and Benefits. Except as specified in Section 5.4, the
Executive shall not be entitled to any compensation, benefits or other payments or distributions,
and references in the Executive Release to the release of claims against the Company shall be
deemed to also include reference to the release of claims against all compensation and benefit
plans and arrangements established or maintained by the Company and its subsidiaries and
affiliates.



5.11 Obligations of the Executive. The Executive shall have no obligations to the
Company under this Agreement after the Date of Separation from Service, other than as provided in
Sections 5.5 and 5.12, and except and to the extent Sections 4.2, 4.3, 4.4 or 4.5 shall apply.



5.12 Post-Separation from Service Cooperation. Following any separation of the
Executive’s service with the Company for any reason, the Executive shall reasonably cooperate with
the Company to assist with existing or future investigations, proceedings, litigations or
examinations involving the Company or any of its divisions, subsidiaries or affiliates. For each
business day, or part thereof, that the Executive provides assistance as contemplated under this
Section 5.12, the Company shall pay the Executive an amount equal to (i) the Executive’s annual
Base Salary as in effect on the Date of Separation from Service, divided by (ii) 200. In addition,
upon presentment of satisfactory written documentation, the Company will reimburse the Executive
for reasonable out-of-pocket travel, lodging and other incidental expenses he incurs in providing
such assistance. If requested by the Company, the Executive shall make reasonable good faith
efforts to travel to such locations as the Company may reasonably request.



ARTICLE VI.




Miscellaneous




6.1 Life Insurance. The Executive agrees that the Company or any of its divisions,
subsidiaries or affiliates may apply for and secure and own insurance on the Executive’s life (in
amounts determined by the Company) for the benefit of the Company. The Executive agrees to
cooperate fully in the application for and securing of such insurance, including the submission by
the Executive to such physical and other examinations, and the answering of such questions and
furnishing of such information by the Executive, as may be required by the carrier(s) of such
insurance. Notwithstanding anything to the contrary contained herein, neither the Company nor any
of its divisions, subsidiaries or affiliates shall be required to obtain any insurance for or on
behalf of the Executive.



6.2 Benefit of Agreement; Assignment; Beneficiary. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and assigns, including, without
limitation, any corporation or person which may acquire all or substantially all of 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, the Executive and his personal
or legal representatives, executors, administrators, successors, heirs, distributes, devisees and
legatees. The Company shall require any successor (whether direct or indirect, by operation of
law, purchase, merger, consolidation or otherwise) to all or substantially 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.


 


21









 





6.3 Notices. All notices and other communications required or permitted hereunder
shall be in writing and shall be deemed given when (a) delivered personally or by overnight courier
to the following address of the other party hereto (or such other address for such party as shall
be specified by notice given pursuant to this Section 6.3) or (b) sent by facsimile to the
following facsimile number of the other party hereto (or such other facsimile number for such party
as shall be specified by notice given pursuant to this Section 6.3), with the confirmatory copy
delivered by overnight courier to the address of such party pursuant to this Section 6.3:




If to the Company, to:




Endurance Specialty Holdings Ltd.

Wellesley House

90 Pitts Bay Road

Pembroke HM 08, Bermuda

Attention: General Counsel

Facsimile: (441) 278-0401



If to the Executive, to the residence address or residence facsimile number of the Executive
set forth in the records of the Company, with a copy to:




Stewart Reifler, Esq.

Vedder Price P.C.

1633 Broadway

New York, New York 10019

Facsimile: (212) 407-7799



6.4 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the terms and conditions of the Executive’s employment and supersedes any
and all prior agreements and understandings, whether written or oral, between the parties hereto
with respect to compensation due for services rendered hereunder, including but not limited to the
Old Employment Agreement.



6.5 Amendment and Waiver. This Agreement may not be changed or modified except by an
instrument in writing signed by both of the parties hereto. The waiver by either party of a breach
of any provision of this Agreement shall not operate or be construed as a continuing waiver or as a
consent to or waiver of any subsequent breach hereof.



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


 


22









 





6.7 Arbitration. Except as otherwise set forth in Section 4.6 hereof, any dispute or
controversy between the Company and the Executive, whether arising out of or relating to this
Agreement, the breach of this Agreement, or otherwise, shall be settled by arbitration in Hamilton,
Bermuda administered in accordance with the Arbitration Act 1986, and judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator
shall have the authority to award any remedy or relief that a court of competent jurisdiction could
order or grant, including, without limitation, the issuance of an injunction. However, either
party may, without inconsistency with this arbitration provision, apply to any court having
jurisdiction over such dispute or controversy and seek interim provisional, injunctive or other
equitable relief until the arbitration award is rendered or the controversy is otherwise resolved.
Except as necessary in court proceedings to enforce this arbitration provision or an award rendered
hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the
existence, content or results of any arbitration hereunder without the prior written consent of the
Company and the Executive. The Executive shall have no right to enforce any of his rights
hereunder by seeking or obtaining injunctive or other equitable relief and acknowledges that
damages are an adequate remedy for any breach by the Company of this Agreement.



6.8 Governing Law. This Agreement shall be governed by, and construed and interpreted
in accordance with, the internal laws of Bermuda, without regard to principles of conflict of laws.



6.9 No Mitigation; No Offset. The Executive shall not be required to mitigate damages
or the amount of any payment provided for under this Agreement by seeking (and, without limiting
the generality of this sentence, no payment otherwise required under this Agreement shall be
reduced on account of) other employment or otherwise, and payments under this Agreement shall not
be subject to offset in respect of any claims which the Company may have against the Executive.



6.10 Attorneys’ Fees. Each party to this Agreement will bear its own expenses in
connection with any dispute or legal proceeding between the parties arising out of the subject
matter of this Agreement, including any proceeding to enforce any right or provision under this
Agreement; provided, that in the event the Executive prevails on any material claim raised in such
dispute or legal proceeding, the Company shall reimburse the Executive for his reasonable
out-of-pocket legal fees and expenses incurred in connection with such dispute or legal proceeding.



6.11 Compliance with Section 409A. This Agreement is intended to comply with Section
409A of the Code and shall be construed and interpreted in accordance with such intent. To the
extent that the delivery of any cash or benefits to the Executive under this Agreement, or the
payment, settlement or deferral thereof, is subject to Section 409A of the Code, such cash or
benefits shall be paid, settled or deferred in a manner that will comply with Section 409A of the
Code, including regulations or other guidance issued with respect thereto, except as otherwise
agreed by the Company and the Executive. In the event that the Executive becomes subject to
any additional tax under Section 409A(a)(1)(B) of the Code as a direct result of unilateral
action taken by the Company without the prior approval of the Executive, the Company shall
indemnify and hold the Executive harmless against any such additional tax.



6.12 Termination; Survivorship. This Agreement shall terminate upon the Executive’s
separation from service with the Company, except that the respective rights and obligations of the
parties under this Agreement as set forth herein shall survive any termination of this Agreement to
the extent necessary to the intended preservation of such rights and obligations.


 


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6.13 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect under applicable
law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this Agreement or the validity,
legality or enforceability of such provision in any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision had never been contained herein.



6.14 Other Agreements. The Executive represents and warrants to the Company that to
the best of his knowledge, neither the execution and delivery of this Agreement nor the performance
of his duties hereunder violates or will violate the provisions of any other agreement to which he
is a party or by which he is bound.




6.15 Subsidiaries, etc.




(a) Company Obligations. The obligations of the Company under this Agreement
may be satisfied by any subsidiary or affiliate of the Company for which the Executive
serves as an employee under this Agreement, to the extent such obligations relate to the
Executive’s employment by such subsidiary or affiliate.




(b) Company Rights The rights of the Company under this Agreement may be
enforced by any Subsidiary or affiliate of the Company for which the Executive serves as an
employee under this Agreement, to the extent such rights relate to the Executive’s
employment by such subsidiary or affiliate.



6.16 Counterparts. This Agreement may be executed in one 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.



IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	ENDURANCE SPECIALTY HOLDINGS LTD.

 	 
	 	By:  	/s/ John V. Del Col
 	 
	 	 	Name:  	John V. Del Col 	 
	 	 	Title:  	General Counsel & Secretary 	 



	 	 	 	 	 
	 	/s/ Kenneth J. LeStrange
 	 
	 	Kenneth J. LeStrange 	 



 


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