EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
dated as of November 22, 2010 (the “Effective Date”), by and between AmTrust
Financial Services, Inc., 59 Maiden Lane, 6
th
Floor,
New York, New York, a Delaware corporation (the “Company”) and Max G. Caviet, an
individual residing at Ashford House, 56 Tilt Road, Cobham Surrey KT11 3HQ,
United Kingdom (“Executive”).
WITNESSETH
WHEREAS
, The Company and
Executive desire to enter into this Employment Agreement (the “Agreement”) in
order to set forth the terms and conditions of Executive’s employment, intending
to supersede any prior employment agreement, written or oral, whether with the
Company or other affiliates.
NOW, THEREFORE
, in
consideration of the mutual covenants and promises contained herein and other
good and valuable consideration, receipt of which is acknowledged, the parties
hereto agree as follows:
1.
Duties and
Responsibilities.
The duties and responsibilities of Executive
shall be those of a senior executive of the Company as the same shall be
assigned to him from time to time by the Board of Directors of the Company,
including, but not limited to, management of Company’s special risk business
worldwide. Executive’s principal place of work will be in London,
England, but he shall be required to travel as reasonably necessary to carry out
his duties. Executive recognizes that, during the period of his
employment hereunder, he owes an undivided duty of loyalty to the Company and
agrees to devote all of his business time and attention to the performance of
his duties and responsibilities and to use his best efforts to promote and
develop the business of the Company. Subject to the approval of the
Board of Directors, which shall not be unreasonably withheld, Executive shall be
entitled to serve on corporate, civic, and/or charitable boards or committees
and to otherwise reasonably participate as a member in community, civic, or
similar organizations and the pursuit of personal investments which do not
present any material conflicts of interest with the Company.
Executive
shall be appointed President of Company’s wholly-owned subsidiary, AmTrust
International Insurance, Ltd. and as an officer of such other affiliates,
including AmTrust International Underwriters Limited, AmTrust Management
Services Limited, IGI Group and AmTrust Nordic AG, as, in the discretion of
Company, is appropriate and necessary to carry out his duties and
responsibilities, reporting on a day-to-day basis directly to the president and
CEO of the Company. If elected or appointed, Executive shall serve on
the Boards of Directors of the Company or its affiliates without additional
compensation.
2.
Employment
Period.
For a period commencing on the Effective Date hereof
and ending on December 31, 2013 (the “Employment Period”), subject always to
Clauses 7(a) and and 7(b), the Company hereby employs Executive in the
capacities herein set forth. Executive agrees, pursuant to the terms
hereof, to serve in such capacities for the Employment Period. This
Agreement shall renew for successive three year periods unless one of the
parties provides written notice of not less than one hundred eighty days prior
to the end of the Employment Period or any successive Employment Period that the
party will not renew the Agreement.
3.
Compensation and
Benefits.
(a)
Salary. The Company shall pay or cause an affiliate
to pay Executive a salary at the rate of Three Hundred Fifty Thousand Pound
Sterling (£350,000) per annum through 31 December 2010 and, effective 1 January
2011, at the rate of Four Hundred Fifty Thousand Pound Sterling (£450,000) per
annum (“Salary”), payable in accordance with the Company’s normal payroll
process. Executive acknowledges and agrees that Salary is inclusive
of any amount payable by Company for any pension plan for the benefit of
Executive. Executive shall be entitled to a salary review annually as
of each January 1
st
during
the Employment Period. Such salary review shall be based entirely on merit and
any salary adjustments shall be determined by the Board of Directors of the
Company solely in its discretion.
(b) Profit
Bonus. (i) Executive shall receive an annual bonus equal
to ten percent (10%) of the Subject Profits, as defined herein, for each
calendar year during the Employment Period or any successive Employment Period;
provided that the Subject Profits are no less than seventy-five (75%) of the
Profit Target. Effective as of the calendar year ending December 31,
2010, the Profit Bonus shall not exceed the Profit Bonus cap, which shall be the
amount equal to (x) three times Executive’s then current Salary if the Subject
Profits are more than 110% of the Profit Target; (y) two times Executive’s then
current Salary if the Subject Profits are 110% or less, but greater than 100% of
the Profit Target; and (z) Executive’s then current Salary if the Subject
Profits are 100% or less, but equal to or greater than 75% of the Profit Target.
For purposes of computing the Profit Bonus, “Subject Profits” shall mean
Company’s pre-tax net operating income exclusive of extraordinary items and
investment income or loss, arising from special risk and extended warranty
business written by Company and its affiliates under the direct or indirect
supervision of Executive (“Subject Business”), as determined by Company’s
independent public accountants whose determination thereof shall be final,
binding and conclusive. “Profit Target” means, for each calendar year
in the Employment Period, the greater of the Subject Profits for the preceding
calendar year and the Base Line Profit. “Base Line Profit” means the
Subject Profits for calendar year 2008.
(ii) The
Profit Bonus payable pursuant to this Section 3(b) shall be paid in cash or
stock options, restricted stock, restricted stock units or other form of equity
(collectively, “Equity”) as determined by the Board of Directors, in its sole
discretion, provided, however, that no less than one third of the Profit Bonus
shall be payable in Equity.
(iii) The
Profit Bonus for each year shall be paid by March 31 of the calendar year
following the calendar year for which such Profit Bonus was earned, but no later
than the date bonuses are generally paid to other senior executives of the
Company.
(iv)
The Profit Bonus to which Executive may be entitled under this
Section 3(b) shall be made and subject to the terms of the AmTrust Financial
Services, Inc. 2007 Executive Performance Plan.
(c)
Executive may also receive other bonus payments determined at the
sole discretion of the Board of Directors (“Discretionary Bonus”).
(d)
Executive shall also be entitled to the following
benefits:
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(i)
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five
(5) weeks of paid vacation for each twelve (12) months of the Employment,
or such greater period as may be approved from time to time by Board of
Directors to be taken at times mutually convenient to the executive and
the Company. Unused vacation time shall not be carried over to
any subsequent calendar year;
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(ii)
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paid
holidays and any and all other work-related leave (whether sick leave or
otherwise) as provided to the Company’ other executive
employees. Notwithstanding the foregoing, in the event of a
serious illness or incapacity, Executive shall be entitled to receive
salary and benefits for six calendar months in any twelve month period;
and
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(iii)
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Executive
will participate in such benefit schemes to which executive employees of
the United Kingdon affiliates of Company, their dependents and
beneficiaries generally are entitled during the Employment Period and,
including, without limitation, private medical insurance, permanent health
insurance, life assurance, retirement plans and other present or successor
plans and practices of Company for which executive employees, their
dependents and beneficiaries are
eligible.
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4.
Reimbursement of
Expenses.
The Company recognizes that Executive, in performing
Executive’s functions, duties and responsibilities under this Agreement, may be
required to spend sums of money in connection with those functions, duties and
responsibilities for the benefit of the Company and, accordingly, shall
reimburse Executive for travel and other out-of-pocket expenses reasonably and
necessarily incurred in the performance of his functions, duties and
responsibilities hereunder upon submission of written statements and/or bills in
accordance with the regular procedures of the Company in effect from time to
time.
5.
Disability.
In
the event that Executive shall be unable to perform because of illness or
incapacity, physical or mental, all the functions, duties and responsibilities
to be performed by him hereunder for a total period of six (6) months during any
consecutive twelve (12) month period, the Company may terminate his employment
and this Agreement effective on or after the expiration of such period (the
“Disability Period”) upon five (5) business days’ written notice to Executive
specifying the termination date (the “Disability Termination
Date”). The Company shall pay to Executive an amount equal to his
Salary, at the rate in effect immediately before such termination, for the
remainder of the Employment Period or one year, whichever is greater, in
accordance with the Company’s general payroll practices and commencing with the
first payroll coincident with or next following the Disability Termination Date,
Profit Bonus earned to the Disability Termination Date, but not yet paid to him,
and any reimbursement of expenses due him through the date of termination,
except that Salary shall be offset by the amount any insurance afforded to
Executive by the Company which provides benefits to Executive in the event of
termination for disability. Executive and Company acknowledge and
agree that Company, in accordance with Clause 3(e)(iii), shall afford Executive
permanent health insurance, which is intended to provide benefits to Executive
in the event of termination for disability pursuant to this Clause 5 or
otherwise.
6.
Death.
In
the event of the death of Executive during the Employment Period, this Agreement
and the employment of Executive hereunder shall terminate on the date of death
of Executive. The Company shall pay the Executive’s heirs or legal
representatives his Salary, at the rate in effect immediately before such
termination, for the remainder of the Employment Period or one year, whichever
is greater, in accordance with the Company’s general payroll practices and
commencing with the first payroll date coincident with or next following the
Executive’s death, Profit Bonus earned to the date of his death, but not yet
paid to him, and any unreimbursed expenses due him through the date of
termination.
7.
Termination and
Non-Renewal.
(a) Non-Renewal
or Summary Termination By Company. In the event that the Company (i)
in accordance with Clause 2, does not renew this Agreement upon the expiration
of the initial Employment Period or any successive Employment Period, or (ii)
terminates this Agreement for any reason (including pursuant to clause 5 above)
other than for Gross Misconduct, as defined below, during any Employment Period,
Executive, as the case may be, upon non-renewal or as an alternative to notice
of non-renewal provided in Clause 2, shall be entitled to:
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(1)
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Within
seven days of the effective date of termination or non renewal, Salary for
a period of one year from the original expiration date of the subject
Employment Period, or one year from the effective date of termination or
non-renewal, whichever is greater.
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(2)
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Profit
Bonus on all Subject Business written through the date of termination,
through the expiration of such Subject Business, for a maximum period of
five years from the date of termination. For the avoidance of
doubt, Subject Business written through the date of termination shall
include only policies or contracts which are in effect as of the date of
termination.
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(b) Summary
Termination by Company. The Company may discharge Executive for Gross
Misconduct at any time. Gross Misconduct shall include (i) a material
and serious breach of this Agreement by Executive, but only if such material and
serious breach is not cured within thirty (30) days following written notice by
the Company to Executive of such breach, assuming such breach may be cured; (ii)
Executive is convicted of any act or course of conduct involving moral
turpitude; or (iii) Executive engages in any willful act or willful course of
conduct constituting an abuse of office or authority which significantly
adversely affects the business or reputation of the Company or
Executive. Any written notice by the Company to Executive pursuant to
this Clause 7 shall set forth, in reasonable detail, the facts and circumstances
claimed to constitute the Gross Misconduct. If Executive is
discharged for Gross Misconduct, the Company, without any limitations on any
remedies it may have at law or equity, shall have no liability for salary or any
other compensation and benefits to Executive after the date of such
discharge.
(c) In
the event that Executive, in accordance with Clause 2, does not renew this
Agreement for a successive Employment Period solely for the purposes of
Retirement, which means that Executive has reached retirement age as defined
under the laws of the United Kingdom, and has ceased working on a substantially
full-time basis, Executive shall be entitled to Profit Bonus on all Subject
Business written through the end of the Employment Period through expiration of
the Subject Business for a maximum period of five years from the end of the
Employment Period.
8.
Non-Disclosure of
Confidential Information.
“Confidential Information” means all
information known by Executive about the Company’ business plans, present or
prospective customers, vendors, products, processes, services or activities,
including the costing and pricing of such services or activities, employees,
agents and representatives. Confidential Information does not include
information generally known, other than through breach of a confidentiality
agreement with any of the Company’, in the industry in which the Company engages
or may engage. Executive will not, while this Agreement is in effect
or after its termination, directly or indirectly, use or disclose any
Confidential Information, except in the performance of Executive’s duties for
the Company, or to other persons as directed by the Board of
Directors. Executive will use reasonable efforts to prevent
unauthorized use or disclosure of Confidential Information. Upon
termination of employment with the Company, Executive will deliver to the
Company all writings relating to or containing Confidential Information,
including, without limitation, notes, memoranda, letters, drawings, diagrams,
and printouts, including any tapes, discs or other forms of recorded
information. If Executive violates any provision of this Clause while
this Agreement is in effect or after termination, the Company specifically
reserve the right, in appropriate circumstances, to seek full indemnification
from Executive should the Company suffer any monetary damages or incur any legal
liability to any person as a result of the disclosure or use of Confidential
Information by Executive in violation of this Clause.
9.
Return of Corporate
Property
. Executive acknowledges and agrees that all notes,
records, reports, sketches, plans, unpublished memoranda or other documents,
whether in paper, electronic or other form (and all copies thereof), held by
Executive concerning any information relating to the business of the Company,
whether confidential or not, are the property of the
Company. Executive will deliver to the Company at the termination or
expiration of the Employment Period, and at any other time the Company may
request, all equipment, files, property, memoranda, notes, plans, records,
reports, computer tapes, printouts and software and other documents and data
(and all electronic, paper or other copies thereof) belonging to the Company
which includes, but is not limited to, any materials that contain, embody or
relate to Confidential Information, Work Product (as defined in Section 10
below) or the business of the Company, which he may then possess or have under
his control.
10.
Intellectual Property
Rights
. Executive acknowledges and agrees that all inventions,
technology, processes, innovations, ideas, improvements, developments, methods,
designs, analyses, trademarks, service marks, and other indicia of origin,
writings, audiovisual works, concepts, drawings, reports and all similar,
related, or derivative information or works (whether or not patentable or
subject to copyright), including but not limited to all patents, copyrights,
copyright registrations, trademarks, and trademark registrations in and to any
of the foregoing, along with the right to practice, employ, exploit, use,
develop, reproduce, copy, distribute copies, publish, license, or create works
derivative of any of the foregoing, and the right to choose not to do or permit
any of the aforementioned actions, which relate to the Company’s actual or
anticipated business, research and development or existing or future products or
services and which are conceived, developed or made by Executive prior to or
while employed by the Company (collectively, the “Work Product”) belong to the
Company. All Work Product created by Executive while employed by the
Company will be considered “work made for hire,” and as such, the Company is the
sole owner of all rights, title, and interests therein. All
other rights to any new Work Product and all rights to any existing Work
Product, including but not limited to all of Executive’s rights to any
copyrights or copyright registrations related thereto, are conveyed, assigned
and transferred to the Company pursuant to this Agreement. Executive
will promptly disclose and deliver such Work Product to the Company and, at the
Company’s expense, perform all actions reasonably requested by the Company
(whether during or after the Employment Period) to establish, confirm and
protect such ownership (including, without limitation, the execution of
assignments, copyright registrations, consents, licenses, powers of attorney and
other instruments).
11.
Restrictive
Covenant.
(a)
Prohibited
Activities
. Subject always to the Company honouring the
payment provided for under clause 7(a), Executive agrees that he shall not
(unless he has received the prior written consent of the Company), during the
period beginning on the date of termination of employment and during the term of
this Agreement and ending two (2) years thereafter (the “Restriction Period”),
directly or indirectly, for any reason, for his own account or on behalf of or
together with any other person or firm:
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(i)
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hire
or solicit for employment or call, directly or indirectly, through any
person or firm, on any person who is at that time (or at any time during
the one year prior thereto) employed by or representing the Company or its
affiliates with the purpose or intent of attracting that person from the
employ or representation of the Company or its
affiliates;
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(ii)
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call
on, solicit or perform services for, directly or indirectly through any
person or firm, any person or firm that at that time is, or at any time
within the one year prior to that time was, a customer of the Company or
its affiliates or any prospective customer that had or, to the knowledge
of Executive, was about to receive a business proposal from the Company or
its affiliates, for the purpose of soliciting or selling any product or
service in competition with the Company or its affiliates;
or
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(iii)
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call,
directly or indirectly through any person or firm, on any entity which has
been called on by the Company or an affiliate in connection with a
possible acquisition by the Company or an affiliate with the knowledge of
that entity’s status as such an acquisition candidate, for the purpose of
acquiring that entity or arranging the acquisition of that entity by any
person or firm other than the Company or the
affiliate.
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(b)
Damages
. Because
of (i) the difficulty of measuring economic losses to the Company as a result of
any breach by Executive of the covenants in Clauses 11(a), and (ii) the
immediate and irreparable damage which could be caused to the Company for which
they would have no other adequate remedy, Executive agrees that the Company may
enforce the provisions of Clause 11(a) by injunction and restraining order
against Executive if he breaches any of said provisions, without necessity of
providing a bond or other security.
(c)
Reasonable
Restraint
. The parties hereto agree that Clauses 11(a) and
11(b) impose a reasonable restraint on Executive in light of the activities and
business of the Company on the date hereof and the current business plans of the
Company.
(a) Notwithstanding
anything to the contrary in this Agreement, (1) if at the time of Executive’s
termination of employment with the Company, Executive is a “specified employee”
as defined in Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”) and the deferral of the commencement of any payments or benefits
otherwise payable hereunder as a result of such termination of employment is
necessary in order to prevent any accelerated or additional tax under Section
409A of the Code, then the Company will defer the commencement of the payment of
any such payments or benefits hereunder (without any reduction in such payments
or benefits ultimately paid or provided to Executive) until the date that is six
months following Executive’s termination of employment with the Company (or the
earliest date as is permitted under Section 409A of the Code) and (2) if any
other payments of money or other benefits due to Executive hereunder could cause
the application of an accelerated or additional tax under Section 409A of the
Code, such payments or other benefits shall be deferred if deferral will make
such payment or other benefits compliant under Section 409A of the Code, or
otherwise such payment or other benefits shall be restructured, to the extent
possible, in a manner, determined by the Board of Directors, that does not cause
such an accelerated or additional tax. The Company shall consult with
Executive in good faith regarding the implementation of the provisions of this
Section 12.
(b) The
intent of the parties is that payment and benefits under this Agreement comply
with Section 409A of the Code and, accordingly, to the maximum extent permitted,
this Agreement shall be interpreted to be in compliance therewith. In
no event whatsoever shall the Company be liable for any additional tax, interest
or penalty that may be imposed on Executive by Section 409A of the
Code.
13.
Construction.
If
the provisions of Clause 11 should be deemed unenforceable, invalid, or
overbroad in whole or in part for any reason, then any court of competent
jurisdiction designated in accordance with Clause 15 is hereby authorized,
requested, and instructed to reform such Clause to provide for the maximum
competitive restraint upon Executive’s activities (in time, product, geographic
area and customer or employee solicitation) which shall then be legal and
valid.
14.
Injunctive Relief;
Damages.
Executive agrees that violation of or threatened
violation of any of Clauses 8, 9, 10 or 11 would cause irreparable injury to the
Company for which any remedy at law would be inadequate, and the Company shall
be entitled in any court of law or equity of competent jurisdiction to
preliminary, permanent and other injunctive relief against any breach or
threatened breach of the provisions contained in any of said Clauses 8, 9, 10 or
11 hereof, without providing bond or other security, and such compensatory
damages as shall be awarded. Further, in the event of a violation of
the provisions of Clause 9, the Restriction Period referred to therein shall be
extended for a period of time equal to the period that any violation
occurred.
15.
Jurisdiction and
Venue.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York. The Company and
Executive hereby each consents to the exclusive jurisdiction of the Supreme
Court of the State of New York or the United States District Court for the
Southern District of New York with respect to any dispute arising under the
terms of this Agreement and further consents that any process or notice of
motion therewith may be served by certified or registered mail or personal
service, within or without the State of New York, provided a reasonable time for
appearance is allowed. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each party hereby irrevocably
and unconditionally waives any right such party may have to a trial by jury in
respect or any litigation directly or indirectly arising out of or relating to
this agreement, or the breach, termination or validity of this Agreement, or the
transactions contemplated by this Agreement. The parties further
agree that any judgment, order or injunction granted by any court within the
State of New York shall be enforceable in any jurisdiction in which the Company
or its affiliates do business.
16.
Indemnification.
To
the fullest extent permitted by, and subject to, the Company’ Certificates of
Incorporation and By-laws, the Company shall indemnify and hold harmless
Executive against any losses, damages or expenses (including reasonable
attorney’s fees) incurred by him or on his behalf in connection with any
threatened or pending action, suit or proceeding in which he is or becomes a
party by virtue of his employment by the Company or any affiliates or by reason
of his having served as an officer or director of the Company or any other
corporation at the express request of the Company, or by reason of any action
alleged to have been taken or omitted in such capacity.
17.
Severability.
If
any provision of this Agreement is held to be invalid, illegal, or
unenforceable, that determination will not affect the enforceability of any
other provision of this Agreement, and the remaining provisions of this
Agreement will be valid and enforceable according to their terms.
18.
Successors to
Company.
Except as otherwise provided herein, this Agreement
shall be binding upon and inure to the benefit of Executive and the Company and
any successor or assign of the Company, including, without limitation, any
corporation acquiring, directly or indirectly, all or substantially all of the
assets of the Company, whether by merger, consolidation, sale or otherwise (and
such successor shall thereafter be deemed embraced within the term “Company” for
the purposes of this Agreement), but shall not otherwise be assignable by the
Company. The services to be provided by Executive hereunder may not
be delegated nor may Executive assign any of his rights hereunder.
19.
No
Restrictions
. Executive represents and warrants that as of the
date of this Agreement Executive is not subject to any contractual obligations
or other restrictions, including, but not limited to, any covenant not to
compete, that could interfere in any way with his employment
hereunder.
20.
Personal
Data.
Executive
acknowledges and agrees that Company shall process certain personal data
regarding him outside of the European Economic Area in
connection
with personnel administration and Company management.
21.
Collective
Agreements.
There are
no collective agreements that directly affect the terms and conditions of
Executive’s employment.
22.
Miscellaneous.
(a) This
Agreement constitutes the entire understanding of the parties with respect to
the subject hereof, may be modified only in writing, is governed by laws of New
York, without giving effect to the principles of conflict of laws thereof, and
will be binding and inure to the benefit of Executive and Executive’s personal
representatives, and the Company, their successors and assigns.
(b) If
Executive should die while any amount would still be payable to him under this
Agreement if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement to
Executive’s estate or legal representative.
(c) The
failure of any of the parties hereto to enforce any provision hereof on any
occasion shall not be deemed to be a waiver of any provision or succeeding
breach of such provision or any other provision.
(d) All
notices under this Agreement shall be given by registered or certified mail,
return receipt requested, directed to parties at the following addresses or to
such other addresses as the parties may designate in writing:
If to the Company:
AmTrust Financial Services,
Inc.
59 Maiden Lane, 6
th
Floor
New York, New York 10038
Attention: Barry D.
Zyskind
If to Executive:
Max G.
Caviet
Ashford
House 56 Tilt Road
Cobham
Surrey KT11 3HQ
(e) In
furtherance and not in limitation of the foregoing, this Agreement supersedes
any employment agreement between the Company and Executive, written or oral, and
any such agreement hereby is terminated and is no longer binding on either
party.
23.
Key Man Insurance
Authorization
. At any time during the term of this Agreement,
the Company will have the right (but not the obligation) to insure the life of
Executive for the sole benefit of the Company and to determine the amount of
insurance and type of policy. The Company will be required to pay all
premiums due on such policies. Executive will cooperate with the
Company in taking out the insurance by submitting to physical examination, by
supplying all information required by the insurance company, and by executing
all necessary documents. Executive, however, will incur no financial
obligation by executing any required document, and will have no interest in any
such policy.
24.
Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
deemed to be duplicate originals.
AMTRUST
FINANCIAL SERVICES, INC.
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By:
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/s/ Barry D. Zyskind
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/s/ Max G. Caviet
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Barry
D. Zyskind
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Max
G. Caviet
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